PCRLJ 2020 Judgments

2020 P Cr. L J 368

[Federal Shariat Court]

Before Mehmood Maqbool Bajwa and Syed Muhammad Farooq Shah, JJ

ABDUL BAQI---Appellant

Versus

DAWOOD and another---Respondents

Criminal Appeal No. 35-Q of 2008, decided on 27th March, 2019.

(a) Criminal trial---

----Benefit of doubt---Principle---Conviction cannot be based on high probabilities---Suspicion however strong cannot take place of proof---Prosecution was bound to prove its case beyond shadow of doubt---When two views are possible, view in favour of accused has to be given preference.

Ghulam Hussain alias Hussain Bakhsh v. The State and another PLD 1994 SC 31; Qurban Hussain alias Ashiq v. The State 2010 SCMR 1592 and Intezar Hussain v. Hamza Ameer and others 2017 SCMR 633 rel.

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

----Ss. 11 & 16---Criminal Procedure Code (V of 1898), S. 417(2A)---Kidnapping to compel for marriage---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Complainant was father of abductee and was aggrieved of acquittal of accused by Trial Court---Validity---Accused could not be connected in commission of alleged offence charged with, as material contradictions and inconsistent evidence was not trustworthy or beyond shadow of reasonable doubt---Single circumstance creating reasonable doubt with reference to guilt of accused was sufficient to grant premium to accused not as a matter of grace and concession but as a matter of right---Scope of interference in appeal against acquittal was the narrowest and limited because after acquittal, accused was presumed to be innocent, in other words, presumption of innocence was doubled---Federal Shariat Court declined to interfere in judgment of acquittal passed by Trial Court as there was hardly any improbability or infirmity and was based on sound and cogent reasons---Appeal was dismissed in circumstances.

Aminullah v. The State PLD 1976 SC 362 and Rohtas Khan v. The State 2010 SCMR 566 ref.

(c) Constitution of Pakistan---

----Art. 203-D---Criminal Procedure Code (V of 1898), S. 417---Appellate jurisdiction of Federal Shariat Court---Preconditions---Appellate jurisdiction under S. 417, Cr.P.C. can be exercised by Federal Shariat Court if gross injustice has been done in administration of criminal justice, wherein findings given by Trial Court are perverse, illegal and based on misreading of evidence, leading to miscarriage of justice or where reasons advanced by Trial Court are wholly artificial.

Abdul Karim Khan Yousafzai for Appellant.

Khalil-ur-Rehman for Respondent No. 1.

Muhammad Naseem Khan Kakar, Additional Prosecutor General, Balochistan for the State.

2020 P Cr. L J 799

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ

MUHAMMAD USMAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 2/L of 2019, decided on 14th November, 2019.

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

----S. 10(3)---Penal Code (XLV of 1860), S. 458---Qanun-e-Shahadat (10 of 1984), Art. 150---Juvenile Justice System Ordinance (XXII of 2000), S. 4--- Zina-bil-jabr--- Appreciation of evidence--- Hostile witness---Delay in lodging FIR---Maxim: Falsus in uno falsus in omnibus---Applicability---Chemical examination report---Scope---Complainant lodged FIR against accused, who was a juvenile, for committing Zina-bil-jabr on complainant's daughter in her house---Trial Court convicted and sentenced accused to imprisonment for a term of 15 years---Validity---Narration in FIR by complainant and denied by her during cross-examination, when confronted in court, made her statement unreliable, distrustful and unworthy of reliance---Federal Shariat Court ruled out statement of complainant from consideration particularly when she testified that police had obtained her signature on a blank paper and that report was not read over to her---Medico-legal Certificate reflected no sign of violence on body of victim with exception of a bruise below left eye which was of no help to case of prosecution as it was never the case of victim that she was beaten by accused causing injury below left eye---Sending of swabs to office of chemical examiner and according to report were found to be stained with semen could not be relied upon because grouping of semen were not done to match semen of accused---Potency of accused with regard to sexual intercourse was immaterial and inconsequential---Delay in FIR was not explained by prosecution that gave rise to suspicion that FIR was lodged after consultation and deliberation to cook up a false story and implicate accused---Federal Shariat Court set aside conviction and sentence awarded to accused by Trial Court and acquitted him of charge as prosecution had failed to prove culpability of accused---Verdict of guilt recorded by Trial Court was based on reasons alien to prevalent law and evidence---Appeal was allowed in circumstances.

Muhammad Boota v. The State 1984 SCMR 560; The State v. Abdul Ghaffar 1996 SCMR 678; Sarfraz Gul v. The State PLD 2004 SC 334; Abdul Wahid Bhurt v. Ashraf 2019 YLR 487; Muhammad Sarfraz v. The State through P.G. Punjab and another PLD 2013 SC 386; Ghulam Muhammad and others v. Crown PLD 1951 Lah. 66; Tawaib Khan and another v. The State PLD 1970 SC 13; The State v. Mushtaq Ahmad PLD 1973 SC 418; Khairu and another v. The State 1981 SCMR 1136; Muhammad Nawaz v. The State 1984 SCMR 190; Anwar and another v. The State 2001 SCMR 1518; Umar Hayat v. The State 2007 SCMR 1296; Muhammad Afzal v. The State 2017 SCMR 1645; Munir Ahmad and another v. The State and others 2019 SCMR 79 and PLD 2019 SC 527 ref.

Mian Shah Abbas for Appellant.

Mirza Usman, Deputy Prosecutor General Punjab for the State.

2020 P Cr. L J 415

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

SHOUKAT ISLAM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 25 of 2016, decided on 20th May, 2019.

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

----S. 409---Criminal Procedure Code (V of 1898), S. 161---Qanun-e-Shahadat (10 of 1984), Art. 140---Criminal breach of trust by public servant---Examination of witnesses by police---Cross-examination as to previous statements in writing---Appreciation of evidence---Benefit of doubt---Scope---Allegation against accused was that he took over the charge of Utility Store and did not submit any report regarding any storage in the Utility Store---Accused had kept the store closed for many months---Store was opened in the presence of accused, stock taking was carried out and the shortage was noted down, for which the accused failed to furnish any reasonable explanation---Held; stance of prosecution that the items of various kinds were supplied to the Utility Store was not proved through documentary evidence---Prosecution was under legal obligation to exhibit the demand/supply indents to prove entrustment---Mere verbal assertion on the part of prosecution did not meet the legal requirements---Entrustment had to be proved and then mis-appropriation could be proved through cogent and convincing evidence, otherwise conviction could not be sustained on the charge of criminal breach of trust---Complainant admitted during cross-examination that annual audit was not conducted, which was a criminal negligence on the part of concerned authorities---Three out of five prosecution witnesses stated that their statements under S. 161, Cr.P.C. were not recorded by the police but the Investigating Officer stated in his examination in chief that statements of all the witnesses were recorded under S. 161, Cr.P.C.---No confidence inspiring evidence was available on record to show that the accused committed the offence for which he was charged---Prosecution had failed to connect the accused with the allegation of mis-appropriation---Appeal was allowed, in circumstances.

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

----S. 405---Criminal breach of trust---Scope---To prove criminal breach of trust entrustment has to be proved---Conviction for mis-appropriation cannot be sustained on the charge of criminal breach of trust without such proof.

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

----Art. 140---Criminal Procedure Code (V of 1898), S. 161---Cross-examination as to previous statements in writing---Examination of witnesses by police---Scope---When a witness is examined and not cross-examined, his deposition cannot be considered against the accused---Cross-examination of a witness is a Fundamental Right of accused---Concept of provision of copies of incriminating evidence under S. 265-C, Cr.P.C., at least a week before framing of charge to an accused is that he should be well aware of the incriminating evidence likely to be adduced by the prosecution and he should be provided an opportunity to prepare his defence---When a witness denies to have made a statement before police in reality he makes a deliberate effort to deprive the accused from the right of cross-examination---Such a witness also puts his credibility at stake and his evidence becomes doubtful---Court may derive an inference that he knows nothing about the incident and the police recorded his statement without examining him and put a tailored story on the file tagged with the accused---Such witness cannot be termed as a reliable witness and his evidence against the accused has to be excluded from consideration.

(d) Criminal trial---

----Prosecution, duty of---Scope---Prosecution is duty bound to prove its case against the accused beyond any shadow of doubt and cannot take advantage of any weakness of the defence.

Amjad Hussain for Appellant.

Dy. Advocate General for the State.

2020 P Cr. L J 581

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

ISLAMULLAH and others---Petitioners

Versus

The STATE---Respondent

Criminal Miscellaneous (Bail Petition) No. 102 of 2019, decided on 24th May, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 365, 365-A & 368/34---Kidnapping or abduction with intent to secretly and wrongfully confine person, kidnapping or abduction for extorting property, valuable security etc, wrongful concealment or keeping in confinement kidnapped or abducted person---Bail, refusal of---Abductee, a minor child, was recovered from the possession of the accused persons, prima facie they were involved in the abduction of minor child---Every member of gang who abduct a person was equally and vicariously liable, in a case of abduction---Attribution of specific role was not a prime consideration, if the accused were allegedly members of a gang---Families of the abuctees, in such like cases, were held in terror and they always tried as long as hope remained alive to get the abdutee recovered, therefore, they were quite reluctant to go to police station because they fear for life of the abductee---Delay in lodging of FIR was a natural phenomenon in such like cases---Accused were, prima facie, connected with the commission of alleged offence therefore, they were not entitled for concession of bail---Petition having no merits was dismissed, in circumstances.

Jehanzeb Khan for Petitioners.

Dy. AG for the State.

Raja Shakeel Ahmed for the Complainant.

2020 P Cr. L J 739

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

ATTA ULLAH---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 321 of 2019, decided on 17th January, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9, 20, 21 & 25---Possession of narcotics---Bail, grant of---Further enquiry---Recovery of 1000 grams of Charas---Raiding party despite having prior information did not obtain search warrant from a competent court and conducted the raid at the house of the accused without showing circumstances to justify such raid---Although, S. 103, Cr.P.C. was not applicable under Control of Narcotic Substances Act, 1997, but said provision did not exempt the requirement of search warrant and prior permission for entry into the residential premises for the purpose of search---Special provisions of S. 25 or Ss. 20 & 21 of Control of Narcotic Substances Act, 1997, did not as such permit violation of constitutional guarantees of privacy and dignity of man---Being a border line case in between clause "b" and clause "c" of S. 9 of the Act, required further inquiry to determine guilt of the accused---Accused was patient of hepatitis "B" as evident from the report of a diagnostic laboratory---Accused was admitted to bail, in circumstances.

Mohammad Kamran and Abdul Khaliq for Petitioner.

Additional Advocate-General for the State.

2020 P Cr. L J 912

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

AFRAZ GUL---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 224 of 2019, decided on 28th September, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Bail, refusal of---Second bail petition---Record revealed that prior to the present bail petition, accused had filed bail application before the High Court wherein he had agitated the same grounds as the present application except that one prosecution witness had turned hostile while recording his statement in the Trial Court---Trial of the case was in progress and case of the accused was at concluding stage---Comments on the evidentiary value of resiled statement of prosecution witness, were avoided by High Court lest it might prejudice the ultimate findings to be recorded by the Trial Court---Bail was refused, in circumstances.

Raja Zia-ur-Rehman for Petitioner.

Deputy Advocate-General for the State.

Basharat Ali for the Complainant.

2020 P Cr. L J 974

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

MUHAMMAD HANIF---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 311 of 2019, decided on 18th February, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 109, 34---Qatl-i-amd, abetment, common intention---Bail, refusal of---Second bail petition on the plea of alibi---Admittedly, accused had filed the present bail petition on the fresh ground that he was not present at the place of occurrence, at the relevant time---Said ground had been agitated during arguments on the previous bail petition as this ground was available to accused at that time---Grounds which were raised in previous bail petition or which were available but were not raised would be deemed to have been raised and rejected---No fresh ground, in circumstances, was available for grant of bail to the accused---Bail was refused, in circumstances.

Amjad Hussain, Islam-ud-Din, Israr Hussain and Zuhaib Ali Shah for Petitioner/accused.

Dy. Advocate General for the State.

Najeebullah Khan for the Complainant.

2020 P Cr. L J 1033

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

KASHAN MEHDI---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 209 of 2019, decided on 28th September, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 364-A, 376 & 511---Kidnapping or abducting a person under the age of fourteen, rape, attempting to commit offences punishable with imprisonment for life or for a shorter term---Bail, refusal of---Accused was directly nominated in the promptly lodged FIR with specific role of attempting to commit Zina with a minor girl---Two independent witnesses had witnessed the occurrence---Victim girl had also fully implicated the accused in the case---Offences under Ss. 376 & 364-A, P.P.C., fell within the ambit of prohibitory clause of S. 497, Cr.P.C.---Accused seemed to be a habitual offender as besides registration of present FIR, similar nature of two FIRs had also been lodged against him---Sufficient incriminating material had been collected against the accused during investigation of case---Innocent baby girl aged five years was the victim of the alleged occurrence---Accused was not entitled for concession of bail---Petition for bail being meritless was dismissed, in circumstances.

Burhan Wali for Petitioner.

Dy. Advocate General for the State.

Raja Inam-ur-Rehman and Athar Hussain for the Complainant.

2020 P Cr. L J 1117

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

REHMAT ALAM---Appellant

Versus

The STATE---Respondents

Criminal Appeal No. 25 and Criminal Revision No. 27 of 2019, decided on 6th March, 2020.

Penal Code (XLV of 1860)---

----Ss. 324, 109 & 34---Attempt to commit qatl-i-amd, abetment, common intention---Appreciation of evidence---Victim had charged the accused for stabbing him with a knife---Medico legal report had been exhibited in the Trial Court and the Medical Officer stated in examination in chief that victim was suffering from cauda-equina syndrome (fecal incontinence) due to the injuries caused and had also developed lower limb paralysis due to the injuries---Despite lengthy cross examination nothing favourable could be extracted by the defence---Weapon of offence had been recovered from the accused on his pointation---Impugned judgment passed by the Trial Court was based upon sound and valid reasons---Defence had failed to point out any material illegality in the impugned judgment which might persuade the mind of the Court to upset the verdict of conviction---Trial Court had shown leniency while awarding the sentence of 5 years' RI to the accused---Keeping in view the nature of injuries inflicted by the accused which had made the victim incapacitated for life, the amount of compensation was enhanced from Rs. 10,000/- to Rs. 300,000---Appeal against conviction was dismissed.

Nazir Ahmed for Appellant (in Criminal Appeal No. 25 of 2019).

Dy. Advocate General for the State (in Criminal Appeal No. 25 of 2019).

Burhan Wali and Usman Ghani for Petitioner (in Criminal Revision No. 27 of 2019).

Dy. Advocate General for the State (in Criminal Revision No.27 of 2019).

2020 P Cr. L J 1161

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

MUHAMMAD HASNAIN and another---Petitioners

Versus

The STATE---Respondent

Criminal Misc. No. 21 of 2020, decided on 4th February, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 380, 457, 427 & 436---Theft, lurking house-trespass or house breaking by night in order to commit offence punishable with imprisonment, mischief causing damage to the amount of fifty rupees, mischief by fire or explosive substance with intent to destroy house, etc---Bail, grant of---Further inquiry---FIR against the accused persons was lodged on the statement of the co-accused during investigation of another criminal case---No eye-witness had witnessed the occurrence---Neither any recovery was effected from the accused persons nor any confession was made by them---Accused person had not been identified in any identification parade nor there existed any evidence against them---Both the accused, as per birth registration certificate, were juveniles and they were 12 years old at the time of occurrence---Under the provisions of S. 83, P.P.C., nothing was an offence which was done by a child above, 10 years of age and under 14 years, who had not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion--Co-accused had also been discharged by the police under S. 169, Cr.P.C.---Rule of consistency applied to the case of the accused persons---Bail petition was allowed, in circumstances.

Imtiaz Hussain for Petitioners.

Dy. Advocate General for the State.

2020 P Cr. L J 1225

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmed, C.J. and Ali Baig, J

ALI JOHAR---Petitioner

Versus

SECRETARY FOREST, WILDLIFE AND PARKS GILGIT-BALTISTAN, GILGIT and another---Respondents

W.P. No. 267 of 2019, decided on 21st November, 2019.

Khyber Pakhtunkhwa Wildlife Protection (Preservation Conservation and Management) Act (V of 1975)---

----Ss. 8, 9, 10, 22, 29 & 34---Criminal Procedure Code (V of 1898), Ss. 164, 364, 243 & 103---Restriction on hunting, killing or capturing animals in Wildlife Reserve---Acts restricted in a National Park---Restriction on killing or capturing of Protected or Game animals---Controlled hunting areas---Unlawful possession of animals, trophies or meat---Penalties---Power to record statements and confessions---Examination of accused how recorded---Conviction on admission of truth of accusation---Search to be made in presence of witnesses---Appreciation of evidence---Scope---Accused allegedly got recovered a head of Ibex from his cattle shed---Magistrate had neither properly recorded the confessional statement of accused nor had he certified the statement under the mandatory provisions of S. 364(2), Cr.P.C.---Magistrate was obliged to ask the accused after he had made admission of the charge to show as to why he should not be convicted and sentenced---Purpose of S. 243, Cr.P.C. was to avoid involuntary admission---No independent marginal witness was present at the time of recovery of the head of Ibex---Constitutional petition was allowed and the impugned orders were set aside.

Raja Shakeel Ahmed and Kumail Abbas for Petitioner.

Assistant Advocate-General assisted by Tanveer Akhtar, Legal Advisor for Respondents.

2020 P Cr. L J 1305

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

BURHAN WALI and another---Petitioners

Versus

The STATE---Respondent

Criminal Miscellaneous Nos. 16 and 22 of 2020, decided on 3rd February, 2020.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 345---Penal Code (XLV of 1860), Ss. 365-B & 34---Kidnapping, abducting or inducing woman to compel for marriage etc, common intention---Pre-arrest bail, confirmation of---Compromise---Accused persons had abetted/facilitated the principal accused---Alleged abductee had appeared before the Chief Court and stated that she had entered into compromise and had forgiven the accused persons in the name of Allah Almighty and that she had no objection if ad-interim pre-arrest bail already granted to accused persons was confirmed---Although, offence under S. 365-B, P.P.C., was not compoundable, however, compromise was a ground for grant of pre-arrest bail, as complainant party was no longer willing to prosecute the matter against the accused persons---Pre-arrest bail was confirmed, in circumstances.

Mohammad Kumail for Petitioners.

Deputy Advocate General for the State.

2020 P Cr. L J 1436

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

IRAN ALI and another---Petitioners

Versus

The STATE---Respondent

Criminal Revision No. 24 of 2019, decided on 26th September, 2019.

Criminal Procedure Code (V of 1898)---

----S. 265-K---Penal Code (XLV of 1860), Ss.302 & 311---Qatl-i-amd---Power of court to acquit accused at any stage---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd---Honour killing---Scope---Accused persons assailed the dismissal of their application under S. 265-K, Cr.P.C., which was moved mainly on the ground that a compromise was effected between the parties---Murder of deceased, as evident from the FIR and final police report, was committed on account of "ghairat"---Newly born baby of the deceased was also murdered and the place of her burial was pointed out by the accused persons--- Offence of honour killing was non-compoundable---Section 311, P.P.C. placed an embargo and stipulated that the punishment for the offence of honour killing shall not be less than 10 years---Revision petition was dismissed.

2001 PCr.LJ 1636; 2014 PCr.LJ 1454; 2014 SCMR 1155; 2000 PCr.LJ 1116 and PLD 2011 Lah. 423 distinguished.

Amjad Hussain for Petitioners.

Dy. Advocate General for the State.

2020 P Cr. L J 111

[High Court (AJ&K)]

Before Raza Ali Khan, J

ZARAR ISMAIL and others---Petitioners

Versus

SENIOR SUPERINTENDENT POLICE, DISTRICT MIRPUR and others---Respondents

Writ Petitions Nos. 261 and 1936 of 2018, decided on 29th May, 2019.

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S.. 44---Writ petition---Quashing of FIR---Scope---Court had limited scope and jurisdiction in such like matters while exercising its writ jurisdiction under S. 44 of Azad Jammu and Kashmir Interim Constitution Act, 1974, therefore, the Court always refrained itself from interference with police investigation of a criminal case except in exceptional circumstances; (i) where the allegation made in the first information report or the complaint, did not prima facie constitute any offence or made out case against the accused; (ii) where the allegation in the first information report did not disclose a cognizable offence justifying an investigation by Police Officer under S. 156(ii) of Cr.P.C. except under an order of a Magistrate within the purview of S. 155(2) of Cr.P.C.; (iii) where uncontroverted allegations made in FIR or complaint and evidence collected in support of the same did not disclose the commission of any offence and make out a case against the accused; (iv) where allegation in the FIR did not constitute a cognizable offence, no investigation was permitted by a Police Officer without an order of a Magistrate contemplated under S. 155(2) of Cr.P.C.; (v) where the allegations made in FIR or complaint were so absurd and itinerantly improbable, on the basis of which no prudent person could ever reach to just conclusion that there was sufficient ground for proceeding against accused; (vi) where there was express legal bar engrafted in any of the provisions of code or concerned act providing efficacious redressal for grievance of aggrieved party and (vii) where criminal proceedings manifestly attended with mala fide and or where the proceeding was maliciously instituted with an ulterior motive.

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

----Ss. 419, 420 & 34---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Cheating by personation, cheating and thereby dishonestly inducing delivery of property, common intention---Writ---Quashment of FIR---Scope---Petitioners had sought quashment of FIR for having been registered illegally---Breach of Contract---First Information Report was filed after a period of more than three years---Contention was that matter between the parties pertained to civil liability and a civil suit for specific performance of the contract was subjudice continuation of the proceedings was an abuse of process of law--- Validity--- Criminal cases were decided on the basis of material so collected by the prosecution during the course of investigation and the evidence recorded in the Trial Court and that too, after appraisal of evidence by court in accordance with law applicable thereto---High Court could not assume the role of an investigating agency or of a Trial Court to dilate upon the factual controversies involved in the exercise of its writ jurisdiction---Criminal as well as civil proceedings can be proceeded side by side and mere filing of a suit was not a ground for quashing of FIR---Factual controversies involved in the present case could not be resolved in writ jurisdiction---Constitutional petitions were dismissed in circumstances.

Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276; Aziz Akbar and 3 others v. State through Advocate-General of Azad Kashmir 2009 YLR 1004; Nangar Kalhoro v. Province of Sindh and 6 others 2012 YLR 284; Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192 and Raja Niaz Hussain v. Muhammad Khurshid and 3 others 2005 MLD 1301 rel.

(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 44--- Constitutional petition--- Alternate remedy--- Scope---Quashing of FIR---When remedies provided under law were available writ jurisdiction could not be exercised---Report under S. 173, Cr.P.C. (challan) had been submitted before the Trial Court, therefore, petitioners could agitate all the grounds taken by them before the Trial Court---Order accordingly.

Sheikh Adil Masood for Petitioners.

Kamran Riaz Butt for Respondent No.4.

2020 P Cr. L J 147

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, C.J. and Sadaqat Hussain Raja, J

Syed BASHIR SHAH/MUBASHAR SHAH---Appellant

Versus

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

Criminal Appeal No. 28 of 2019, decided on 26th June, 2019.

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

----S. 497--- Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotics---Bail, refusal of---Scope---Accused was arrested with 1000 grams of charas---Contention of accused, inter alia, was that challan of the case had been presented before the Trial Court and he was no more required for further investigation---Trial Court, while declining bail to the accused before submission of challan, had not committed any illegality---High Court observed that accused was at liberty to move fresh bail application before the concerned court below---Appeal was dismissed.

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

----S. 497---Bail---Deeper appreciation of evidence---Scope---Deeper appreciation of evidence at bail stage is not permissible, rather a bird's eye view of the evidence has to be taken into consideration---Courts are, at the same time, not expected to pass a bail order in vacuum.

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

----S. 51---Criminal Procedure Code (V of 1898), Ss. 496 & 497---No bail to be granted in respect of certain offences---Interpretation of S. 51, Control of Narcotic Substances Act, 1997---Bail---Scope---Section 51, Control of Narcotic Substances Act, 1997 reveals that no bail can be granted in respect of offences committed under Control of Narcotic Substances Act, 1997 and provisions of Ss. 496 & 497, Cr.P.C. are expressly excluded---Elbow room is, however, left at the discretion of the court under subsection (2) of S. 51, Control of Narcotic Substances Act, 1997, where it is provided that bail should not normally be granted unless the court is of the opinion that the case is fit for grant of bail---Words "fit case for grant of bail" used in S. 51, Control of Narcotic Substances Act, 1997 depended on facts of an individual case, which rather requires more favourable circumstances appearing on record in favour of an accused for grant of bail.

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

----S. 497---Bail---Fresh application---Scope---Accused can file fresh bail application if fresh material is brought on record.

Muhammad Mushtaq and another v. The State 2007 PCr.LJ 1542 rel.

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

----S. 497---Bail---Fresh ground---Submission of challan---Scope---Submission of challan is a fresh ground for accused to move fresh bail application.

Muhammad Ibrar v. The State and another PLJ 2011 Sh. C. (AJ&K) 80 rel.

Raja Aftab Ahmad Khan for Appellant.

2020 P Cr. L J 242

AJ&K High Court

[Shariat Appellate Bench]

Before Raza Ali Khan, J

SAAD ANSARI---Petitioner

Versus

MUHAMMAD SHAFIQUE and another---Respondents

Revision Petition No. 20 of 2019, decided on 13th May, 2019.

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

----S. 72---Service on servant of state, statutory body or company---Scope---Petitioner assailed order of Trial Court whereby it closed the evidence of two witnesses---One of the witnesses had died, while the other was a police official and was in the service of the State---Trial Court had not summoned said witness through the head of the department, while adopting the procedure enunciated in S. 72, Cr.P.C.---Section 72, Cr.P.C. provided that if the person sought to be summoned was in the active service of the State or of any statutory body then he would be summoned through head of the office in which he was employed---Proper course of service process was that the summons be issued through respective department and it was illegal to ask the party to produce him on his own responsibility---Impugned order had not applied the procedure provided by law, therefore, while accepting the revision petition, order in question was set aside.

State v. Bagh Hussain and others 1980 PCr.LJ 86 rel.

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

----S. 72---Service on servant of state, statutory body or company---Scope---Section 72, Cr.P.C. deals with the procedure where the person summoned is in the service of the State---Section 72, Cr.P.C. provides that the court shall issue summons ordinarily to the head of the office in which such person is employed.

Sardar Ejaz Nazeer for Petitioner.

Nasir Farooq for Respondent No.1.

2020 P Cr. L J 461

AJ&K High Court

[Shariat Appellate Bench]

Before Ch. Mohammad Munir and Raja Sajjad Ahmad Khan, JJ

MOHAMMAD ARIF---Appellant

Versus

The STATE through Additional Advocate-General Azad Government and 3 others---Respondents

Criminal Appeal No. 23 of 2018, decided on 26th June, 2019.

Criminal Procedure Code (V of 1898)---

----S. 410---Appeal---Absence of accused---Scope---Appeal against conviction, filed by counsel of convict, is not maintainable without surrendering the convict before the court---Appeal in absentia is not maintainable.

Qadir Bakhsh and others v. The State and another PLD 2004 Quetta 39 rel.

Ch. Muhammad Ashraf Ayyaz for Appellant.

Raja Sohail, Assistant A.-G. for the State.

2020 P Cr. L J 1139

[High Court (AJ&K)]

Before Ch. Khalid Yousaf, J

BASHARAT and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Revision Petition No. 163 of 2019, decided on 31st October, 2019.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 341, 337-A, 337-F, 147, 148 & 149---Qatl-i-amd, wrongful restraint, shajjah, ghayr-jaifah, rioting, rioting armed with deadly weapon, common object---Bail, refusal of--- Rule of consistency--- Availability of corroborative material---Absconsion---Scope---Accused persons, among others, were alleged to have murdered the deceased---Accused sought bail on the ground of rule of consistency---Record revealed that role of accused persons was specifically mentioned in the FIR whereas no such allegation was attributed to the accused who was granted bail---Accused persons had remained absconders for almost seven years and injuries attributed to them were corroborated by the post mortem report, therefore, rule of consistency was not applicable in the case---Accused persons had previously been declined the relief of bail by the High Court---Points raised and decided by High Court in previous round could not be re-examined---Contemplate perusal of the statement of complainant transpired that the accused persons were prima facie connected with the alleged offences---Contradictions indicated by the accused persons related to a deeper appreciation of evidence which was not permissible at bail stage---Petition for grant of bail was dismissed, in circumstances.

2010 SCJ 504 and 2004 PCr.LJ 935 distinguished.

2008 PCr.LJ 676 and 2012 PCr.LJ 625 ref.

Abdul Lateef v. Safarish Ali Khan 2004 PCr.LJ 964 and Muhammad Younis and another v. State and another 2004 YLR 1920 rel.

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

----S. 497---Bail---Successive bail applications---Scope---Points raised and decided by the court in a previous round cannot be re-examined.

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

----S. 497---Bail---Absconsion---Scope---Mere absconsion of accused is no ground for declining bail but at the same time it is the duty of the court to see the absconsion and entire circumstances of the case.

Mirza Abdul Aziz Ratalvi for Petitioners.

Ch. Muhammad Illyas for the Complainant/Respondent.

2020 P Cr. L J 1282

[High Court (AJ&K)]

Before Ch. Khalid Yousaf, J

MUNEEB IKHLAQ---Petitioner

Versus

The STATE through Muhammad Basharat and another---Respondents

Criminal Revision Petition No. 164 of 2019, decided on 31st October, 2019.

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

----S. 497---Penal Code (XLV of 1860), Ss. 377, 322 & 34---Unnatural offences, qatl-bis-sabab, common intention--- Bail, refusal of---Availability of corroborative evidence---Scope---Allegation against accused was that he made obscene video clip of a girl (student) and sent the memory card containing video to her father for blackmailing, whereupon the girl (student), due to fear of humiliation, drank bath sweep which resulted in her death---Sufficient material was available on record which prima facie attracted S. 377, P.P.C.---High Court observed that irrespective of the fact whether act as shown in the video clipses committed or not, such an attempt was sufficient to bring the case of accused within the purview of S. 377, P.P.C., which was punishable with imprisonment for 25 years---Tentative assessment of the FIR, statements of witnesses recorded under S. 161, Cr.P.C., medical report, post-mortem report, other incriminating material collected by the investigating officer and extraordinary conduct shown by the accused revealed that the accused was prima facie connected with the alleged offences, therefore, he was not entitled for concession of bail---Case against accused fell within the ambit of prohibitory clause of S. 497, Cr.P.C.---Petition for grant of bail was dismissed, in circumstances.

Sajjad Haider v. The State 1994 MLD 1120 distinguished.

1996 SCR 29; 2003 SCR 72; 2007 PCr.LJ 78; 2014 SCMR 1227; 2013 YLR 1837 and 2018 PCr.LJ 270 ref.

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

----S. 497---Bail---Tentative assessment---Scope---Bird's eye view of the record has to be taken into consideration at bail stage and deeper appreciation of the evidence is neither permissible nor desirable---Courts, at the same time, are not expected to pass a bail order in vacuum.

Mirza Abdul Aziz Ratalvi for Petitioner.

Sh. Noman Akhter for Complainant-Respondent.

2020 P Cr. L J 59

[Islamabad]

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

GUL MUHAMMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 107 of 2015, decided on 1st July, 2019.

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

----Ss. 302, 201 & 449---Qatl-i-amd, causing disappearance of evidence of offence, giving false information to screen defenders, house-trespass in order to commit offence punishable with death---Appreciation of evidence---Accused was charged for committing murder of the deceased after trespassing the house and caused disappearance of cell phone of co-accused/wife of the deceased---Record showed that it was not disputed that accused was closely known to the deceased and his family members---Investigating Officer recorded the statement of co-accused's daughter, soon after commission of the offence---Plain reading of the said statement unambiguously showed that daughter of deceased had named accused and had also narrated the facts which were later reiterated by her when she entered the witness box as a witness---Said statement was consistent with her testimony as witness and there was no reason for said witness to have falsely implicated her mother and accused---Moreover, the statement recorded under S. 161, Cr.P.C. was of significance because it was a spontaneous narration of the facts as they took place on the night of the occurrence which had led to the murder of her father---Consistent stance and confidence inspiring deposition of said witness left no doubt that she had truly narrated the events without being influenced or tutored---No plausible explanation was found for falsely involving her mother---Investigating Officer could not have ignored the crucial statement made by said witness on the day when he had commenced investigation---Co-accused had voluntarily opted to record her confessional statement and it was obvious from the record that she had approached the Investigating Officer and, thereafter, was given sufficient time to reflect---Deposition of daughter of deceased was corroborated by other unimpeachable, credible and trustworthy evidence---Circumstances established that testimony of daughter of deceased was consistent, reliable and trustworthy, appeared to be intelligent and did not suffer from any disability to justify discarding her testimony---Co-accused had recorded her statement under S. 164, Cr.P.C. and later also recorded her version under S. 342, Cr.P.C.---Presence of accused in the house on the relevant day and at the time of occurrence was established beyond doubt---Testimonies of the prosecution witnesses were reliable and inspired confidence--- Appeal was dismissed, in circumstances.

Ulfat Hussain v. The State 2010 SCMR 247; Lal Khan v. The State 2008 SCMR 1846; Muhammad Ali v. The State 2017 SCMR 1468; Riaz Ahmed v. The State 2010 SCMR 846; G. M. Niaz v. The State 2018 SCMR 506; Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344; Muhammad Asif v. The State 2017 SCMR 486; Ulfat Hussain v. The State 2018 SCMR 313; Khalil v. The State 2017 SCMR 960; Arshad Khan v. The State 2017 SCMR 564; Zahir Yousaf and another v. The State and another 2017 SCMR 2002; Muhammad Ashraf Javeed and another v. Muhammad Umar and others 2017 SCMR 1999; Nazir Ahmed v. Muhammad Iqbal and another 2011 SCMR 527; Gulfam and another v. The State 2017 SCMR 1189; Dr Israr Ul Haq v. Muhammad Fayyaz 2007 SCMR 1427 and Riaz Masih alias Mithoo v. The State 1995 SCMR 1739 ref.

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

----Ss. 302, 201 & 449---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, causing disappearance of evidence of offence, giving false information to screen defenders, house-trespass in order to commit offence punishable with death--- Appreciation of evidence---Identification parade--- Scope--- Identification parade was inconsequential where accused-appellant was a close family friend of the deceased and known to every member of his family, including daughter of the deceased.

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

----Ss. 302, 201 & 449---Qatl-i-amd, causing disappearance of evidence of offence, giving false information to screen defenders, house-trespass in order to commit offence punishable with death---Appreciation of evidence---Recovery of crime empty, weapon and phone data---Reliance---Scope---Record showed that the crime empty recovered from the crime scene by the Investigating Officer had matched the crime weapon which was taken into possession during the course of investigations---Report submitted by the Laboratory was positive---Data of the cell phone which was in the use of co-accused, read with the testimony of her daughter substantiated that accused and co-accused were in contact with each other and that the latter had visited the house of the deceased during the day on the date when the occurrence had taken place---In such state of affairs, the prosecution had established the guilt of both the accused-appellants beyond reasonable doubt, in circumstances---Appeal was dismissed accordingly.

Ilyas Khan and Miss Kashifa Niaz Awan for Appellant.

Muhammad Atif, State counsel for Respondent.

2020 P Cr. L J 130

[Islamabad]

Before Aamer Farooq, J

ATIF MUHAMMAD KHAN---Petitioner

Versus

The STATE through Station House Officer Police Station Lohi Bher, Islamabad and 2 others---Respondents

Writ Petitions Nos. 2650 and 2495 of 2015, decided on 2nd October, 2019.

Criminal Procedure Code (V of 1898)---

----S. 173---Penal Code (XLV of 1860), Ss. 365-A, 511, 420, 468, 506(ii), 120-B & 116---Kidnapping, forgery, criminal conspiracy and criminal intimidation---Magistrate, powers of---Accused persons were aggrieved of order passed by Magistrate who disagreed with cancellation report prepared by police discharge of accused---Validity---Held, Magistrate before whom report under S. 173, Cr.P.C. was filed could either agree with the same or disagree---Disagreement had to be based on cogent ground but should not amount to interference in investigation of matter---Conclusion reached by investigating officer, if was discrepant on face of record and seemed to be based in violation of law or facts and circumstances of case could be interfered with---Magistrate while doing so and disagreeing with report had to render reasoned and speaking order---Magistrate while scrutinizing report filed by investigating officer though did not act as judicial officer but did so in administrative capacity---Order passed should have attributes of judicial order inasmuch as same was to be based on cogent grounds and law---Magistrate, in the present case, not only after examination of record placed before him disagreed with report in very clear terms pointed out discrepancies in the investigation---Order passed by the Magistrate was a speaking one based on record as Magistrate did not direct investigating officer to present challan in any particular way rather direction was to comply with mandate of law provided in S. 173, Cr.P.C.---High Court declined to interfere in order passed by the Magistrate as same was well reasoned and in consonance with mandate of law--- Constitutional petition was dismissed, in circumstances.

Muhammad Farooq Qureshi v. Judicial Magistrate Section 30 and 2 others 2010 PCr.LJ 261 distinguished.

Muhammad Ashraf alias Bhuller v. The State 2008 YLR 1462; Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31; Mst. Eram and 4 others v. Muhammad Adnan Chaudhry and another 2010 YLR 1580; Muhammad Ismail Tariq v. The State and 3 others 2005 PCr.LJ 1187 and Safdar Ali v. Zafar Iqbal and others 2002 SCMR 63 ref.

Ahmed Bashir for Petitioners.

2020 P Cr. L J 170

[Islamabad]

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

HAROON-UR-RASHID and 3 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 129-T of 2013, decided on 1st July, 2019.

(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---Prosecution case was that a police party had visited an area for conducting investigation of criminal case registered under S. 506, P.P.C. where accused made firing at on duty Police Constable, who died---Record showed that the testimonies of the prosecution witnesses confirmed that neither the deceased nor the other officials were in uniform---Nothing was available on record to show that complainant had left the police station and that his presence at the crime scene was in connection with the investigation of a criminal case---Nothing on record to show that the accused-appellants were nominated as accused in the criminal case which was being investigated---While two of the accused-appellants had managed to flee from the crime scene the other two were arrested without resistance, would not appeal to a reasonable prudent mind---To the extent of arrested accused persons, the prosecution had failed to bring on record any reliable, confidence inspiring and unimpeachable evidence to prove their involvement in the commission of the offence and same was the case of third co-accused---Said co-accused was alleged to have reached the crime scene with accused and the role attributed to him was confined to firing from a firearm weapon---Ocular evidence brought on record by way of depositions of three Police Officials did not inspire confidence---Other witnesses, who were stated to be present at the time of occurrence, were given up and in this regard reasons had not been provided by the prosecution---Prosecution, in circumstances, could not prove the guilt of three co-accused persons beyond reasonable doubt---Case of accused was distinct because he had taken the plea of self-defence in his statement recorded under S. 342, Cr.P.C.---Record transpired that it was not the case of accused that the deceased was holding a firearm weapon in order to apprehend or had reason to believe that there was imminent danger or threat of being fired upon---According to his own version, while he was grappling with the deceased, he felt as though the latter was reaching to pull out a firearm weapon---Nothing on record to show that the deceased was armed with a firearm weapon at the time of the commission of the offence---Admittedly, the injuries to which the deceased had succumbed were solely attributed to firing from a firearm weapon by accused and three shots were fired from the firearm weapon used by the accused---Accused had admittedly shot the deceased three times and he was not successful in making out a case of having acted in self-defence---Admission made by accused was corroborated by the complaint and other evidence brought on record---High Court declined to interfere with the findings of the Trial Court to the extent of accused, in circumstances---Appeal to the extent of accused was dismissed and allowed in relation to the other appellants because prosecution had failed to bring on record trustworthy, consistent and unimpeachable evidence on record to prove their guilt beyond a reasonable doubt---All the three co-accused persons were acquitted by setting aside their conviction and sentences recorded by the Trial Court, in circumstances.

Tahir Mehmood alias Achoo v. The State and another 2018 SCMR 169; Waris Ali and 5 others v. The State 2017 SCMR 1572; Kashif Ali v. The Judge, Anti-Terrorism, Court No.II, Lahore and others PLD 2016 SC 951; Muhammad Ilyas v. Muhammad Abid alias Billa and others 2017 SCMR 54; Ali Sher and others v. The State 2008 SCMR 707; Muhammad Akbar v. The State 2008 SCMR 1064; Muhammad Irshad v. Allah Ditta and others 2017 SCMR 142; Liaquat Ali v. The State 2008 SCMR 95; Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596; Muhammad Mansha v. The State 2018 SCMR 772; Abdul Jabbar and another v. The State 2019 SCMR 129; Ghulam Mohy­-ud-Din alias Haji Babu and others v. The State 2014 SCMR 1034; Azhar Iqbal v. The State 2013 SCMR 383; Wajahat Ahmed and others v. The State and others 2016 SCMR 2073; Iftikhar Ahmed v. The State and others 2014 SCMR 7 and Usman alias Kaloo v. The State 2017 SCMR 622 ref.

Muhammad Javed v. The State 1996 SCMR 962; Navid Akhtar and others v. Muhammad Saeed Khan and another 2004 SCMR 1469 and Nazim alias Nazer Biswas v. The Crown 1969 PCr.LJ 1138 rel.

(b) 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---Recovery of crime weapon and empties---Reliance---Scope---Record showed that the weapons were recovered on 09.03.2011, while the empties were sent to the laboratory the next day---No explanation was furnished for the delay in sending the crime empties nor as to why they were sent on day following the recovery of the firearm weapons---Reliance could not be place on the report of Forensic Science Laboratory, in circumstances.

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

----S. 100---Self-defence, right of ---Scope---If a plea of self-defence had not been explicitly taken during the trial, either in the statement recorded under S. 342, Cr.P.C. or at the time of cross examining the prosecution witnesses, yet it remained open to the court to infer the same from evidence led during the trial.

Mushtaq Hussain and another v. State 2011 SCMR 45 rel.

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

----S. 342---Specific plea taken by accused in his statement---Effect---If accused explicitly had taken the plea of self-defence then the onus to prove its existence would be on him.

Sardar Shabbir Hussain and Azam Nazir Tarar for Appellants.

Haider Mahmood Mirza, Tahir Mahmood and Malik Awais Haider, State Counsel for Respondents.

2020 P Cr. L J 213

[Islamabad]

Before Aamer Farooq and Moshin Akhtar Kayani, JJ

Mian MUHAMMAD SHAHBAZ SHARIF and another---Petitioners

Versus

The STATE through Chairman NAB,Islamabad and 4 others---Respondents

Writ Petition No. 3716 of 2019, decided on 29th October, 2019.

(a) Pakistan Prisons Rules, 1978---

----Rr. 143 & 164---Critically ill prisoner, release of---Jurisdiction---Executive/Jail authorities have powers to release a prisoner who is critically ill.

Mian Muhammad Nawaz Sharif v. The State and others W.P. No. 352 of 2019 rel.

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

----S. 401--- Suspension of sentence--- Provincial government, jurisdiction of--- Provincial Government/Executive authority under S. 401, Cr.P.C. has ample power to suspend sentence of any prisoner on any ground.

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

----Ss. 401(1) & 401(2)---Suspension of sentence---Power of provincial government---Procedure---Provincial Government under S. 401(1), Cr.P.C. can, on its own, pass any order regarding suspension of sentence, however, where suspension is conditional the concerned prisoner has to give consent to it---Application can be made by any prisoner under S. 401(2), Cr.P.C. to Provincial Government for suspension of sentence---Where such application is made, matter is referred to court which passed sentence which would render its opinion and furnish it to Provincial Government which then decides the matter.

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

----Ss. 401 & 426---Suspension of sentence---Distinction---Jurisdiction under S. 426, Cr.P.C. and executive power under S. 401, Cr.P.C. can coexist---Appellate court as well as Provincial Government has jurisdiction and power to suspend sentence---Rationalization of two provisions would be that where convicted person/appellant seeking setting aside of sentence in appeal may also request court for suspension of sentence then in that eventuality executive power ought not be exercised under principle of propriety---Where executive authority has been exercised and while doing so principle of discretion, reasonableness and rationalization are not adhered to exercise of such power, same is subject to judicial scrutiny---If the executive takes note of matter under S. 401, Cr.P.C. that does not deprive court of its jurisdiction under S. 426, Cr.P.C. or curtail the same--- Rationale behind S. 401, Cr.P.C. is that Provincial Government on its own can scrutinize the matter and where for reasons it believes that sentence is to be suspended can do so without even convicted person agitating the matter.

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

----S. 9(a)(v) & (b)---Criminal Procedure Code (V of 1898), Ss. 401 & 426---Pakistan Prisons Rules, 1978, Rr. 143, 145 & 164--- Constitution of Pakistan, Art. 9---Suspension of sentence---Provincial Government, duty of---Medical criticality of a prisoner---Fundamental right---Petitioner was convicted and sentenced to imprisonment and was released on bail but due to multiple critical illnesses, sought suspension of sentence---Validity---Administrative control of Kot Lakhpat jail was exercised by Provincial Government and under R. 145 of Pakistan Prisons Rules, 1978 release or suspension of sentence of prisoner could be made under S. 401, Cr.P.C. by Provincial Government on recommendation of Inspector-General Prisons---Central Jail (Lahore) [Kot Lakhpat jail] was under Provincial Government and Inspector-General of the Province could have made recommendations to Provincial Government for release of petitioner on account of indisposition and Provincial Government on its own could have suspended sentence if it was believed circumstances so warranted---Application under S. 401(2), Cr.P.C. could also be made to Provincial Government for similar reasons of administrative control over central prison where petitioner was serving sentence even though, opinion was to be requisitioned from Accountability Court at Islamabad Capital Territory---High Court granted eight weeks bail to petitioner by suspending sentence handed down by Trial Court and directed that in case health of petitioner did not improve and he needed further medical attention, Provincial Government might on its own decide issue regarding suspension of sentence and petitioner could approach provincial government under S. 401(2), Cr.P.C.---Sentence of accused was suspended and bail was granted in circumstances.

K.M. Nanavati v. State of Bombay AIR 1961 SC 112; Hanumant Dass v. Vinay Kumar and others AIR 1982 SC 1052 and State of Madhya Pardesh v. Ratan Singh and others AIR 1976 SC 1552 rel.

Pervaiz Akhtar v. Muhammad Inayat and 4 others 1995 SCMR 929; Syed Saud Aziz v. The State and another W.Ps. Nos.2569/2017 and 2570/2017; Amjad Hussain Gurchani v. Sajjad Haider Khan and another 2004 SCMR 12; The State v. Syed Qaim Ali Shah 1992 SCMR 2192; Muhammad Arshad v. The State and another 1997 SCMR 1275; Mian Manzoor Ahmad Watto v. The State 2000 SCMR 107; Zakhim Khan Masood v. The State 1998 SCMR 1065; Firdous Paul v. The State 2004 SCMR 15; Haji Hussain v. The State 2018 YLR 876; Malik Muhammad Yousafullah Khan v. The State and another PLD 1995 SC 58; Bhai Khan and others v. The State PLD 1992 SC 14 and K.M. Nanavati v. State of Bombay AIR 1961 SC 112 ref.

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

----S. 9---Criminal Procedure Code (V of 1898), Ss. 401, 426 & 497---Bail, grant of---Suspension of sentence---Provincial Government, jurisdiction of---Provisions of National Accountability Ordinance, 1999 exclude jurisdiction of courts to grant bail under S. 497, Cr.P.C. as well as suspension of sentence under S. 426, Cr.P.C., however, the power to suspend or remit a sentence in terms of S. 401, Cr.P.C. was not excluded under S. 9 of National Accountability Ordinance, 1999---No bar existed even in cases of National Accountability Bureau for Provincial Government to exercise such power under S. 401, Cr.P.C.---Provisions of S. 401(4)(a), Cr.P.C. also apply to sentence passed under Criminal Procedure Code, 1898 or any other law---Section 401, Cr.P.C. is applicable to all prisoners/persons serving sentence under National Accountability Ordinance, 1999.

(g) Pakistan Prisons Rules, 1978---

----Rr. 143 & 164---Critically ill prisoner, release of---Medical care to prisoners---Duty of government---Scope---Fundamental obligation of any government to provide medical care for those whom it is punishing by incarceration---Generally, inmate relies upon prison authorities to take care of his medical needs however, if State fails to do so or nature of ailment is such that it cannot be taken care of by jail authorities, resort can be made in exceptional circumstances seeking for suspension of sentence---Denial on part of State in such exceptional circumstances to release any prisoner amounts to infliction of such unnecessary suffering which is not in accordance with present standards of decency.

Shehla Zia v. WAPDA PLD 1994 SC 693 rel.

Kh. Haris Ahmed, Barrister Munawar Iqbal Duggal, Mian M. Faisal Irfan, Barrister Jahangir Khan Jadoon, Adnan A. Khawaja, Ali Shah Gillani, Ibrahim Haroon, Zubair Khalid and Muhammad Arshad Jadoon for Petitioners.

Sardar Usman Ahmad Khan Buzdar, Chief Minister, Punjab for Respondents.

Raja Muhammad Basharat, Law Minister, Punjab for Respondents.

Sardar Ahmed Jamal Sukhera, Advocate-General, Punjab, Mushtaq Ahmed Mohal, Additional Advocate-General, Punjab, Barrister Qasim Ali Chowhan, Additional Advocate-General, Punjab, Faisal Farid Chaudhary, Additional Advocate-General, Punjab, Shaukat Rauf Siddiqui, Additional Advocate-General, Punjab and Syed Wajid Ali Gillani, Additional Advocate-General, Punjab for Respondents.

Tariq Mehmood Jahangiri, Advocate-General, Islamabad, Muhammad Nadeem Khan Khakwani, Assistant Attorney-General, Nazar Hussain Sherazi, Assistant Attorney-General, Saqlain Haider Awan, Assistant Attorney-General, Islamabad and Sadaqat Ali Jahangir, State Counsel for Respondents.

Jahanzeb Khan Bharwana, APG, NAB, Nayyer Rizvi, APG, NAB, Sardar Muzafar Ahmed Khan Abbasi, APG, NAB and Muhammad Irfan Boola, Special Prosecutor, NAB for Respondents.

2020 P Cr. L J 268

[Islamabad]

Before Aamer Farooq, J

ANEES AHMAD KHAN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Application No. 431/B of 2019, decided on 18th July, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Guarantee cheque---Completion of investigation---Further inquiry---Scope---Allegation against accused was that he issued a guarantee cheque in favour of the complainant, which on presentation for payment was dishonoured---Accused was imputed with the offence under S. 489-F, P.P.C., which did not fall within the prohibitory clause of S. 497(2), Cr.P.C.---Grant of bail in such like cases was rule and refusal an exception---Investigation against accused was concluded and the person of accused was not required for the same---Cheque issued by the accused was a guarantee cheque, which position had been affirmed by the Investigating Officer---Provisions of S. 489-F, P.P.C. were not attracted in cases of the guarantee cheque---Case against the accused was one of further inquiry---Petition for grant of post-arrest bail was allowed, in circumstances.

Tariq Bashir v. The State PLD 1995 SC 34; 2013 SCMR 51 and 2018 YLR Note 157 ref.

Jameel Hussain Qureshi for Petitioner.

S.A. Mahmood Khan Saddozai for Respondent No.2/Complainant.

2020 P Cr. L J 344

[Islamabad]

Before Aamer Farooq, J

Malik QAMAR HUSSAIN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 186 of 2015, decided on 19th July, 2019.

Penal Code (XLV of 1860)---

----Ss. 302, 337(J), 376 &34---Qatl-i-amd, hurt by poison, attempt to commit rape, common intention---Appreciation of evidence---Benefit of doubt---Ocular and medical evidence--- Contradiction--- Effect---Prosecution case was that accused persons raped and killed the sister of complainant---Record showed that the prosecution had relied heavily upon the statement of Guard/Chawkidar, however, prosecution did not tender any document to show that Guard/Chowkidar was an employee of the said Company where the deceased was working---Said Guard/Chowkidar had stated that usually the appellant picked and dropped the deceased and even on the day of occurrence he had dropped her in the morning and picked her up at about 06:00 p.m.---Contrarily complainant had stated that he dropped deceased in morning on the day of occurrence---Complainant had also stated that complainant's sister informed him about deceased being admitted in hospital, however, said sister of deceased never appeared as witness on behalf of the prosecution---Complainant had also testified that the phone call was received by sister of deceased from the appellant but the phone used was that of deceased---Call data record of the cellular phone was also not exhibited in evidence---Appellant and the deceased had entered into Nikah---Prosecution did not mention about Nikah however, in cross-examination the Investigation Officer was confronted with Nikahnama appended with challan which turned out to be correct---Evidence of Guard/Chowkidar and complainant, in the light of such discrepancies, was not confidence inspiring---Medical report suggested that there were traces of drug 'benzodiazepine' in the system of deceased but no quantity of such drug was mentioned therein---Medical witnesses had not opined anything about the quantity which was required to cause death of a person in case of overdose of the said tranquillizer---Reportedly, there were traces of semen which was borne from the Chemical Examination Report, however, Medical Officers had testified that there were no traces or any marks of violence on the body of the deceased---Medico-legal Officer had testified that she referred twelve samples for chemical examination but only two were remitted by the police authorities and there was no explanation for not sending the others---Subsequent reports were verbatim copies of the earlier ones---Medico-legal Officer in her opinion, in examination-in-chief, had stated that there was semen present in the vaginal swabs taken which was against all the medical principles on the subject inasmuch as it was in admitted position that the semen and the traces thereof remained present only for few days (3-5 days) whereas the autopsy was conducted after almost 4/5 months of the alleged occurrence---Undoubtedly, as per the autopsy report the cause of death was damage to the brain due to said drug however, there was nothing on record to establish that the said drug was administered by the appellant---Report of DNA was also negative---Circumstances established that the prosecution had failed to lead evidence to prove that the death of the deceased was caused by the appellant---Appeal was allowed and accused was acquitted by setting aside the conviction and sentence recorded by the Trial Court, in circumstances.

Jan Muhammad Khan for Appellant.

Malik Awais Haider State counsel.

Syed Ishfaq Hussain Naqvi and Syeda Sumera Naqvi for the Complainant.

2020 P Cr. L J 392

[Islamabad]

Before Mohsin Akhtar Kayani, J

KHURRAM SHAHZAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 46-B of 2018, decided on 2nd February, 2018.

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

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, grant of---Delay in commencement of trial---Completion of investigation---Scope---Accused had issued three cheques to the complainant in order to clear his financial liability, which on presentation were dishonoured---Challan had been submitted but the trial in terms of recording of evidence had not commenced---Maximum punishment for the offence under S. 489-F, P.P.C. was three years which did not fall within the prohibitory limb of S. 497, Cr.P.C.---Investigation of the case was complete and the accused was not required for further investigation---Bail could not be withheld as a measure of punishment---No chance of tampering with prosecution evidence was present, if the accused was enlarged on bail---Petitioner was admitted to post-arrest bail, in circumstances.

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

----S. 497---Bail---Prohibitory clause---Scope---Where the offence does not fall within the prohibitory clause of S. 497, Cr.P.C. grant of bail is a rule whereas, its refusal an exception.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Muhammad Tanveer v. The State PLD 2017 SC 733 ref.

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

----S. 497---Bail---Scope---Bail cannot be withheld as a measure of punishment.

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

----S. 497---Bail---Registration of other cases---Scope---Bail cannot be refused merely on the basis of registration of other cases, if the accused is otherwise entitled for the same.

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

----S. 497---Bail---Scope---Ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration.

Jameel Hussain Qureshi for Petitioner.

Haseeb Muhammad Chaudhry, Deputy Attorney-General for the State.

Syed Qamar Abbas Shamsi for Respondent No. 2/Complainant.

2020 P Cr. L J 608

[Islamabad]

Before Mohsin Akhtar Kayani, J

TARIQ MAHMOOD SHAH---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Nos. 621-B and 633-B of 2019, decided on 18th October, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 419, 420, 464, 468, 471, 473, 409 & 109---Prevention of Corruption Act (II of 1947), S. 5(2)---Cheating, making a false document, forgery for the purpose of cheating, using as genuine a forged document, making or possessing counterfeit seal, etc., with intent to commit forgery punishable otherwise, criminal breach of trust by public servant or by banker, merchant or agent, abetment and criminal misconduct---Bail, grant of---Further inquiry---Allegations against the petitioners and co-accused were that they in connivance with each other prepared and posted bogus scrolls relating to Electric Supply Company's consumer bills using fake statements along with bill stubs with fake Bank stamps thus causing colossal loss to national exchequer by misuse of authority---Record revealed that FIR was got lodged after detailed inquiry by the Federal Investigating Agency---Petitioners were not nominated in the FIR, however, they had been nominated through supplementary statement---No direct recovery was effected from the petitioners nor any incriminating articles had been recovered to connect them with the alleged crime except the statement of co-accused---Such statement could be considered at trial stage, if corroborated through independent incriminating evidence---Investigating officer had failed to point out any evidence or statement through which it could be assumed that the petitioner had prepared any bogus scrolls, bills or reconciled the statements in his office to facilitate the principal accused---Petitioners were behind the bars for the last two months and were no more required for the purpose of further investigation---No useful purpose would be achieved by placing the petitioners behind the bars due to the fact that investigation to their extent had been completed---Role of the petitioners required further inquiry and as such they were entitled for concession of post arrest bail in terms of S. 497(2), Cr.P.C.---Offences with which the petitioners were charged did not fall within the prohibitory clause of S. 497, Cr.P.C.---Petitioners were admitted to bail, in circumstances.

Ms. Qurratul Ain Ayesha for Petitioner (in Criminal Miscellaneous No. 621-B of 2019).

Raja Rizwan Abbasi and Faisal Nawaz for Petitioner (in Criminal Miscellaneous No. 633-B of 2019).

Barrister Mumtaz Ali, AAG for the State.

Faisal Bin Khurshid for Respondent No. 2/IESCO.

Sajid, Inspector FIA/I.O. along with record.

2020 P Cr. L J 671

[Islamabad]

Before Aamer Farooq and Lubna Saleem Pervez, JJ

MUHAMMAD BILAL SHEIKH---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and another---Respondents

W.P. No. 4166 of 2019, decided on 23rd January, 2020.

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

----Ss. 9 & 31-D---Constitution of Pakistan, Art. 199---Constitutional petition---Corruption and corrupt practices---Inquiry, investigation or proceedings in respect of imprudent Bank loans, etc.---Mandatory nature of S. 31-D of National Accountability Ordinance, 1999---Bail, grant of---Scope---Petitioner was President of Bank who was arrested by National Accountability Bureau (NAB) for misusing his authority by sanctioning two loans to companies which loans were in default---Contention of petitioner, inter alia, was that case was of imprudent loan which fell under S. 31-D of National Accountability Ordinance, 1999 whereby investigation could only be initiated after reference was filed by Governor State Bank of Pakistan---Validity---Finance facilities granted were in default hence case was one of defaulted and imprudent loan and in such circumstances, prima facie, S. 31-D of the National Accountability Ordinance, 1999 was attracted---No provisions existed in National Accountability Ordinance, 1999 which made imprudent loan or defaulted loan an offence, however, there was only an offence regarding willful default for which procedure was provided for initiation of investigation/inquiry---Section 31-D of National Accountability Ordinance, 1999 was a procedural provision and it was only present because subject of grant of finance and default of same was highly technical therefore regulator, that was State Bank of Pakistan should be involved directly---National Accountability Bureau therefore, had committed procedural irregularity as provision of S. 31-D of National Accountability Ordinance, 1999 was mandatory---Nothing on record existed showing accumulation of monetary benefit by petitioner or assets disproportionate to his known sources of income, and case against petitioner was one of further inquiry---High Court observed that investigation stood concluded and further incarceration of petitioner was of no use, and he was therefore admitted to bail--- Constitutional petition was allowed, accordingly.

Kohinoor Sugar Mills v. Federation of Pakistan and others 2018 PTD 821; The Commissioner of Income Tax, Lahore v. Messrs Chaudhry Dairies Ltd. 2019 PTD 452; Commissioner Inland Revenue, RTO, Rawalpindi v. Messrs Trillium Pakistan Pvt. Ltd. Rawalpindi and others 2019 SCMR 1643; Messrs Dreamland Cinema, Multan v. Commissioner of Income Tax, Lahore PLD 1977 Lah. 292; Syed Tahir Hussain and others v. Chairman, National Accountability Bureau and another 2019 YLR 788; Muhammad Saeed Mehdi v. The State and 2 others 2002 SCMR 282; Shoaib Warsi and another v. Federation of Pakistan and others PLD 2017 Sindh 243; Engineer Raj Qamar-ul-Islam and others v. National Accountability Bureau through Chairman and others 2019 PCr.LJ 582; Manzoor and 4 others v. The State PLD 1972 SC 81; Saeed Ahmed v. The State 1996 SCMR 1132; Islamuddin Shaik v. Federation of Pakistan and others PLD 2001 Kar. 419; Messrs Kaloodi International Pvt. Ltd. and another v. Federation of Pakistan and others PLD 2001 Kar. 311; Kalb-e-Ali and 2 others v. Chairman, National Accountability Bureau and 4 others 2001 PCr.LJ 565; Raheel Rasheed v. National Accountability Bureau, Islamabad through Chairman and 2 others PLD 2005 Lah. 692; Doulat Ali and another v. The State and another 2010 PCr.LJ 1311; Muhammad Nawaz v. The State through Chairman, NAB Islamabad and another PLD 2008 SC 438; Mansur-ul-Haque v. Government of Pakistan PLD 2008 SC 166; M. Anwar Saifullah Khan v. The State PLD 2002 Lah. 458; Syed Ather Hussain and others v. Chairman, National Accountability Bureau and another 2019 YLR 788; The State v. Anwar Saif Ullah Khan PLD 2016 SC 276; Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607; Himesh Khan v. The National Accountability Bureau (NAB), Lahore and others 2015 SCMR 1092; Abdul Aziz Khan Niazi v. The State through Chairman, NAB, Islamabad PLD 2003 SC 668; Tallat Ishaq v. National Accountability Bureau through Chairman and others PLD 2019 SC 112; Mian Muhammad Sharif v. National Accountability Bureau and others 2019 PCr.LJ 302; Ahsan Abbasi v. Chairman, NAB and 2 others 2011 PCr.LJ 1724; Javed Khan v. Chairman, National Accountability Bureau, Islamabad and another 2014 PCr.LJ 1100; Zakhim Khan Masood v. The State 1998 SCMR 1065; Human Rights Case No.39216-G of 2018 in the matter of slackness in the progress of pending enquiries relating to fake bank accounts etc. 2019 SCMR 332; Fawad Hassan Fawad v. The Chairman, National Accountability Bureau and others Civil Petitions Nos.1917-L of 2019; Shiekh Imran Ul Haque v. Federation of Pakistan and others W.P. No.3843 of 2019 and Muhammad Sabtain Khan v. National Accountability Bureau and others W.P. No.42682 of 2019 ref.

Syed Ali Raza and others v. Federation of Pakistan through Secretary, Ministry of Law, Islamabad and others 2019 YLR 129 dissented from.

Messrs Kaloodi International Pvt. Ltd. and another v. Federation of Pakistan and others PLD 2001 Kar. 311 and Manzoor and 4 others v. The State PLD 1972 SC 81 rel.

(b) Interpretation of statutes---

----Explanatory clauses added by amendment---Retrospective effect---Where any explanation was added for clarification to a provision of a statute, the same shall take effect retrospectively.

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

----S. 9 & Sched.---Corruption and corrupt practices---Nature of offences under the National Accountability Ordinance, 1999 ---Scope---Principal offences were provided for in S. 9 of the National Accountability Ordinance,1999 whereas offences in the Schedule to the National Accountability Ordinance, 1999 were ancillary and dependent on the principal offences.

Kohinoor Sugar Mills v. Federation of Pakistan and others 2018 PTD 821; The Commissioner of Income Tax, Lahore v. Messrs Chaudhry Dairies Ltd. 2019 PTD 452; Commissioner Inland Revenue, RTO, Rawalpindi v. Messrs Trillium Pakistan Pvt. Ltd. Rawalpindi and others 2019 SCMR 1643; Messrs Dreamland Cinema, Multan v. Commissioner of Income Tax, Lahore PLD 1977 Lah. 292 and Syed Tahir Hussain and others v. Chairman, National Accountability Bureau and another 2019 YLR 788 rel.

Mirza Mahmood Ahmad and Saad Ullah Tahir for Petitioner.

Sardar Muzaffar Ahmed Khan, Deputy Prosecutor General, NAB with Muhammad Gul Afridi, DD/CO and Mubashir Karim AD/IO for Respondents.

2020 P Cr. L J 721

[Islamabad]

Before Ghulam Azam Qambrani, J

MUHAMMAD AFZAL and another---Appellants

Versus

MUZAFFAR KHAN and 11 others---Respondents

Criminal Appeal No. 99 of 2019, decided on 9th January, 2020.

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

----Ss. 3 & 5---Land Revenue Act (XVII of 1967), S. 135---Illegal dispossession from property---Investigation and procedure---Property in question not partitioned---Effect---Appellants assailed order of Trial Court whereby they were convicted for dispossessing the complainants---Report submitted by police revealed that disputed land was in possession of the appellants since long and inquiry from the neighbours affirmed the same---Disputed property was claimed by complainants to be their ancestral property---Exact khasra numbers of the land could only be determined by the Revenue officials---Trial Court had ignored the police report as nowhere in the report it was stated that the appellants had forcibly been dispossessed by the complainants---Complainants had not produced any evidence to prove their assertion that the parties had divided the land according to their shares---All co-sharers were deemed to be owners of the land unless the land was divided/partitioned in accordance with S. 135, Land Revenue Act, 1967---No direct evidence was available against the appellants to attract the provisions of S. 3 of Illegal Dispossession Act, 2005---Matter between the parties being of civil nature, appeal was accepted.

Abdul Hameed v. Ghulam Farid and 3 others 2016 PCr.LJ 18 and Zahoor Ahmad v. The State and 3 others PLD 2007 Lah. 231 rel.

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

----S. 3---Illegal dispossession from property---Requirements---Court is required to examine as to whether property is an immovable property; secondly that the person is the owner or the property is in his lawful possession; thirdly the accused has entered into or upon the property unlawfully; fourthly that such entry was with intention to dispossess i.e. ouster, evict or driving out of possession against the will of the person in actual possession or to grab i.e. capture, seize suddenly, take greedily or unfairly or to control i.e. to exercise power or influence over what is not in one's physical possession or to occupy, i.e. holding possession, reside in or something.

Mumtaz Hussain v. Dr. Nasir Khan and others 2010 SCMR 1254 rel.

(c) Criminal trial---

----Every case has to be decided on its own peculiar circumstances.

Raja Abid Hussain Janjua for Appellants.

Ijaz Janjua for Respondents Nos. 1 - 11.

2020 P Cr. L J 792

[Islamabad]

Before Fiaz Ahmad Anjum Jandran, J

HASNAIN YASEEN---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION SIHALA, ISLAMABAD and 2 others---Respondents

Writ Petition No. 4479 of 2019, decided on 23rd January, 2020.

Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), S. 561-A---Constitutional petition---Quashing of FIR---Scope---No doubt, High Court under Art. 199 of the Constitution and S. 561-A of Criminal Procedure Code, 1898 had power to quash the FIR but such power was required to be exercised in exceptional and rare cases---High Court observed that exercise of such power in routine would not only crumble down the process but also result in devastating the exercise carried on by the investigating agency and the complainant as well before its logical conclusion---Case was at initial stage---Challan had been submitted and the prosecution had to prove its case by producing evidence of unimpeachable character---In presence of disputed questions of facts and availability of efficacious alternate remedy, normal course would not be allowed to be deflected---Accused had a remedy under Ss. 249-A, Cr.P.C./265-K, Cr.P.C., if at any stage, after taking cognizance by the Court, he was of the view that he was innocent---Constitutional petition, being without merits, was dismissed, in circumstances.

Khuda Bakhsh and Ijaz Ahmad for Petitioner.

Tahir Hameed Khan Niazi, State Counsel.

2020 P Cr. L J 830

[Islamabad]

Before Ghulam Azam Qambrani, J

EHTASHAM UL HAQ---Appellant

Versus

STATE through Advocate-General Islamabad and another---Respondents

Criminal Appeal No. 173 of 2019, decided on 11th February, 2020.

Penal Code (XLV of 1860)---

----S. 406---Criminal Procedure Code (V of 1898), Ss.249-A & 265-K---Criminal breach of trust---Acquittal without recording of evidence---Double presumption of innocence--- Documentary evidence---Complainant was aggrieved of acquittal of accused by Trial Court just after framing of charge and without recording of any evidence---Plea raised by complainant was that Trial Court acquitted the accused without deciding his application for placing documentary evidence on record---Validity---Charge was mainly hinged upon record but Trial Court instead of entertaining application of complainant or deciding the same in either way on its own merits, straightaway proceeded to acquit the accused--- Order of acquittal by Trial Court was transgression of authority and did not warrant exceptional treatment for want of exceptional circumstances---Acquittal in terms of S. 249-A, Cr.P.C. or for that matter S. 265-K, Cr.P.C. could not be equated with acquittal earned after full length trial and recording of evidence---Principle of double presumption of innocence was not attached to such order of acquittal---High Court set aside order of acquittal and remanded the case to Trial Court for proceeding in accordance with law---Appeal was allowed in circumstances.

Muhammad Muslim and another v. Muhammad Iqbal and 2 others PLJ 2004 SC 2; Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192 and Seema Fareed and others v. The State and another 2008 SCMR 839 ref.

The State through Advocate General, Sindh High Court of Karachi v. Raja Abdul Rehman 2005 SCMR 1544 rel.

Azhar Naveed Shah and Shafaq Abid for Appellant.

Ch. Muzammil Din Gujjar for Respondent No.2 (Accused in person).

Zohaib Hassan Gondal and Javaid Iqbal, ASI Police Station Shalimar for the State.

2020 P Cr. L J 931

[Islamabad]

Before Fiaz Ahmad Anjum Jandran, J

HASSAN ALI RAJA---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 35-B of 2020, decided on 12th February, 2020.

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

----Ss. 498, 435/439---Penal Code (XLV of 1860), S. 406---Criminal breach of trust---Pre-arrest bail, confirmation of---Further inquiry---Proclaimed offender---Record showed that earlier, accused was granted pre-arrest bail but he became absent and was declared proclaimed offender and later on, his bail was also got cancelled by the complainant---Alleged transaction, i.e. sale-purchase, did not, ipso facto, constitute "entrustment" and departure thereof a "criminal breach of trust"---Offence did not fall within the ambit of prohibitory clause of S. 497, Cr.P.C., even within the category of heinous crimes---Case appeared to be one of further inquiry and by holding so, he was allowed pre-arrest bail earlier, that too was a factor which, prima facie, supported the version of the accused regarding his false involvement and the fact that a civil nature lis had been attempted to be converted into criminal to settle the score---Allegation of jumping the concession of bail without repetition and keeping himself away from the process of law, in comparison with the facts, brought the pendulum down to the accused---Objection that in presence of order of cancellation of bail by the Court earlier, accused could not ask for to avail extraordinary concession of pre-arrest bail appeared to be somewhat harsh because not only the referred order was passed at his back but at the relevant time he was not a proclaimed offender, rather he was subsequently declared as such---Section 406, P.P.C., did not fall within the ambit of prohibitory clause and in the offences which were not included in the ambit of prohibitory clause, grant of bail was a rule and refusal an exception---First Information Report and the other material available on record showed that offence could be in the nature of S. 403, P.P.C., or S. 420, P.P.C., which were bailable and in such like case bail was granted as matter of right---When any accused succeeded to prove his case in the purview of further inquiry then he was entitled for bail as a matter of right and in that eventuality even remaining proclaimed offender of said accused, did not disentitle him from the bail because when there was a context between further inquiry and the proclaimed offender for the purpose of grant of bail then element of proclaimed offender would give way to the fact of further inquiry, bail being matter of right---Bail could not be withheld merely on the ground that the accused remained a fugitive from law because that was only a matter of propriety.

(b) Criminal trial---

----Criminal Jurisprudence lays emphasis to examine every criminal case in its own peculiar facts and circumstances.

(c) Administration of justice---

----Law is to be followed in its true import and not at the whims or desire of any of the parties.

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

----Ss.497 & 498---"Proclaimed offender" and "voluntary surrender"---Distinction---Some difference had to be there between proclaimed offender, who has remained subject of raids, exercise to trace whereabouts, search by investigating agency and finally caught, arrested due to efforts by the police or either during proceedings on the direction of the Court and one who himself voluntarily surrenders before the Court of law, puts himself to the mercy of the Court, seeks protection of the Court and presents himself to seek assistance of the Court/access to justice---If some benefit is not extended to the latter, in response to his volunteer act as compared to the forceful arrest by the police/agency, same will amount to denial to access to justice, he has placed/put confidence upon the administration of criminal justice system---Court believed that one who wants to avail protection of criminal justice system, should not be discouraged and penalized for his good deed because finally the matter is to be dealt with by the Court of competent jurisdiction on merits---When accused succeeds to prove his case in the purview of further inquiry then he was entitled for bail as a matter of right and in that eventuality even remaining as proclaimed offender of said accused, did not disentitle him from the bail because when there was a context between further inquiry and the proclaimed offender for the purpose of grant of bail then element of proclaimed offender would give way to the fact of further inquiry, bail being matter of right.

Qazi Adil Aziz, Advocate Supreme Court with Hassan Ali Raja on ad interim bail for Petitioner.

Tahir Hameed Khan, State Counsel.

Arif Chaudhry, Advocate Supreme Court for Respondent No.2,

2020 P Cr. L J 988

[Islamabad]

Before Mohsin Akhtar Kayani, J

BABAR MEHMOOD---Petitioner

Versus

WAQAS JAVED and another---Respondents

Criminal Miscellaneous No. 740/BC of 2019, decided on 16th January, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 420, 464, 468, 471, 473, 419, 409 & 109---Prevention of Corruption Act (II of 1947), S. 5(2)---Cheating and dishonestly inducing delivery of property, making a false document, forgery for the purpose of cheating, using as genuine a forged document, making or possessing counterfeit seal, etc, with intent to commit forgery punishable otherwise, cheating by personation, criminal breach of trust by public servant, or by banker, merchant or agent, abetment, criminal misconduct--- Bail, application for cancellation of---Accused was not nominated in the FIR, rather, he had been involved on account of statement made by his co-accused---Accused, an employee of Electric Supply Company, was not assigned any duty for clearance of any accounts, management of IT system, scrolls or data entry, through which it could be assumed that he had performed any such official act---Main allegation against accused was that he was working as sanitary worker in place of his brother---Nothing incriminating had been recovered from the accused except seal of the bank, which fact would be proved after recording of evidence---Four co-accused had been granted post arrest bail---Impugned order was within four corners of law and no illegality had been observed---Petitioner had failed to point out strong and exceptional ground, on the basis of which the post arrest bail granted to accused could be recalled---Bail granted by competent Court could only be cancelled if bail granting order was illegal, erroneous, factually incorrect or resulted into miscarriage of justice---Cancellation of bail was declined.

Faisal Bin Khurshid for Petitioner.

Ms. Qurret ul Ain Ayesha for Respondent No.1.

Barrister Mumtaz Ali, AAG, Sajid, Inspector, FIA along with record for the State.

2020 P Cr. L J 1126

[Islamabad]

Before Ghulam Azam Qambrani, J

RASHID AHMED---Appellant

Versus

MUHAMMAD MASOOD and another---Respondents

Criminal Appeal No. 206 of 2018, decided on 28th February, 2020.

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

----S.489-F---Dishonestly issuing a cheque---Appreciation of evidence---Appeal against acquittal---Prosecution case was that the accused-respondent issued a cheque towards repayment of loan amounting to Rs. 10,00,000/- which upon presentation was dishonoured due to insufficient funds---Record showed that the complainant did not produce the original cheque and dishonour slip before the police---Investigating Officer, who was very important witness of the prosecution case, had clearly deposed on oath that the accused was innocent, therefore, he had been placed in column No.02 of the report under S. 173, Cr.P.C.---Investigating Officer deposed nothing against the accused/respondent---Complainant had failed to produce on record any evidence showing that he had paid the amount to the accused/respondent---Record further revealed that as per clause-4 of the agreement dated 07.03.2016, executed between accused and Manager technical of a construction company, the accused-respondent issued two cheques as guarantee to the said company---Said circumstances showed the dispute between the parties, prima facie, was of civil nature, as the accused-respondent had issued the said cheque to the appellant as a guarantee of the construction work---As per the agreement executed between the appellant and the accused-respondent, the appellant was bound to return the said cheque to the accused-respondent meaning thereby that it was civil liability of contractual obligation---Appellant had tried to convert the civil litigation into criminal case---Admittedly the cheque was issued as a guarantee and not for repayment of amount, as such, the provisions of S. 489-F, P.P.C. were not attracted in the case---No loan was ever lent by the complainant to the accused rather amount was for the construction through labour---Complainant had failed to produce a single evidence to prove dishonest intention of the appellant nor did he show his disgrace or feeling of shame due to dishonoring of the cheque---No illegality or irregularity was found in the impugned judgment, nor the same was suffering from any misreading or non-reading or miss-appreciation of evidence, warranting interference by the court---Appeal was dismissed accordingly.

Tahir Masood Butt v. The State and another 2019 YLR 2125 and Amanat Ali v. The State and others 2014 UC 530 rel.

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

----S. 489-F---Dishonouring of cheque---Conditions---Issuance of cheque was to be with dishonest intention; purpose of issuance of cheque should be to repay a loan or to fulfil the obligation which was to be dishonoured on presentation.

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

----S. 489-F---Dishonestly issuing a cheque---Actus reus---Scope---Mere issuance of cheque and it being dishonoured by itself is not an offence, unless and until dishonesty on the part of a payer is proved.

Muhammad Anwar and others v. The State and others 2019 PCr.LJ 1244 ref.

Mian Allah Ditta v. The State and others 2013 SCMR 51 rel.

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

----S. 417--- Appeal against acquittal--- Presumption--- Double presumption of innocence is attached to the order of acquittal and interference will be unwarranted unless the acquittal is perverse and the reasons therefore are artificial and ridiculous.

Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCMR 1928 rel.

Ch. Abaid Ullah Riaz for Appellant.

Zahid Farooq Cheema for Respondent No. 1 along with Respondent No.1 in person.

Zohaib Hussain Gondal, State counsel and Malik Mazhar Javaid, State counsel along with Noor Islam, Sub-Inspector Police Station Industrial Area for the State.

2020 P Cr. L J 1179

[Islamabad]

Before Ghulam Azam Qambrani, J

MUHAMMAD ABID FAROOQ---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No. 39 of 2014, decided on 12th February, 2020.

Penal Code (XLV of 1860)---

----S. 489-F---Qanun-e-Shahadat (10 of 1984), Art. 133---Constitution of Pakistan, Art. 10-A---Dishonouring of cheque---Appreciation of evidence---Right of fair trial---Cross examination---Non-availability of advocate---Direction of High Court---Effect---Accused was convicted by Trial Court for issuing a cheque which was dishonoured on presentation and he was sentenced to imprisonment for three years---Conviction and sentence was maintained by Lower Appellate Court---Validity---Accused was unaware of the art of cross-examination and testimony of witnesses could not be tested properly---Testing the veracity and credibility of witnesses was a legal right of accused which could be achieved through proper cross-examination---High Court had issued direction for conclusion of trial but spirit of the order was meant only for a speedy conclusion of trial and not to deprive accused of his right of fair trial---Time could have been requested and extended in the interest of justice---Rights of accused persons were guaranteed under the Constitution and the very right of cross examination by counsel for proper defending was infringed---High Court set aside conviction and sentence awarded to accused and case was remanded to Trial Court for decision afresh---Revision was allowed accordingly.

Abdul Ghafoor v. The State 2011 SCMR 23 rel.

Ch. Muhammad Junaid Akhtar for Petitioner along with Petitioner in person.

Malik Mazhar Javed, State counsel and Zohaib Hassan Gondal, State counsel with Faiz, SI for the State.

Complainant in person.

2020 P Cr. L J 1195

[Islamabad]

Before Ghulam Azam Qambrani, J

SHAHID MEHMOOD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 362 of 2019, decided on 11th February, 2020.

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

----S. 489-F--- Dishonestly issuing a cheque--- Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Cheque, not of the account of accused---Effect---Prosecution case against accused was that he owed certain amount on account of some business and for repayment of the same, he issued a cheque and on presentation, it was dishonoured due to insufficient balance---Stance of complainant was vague because he had failed to bring on record any specification and details of the business transaction---Stance of accused was that he had business relations with the cousin of complainant and that he had settled the account with him---Complainant deposed that he did not effect compromise with the accused but his statement recorded at the time of pre-arrest bail suggested otherwise, wherein he stated that he had effected compromise with the accused and had no objection on his acquittal---Disputed cheque was not of the account of accused---Prosecution had failed to prove the issuance of cheque by the accused in favour of the complainant---Trial Court had rightly acquitted the accused by giving him benefit of doubt---Appeal against acquittal was dismissed, in circumstances.

Muhammad Karim v. The State 2009 SCMR 230; Ghulam Akbar and another v. The State 2008 SCMR 1064 and Raheel and others v. The State and others 2015 PCr.LJ 470 rel.

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

----S. 417--- Appeal against acquittal--- Scope--- Considerations for interference in an appeal against acquittal and in an appeal against conviction are altogether different because presumption of double innocence is attached with the former case.

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

----S. 417---Appeal against acquittal---Principles for the appreciation of appeal against acquittal detailed.

Following are the well settled principles for appreciation of appeal against acquittal:-

(i) With the acquittal, the presumption of innocence of accused becomes double; one that till found guilty he is innocent and two, that after his trial a court below has confirmed the assumption of innocence;

(ii) Unless all the grounds on which the High Court had purported to acquit the accused were not supportable from the evidence on record, Supreme Court would be reluctant to interfere, even though, upon the same evidence it may be tempted to come to a different conclusion;

(iii) Unless the conclusion recorded by a court below was such that no reasonable person would conceivably reach the same, the Supreme Court would not interfere;

(iv) Unless the judgment of acquittal is perverse and the reasons thereof are artificial and ridiculous, the Supreme Court would not interfere; and

(v) Supreme Court, however, would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion, and that too, with a view only to avoid grave miscarriage of justice and for no other purpose.

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

----S. 489-F---Dishonestly issuing a cheque---Ingredients---Scope---Provisions of S. 489-F, P.P.C., will only be attracted if the prosecution proves issuance of cheque; such issuance was with dishonest intention; purpose of issuance of cheque was to re-pay a loan or to fulfill an obligation (which is wide term inter alia applicable to lawful agreements, contracts, services, promises by which one is bound or an act which binds a person to some performance) and on presentation, the cheque was dishonoured---Said ingredients are imperative to attract the provisions of S. 489-F, P.P.C.

Raja Gul Nawaz for Appellant.

Ch. Abdur Rehman Hur Bajwa for Respondent No. 2.

Zohaib Hassan Gondal, State counsel with Shah Nazar, S.I. for the State.

2020 P Cr. L J 1307

[Islamabad]

Before Fiaz Ahmad Anjum Jandran, J

Miss RIDA BATOOL---Petitioner

Versus

KHURRAM SHAHZAD KAZMI and 2 others---Respondents

Writ Petition No. 905 of 2020, heard on 23rd April, 2020.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Habeas Corpus, writ of---Territorial jurisdiction---Petitioner sought recovery of her minor son and daughter from the custody of her ex-husband---Plea raised by respondent was that the minors were not residing in the territorial jurisdiction of High Court and were living in another Province, therefore, petitioner was not maintainable---Validity---Pre-requisite for invoking provision of Art. 199 (1)(b)(i) of the Constitution is that an order to that effect can only be made for a person in custody within the territorial jurisdiction of that High Court---Territorial jurisdiction signifies limits of a Court because the law in its generality is territorial and this is fundamental hall mark foundational pillar of the English jurisprudence---When one Court has been established for a particular territorial boundaries then to exercise jurisdiction in that domain, for which prerogative is of the other High Court is against the law and coram non judice and without lawful authority---High Court declined to interfere in the matter due to lack of territorial jurisdiction---Constitutional petition was dismissed in circumstances.

2016 PCr.LJ 44; 1994 MLD 1682; 2014 YLR 152; PLJ 2010 Kar. 87; 2018 SCMR 427; PLD 1981 Kar. 11; 2014 MLD 38; PLD 1957 (W.P.) Peshawar 41; 2016 MLD 29; 2010 MLD 1035 and Shazia Akber Gulzai v. Khurram Mehboob 2019 SCMR 116 ref.

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

----S. 491---Constitution of Pakistan, Art. 199(1)(b)(i)---Habeas corpus petition---Recovery of detenue---Scope---For exercising power/ jurisdiction under S. 491, Cr.P.C., it is limited and conferred to appellate jurisdiction of High Court while under Art. 199 of the Constitution the pre-requisite for exercise of jurisdiction is that corpus must be within the jurisdiction of that High Court---Powers of appellate jurisdiction in terms of S. 491, Cr.P.C. can only be exercised in case of having territorial jurisdiction.

Lal Bux v. Station House Officer Police Station 'A' Section, Sukkur and 4 others PLD 2012 Sindh 288 and Jangi and another v. Province of Sindh through Secretary Home Department, Government of Sindh and 13 others 2019 PCr.LJ 358 rel.

Miss Ammara Kazmi for Petitioner.

Ch. Muhammad Adnan Ahmad for Respondent No. 1.

2020 P Cr. L J 1449

[Islamabad]

Before Mohsin Akhtar Kayani, J

SHAHZAD KHAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 70 of 2015, decided on 30th April, 2020.

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

----Ss. 302, 392, 411 & 34---Qatl-i-amd, robbery, dishonestly receiving stolen property, common intention---Appreciation of evidence---Benefit of doubt---Accused was charged that he and co-accused committed murder of brother of complainant during robbery---Record showed that accused was arrested on 12.04.2012, who led to recovery of blood-stained currency notes amounting to Rs.3,030---Investigating Officer had not transmitted the recovered currency notes to Forensic Science Laboratory for the purpose of verification---Accused had been identified through identification parade in presence of Magistrate on the next day of arrest---Co-accused was arrested after seven months of accused's arrest and disclosed about the mobile phone and ID card of the deceased, which was got recovered on his pointation after three days of his arrest together with .30 bore pistol along with bullets---Court had also gone through the identification parade report together with testimony recorded thereto and observed that the accused was identified by both the witnesses, but none had attributed any role to the accused, except the statement on behalf of eye-witness and complainant that accused fled away from the scene when they heard the fire shot sound---Belongings of the deceased together with the weapon of offence (.30 bore pistol) were recovered from co-accused who was acquitted by the Trial Court along with a third person nominated in the case---Record showed that two of the co-accused persons had been acquitted on similar evidence, but the accused had been convicted on same set of evidence, which was contradictory view on the part of Trial Court---Trial Court had failed to distinguish the role of accused vis-a-vis other acquitted co-accused persons in the impugned judgment---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 392, 411 & 34---Qatl-i-amd, robbery, dishonestly receiving stolen property, common intention---Appreciation of evidence---Benefit of doubt---Chance witness---Un-natural conduct of eye-witness---Effect---Accused was charged that he and co-accused committed murder of brother of complainant during robbery---Conduct of star witness/complainant i.e. real brother of deceased and eye-witness/conductor, who had not given any first aid to deceased despite the fact that they were available on spot---Likewise, the oil tanker was also available to them but they had not driven the injured (deceased) to a nearby hospital, rather waited till arrival of police, during which period the deceased died on the spot due to excessive bleeding---Complainant had acknowledged before the court that he had informed about the deceased's father name in hospital, but the hospital staff did not mention the same in their record---Said aspect if seen in the light of the record established that complainant was not present at the scene and at the time of occurrence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 392, 411 & 34---Qatl-i-amd, robbery, dishonestly receiving stolen property, common intention---Appreciation of evidence---Benefit of doubt---Ocular and medical evidence---Contradictions---Accused was charged that he and co-accused committed murder of brother of complainant during robbery---Court had gone through the testimony of official witness/HC, during whose testimony the Trial Court had ordered for de-sealing of the shopping bag containing the last worn clothes of deceased, whereafter it was observed that no bullet mark was present on right side of shalwar/trouser---Entire testimony recorded by Medical Officer seemed to be contrary to the medical record---Such state of affairs created a doubt in the prosecution case as if the trouser was without the corresponding hole, the entire scenario had to be seen differently and it could safely be assumed that the deceased was not wearing shalwar at the time of alleged incident and the manner and mode in which the story was narrated was not correct---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 392, 411 & 34---Qatl-i-amd, robbery, dishonestly receiving stolen property, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon from co-accused---Reliance---Scope---Accused was charged that he and co-accused committed murder of brother of complainant during robbery---Recovery of pistol was alleged to be with acquitted accused, but said pistol was never produced in the Trial Court, which fact had duly been recorded by the Trial Court---Even no Forensic Science Laboratory Report was available on record---Additional file had been transmitted by the Trial Court comprising of the report of Punjab Forensic Science Agency, which clearly spelled out that the identity of the cartridge could not be made due to lack of sufficient suitable corresponding microscopic marks---High Court took judicial notice of said aspect and observed that it seemed that the prosecution had intentionally withheld the said report of Forensic Science Agency as the Investigating Officer was well aware that the report did not match the recovered pistol (weapon of offence) and the same weakened the case of the prosecution---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 392, 411 & 34---Qatl-i-amd, robbery, dishonestly receiving stolen property, common intention---Appreciation of evidence---Benefit of doubt---Recovery of currency notes---Reliance---Scope---Currency notes allegedly recovered on the pointation of accused were also not verified from any report of Forensic Science Laboratory and same had no evidentiary value nor the same connected the accused with the case as no witness had stated about the amount which was allegedly snatched---Place of recovery of the currency notes was a deserted place and was accessible to everyone, therefore, the recovery itself was not appreciable, even such a belated recovery had no worth---Appeal against conviction was allowed, in circumstances.

Arshad Khan v. The State 2017 SCMR 564; Asad Khan v. The State PLD 2017 SC 681 and Muhammad Saleem v. Shabbir Ahmad 2016 SCMR 1605 rel.

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

----Ss. 302, 392, 411 & 34---Qatl-i-amd, robbery, dishonestly receiving stolen property, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon---Absence of report of Forensic Science Laboratory on record---Effect---In absence of Forensic Science Laboratory Report, the recovery of weapon of offence could not be considered as corroborative piece of evidence and the same could not be made basis of conviction---Appeal against conviction was allowed, in circumstances.

Muhammad Mansha v. The State 2018 SCMR 772 and Sajjan Solangi v. The State 2019 SCMR 872 rel.

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

----Art. 22---Test identification parade---Scope---Identification parade conducted in presence of Judicial Magistrate, was silent qua the role of accused therefore, the conviction could not be made on such report.

Kamal Din alias Kamala v. The State 2018 SCMR 577 and Hakeem v. The State 2017 SCMR 1546 rel.

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

----Ss. 302, 392, 411 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, robbery, dishonestly receiving stolen property, common intention---Appreciation of evidence---Test identification parade---Capacity and ability of eye-witness to identify the accused---Estimator variables, principle of---Scope---Estimator variables in which the eye-witnesses, due to stress and pressure of the occurrence, could not justify different elements of visualizing the accused person specially in the present case, when the accused persons had been seen in the light of headlights of Oil Tanker, but that aspect was not justified during the course of investigation---Appeal against conviction was allowed, in circumstances.

Mian Sohail Ahmed v. The State 2019 SCMR 956 and Kanwar Anwaar Ali, In the matter of Criminal Miscellaneous Application No.183/2019 PLD 2019 SC 488 rel.

Malik Amir Dad Awan for Appellant.

Ms. Bushra Tariq Raja and Muhammad Sohail Khurshid, State Counsel for Respondents.

Malik Muhammad Haseeb for Respondent No. 2/Complainant.

2020 P Cr. L J 1583

[Islamabad]

Before Ghulam Azam Qambrani, J

AMJAD ALI---Appellant

Versus

Dr. TAQDEES NAQAISH and others---Respondents

Criminal Appeal No. 193 of 2017, decided on 16th July, 2020.

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

----S. 318---Qatl-i-Khata---Pre-condition---There should not be any intention to cause death of deceased.

Sajid v. The State 2000 SCMR 167 rel.

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

----Ss. 318 & 34--- Criminal Procedure Code (V of 1898), Ss. 249-A & 417(2)---Qatl-i-Khata, common intention---Appreciation of evidence---Appeal against acquittal---Doctor and patient relationship---Proceedings against doctor---Private complaint was filed against doctors for committing Qatl-i-Khata of wife of complainant---Trial Court acquitted accused persons---Validity---In every mishap or death during medical treatment, medical officer could not be proceeded against for punishment---Criminal prosecutions of doctors without adequate medical opinion pointing to their guilt would be doing great disservice to the community at large---If Courts were to impose criminal liability on hospitals and doctors for everything that had gone wrong, doctors would be more worried about their own safety than giving all the best treatment to their patients---Such would lead to shaking mutual confidence between doctor and patient---Every mishap or misfortune in hospital or clinic of a doctor was not a gross act of negligence to try him for an offence of culpable negligence---Prosecution failed to establish any common intention, preplanning or preconcert against accused doctors to cause death of wife of complainant---High Court maintained judgment of acquittal as there was no illegality or irregularity in the same---Appeal was dismissed in circumstances.

Zahoor-ud-Din v. Khushi Muhammad and 6 others 1998 SCMR 1840 and The State v. Raja Abdul Rehman 2005 SCMR 1544 rel.

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

----S. 34---Common intention---Essential claimants---Proof---One of the essential elements is a pre-arranged plan or a pre-concert or prior meeting of minds.

Shoukat Ali v. The State PLD 2007 SC 93 rel.

Raja Rizwan Abbasi for Appellant.

Raja Ikram Ameen Minhas and Amir Zar Bhatti for Respondents.

Zohaib Hassan Gondal, State Counsel with Noor Sub-Inspector for the State.

2020 P Cr. L J 1652

[Islamabad]

Before Lubna Saleem Pervez, J

IMRAN KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 798 of 2020, decided on 17th July, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Prevention of Electronic Crimes Act (XL of 2016), Ss. 20, 21 & 24---Dignity of a natural person, modesty of a natural person and cyber stalking---Bail, refusal of---Case not falling in prohibitory clause of S. 497, Cr.P.C.---Effect---Accused was arrested for sending immodest and indecent pictures of complainant and his family members and messages with abusive language through "What's App" cell phone---Plea raised by accused was that offence did not fall within prohibitory clause of S. 497, Cr.P.C.---Validity---Mere fact that offence did not fall within prohibitory clause of S. 497, Cr.P.C. did not mean that offence had become bailable---Concession of bail could not be claimed as a right and the same could be allowed where nature of offence was not heinous and against the society; where there was possibility of repetition of offence; where there were prima facie evidence of fake and frivolous involvement of accused; where there was no chance of abscondence; when there was no chance of tampering with evidence of prosecution and accused was not a habitual offender; had no previous criminal history; and concession of bail would not be misused by the accused---High Court took into consideration all such possibilities and declined to exercise discretion in favour of accused---Bail was declined in circumstances.

Muhammad Hayat Khan v. The State 2019 PCr.LJ 472 ref.

Farhan Kamrani v. The State 2016 YLR 329 rel.

Yasir Sultan Yousafzai for Petitioner.

Razzaq A. Mirza for the Complainant.

Ms. Ruqayya Sami, A.A.G. and Adnan Khan, A.D., FIA for the State.

2020 P Cr. L J 31

[Sindh]

Before Muhammad Saleem Jessar, J

MUHAMMAD AKRAM---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-1880 of 2017, decided on 18th April, 2018.

(a) Gas (Theft, Control and Recovery) Act (XI of 2016)---

----Ss. 5(2) & 6---Term 'any offence punishable in this Act'---Scope---Deliberate use of term 'any offence punishable in this Act' in S. 5(2) of Gas (Theft, Control and Recovery) Act, 2016 is sufficient to conclude that legislators have left no discretion with 'Utility Court' to depart from procedure provided by S. 6 of Gas (Theft, Control and Recovery) Act, 2016 for taking cognizance even if offence is one committed by domestic consumer.

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

----Ss. 497 & 498---Bail---Two punishments---Effect---When statute provides two punishments, lesser punishment is to be considered at bail stage.

Muhammad Amin v. The State 2017 YLR 609 rel.

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

----Ss. 497(2) & 498---Gas (Theft, Control and Recovery) Act (XI of 2016), Ss. 5, 6 & 24---Theft of gas---Pre-arrest bail, grant of---Payment of liability---Case of further inquiry--- Accused was alleged to have committed theft of sui gas and who had already paid entire outstanding/penalty amount---Effect---Case of accused was purely covered by S. 497(2), Cr.P.C. and required further inquiry---No legal justification existed to commit accused to custody when he otherwise had made out a case for grant of bail because in such like cases bail had become rule and refusal would be an exception---Pre-arrest bail was confirmed, in circumstances.

Shamraiz Khan v. The State 2000 SCMR 157 rel.

Muhammad Arsalan v. The State 2017 PCr.LJ 434; Gulistan Bank Ltd. and another v. Soneri Bank Ltd. and another 2018 CLC 203; Javed Iqbal and others v. The State 2016 SCMR 787 and Muhammad Nazir v. Fazal Karim and others PLD 2012 SC 892 ref.

Khadim Hussain Soomro for Applicant.

Sadaqat Awan, Special Prosecutor, SSGC and Abrar Ali Khichi, D.P.G. for the State.

Habib Ahmed for the Complainant.

2020 P Cr. L J 80

[Sindh]

Before Salahuddin Panhwar, J

ABDUL LATIF---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 308 of 2017, decided on 20th February, 2019.

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

----S. 221---Charge, framing of---Plea of defective charge ---Effect---Charge to give sufficient notice of prosecution case to the accused---No such plea was taken during course of trial, hence not impressive.

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

----S. 221---Charge, framing of---Object and scope---Objective of framing of charge was to give a full notice/knowledge to accused of what he was to be tried.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Prosecution case was that the accused persons committed murder of the brother of the complainant---Accused started running away, in the meanwhile police mobile came and complainant informed the police about the incident and pointed towards the accused present at some distance from the spot and the police arrested them with pistol and magazine---Record showed that a prosecution witness was examined by the Trial Court but he was not cross-examined---After one year, by counsel for the accused-appellant filed application for cross-examination of said witness---Trial Court had endorsed that counsel was not ready to cross-examine the witness---Record showed that at that time the witness was not present, hence question of readiness or otherwise of counsel to cross-examine the witness did not arise---Term evidence could only find its complete meaning when both of its parts i.e examination-in-chief and cross-examination co-existed---Truthfulness and credibility of a witness was always tested through cross-examination---Cross-examination was not only considered as integral part of evidence rather more important than examination-in-chief---Case was remanded from the stage of cross-examination of the witness and statement under S. 342, Cr.P.C., in circumstances.

2014 PCr.LJ 527; 2000 PCr.LJ 367; 2014 PCr.LJ 865 and 2015 MLD 339 ref.

Mukhtar Ahmed v. State 2003 SCMR 1374 rel.

(d) Administration of justice---

----Principle---Justice is not only done but shown to have been done.

Farah Naz Yousufzai for Appellant.

2020 P Cr. L J 96

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Mahar and Amjad Ali Sahito, JJ

NIAZ ALI RAJPER---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-41 of 2014, decided on 1st October, 2018.

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

----Ss. 365-A, 324 & 353---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abduction for extorting property, valuable security etc. attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, act of terrorism---Appreciation of evidence---Prosecution case was that two accused persons, duly armed with TT pistols, forcibly taking away the son of complainant, soon as both accused had seen the police party, started firing upon police directly with intention to kill them---Police party, in retaliation, started firing and such encounter continued for about 05-minutes and during which police party recovered the boy and also arrested accused along with a pistol, whereas, other culprit succeeded to escape away---Ocular account of the case was furnished by witnesses including complainant and abductee---Present accused-appellant was nominated in the FIR with specific role that, he along with his unidentified accomplice forcibly abducted child aged about 10 years from Government, Primary School with intention to extort ransom amount---Said abductee was recovered by the police during the encounter and present accused-appellant was also apprehended at the spot with a pistol, used in the commission of offence---Evidence of complainant and eye-witnesses was supported by official witness, who had clearly deposed to have seen and identified the present accused-appellant at the spot while he along with his accomplice was forcibly taking away the abductee---Accused was apprehended at the spot along with unlicensed pistol, which was also supported by the evidence of Investigating Officer---All the witnesses were cross-examined by the defence at length---Witnesses remained consistent on material points---Abductee had narrated complete story, manner of his abduction, demand of ransom of Rs.500,000/- and recovery by police which was apparently natural and confidence inspiring---Said abductee had identified accused-appellant, who remained involved in the commission of the offence---Accused-appellant had not claimed any direct or indirect enmity against the abductee for his false involvement in such serious charge nor any suggestion was made in that regard---Abductee had assigned to accused-appellant, the role of his abduction, detention and demand of Rs.500,000---Ingredients of the offence of kidnapping for ransom, in circumstances, were fully satisfied and proved---Complainant, abductee, and eye-witnesses had sufficiently explained every event of the occurrence in a clear-cut manner including date, time and place of occurrence---Accused-appellant had failed to point out any ill-will or animosity with the complainant party and /or police for his false implication in the case---Even otherwise, the accused-appellant had declined to examine any person in his defence, therefore, mere assertion of accused-appellant that he had falsely been implicated at the behest of some other person without corroboration of any independent piece of evidence, had no force---Prosecution had successfully proved the case against the accused, in circumstances---Appeal was dismissed accordingly.

Muhammad Riaz and others v. Bilqiaz Khan and others 2012 SCMR 721 rel.

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

----S. 2(n)---Penal Code (XLV of 1860), S. 365-A---Kidnapping for ransom---"Act of terrorism"---Determination---In order to constitute an offence of kidnapping for ransom, the proof of payment of money or even demand thereof was not sine qua non---Said offence also stands constituted if there was an abduction for the purpose of extortion of money or ransom was demanded.

(c) Criminal trial---

----Evidence---Direct evidence---Scope---If direct evidence remained in the field with a 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 inversely in each case.

(d) Criminal trial---

----Witness--- Related witness--- Statement of related witness---Reliance---Scope---Mere relationship of the complainant and eye-witnesses would not be enough to discard their testimony---In the matter of capital punishment, the accused would not stand absolved by making a mere allegation of dispute/enmity but would be required to bring on record such a dispute/enmity believed to have motivated them to involve the innocent person at the cost of the escape of real culprits.

Shamsuddin Rajper for Appellant.

Abdul Rehman Kolachi, Deputy Prosecutor-General for the State.

2020 P Cr. L J 119

[Sindh (Hyderabad Bench)]

Before Fahim Ahmed Siddiqui, J

MUHAMMAD QASIM---Applicant

Versus

IIND ADDITIONAL SESSIONS JUDGE/EX OFFICIO JUSTICE OF PEACE DISTRICT BADIN and 5 others---Respondents

Criminal Miscellaneous Application No. S-698 of 2018, decided on 20th December, 2018.

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

----Ss. 22-A, 22-B & 561-A---Powers and jurisdiction of Ex-officio Justice of Peace---Nature and scope---Application to Ex-officio Justice of Peace for direction to SHO to lodge FIR---Dismissal of application---Applicant, had challenged the order by Ex-officio Justice of Peace---Ex-officio Justice of Peace while declining the application filed by respondent for direction to register FIR, simultaneously, passed some pejorative remarks against the applicant---Validity---Application of respondent was declined with directions to avail alternate remedy of filing private complaint---Said order was contrary to the legal norms and beyond the scope of Ex-officio Justice of Peace, who while discharging a 'quasi-judicial' function was undoubtedly not performing the duties of a Judge sitting under the canopy of justice---Nevertheless, court was fully competent to discharge his function as Ex-officio Justice of Peace, described within the statute and he could not travel beyond the same---No direction having been issued, therefore, no question of neglect or failure arose---Application filed before Ex-officio Justice of Peace was for registration of FIR and the respondent had neither made a complaint against the present applicant for excess committed by him nor he sought any enquiry in that regard---Order passed Ex-officio Justice of Peace being without holding an enquiry and without giving an opportunity of hearing to the applicant, considering the contention of the respondent that they were protesting peacefully as 'gospel truth', was contrary to the scheme of law, as such, not sustainable---Ex-Officio Justice of Peace was not a Judicial Magistrate who could take cognizance upon his own knowledge or information communicated to him---Without any lis before and without due application of his mind, Ex-Officio Justice of Peace could not pass an order against any police officer; in such a situation, it would be appropriate to provide the said police official/Officer an opportunity to clarify his position by holding an inquiry by himself or through some other Authority---Criminal miscellaneous application was allowed by setting aside the impugned order.

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

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

----Ss.22-A & 22-B---Direction by Ex-officio Justice of Peace---Scope---Any suggestion or direction given by the Ex-Officio Justice of Peace is required to be respected similar to a judicial order and was to follow in letter and spirit, person disobeying the same, would expose himself for appropriate action as per law.

Naseer A. Narejo for Applicant.

Shahzado Saleem Nahiyon, Deputy Prosecutor-General, Sindh for Respondents Nos. 1 to 4 and 6.

Kamran Lakho for Respondent No.5.

2020 P Cr. L J 152

[Sindh]

Before Mrs. Kausar Sultana Hussain, J

AMANULLAH KHAN---Appellant

Versus

AHTISHAM KHAN and 3 others---Respondents

Criminal Acquittal Appeal No. 386 of 2017, decided on 19th March, 2018.

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

----Ss. 489-F, 406 & 34---Criminal Procedure Code (V of 1898), S. 417---Dishonestly issuing a cheque, criminal breach of trust and common intention--- Appreciation of evidence--- Appeal against acquittal---Prosecution case against accused was that second accused issued cheque on the request of his friend, first accused and gave it to complainant which on presentation was dishonoured by Bank---Plea of first accused was that cheque could not be encashed because of upcoming Eid Holidays, therefore, he on the request of complainant gave the cash to complainant's cousin through second accused---Validity---Statements of complainant, his cousin and of both accused persons regarding receiving of cheque were contradictory---Complainant claimed that he had received the cheque---Complainant's cousin deposed that he and complainant went to hotel and both accused persons gave the cheque to complainant---First accused deposed that complainant collected the cheque from second accused's house---Second accused deposed that first accused had requested him on phone to handover the cheque to complainant's cousin, so he handed over the cheque to him---Complainant failed to point out any infirmity or illegality in the impugned judgment---Appeal against acquittal was dismissed.

2010 SCMR 806 ref.

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

----S. 417--- Appeal against acquittal--- Double presumption of innocence---Scope to interfere in appeal against acquittal was narrow and limited, the reason being that in acquittal, the presumption of innocence was doubled---Judgment of acquittal could be interfered with if it was found on its face to be capricious, perverse, arbitrary in nature or based on misreading, non-appraisal of evidence and led to gross miscarriage of justice---While examining the facts shown in the acquittal order, substantial weight would be given to the findings of the subordinate courts, whereby accused had been exonerated from the commission of crime---Acquittal would be unquestionable when it could not be said that acquittal was perverse---If any doubt was created about guilt of accused, its benefit would go to the accused and the court would never come to rescue the prosecution to fill up the lacuna appearing in its evidence as it would be against established principles of dispensation of criminal justice.

Feroz Khan v. State 1991 SCMR 2220; State through Mehmood Ahmed Butt v. Sharaf Uddin Shaikh and others 2013 SCMR 565; Haji Paio Khan v. Sher Biaz and others 2009 SCMR 803 and Muhammad Ijaz Ahmed v. Fahim Afzal 1998 SCMR 1281 rel.

Ms. Asma Khan for Appellant.

Nazeer Ahmed Tanoli for Respondents Nos. 1 and 2.

Ms. Rubina Qadir, APG for the State.

2020 P Cr. L J 184

[Sindh]

Before Adnan-ul-Karim Memon, J

LUTUF ULLAH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 1373 of 2018, decided on 29th October, 2018.

(a) Constitution of Pakistan---

----Art. 203---Supervisory jurisdiction of the High Court---Scope---Speedy trial---Scope--Trial Court, while dismissing bail application, did not comply with the directions of the High Court, to record evidence of the material witnesses within a period of three months---Validity---High Court while invoking its supervisory jurisdiction under Art. 203 of the Constitution had not endorsed the impugned action of the Trial Court---Direction given by the High Court could not be taken lightly as speedy trial was the Fundamental Right of accused---Smooth methodology and scheme for speedy trial was provided under the Criminal Procedure Code, 1898---Said principle would apply more vigorously to the trials before Special Court, constituted under special laws---Any unreasonable or shocking delay in the conclusion of the trial before Special Court would amount to the denial of justice, or that of Fundamental Rights, to the accused.

Imtiaz Ahmed v. The State 2017 SCMR 1194 ref.

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

----S. 497, third proviso---Control of Narcotic Substances Act (XXV of 1997), S. 9---Possession of three kilograms of Charas---Bail, refusal of---Fresh ground for bail application---Scope---Petitioner moved (third) bail application on the ground that Trial Court had not complied with the directions of the High Court to record evidence of the material witnesses within a period of three months---Validity---Once bail application of the petitioner was dismissed on merits, he could move post-arrest bail before High Court on fresh ground, if any, available to him under the law---Present bail application had been filed by the petitioner on the strength of third proviso to S. 497, Cr.P.C. alone without any fresh ground---Prima facie it was not a case of statutory delay as offence under S. 9(c), Control of Narcotic Substances, 1997 was punishable with life imprisonment or death---Third proviso of S. 497(1), Cr.P.C. provided statutory period of two years, whereas the petitioner had not crossed the period prescribed in the said proviso, therefore, petitioner's assertion was misconceived---Bail was refused to the petitioner, however, High Court directed the Trial Court to record evidence of the remaining witnesses within a periods of two months, whereafter the petitioner would be at liberty to move fresh bail application before the Trial Court on fresh ground, if any, and the Trial Court would decide the same on merit---Bail was refused to the petitioner, in circumstances.

Imtiaz Ahmed v. The State 2017 SCMR 1194 and Muhammad Aslam v. The State and others PLD 2015 SC 41 ref.

Riaz-ur-Rehman v. The State 2017 PCr.LJ 1661 and Shaukat Ali v. The State and others 2017 PCr.LJ 1020 distinguished.

Muhammad Ijaz Tanoli for Applicant.

Habib Ahmed, Special Prosecutor for ANF.

2020 P Cr. L J 229

[Sindh]

Before Salahuddin Panhwar, J

AKHTAR ZAREEN---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 614 of 2018, decided on 29th March, 2019.

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

----Ss. 302, 324, 353, 427 & 34---Criminal Procedure Code (V of 1898), S. 367---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, mischief causing damage to amount of fifty rupees, common intention---Appreciation of evidence---Judgment, contents of---Case had not been decided in accordance with the mandatory provisions of S. 367, Cr.P.C.---Effect---In the present case, Trial Court had framed the charge against the accused/appellants for offences punishable under Ss. 302, 324, 353, 427 & 34, P.P.C.---Trial Court was required to decide fate of every single charge (offence) which could, legally, either be in acquittal or conviction from such charge (offence)---Record showed that the Trial Court mentioned nothing about offence, punishable under S. 302, P.P.C.---Accused/appellant though was specifically charged and tried for such offence, yet legal presumption would be nothing but that there came no legal 'disposal' for charged offence of S. 302, P.P.C.---Trial Court had terminated the case by recording the impugned judgment---Such act or omission, was not worth appreciating nor could legally be approved because all the jointly charged and tried offences were legally required to be determined through one single judgment because the law permitted only a single trial of one for an offence---Said glaring illegality could not be said to be result of some oversight because while writing a full judgment the author thereof was believed to have carefully gone through all available record else there could be no legal decision/judgment"---High Court observed that if it was believed that Trial Court did go through the record then failure in responding to charge for offence of murder could be nothing but a deliberate action or knowing omission---Leaving an offence undetermined, in disregard of commandment of S. 367, Cr.P.C., would always be sufficient for setting aside the impugned conviction and retrial of the case---Trial Court from its conduct had proved to be either incompetent/negligent or that impugned judgment was result of some hidden motive---Case was remanded for decision afresh by setting aside conviction and sentences recorded by the Trial Court.

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

----Ss. 302, 324, 353, 427 & 34---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, mischief causing damage to amount of fifty rupees, common intention---Appreciation of evidence---Judicial confession---Scope---Held, if the accused admitted evidence, came against him, yet the Trial Court would not be competent to straight away record a 'conviction' rather would be required to serve a 'show-cause notice' thereby making it quite clear and obvious to the accused (person pleading guilt) that as to what sentence/punishment might be fallen upon him---Trial Court before proceeding on any plea must satisfy itself that such plea was not result of any coercion or other influence---In the present case, neither the accused/appellant was ever served with such show cause nor the Trial Court ever made any effort to satisfy itself as to whether such an admission was voluntary or otherwise---Such admission would not be used as a base to record conviction without first making the maker thereof aware of consequences thereof---Such failure on part of the Trial Court would always be sufficient to declare such conviction as illegal---If the Trial Court was of the view that admission of the accused was sufficient to record conviction even then it was obligatory upon the Court to have recorded punishment for each offence---Trial Court was not competent to have ignored/avoided punishment for charged offence of murder---Case was remanded.

Muhammad Jumman v. State 2018 SCMR 318 rel.

Ajab Khan Khattak for Appellant.

2020 P Cr. L J 259

[Sindh]

Before Nazar Akbar, J

KASHIF DARS---Applicant

Versus

The STATE and 2 others---Respondents

Criminal Bail Application No. 1141 of 2019, decided on 16th August, 2019.

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

----Ss. 497(5) & 498---Prevention of Electronic Crimes Act (XL of 2016), Ss. 16, 20 & 21---Penal Code (XLV of 1860), Ss. 419 & 109---Unauthorized use of identity information, offences against dignity of a natural person, offences against modesty of a natural person, cheating by personation, abetment---Bail, cancellation of---Scope---Allegation against accused was that he, through his cell number, created a fake Facebook I.D. and circulated defamatory content, indecent and abusive images---Magistrate granted bail to the accused while Sessions Judge cancelled the bail---Accused had admitted that the disputed cell number was registered in his name as well as in his use---Technical analysis of mobile phone of accused showed that objectionable edited images of the complainant and others were found therein---Complainant was not aware of the accused, he had only noticed certain fake pages on internet and Facebook carrying objectionable material and had reported the matter to the FIA to "identify the persons involved in the crime"---Prima facie, documentary evidence was more than enough to connect the accused with the offence---Sessions Judge had rightly cancelled the bail granted to the accused---Petition for grant of bail was dismissed.

2018 YLR 329 and 2018 PCr.LJ 739 ref.

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

----S. 498---Pre-arrest bail---Mala fide---Scope---Bail before arrest can be granted to accused on the sole ground of mala fide.

2020 P Cr. L J 278

[Sindh (Sukkur Bench)]

Before Muhammad Saleem Jessar, J

MANZOOR ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-83 of 2016, decided on 8th November, 2018.

Criminal Procedure Code (V of 1898)---

----S. 345---Penal Code (XLV of 1860), Ss. 324, 337, 382 & 506(2)---Attempt to commit qatl-i-amd, Shajjah, theft after preparation made for causing death, hurt or restraint in order to commit theft, criminal intimidation---Appellant was convicted under Ss. 324, 337, 382 & 506(2), P.P.C.---Appellant and complainant filed respective applications for compromise---Both the parties had amicably settled all their differences---Offences under Ss. 324 & 337, P.P.C. were compoundable whereas the offences under Ss. 382 & 506(2), P.P.C. did not find mention in the table of compoundable offences provided under S. 345, Cr.P.C.---Held; non-compoundability of a particular offence under any section of the enactment, was not to be read in isolation but it should be read in the background of each criminal case and beneficial interpretation should be given to the same---If the main offence is compoundable and parties, particularly injured/victim, have compromised against themselves then small offences should be treated as compromised, though under the statute they are not-compoundable---High Court accepted the compromise applications and ordered acquittal of appellant from all the charges.

Ijaz and another v. Mst. Manadia PLD 2016 Pesh. 26; The State v. Irfanullah Qazi 2007 MLD 1269; Hussain Bux and others v. The State PLD 2003 Kar. 127; Ashique Solangi and another v. The State PLD 2008 Kar. 420; Imdad Hussain v. The State PLD 2008 Lah. 450; Shahid v. The State and another 2017 YLR Note 81 and Ali Raza and another v. The State and another PLD 2013 Lah. 651 rel.

Appellant in person.

Abdul Kareem Luhrani for the Complainant.

Mir Afzal Hussain Talpur, APG for the State.

2020 P Cr. L J 311

[Sindh]

Before Naimatullah Phulpoto and Mohammed Karim Khan Agha, JJ

FAZAL HUSSAIN alias FAQEERA and others---Appellants

Versus

The STATE---Respondent

Special Criminal ATJ Appeals Nos. 49 of 2018, 191 of 2016 and Confirmation Case No. 2 of 2016, decided on 7th February, 2019.

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

----Ss. 302 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, act of terrorism, common intention---Appreciation of evidence---Benefit of doubt---Extra-judicial confession---Retrated---Scope---Prosecution case was that deceased police constable was driving with Frontier Corps personnel in private car when he was alerted by local people about the accused persons who were committing robbery whereupon the deceased got down from the vehicle and was fired upon by the accused---Investigating Officer had submitted report before the concerned court after 28 days of investigation that no solid evidence was found against any person for the murder of the deceased---Later, after 16 days out of blue, accused who had been booked in a case under Arms Ordinance gave extra-judicial confession before the police that he was involved in the murder, took investigating officer to the scene of incident and implicated co-accused as being his accomplice---Co-accused was already in custody in another case who also gave extra-judicial confession to the police that he had shot the deceased---Accused had absolutely no need or reason to confess---Accused, in his confession, did not even confess to the murder rather he blamed the co-accused---Confession of accused, at best seemed to be motivated at saving his own skin which was hardly indicative of its truthfulness and in any event could not be used legally to convict the co-accused---Confession was recorded after five days of arrest which delay was not explained---Pointation of co-accused of the place of incident was inconsequential as police already knew the place of incident---Co-accused was never produced before the Magistrate to record his confession under S. 164, Cr.P.C.---Prosecution could not prove its case against the accused persons beyond reasonable doubt, therefore, they were entitled to the benefit of doubt---Confirmation reference was answered by the High Court in the negative.

Azeem Khan v. Mujahid Khan 2016 SCMR 274 and Sajid Mumtaz v. Basharat 2006 SCMR 231 ref.

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

----S. 7---Penal Code (XLV of 1860), Ss. 302 & 34---Criminal Procedure Code (V of 1898), Ss. 103 & 161---Act of terrorism---Qatl-i-amd---Common intention---Appreciation of evidence---Benefit of doubt---Chance witness---Un-natural conduct of eye-witness---Night-time occurrence---Source of light---Non-association of private witnesses---Delay in recording statement under S. 161, Cr.P.C.---Scope---Prosecution case was that deceased police constable was driving with Frontier Corps personnel in private car when he was alerted by local people about the accused persons who were committing robbery whereupon the deceased got down from his vehicle and was fired upon by the accused---Eye-witness was a chance witness who was fellow police officer related to the deceased---Eye-witness gave no description of the accused whom he saw firing on the deceased---Incident occurred during night-time and although eye-witness claimed that there was light yet no bulb or other proof of light was recovered---Eye-witness, despite being on a motorbike, did not chase the accused---Owner of the bike was not examined as a witness which would have given vital corroborative evidence---Traffic policemen did not give evidence, who according to eye-witness cried at the scene---Frontier Corps personnel who were travelling with the deceased were not examined---Statement of eye-witness under S. 161, Cr.P.C. was recorded with a delay of 12 days---Empties recovered from the scene were 9mm yet the Forensic Science Laboratory report found same to be of .30 bore---No weapons were recovered from the accused and both of the accused persons were acquitted in cases against them under Arms Ordinance---Prosecution witnesses were police officers, some of whom were related to the deceased---No independent persons were associated with the case notwithstanding the provisions of S. 103, Cr.P.C., especially when a crowd had gathered after the shooting at the place of incident---Prosecution could not prove its case against the appellants beyond reasonable doubt, therefore, they were entitled to its benefit---Confirmation reference was answered by the High Court in the negative.

Muhammed Ali v. State 2017 SCMR 1468 and Ashiq v. The State 2017 SCMR 188 ref.

(c) Criminal trial---

----Benefit of doubt---Scope---Prosecution must prove its case beyond reasonable doubt and it is not for the accused to disprove the case against him who may take as many defences as he likes to the allegations against him and if there is any doubt in the prosecution's case, the benefit must go to the accused.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

(d) Criminal trial---

----Evidence---Accused can be convicted on the evidence of a single eye-witness without corroboration if the court finds his evidence to be trustworthy, reliable and confidence inspiring.

Muhammad Ehsan v. The State 2006 SCMR 1857 ref.

(e) Criminal trial---

----Confession---Retracted---Accused can be convicted on the basis of retracted confession if the court finds it voluntary i.e. without threat or inducement---Object of such retracted confession must be to state the truth; assistance for which can be ascertained from (i) whether the confession appears truthful within the context of the prosecution case and (ii) whether there is any other evidence on record which tends to corroborate the truthfulness of the confession.

Ch. Muhammad Yaqoob v. The State 1992 SCMR 1983 ref.

Ms. Abida Parveen Channar for Appellants.

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

2020 P Cr. L J 328

[Sindh]

Before Aftab Ahmed Gorar and Amjad Ali Sahito, JJ

FAROOQ---Appellant

Versus

MUSAVIR AHMED and 3 others---Respondents

Criminal Acquittal Appeal No. 523 of 2018, decided on 1st March, 2019.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Prosecution case was that the accused and co-accused committed murder of the deceased---Record reflected that accused persons were under arrest in another case had admitted the guilt of present offence, but no confessional statement of any of the accused was recorded before the Judicial Magistrate---Complainant and witness, alleged eye-witnesses of the incident, appeared in the court and made improvements in their statements to strengthen the prosecution case---Such improvements cast serious doubt on the veracity of said witnesses, as such their statements did not come within the established rule of acceptance of evidence---Such statements could not be relied upon without any corroboration, which was lacking in the present case---Presence of complainant and eye-witness at the scene of occurrence appeared to be doubtful as contradictions existed between the version of complainant and eye-witness in relation to the incident, therefore, there was no strong, convincing, independent and confidence inspiring evidence available with the prosecution to connect the accused persons with the commission of offence---First Information Report mentioned that the accused persons were muffled faces at the time of incident and had been identified correctly by the complainant before the Judicial Magistrate---Prosecution remained unsuccessful to prove the case against the accused, in circumstances---Appeal was dismissed accordingly.

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

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

----Ss. 302(b) & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, common intention---Identification parade, holding of---Appreciation of evidence---In the present case, there were two eye-witnesses of the incident but the identification parade was held through complainant only---Accused was arrested on 8.5.2013, co-accused was arrested on 3.5.2013 and another co-accused was arrested on 6.5.2013, but identification parade was held on 15.5.2013---Judicial Magistrate neither prepared list of dummies nor mentioned their ages, descriptions, Computerised National Identity Card numbers and addresses of the dummies in identification memos---Said memos lost its credibility and not admissible under the law.

Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127 and 2011 SCMR 37 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Crime weapon recovered from the accused---Reliance---Scope---Record reflected that crime weapon was recovered from accused on 6.5.2013, but the Investigating Officer sent the same to Forensic Science Laboratory on 27.5.2013 after lapse of twenty one days---Investigating Officer had failed to explain such delay in his evidence---Said delay had destroyed the evidentiary value of said piece of evidence.

Ali Sher and others v. The State 2008 SCMR 707 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Articles sent to Chemical Examiner and Serologist for examination---Procedure---In the present case, the Investigating Officer had sent allegedly recovered blood stained clothes to the Forensic Science Laboratory---Report received reflected that same were stained with human blood---Record was silent as to whether it was of the same blood group which was available on the clothes of the victim and the blood-stained earth---Investigating Officer was under legal obligation to send blood-stained earth, crime weapon, human blood for serologist report---Failure to follow such practice would make the opinion of Chemical Examiner inconclusive, which could not be used as evidence.

Muhammad Arif v. The State 2017 SCMR 486 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---Order of acquittal could only be interfered with, if it was found on its face to be capricious, perverse, arbitrary in nature.

Muhammad Ijaz v. Fahim Afzal 1998 SCMR 1281 rel.

Fazal Haque Khan for Appellant.

Sagheer Ahmed Abbasi, Assistant Prosecutor-General Sindh for Respondents.

2020 P Cr. L J 342

[Sindh]

Before Fahim Ahmed Siddiqui, J

DIRECTOR, DIRECTORATE GENERAL OF INTELLIGENCE

AND INVESTIGATION, FBR, KARACHI---Appellant

Versus

NAFEES-UR-REHMAN BARRY and another---Respondents

Special Criminal Acquittal Appeal No.28 of 2017, decided on 3rd November, 2018.

(a) Sales Tax Act (XVII of 1997)---

----Ss. 33(13) & 13, Sixth Sched. Sr. 80 & Eighth Sched. Sr. 9---Tax fraud---Illegal claim of exemption---Appeal against acquittal---Absence of mens rea---Scope---Case against accused persons was that they were involved in unlawful and illegal claim of zero rated exemption of sales tax on import of processed cheese aiming to evade duty/taxes leviable thereon---No sales tax category as 'processed cheese' was mentioned in the Sixth and Eighth Schedules of Sales Tax Act, 1990 therefore, the customs officials were treating the "processed cheese" under the category of "simple cheese"---Complainant had admitted such mistake and had stated that even the software of the customs department was carrying out the same position---Prosecution had to establish criminal intention or mens rea to prove criminal responsibility---No interference was required in the impugned judgment, which was otherwise based on settled principles of appreciation of evidence---Appeal against acquittal was dismissed.

(b) Criminal trial---

----Mens rea---Scope---Prosecution has to establish criminal intention or mens rea to prove criminal responsibility.

Ashiq Ali Anwar Rana for Appellant.

Aqeel Ahmed for Respondents.

2020 P Cr. L J 354

[Sindh]

Before Irfan Saadat Khan and Mrs. Kausar Sultana Hussain, JJ

Mst. BILQIS BANO and another---Appellants

Versus

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY through Administrator and 5 others---Respondents

High Court Appeal No. 299 of 2018, decided on 27th June, 2019.

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

----Ss. 12 & 23---Civil Procedure Code (V of 1908), S. 9---Corruption and corrupt practices---Civil court---Jurisdiction---Matters concerning NAB are considered to be criminal in nature and have to be dealt with in accordance with NAB laws---Matters pertaining to NAB neither can be considered to be cases of civil nature nor can be dealt with by civil court---Civil court is required to decide matters concerning civil disputes until and unless such jurisdiction is taken away by implied or expressed legislation.

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

----Ss. 12, 13 & 23---Civil Procedure Code (V of 1908), S. 9---Frozen property---Civil court, jurisdiction of---Plaintiffs claimed to be owners in possession of property in question but authorities refused to mutate same in their name on grounds that properties were subject matter of investigation under National Accountability Ordinance, 1999---Single Judge of High Court rejected plaint for reason that it did not have jurisdiction---Validity---Plaintiffs fell under term 'aggrieved person' and their liability laid with Accountability Court---Veracity, legality and propriety of actions taken by NAB authorities, whether directly or indirectly against plaintiffs, could only be decided by NAB authorities since an impediment with regard to transfer of property was imposed by NAB authorities---Accountability Court alone had authority to remove stigma/clog attached on properties in question therefore, plaintiffs should agitate their matter before Accountability Court---Division Bench of High Court declined to interfere with order passed by Single Judge of High Court as jurisdiction of civil court under S. 9, C.P.C. was ousted--- High Court appeal was dismissed in circumstances.

Raja Muhammad Zarat Khan v. Federation of Pakistan PLD 2007 Kar. 597; Ehsanullah Sirazi and another v. Director General (Karachi) National Accountability Bureau and another PLD 2018 Sindh 696; Chaudhry Muhammad Akram Warraich and another v. Chairman, National Accountability Bureau, Islamabad 2010 YLR 2766; Muhammad Akram and 10 others v. Federation of Pakistan PLD 2001 Kar. 48; Khan Muhammad Mahesar v. National Accountability Bureau (Sindh) and another 2010 PCr.LJ 579; Mirza Sardar Baig v. M Akmal Paul and 6 others 2017 PCr.LJ 691; Dr. Muhammad Azam Kasi v. The State through Deputy Prosecutor General Accountability Court No.1, NAB Quetta 2012 PCr.LJ 1950; Corruption in Pakistan Steel Mills Corporation PLD 2012 SC 610; National Accountability Bureau v. Mst. Zahida Sattar and others PLD 2001 Kar. 256; The State v. Nasir Javed Rana, Civil Judge Ist Class/Magistrate Section 30, Rawalpindi PLD 2005 SC 86; Hakim Mumtaz Ahmed and another v. The State PLD 2002 SC 590; Ghulam Basit v. The State and another 2013 PCr.LJ 1797; Shuja Khan Baluch v. Capital Development Authority, Islamabad through Chairman and 3 others PLD 2011 Isl. 25; Gen. (R) Syed Pervez Musharraf v. The State and another PLD 2014 Bal. 33; Syed Azmat Hussain v. Chairman, NAB and others 2011 PCr.LJ 104; Mst. Zahida Sattar and others v. Federation of Pakistan and others PLD 2002 SC 408; Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607 and Sardar Ahmed Siyal and others v. National Accountability Bureau 2004 SCMR 265 ref.

Khawaja Shamsul Islam and Shehzad Mehmood for Appellants.

Asif Rasheed for Respondent No. 1.

Ms. Durdana Tanveer, Assistant Attorney General for Pakistan.

Abdullah Munshi for Respondent No. 3.

Akram Javed along with Javed Ali, I.O. NAB for Respondent No. 4.

Ms. Nigar Afaq Hussain State Counsel.

2020 P Cr. L J 395

[Sindh]

Before Salahuddin Panhwar and Shamsuddin Abbasi, JJ

AHMED SAEED alias BHARAM alias NAGORI---Petitioner

Versus

INSPECTOR GENERAL OF POLICE (SINDH) and 3 others---Respondents

C.P. No. D-5759 of 2019, decided on 20th September, 2019.

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

----S. 164--- Constitution of Pakistan, Art. 199--- Constitutional petition---Confessional statement---Adjudication---Petitioner sought confessional statement adjudged through Constitutional petition in connection with criminal case wherein he was convicted and even appeal was declined---Validity---Status of such piece of evidence could not be sought to be adjudged in Constitutional petition.

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

----Ss. 7 & 11-EEEE--- Constitution of Pakistan, Art. 199---Constitutional petition---Blind FIR---Investigation---No Objection Certificate---Petitioner was detained by Rangers Force for over 90 days and was being interrogated in blind FIRs whereafter, Rangers Authorities had issued "No Objection Certificate" regarding non-involvement of petitioner in other cases---Petitioner apprehended that he would be falsely involved in other criminal cases---Validity---For purposes of investigation "No Objection Certificate" was not requirement of law rather such right would always be available to investigate a suspect---No person would be a suspect unless there were some circumstances which could make him a suspect---Where circumstances justified arrest of suspect/accused in some other case/crime, same would not require "No Objection Certificate" from other Law Enforcement Agency---Investigating officer of other case/crime could proceed further with request of formal arrest of suspect and even could proceed for obtaining body (remand) of such suspect---If during course of investigation there had come facts of commission of another cognizable offence then police was under obligation to resort to such course (S. 154, Cr.P.C.) even without permission/No Objection of anybody unless registration of such FIR demanded so---Petitioner could not seek restraining order from High Court that no investigation could be carried out in all cases referred by petitioner---No investigation could be stopped by writ of Certiorari and writ of Mandamus which stated that authorities would act strictly in accordance with law---What law provided to adjudicate FIRs in question which were disposed of in 'A' Class, authorities were bound to investigate all such FIRs and to ensure that all culprits were arrested and arraigned---Constitutional petition was dismissed in circumstances.

Sughran Bibi's case PLD 2018 SC 595 ref.

2020 P Cr. L J 421

[Sindh]

Before Muhammad Iqbal Kalhoro and Shamsuddin Abbasi, JJ

Mrs. NAJMA IQBAL and others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU and others---Respondents

C.P. No. D-377 of 2013, decided on 6th May, 2019.

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

----S. 33-E & Preamble---Sindh Land Revenue Act (XVII of 1967), S. 80---Criminal Procedure Code (V of 1898), S. 386---Recovery of fine---Scope---Imprisonment in lieu of fine---Effect---Petitioners were accused who were convicted and sentenced for holding assets beyond means and fine was also imposed on them---Plea raised by petitioners was that they had undergone sentence of imprisonment in lieu of fine therefore, fine could not be recovered---Validity---Petitioners had sufficient means in shape of moveable and immovable property to satisfy liability of fine by disposing them off rather than serving fixed sentence in lieu of it--- Petitioners chose otherwise and claimed that they were not liable to pay fine for having already undergone sentence for same---Legislature, by not providing any additional term of sentence for fine, in clear terms had conveyed its patent interest in recovery of looted amount than consigning offender to a particular jail term which was not likely to bring any fruit to society other than creating some form of deterrence for potential offenders---Such interest translating into object and necessity was adequately manifested in first three paragraphs of Preamble of the National Accountability Ordinance, 1999---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

PLD 2013 Lah. 686; Abdul Hafeez Luni v. The State through NAB 2015 YLR 1596; Abdul Jabbar v. The Chairman NAB through Director General National Accountability Bureau and 3 others PLD 2016 Pesh. 298; PLD 2016 Sindh 105; 2016 SCMR 1827; Ali Muhammad Baloch and others v. The State through NAB Authorities and others 2013 PCr.LJ 1089; 2009 PCr.LJ 341; 1976 PCr.LJ 116; Allah Dina and another v. The State and another 2015 MLD 460; Faiz Muhammad Jaffer and others v. The State through NAB, Quetta and others PLD 2012 Bal. 164; PLD 2008 Kar. 38; PLD 2012 Bal. 104; 2011 PCr.LJ 79 and Ahmad Ali Siddique v. Sargodha Central Cooperative Bank Limited and another 1989 SCMR 824 ref.

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

----Ss. 12 & 33-E---Recovery of fine---Freezing of property---Scope---Mechanism prescribing an unambiguous procedure to freeze property of an offender during trial has to be followed as well in event of Accountability Court ordering forfeiture of assets of an offender through a final judgment.

Saadat Yar Khan for Petitioners.

Aamir Raza Naqvi and S.M. Iqbal, Advocate/Amicus Curiae.

K.A. Vaswani and Khalid Mehmood Khan, Special Prosecutors NAB.

2020 P Cr. L J 451

[Sindh]

Before Nazar Akbar, J

JALALDIN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 163 of 2011, decided on 21st May, 2019.

Penal Code (XLV of 1860)---

----S. 320---Qatl-i-khata by rash or negligent driving---Criminal liability of the owner of vehicle---Scope---Owner of the vehicle involved in the accident was real brother of the absconding accused, the driver of the vehicle---Police officer conceded that the owner of vehicle involved in the road accident case is also supposed to be impleaded along with driver of the vehicle, who was charged under S. 320, P.P.C.---Investigating Officer, in the present case, had neither verified the license of the absconding driver nor the owner of the vehicle was joined as co-accused---High Court directed the police to ensure that in all pending cases under S. 320, P.P.C. after examination of police papers and investigation, where case was made out, owners of the vehicles involved in the accident should also be charged as co-accused.

Atta Muhammad v. The State 2005 PCr.LJ 1648 rel.

Nemo for Appellant.

Imran Rana and Usman Khan along with surety Nawaz.

2020 P Cr. L J 467

[Sindh]

Before Mrs. Ashraf Jahan, J

Syed ANEES HAIDER---Applicant

Versus

STATION HOUSE OFFICER, POLICE STATION MALIR CANTT. and others---Respondents

Criminal Miscellaneous Application No. 176 of 2018, decided on 4th December, 2018.

Criminal Procedure Code (V of 1898)---

----S. 22-A---Ex-Officio Justice of Peace, powers of---Scope---Petitioner had alleged in the application to Justice of Peace that his residential house was demolished without any order of the executing court and valuable goods were thrown away---Justice of Peace dismissed the petition under S. 22-A, Cr.P.C.---Validity---Civil dispute over the property remained pending for over a decade and finally executing court had passed order whereby execution application was disposed of as satisfied---Said order of executing court was never challenged by the petitioner but he insisted upon lodging of FIR against respondents---Petitioner had an option of filing private complaint but such option was not availed by him---Impugned order of Justice of Peace covered all the legal and factual aspects of the dispute, therefore, it required no interference---Application was dismissed.

Syed Muhammad Akbar for Applicant.

Zahoor Shah, DPG for the State.

Shahzad Akbar Abbas for Respondents.

2020 P Cr. L J 483

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Mahar and Irshad Ali Shah, JJ

SHAFI MUHAMMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-106 of 2009 (Confirmation Case No. 4 of 2009), decided on 20th August, 2019.

Penal Code (XLV of 1860)---

----S. 302---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Non-examination of complainant on account of his death---No deep rooted enmity---Scope---Appellant sought modification of death sentence into imprisonment for life with reduction of compensation to be paid---Complainant was not examined by the prosecution on account of his death---Prosecution witness had supported the case of prosecution by stating that the appellant and co-accused in furtherance of their common intention had committed the murder of deceased by causing him hatchet blows---Version of witness remained firm on all material points, despite lengthy cross-examination--- Hatchet was recovered from the possession of appellant---Sentence of death awarded to the appellant called for modification for the reason that there was no deep-rooted enmity between the parties and the appellant was deprived of his valuable right of defence on account of the death of complainant---Death sentence awarded to the appellant was modified to imprisonment for life---Appeal was disposed of, accordingly.

Ghulam Mohiuddin alias Haji Babu and others v. The State 2014 SCMR 1034 rel.

Badal Gahoti for Appellant.

Shevak Rathore, D.P.G. for the State.

2020 P Cr. L J 514

[Sindh]

Before Naimatullah Phulpoto and Mohammed Karim Khan Agha, JJ

The STATE through Chairman NAB---Appellant

Versus

Syed HAMID UMER---Respondent

Criminal Accountability Acquittal Appeal No. 7 of 2013, decided on 28th March, 2019.

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

----S. 9(a)(v)---Corruption and corrupt practices---Assets beyond known sources of income---Scope---Allegation against accused was that he had amassed wealth beyond his known pecuniary sources in his name and in the name of his spouse including properties, cars and money in various Bank accounts---Validity---Accused from the evidence on record had been able to satisfactorily explain as to from where and how he had acquired the assets---Prosecution had damaged its case by not taking in account the financial position of the wife of accused who according to the Investigating Officer was a lady of independent means and she might well have been in a position to purchase the property in her name out of her own sources of funds and thus it could not be conclusively found that the properties in her name were not bought by her out of her independent financial resources---Once Investigating Officer had become aware that the wife of accused was a lady of substance/wealth it became incumbent on him to investigate and trace out her sources of income to see whether she could have purchased the property in her name which was not done---Despite being an alleged benamidar of the accused, she was not made an accused---Accused was rightly acquitted of the charge through the impugned judgment as the findings of the Trial Court were neither perverse nor speculative but rather well reasoned--- Appeal against acquittal was dismissed.

Muhammad Hashim Babar v. State 2010 SCMR 1697 and Ghani Rehman v. NAB PLD 2011 SC 1144 rel.

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

----S. 417---Appeal against acquittal---Scope---Judgment of acquittal was not to be interfered until findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous---Scope of interference in appeal against acquittal is narrow and limited because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence as the accused shall be presumed to be innocent until proved guilty---Presumption of innocence, in other words, is doubled.

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

R.D. Kalhoro, Special Prosecutor NAB for Appellant.

Zaheer-ul-Hassan Minhas for Respondent.

2020 P Cr. L J 556

[Sindh]

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

and Omar Sial, JJ

ABDUL WAHAB and another---Appellants

Versus

The STATE---Respondent

Criminal Accountability Appeals Nos. 15 and 16 of 2001, decided on 6th February, 2019.

(a) Judgment---

----Per incuriam---Scope---"Per incuriam" in essence meant that in context of judgments/orders of court that such judgments/orders were patently wrong as they were passed in ignorance of law which most often was not brought to attention of court before it passed order/judgment in question---Contrary to a binding order/judgment of a superior court on same point which was decided before courts judgments/orders and which was not brought to its attention---Likewise, a statute which already answered legal point which was subject matter of judgment/order but which was not brought to attention of court before it made its judgment/order which lead to judgment/order being wrong as a matter of law.

(b) Interpretation of statutes---

----Role of judiciary---Scope---Role of judiciary of interpretation of statute only arises when statute is to a certain extent either unclear or ambiguous or prima facie in violation of the Constitution---In such cases, it is for judiciary to interpret that piece of legislation by trying to ascertain intent of Parliament in passing legislation---Courts have absolutely no authority or power to substitute their views for those intended by legislature simply because they may disapprove of a particular law and way in which that law is being applied.

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

----Ss. 9(a)(iii), 16A, 18 & 32--- Appeal--- Preliminary objection---Jurisdiction--- Determination--- Transfer of case and filing of reference---Cases in which accused persons were convicted and sentenced to imprisonment by Accountability Court were transferred from ordinary criminal courts---Plea raised by accused persons was that Accountability Court had no jurisdiction to try their cases as proper procedure was not followed after transfer---Validity---Accountability Court under S. 18(a) of National Accountability Ordinance, 1999, could not take cognizance of an offence unless a reference was filed by Chairman National Accountability Bureau (NAB)---Such was only applied to investigations carried out by NAB under S. 18 of National Accountability Ordinance, 1999, and not transferred cases under S. 16(A) of National Accountability Ordinance, 1999---Provision of S. 16(A) of National Accountability Ordinance, 1999, was a distinct separate and independent provision which applied to situations where the investigation had already been carried out by an investigative agency other than National Accountability Bureau, based on a complaint received by that investigation agency and the concerned Court other than Accountability Court had already taken cognizance of the matter in proceedings with the same---All cases transferred under S. 16(A) of National Accountability Ordinance, 1999 prior to amendment would proceed under National Accountability Ordinance, 1999 without need for Accountability Court to take fresh cognizance of same---Such was always intention of Legislature that such cases were to be treated as references for which Accountability Court under S.18(a) of National Accountability Ordinance, 1999 did not need to take fresh cognizance as cognizance was already taken prior to transfer---Use of wording in S. 16(A) of National Accountability Ordinance, 1999 that 'it shall not be necessary for court to recall any witness or again to record any evidence that may have been recorded' and by finding such legislative intention no further delay would be caused in completion of trial---Such was in consonance with rest of statute that trials conducted under National Accountability Ordinance, 1999 should be speedy as per preamble and S. 16(a) of National Accountability Ordinance, 1999---Accountability Court rightly exercised its jurisdiction in circumstances.

Abdul Sattar Dero v. State 2002 YLR 1870 distinguished.

Dr. Mubashir Hassan v. Federation of Pakistan PLD 2010 SC 1; Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187; Khizar Hayat and others v. The Commissioner, Sargodha PLD 1965 (W.P.) Lah. 349; Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate and others PLD 1961 SC 119; State v. Saeed Ahmed PLD 1962 SC 277; Siraj Din and others v. Sardar Khan and others 1993 SCMR 745; Begum B.H. Syed v. Afzal Jehan Begum and another PLD 1970 SC 29; Sindh High Court Bar Association v. Federation of Pakistan PLD SC 2009 879; Syed Iqbal Kazmi v. Federation of Pakistan C.P. No. D-1144 of 2007; Justice Khurshid Anwar Bhinder v. Federation of Pakistan PLD 2010 SC 483; Sardar Ahmed Siyal v. NAB 2004 SCMR 265; Rauf Bakhsh Kadri v. The State 2003 MLD 777 and The Collector of Sales Tax Gujranwala v. Messrs Super Asia Mohammed Din and Sons 2017 SCMR 1427) rel.

Haq Nawaz Talpur and Mohammad Asad Ashfaque for Appellant (in Criminal Accountability Appeal No. 15 of 2001).

Appellant No. 2 in person (in Criminal Accountability Appeal No. 16 of 2001).

K.A. Vaswani and R.D. Kalhoro, Special Prosecutor, NAB for the State.

2020 P Cr. L J 619

[Sindh (Hyderabad Bench)]

Before Fahim Ahmed Siddiqui, J

DILAWAR and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. S-73 and S-77 of 2016, decided on 26th November, 2018.

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

----Art. 22---Test identification parade---Purpose---Purpose of the test identification parade was to exclude the innocent suspect from the real culprits.

Farman Ali v. The State 1997 SCMR 971 rel.

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

----Art. 22--- Identification of accused during trial--- Scope---Identification of accused at the time of trial could not be equated with the identification held during the investigation.

Asghar Ali v. The State 1992 SCMR 2088 rel.

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

----Art. 22---Test identification parade---Scope---Identification might become a strong corroborative evidence in favour of prosecution, if the descriptions of the accused were given by the complainant or witnesses in FIR or in their statements; however, in absence of any description of the accused persons given in the body of FIR, the identification of culprits could still be used to connect a suspect with the commission of offence, when the role played by the accused had been described in FIR and reiterated at the time of identification without any exaggeration.

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

----Art. 22---Joint identification parade---Scope---Identification of multiple accused in one go was unsafe.

Kamal Din alias Kamala v. The State 2018 SCMR 577 rel.

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

----Ss. 302, 460 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, person jointly concerned in lurking house-trespass or house-breaking by night, common intention---Appreciation of evidence---Identification of accused---Scope---Accused were charged for committing murder of brother of the complainant---First Information Report showed that all the accused persons were muffled faces and the deceased brother of the complainant scuffled with one of them while the remaining two were guarding the complaining party and restrained them under the show of weapons---Muffling of accused was opened during resistance---Record showed that it was clearly mentioned in FIR and deposition of prosecution witnesses that the resistance was offered by deceased only, as such the face of only one accused could be seen, who scuffled with deceased and caused his murder, however, the complainant and witness identified two persons as culprits, which itself created serious doubt about the identification---Accused had stated that the complainant party was residing nearby their house and they were already known to them---Said fact was the fatal blow to the prosecution regarding test identification parade and casted doubt upon the entire prosecution case---Record transpired that medical evidence was in line with the ocular account in respect of the seat of injury to the deceased---Prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

2017 SCMR 1546; 2018 SCMR 577; 2017 SCMR 1189; 2004 SCMR 1185; 2015 PCr.LJ 81; 2017 SCMR 344; 2011 SCMR 537; SBLR 2016 Sindh 1291; PLD 2012 SC 215; 2016 SCMR 1766; 2016 PCr.LJ 1; 2016 YLR Note 102 and 2016 PCr.LJ Note 117 ref.

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

----Ss. 302, 460 & 34---Qatl-i-amd, person jointly concerned in lurking house-trespass or house-breaking by night, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence---Delay in dispatch of recovered weapon for analysis---Effect---Accused were charged for committing murder of brother of the complainant---Record showed that the crime weapon was recovered on the pointation of co-accused/appellant from bushes near a bridge---Crime weapon was allegedly recovered on 12.10.2010 at about 17:50 hours while the alleged incident took place in the night in between 25.09.2010 and 26.09.2010---'Memo of place of incident' prepared on 26.09.2010, showed two empties were recovered from the place of incident and taken into police custody---Recovered empties were not sent to Ballistic Expert just after their recovery from the place of incident---Even, weapon recovered on 12.10.2010, was not sent to the Ballistic Expert without delay---Report of Ballistic Expert, revealed that recovered empties and pistol both sent together on 19.10.2010 i.e. after 7 days of the alleged recovery weapon and after 23 days of the recovery of empties---Nothing was available on the record to show safe custody of empties and crime weapon---Circumstances suggested that after recovery of said articles, the same remained in custody of the investigator---Not proper, in circumstances, to rely upon the Ballistic Expert Report---Even if the recovery of pistol from the appellant was established, it was fatal for prosecution case as it created serious doubt that it was the same pistol, which was used in the alleged incident because of delayed sending as well as non-establishing its safe custody during intervening period---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court.

Wazeer Hussain Khoso for Appellant (in Criminal Appeal No.S-73 of 2016).

Shabeer Hussain Memon for Appellant (in Criminal Appeal No. S-77 of 2016).

Ms. Sana Memon, Assistant Prosecutor-General, Sindh for the State.

Altaf Sachal Awan for the Complainant.

2020 P Cr. L J 659

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Fahim Ahmed Siddiqui, JJ

NADIR ALI and others---Petitioners

Versus

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

C.P. No. D-3305 of 2016, decided on 22nd November, 2018.

Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Quashing of FIR---Alternate remedy--- Factual controversy--- Investigation in progress--- Scope---Petitioners sought quashing of FIR against them---Investigation was in progress--- Legal and factual issues raised in the petition could be taken by the petitioners in the first instance before the Investigating Officer and even before framing of the charge before the Trial Court which was empowered to discharge the petitioners or otherwise---High Court under Art. 199 of the Constitution could not stop the investigation of the crime especially when no mala fide was alleged against the Investigating Officer of the case---Petitioners had adequate alternate remedy available under the law for redressal of their grievance---Constitutional petition, being without merit, was dismissed.

Nasreen Bibi v. Farrukh Shahzad and others Criminal Appeal No. 280 of 2013 rel.

Ahsan Gul Dahri for Petitioners.

Sher Muhammad Laghari State Counsel.

2020 P Cr. L J 683

[Sindh]

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

MUHAMMAD SAFDAR---Petitioner

Versus

PRESIDING OFFICER ACCOUNTABILITY COURT NO.IV, KARACHI and others---Respondents

Constitutional Petition No. D-5209 of 2017, decided on 28th June, 2019.

(a) Police Rules, 1934---

----Vol. III, Ch. XXV, R. 25.2(3)---Investigating officer---Duties---Focus of investigating officer is to only successfully establish a case against a person nominated as accused in the case---In such desire and exuberance of investigating officer, material which is collected by him during investigation of the case and which material would establish innocence of accused or at very least help to his defense, is discarded from consideration.

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

----S. 17---Police Rules, 1934, Vol. III, Ch. XXV, R. 25.2(3)---Criminal Procedure Code (V of 1898), S. 265-C---Constitution of Pakistan, Art. 10-A---Copies of material collected during investigation, providing of---Duty of Investigating officer---Right of fair trial---Accused was aggrieved of refusal of Trial Court to provide him copies of all material which was collected during investigation by investigating officer but was not appended with reference---Validity---Investigation officer was to procure and produce all evidence required by a court to reach a fair and just decision, irrespective of whether it supported prosecution or defense with object of conducting an honest investigation which could guarantee a fair trial and conceiving a fair trial---National Accountability Bureau did not deny that it was in possession of documents sought by accused and documents sought by accused had a direct nexus with allegation against him, not providing such documents would adversely impact his Fundamental Right to have a fair trial as enshrined in Art. 10-A of the Constitution---High Court directed investigating officer to provide documents to accused---Constitutional petition was allowed accordingly.

Sughran Bibi v The State PLD 2018 SC 595; Bank of Punjab v. Haris Steel Industries (Pvt.) Limited PLD 2010 SC 1109 and Sharjeel Inam Memon v. National Accountability Bureau 2018 PCr.LJ Note 34, p.42 rel.

Shoukat Hayat for Petitioner.

Muhammad Bashir Ahmed for Respondent No. 4.

Riaz Alam Khan, Special Prosecutor NAB along with Mir Ali Raza, I.O.

2020 P Cr. L J 707

[Sindh (Hyderabad Bench)]

Before Fahim Ahmed Siddiqui, J

MUHAMMAD AMEEN---Appellant

Versus

TANVEER AHMED and 4 others---Respondents

Criminal Acquittal Appeal No. S-90 of 2018, decided on 20th December, 2018.

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

----Ss. 436, 506(2), 511, 337-A(iii), 337-H(2) & 337-L(2)---Criminal Procedure Code (V of 1898), S. 417---Mischief by fire or explosive substance with intent to destroy house, criminal intimidation, attempt to commit offence, shajjah­-i-­hashimah, hurt by rash or negligent act, punishment for other hurt---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Contradiction in evidence---Scope---Allegation of complainant was that the accused persons forcibly entered into his Printing Press, gave beating to him and his son and tried to set on fire his Printing Press---Complainant and his witnesses had contradicted each other---Complainant had stated in the FIR that the accused persons were armed with pistols and had caused fists, kicks and danda blows; whereas his witness stated that the complainant and his son were caused fists, kicks, iron rod and lathis blows by the accused persons---Complainant stated that the accused persons tried to set on fire his Printing Press but he was not supported by his witness---One of the witnesses stated that accused persons fired upon the Printing Press while the other stated that the accused persons made aerial firing---Mashir of the visit of place of incident had denied such visit in his presence so also his signature rather declared such memo. as forged---Investigating officer had not found any injury on the bodies of the complainant and his son nor had he referred them to hospital---Contradictions pointed out by the Trial Court were sufficient to declare that prosecution could not prove its case against the accused persons---Appeal against acquittal was dismissed.

(b) Criminal trial---

----Benefit of doubt---Scope---Single circumstance creating reasonable doubt in the prudent mind about the guilt of the accused will entitle him to the benefit of doubt not as a matter of grace and concession but as a matter of right.

Tariq Pervaiz v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 ref.

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

----S. 417---Appeal against acquittal---Scope---Appeal against acquittal has distinctive features and the approach to deal with the appeal against conviction is distinguishable from appeal against acquittal, as presumption of double innocence is attached in the latter case---Until and unless the judgment of the Trial Court is perverse, completely illegal and on perusal of evidence no other decision can be given except that the accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice, the court will not exercise jurisdiction under S. 417, Cr.P.C.

Inayatullah Butt v. Muhammad Javed and 2 others PLD 2003 SC 562 ref.

Shoukat Ali Pathan for Appellant.

Bhagwandas Bheel for Respondents Nos. 1 - 4.

Shawak Rathore, Deputy Prosecutor-General Sindh for Respondent No.5.

2020 P Cr. L J 737

[Sindh (Hyderabad Bench)]

Before Muhammad Saleem Jessar, J

AYAZ HUSSAIN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-1191 of 2019, decided on 21st November, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S. 9(b)---Possession and trafficking of narcotics---Bail, grant of---Further inquiry---Recovery of 325 grams of heroin---Area from where the accused was apprehended stated to be thickly populated area but police officials did not call for any independent and respected person of the locality to witness the recovery proceedings---Prior to the lodging of FIR, father of the accused had filed a direct complaint against the police officials as well for protection against the highhandedness of the police, therefore, false implication of the accused could not be ruled out---Every accused would be presumed to be blue-eyed boy of law until and unless he was found guilty of the charge---Meagre quantity of heroin had been shown to have been recovered from the possession of the accused which did not fall within the prohibitory clause of S. 497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Muhammad Yaseen M. Khaskheli for Applicant.

2020 P Cr. L J 759

[Sindh]

Before Mrs. Rashida Asad, J

TARIQ LIAQUAT ALI KHAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 958 of 2019, decided on 20th September, 2019.

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

----S. 497---Prevention of Electronic Crimes Act (XL of 2016), Ss. 16, 20 & 21---Unauthorized use of identity information---Offences against dignity of a natural person and against modesty of a natural person and minor---Bail, refusal of---Prohibitory clause of S. 497, Cr.P.C.---Scope---Subscriber information implicating the accused---Scope---Allegations against the accused were that he continuously threatened and defamed the family of his ex-fiancé by making fake identity information with different names and by uploading her personal pictures; that he transmitted the edited pictures of his ex-fiancé, her father and brother and sent them to her family and friends from his personal ID and that he dispatched hard copies of edited ojectionable pictures of his ex-fiancé through courier to her husband---Federal Investigation Agency, after receiving the complaint, sent a request to the Facebook authorities for providing ID login of the accused and in response thereof the Facebook authorities provided the cell phone number, Facebook ID information, creation date of ID, IP address and log activity of the accused---Federal Investigation Agency (FIA) thereafter sent a request to the Internet Service Provider (ISP) for obtaining subscriber details---Subscriber information of the cell phone numbers revealed that both numbers were registered in the name of the accused---Held; prima facie prosecution had sufficient material against the accused to connect him with the commission of the alleged crime---Offences for which the accused was charged did not fall within the prohibitory clause of S.497, Cr.P.C. being punishable upto five years, but in such like cases the grant of bail was not a right of the accused but a concession and since the accused was prima facie involved in a case against the dignity and modesty of a person, therefore, he was not entitled to the concession of bail---Bail application was dismissed, in circumstances.

2018 YLR 329 ref.

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

----S. 497---Bail---Tentative assessment---Scope---Deeper appreciation of material placed on record is not permitted at bail stage and the Court has to form its opinion on tentative assessment of record; however, the bail application cannot be decided in vacuum rather a bird's-eye view is required to be taken.

Fayyaz Ahmed for Applicant.

Choudhry Waseem Ahmed, Additional Attorney General Pakistan along with Mirza Tanveer Ahmed, Law Officer, FIA Cyber Crime Wing Karachi and Aijaz Ali Hisbani for the Complainant.

2020 P Cr. L J 780

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ali Sangi, J

Mirza ALI ADIL BAIG---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-872 of 2019, decided on 3rd October, 2019.

Criminal Procedure Code (V of 1898)---

----S. 498---Gas (Theft and Recovery) Act (XI of 2016), Ss. 15, 17 & 24---Bail, refusal of---Accused was found involved in theft of gas from main service line---Accused sought confirmation of pre-arrest bail on ground of mala fide of officials of Gas Supply Company---Accused was found taking gas illegally for commercial purposes and running a huge pipe factory---Relevant appliances were recovered from accused's factory--- No mala fide on the part of officials of Gas Supply Company was pointed out by the accused---Pre-arrest bail was an extraordinary relief and was only available in cases where there had been mala fide on the part of complainant or investigating agency---Pre-arrest bail application of accused was dismissed, in circumstances.

Ali Ahmed Palh for Applicant.

Applicant is present on interim pre-arrest bail.

Muhammad Asif, Special Prosecutor (SSGCL).

2020 P Cr. L J 797

[Sindh (Hyderabad Bench)]

Before Fahim Ahmed Siddiqui, J

ARSALAN and 4 others---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No. S-200 of 2017, decided on 19th December, 2018.

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

----S. 227---Penal Code (XLV of 1860), S. 472---Court may alter charge---Making or possessing counterfeit seal with intent to commit forgery---Scope---Petitioners through amendment of charge sought deletion of S. 472, P.P.C. on the ground that no evidence had come on record to attract the said provision---Validity---Charge could not be amended and a penal section could not be deleted solely on the ground that some evidence had not came on record regarding the same---High Court observed that trial had been completed and if the prosecution had not succeeded in establishing its case in respect of any portion of the charge, the same could be addressed by the petitioners at the time of preferring final arguments---Revision was dismissed, in circumstances.

Naimatullah v. The State 2018 PCr.LJ Note 64 ref.

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

----S. 227---Court may alter charge---Scope---Charge can be amended at any time before pronouncement of judgment.

Ishrat Ali Lohar for Applicant.

2020 P Cr. L J 817

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Fahim Ahmed Siddiqu, JJ

SALMAN---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION CANTONMENT HYDERABAD and others---Respondents

C.P. No. D-3514 of 2016, decided on 16th October, 2018.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B--- Ex-officio Justice of Peace, powers of---Registration of FIR--- Second FIR--- Scope--- Petitioner sought registration of second FIR regarding the same incident and ex-officio Justice of Peace dismissed the application---Validity---Matter, after recording of the first information relating to commission of cognizable offence in the prescribed book became a "case" and thereafter every step taken in ensuing investigation was a step taken in that "case" and second FIR was not allowed---Constitutional petition, having no merit, was dismissed.

Mst. Sughran Bibi v. The State PLD 2018 SC 595 ref.

Waqar Ahmed Memon for Petitioner.

Muhammad Ismail Bhutto, Additional Advocate-General and Syed Meeral Shah Bukhari, Additional Prosecutor-General for Respondents.

2020 P Cr. L J 835

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Mohammed Karim Khan Agha, JJ

SOOMAR---Petitioner

Versus

CIVIL JUDGE AND JUDICIAL MAGISTRATE, KHIPRO DISTRICT SANGHAR and 8 others---Respondents

C.P. No. D-2257 of 2018, decided on 30th August, 2018.

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

----Ss. 190 & 173---Cognizance of offence by Magistrate---Report of police officer---Discharge of accused by Magistrate on police report---Scope---Petitioner assailed order of Magistrate whereby the case was disposed of under 'C' class---Validity---Serious allegations had been levelled against the respondents, who by dint of weapons entered into the house of the petitioner; issued murderous threats; violated the principle of "chadar and char deewari"; made aerial firing; took away 25 maunds wheat and other household articles with them---Allegations of petitioner also found support from the statements of the prosecution witnesses recorded under S. 161, Cr.P.C.---Neither Investigating Officer nor the Magistrate had appreciated the evidence---Magistrate had passed impugned order by wrongly giving weight to the statements of defence witnesses and had accepted the summary under 'C' class blindly and without assigning any cogent/valid reason, which could not be approved---Ipse dixit of Investigating Officer could not be accepted to exonerate the accused from the commission of the offence---No reasonable ground or justification was available to disbelieve the evidence of the prosecution witnesses at initial stage of the case---Constitutional petition was allowed and the impugned order was set aside.

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

----S. 190---Cognizance of offence by Magistrate---Scope---Court, at initial stage, has to make tentative assessment of the material collected by Investigating Officer---Passing of exhaustive order by dilating upon each and every aspect of the matter is not necessary---Detailed and deeper appreciation is to be made at the stage after recording the evidence.

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

----Ss. 190 & 161---Cognizance of offence by Magistrate---Examination of witnesses by police--- Discharge of accused by Magistrate on police report---Scope---Where prosecution witnesses have fully implicated the accused in their statements recorded under S. 161, Cr.P.C., Magistrate cannot discharge the accused on the basis of police opinion.

Abdul Hameed v. State PLD 1997 Lah. 164 rel.

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

----Ss. 190 & 173---Cognizance of offence by Magistrate---Report of police officer---Scope---Magistrate can take cognizance of offence even if the report submitted by the Investigating Officer is negative and narrates that accusation is baseless and no case is made out against the accused.

Safdar Ali v. Zafar Iqbal 2002 SCMR 63 rel.

Zaheeruddin Nohri for Petitioner.

Mian Taj Muhammad Keerio for Respondents Nos. 2 to 7.

Syed Meeral Shah Bukhari, Additional Prosecutor General for Official Respondents.

2020 P Cr. L J 848

[Sindh]

Before Salahuddin Panhwar, J

MANZOOR HUSSAIN---Applicant

Versus

The STATE and 3 others---Respondents

Criminal Miscellaneous Application No. 98 of 2018, decided on 22nd May, 2019.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Superdari of vehicle---Sale of said vehicle by person having superdari---Responsibility of person possessing a vehicle on superdari---Scope---Applicant purchased the car, earlier leased by the Bank, from a person who himself had received possession on superdari---Said car was captured by the Bank being owner (decree-holder)---Magistrate ordered to deliver the vehicle to the applicant being last possessor---Appellate Court set aside said order and declared that the Bank was rightful owner---Applicant contended that Appellate Court had travelled beyond its jurisdiction while pronouncing judgment---Validity---Person, possessing a vehicle under superdari order, legally could not sell out the same because such possession was not a proof of title---Such person was always required to retain possession within the limitation(s), so detailed in the superdari order---Title documents, in the present case, were, admittedly, in favour of the Bank coupled with the decree passed by the Banking Court---Though, while deciding such like claims in criminal matters, the Courts were not required to adjudicate upon the title/ownership but entitlement must be examined---Since the title documents were in the favour of the Bank and even possession was with it though claimed to be in illegal manner which, however, could not be dilated upon by criminal court---Entitlement, prima facie, was in favour of the Bank so was rightly concluded by Appellate Court---Property lying with the Nazir would not serve any purpose of justice rather letting it (vehicle) under such custody would surely bring down the value of vehicle---High Court held that handing over the property to the Bank, however, would not prejudice the claims and entitlement of petitioner pending adjudication before civil court---Application was dismissed accordingly.

Fayyaz Ahmed for Applicant.

Javed Haleem for Dubai Islamic Bank Ltd.

2020 P Cr. L J 864

[Sindh]

Before Naimatullah Phulpoto and Mohammed Karim Khan Agha, JJ

SHEER MUHAMMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 126 and Confirmation Case No. 4 of 2017, decided on 26th April, 2019.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive not proved---Reduction of sentence---Scope---Accused was alleged to have poisoned his children, cut the wrists of his wife and strangulated her---Accused did not press his appeal on merits but instead sought reduction of sentence from death penalty to life imprisonment---Accused had murdered his wife by hanging her from a fan---Accused was prepared to financially support his young children---Prosecution had failed to prove the motive behind the murdering wife apart from allegations that he had suspicions about her fidelity---Appellant had made out a case for reduction in his sentence from that of death to imprisonment for life---Appellant's sentence was converted from death sentence to imprisonment for life and confirmation reference was answered in the negative---Appeal was disposed of accordingly.

Ghulam Mohy-ud-Din v. State 2014 SCMR 1034 and Khalid Mehmood v. State 2017 SCMR 201 ref.

(b) Criminal trial---

----Motive---Where prosecution asserted a motive and was unable to prove it or simply could not prove a motive then it generally justified the reduction of death sentence to life imprisonment.

Amjad Shah v. State PLD 2017 SC 152 and Saeed Ahmed v. State 2015 SCMR 710 ref.

Ajab Khan Khatak for Appellant.

Mohammad Iqbal Awan, Deputy Prosecutor General for the State.

2020 P Cr. L J 880

[Sindh]

Before Aftab Ahmed Gorar and Amjad Ali Sahito, JJ

ALI---Petitioner

Versus

The STATE---Respondent

Criminal Revision Application No. 221 of 2018, decided on 5th March, 2019.

(a) Juvenile Justice System Ordinance (XXII of 2000) [since repealed]---

----S. 7---Determination of age of accused---Guidelines---Court was to hold an inquiry whenever it was confronted with question of age of an accused person---Court should feel free to requisition the original record, summon and examine the authors/custodians of record to determine its genuineness---Court could summon persons, if need be, who on account of some special knowledge could depose about the age of accused person and could take further steps in reaching a just conclusion---Issue about determination of age of accused was of vital significance---Court was not to decide the issue in a summary or slipshod manner.

PLD 2004 SC 758 fol.

(b) Juvenile Justice System Ordinance (XXII of 2000) [since repealed]---

----S. 7---Determination of age of accused---Non-production of certificate of hospital---Effect---Accused assailed order of Trial Court whereby it dismissed his application to declare him a juvenile person---Plea of accused was that he, as per his birth certificate and educational certificates, was a juvenile and Trial Court despite verification from concerned department had relied solely on the report of Medical Board for determination of his age---Validity---Birth certificate and educational certificates were available before Trial Court but it had considered the said documents to be insufficient for reaching at just and fair conclusion---When Medical Board was established and constituted as third tier then its utilization, for the purpose of determination of age, could not be termed objectionable or strange---Accused, according to his father, was born in hospital but no certificate of hospital or discharge card was placed on record---Criminal revision application was dismissed.

2017 SCMR 633; 2014 PCr.LJ 542; PLD 2015 SC 145; 2004 SCMR 121; 2012 SCMR 242; 2003 PCr.LJ 623; PLD 2004 Pesh. 70; 2007 YLR 2151; PLD 2007 Lah. 392; PLD 2008 Lah. 26 and PLD 2004 SC 758 ref.

Wazeer Hussain Khoso for Applicant.

Sagheer Ahmed Abbasi, Assistant Prosecutor General Sindh for the State.

Altaf Hussain Surhiyo for the Complainant.

2020 P Cr. L J 902

[Sindh]

Before Mrs. Rashida Asad, J

Dr. WAQAR SAEED and others---Applicants

Versus

The STATE and others---Respondents

Criminal Miscellaneous Applications Nos. 177 of 2016 and 49 of 2017, decided on 21st October, 2019.

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

----S. 561-A---Penal Code (XLV of 1860), Ss. 161, 420, 468 & 34---Prevention of Corruption Act (II of 1947), S. 5--- Public servant taking gratification other than legal remuneration in respect of an official act, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, common intention, criminal misconduct--- Inherent powers of High Court--- Quashing of proceedings---Scope---Applicants sought quashing of proceedings pending against them in the Court of Special Judge Anti-Corruption---Complaint and the inquiry report did not mention any culpable allegations against the holder of the public offices arrayed as accused in the complaint and implicated in the order of the Trial Court for registration of the case---Trial Court, while entertaining the complaint and passing an order for registration of the case for the criminal offence, had not applied judicial mind to determine whether the accused persons had committed any cognizable offence or otherwise---Trial Court, without there being any allegation for payment or receipt of the bribe within the ambit of S. 161, P.P.C. & S. 5(2) of Prevention of Corruption Act, 1947, had itself created a charge against accused persons for the said offences---No allegation for any cheating and falsification of the documents within the mischief of Ss. 420 & 468, P.P.C. were levelled in the complaint yet the Trial Court had applied the said provisions---No cognizable offence was even alleged against the accused persons---Matter was that of civil nature between the private parties---Names of public servants were included in the list of the accused persons just to create a false jurisdiction of the Court of Special Judge Anti-Corruption; which, if allowed to continue, would jeopardize their Fundamental Rights as guaranteed under the Constitution--- Such nefarious practice could only be curbed by exercise of jurisdiction under S. 561-A, Cr.P.C.---Criminal proceedings pending against the applicants were quashed, in circumstances.

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

----Ss. 561-A, 249-A & 265-K---Inherent powers of High Court---Powers of Magistrate/Sessions Judge under Ss. 249-A & 265-K, Cr.P.C.---Scope---Quashing of proceedings by High Court under S. 561-A, Cr.P.C.---Scope---If quashing of criminal proceedings is sought under S. 561-A, Cr.P.C. on the ground that the proceedings are ex facie without jurisdiction and continuation of the same will constitute abuse of the process of the court, the High Court will entertain proceedings without insisting upon that a party should first approach the Trial Court---Sections 249-A, 265-K & 561-A, Cr.P.C. are couched in different language and their scopes appear to be different---Sections 249-A & 265-K, Cr.P.C. empower a Magistrate/ Sessions Judge to acquit an accused at any stage of the case if after hearing the prosecutor and the accused for the reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence---Section 561-A, Cr.P.C. lays down that nothing in the Criminal Procedure Code shall be deemed to limit or effect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice---Such kind of power is not available with Magistrate/Sessions Judge under S. 249-A or 265-K, Cr.P.C. inasmuch as under the latter provision, he can acquit an accused after he considers either that the charge is groundless or that there is no probability of the accused being convicted in any offence---High Court can quash a criminal proceeding in order to prevent abuse of process of any court or otherwise to secure the ends of justice.

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

----S. 561-A--- Inherent powers of High Court--- Quashing of proceedings---Scope---Exercise of jurisdiction under S. 561-A, Cr.P.C. to quash proceedings is not completely prohibited and it has been left open to exercise such jurisdiction in appropriate cases and sparingly.

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

----Chaps. XV [Ss. 177 to 199B], XVI [Ss. 200 to 203C], XVII, [Ss. 204 & 205], XX [Ss. 241 to 250-A] & XXII-A [Ss. 265-A to 265-N]---Jurisdiction of criminal courts in inquiries and trials--- Conditions requisite for initiation of proceedings---Complaints to Magistrate, commencement of proceedings before Magistrate---Trial of summon-cases by Magistrate, trials before High Court and Courts of Session---Scope---Determination of guilt or innocence of an accused person is a serious business which commences with a pre-trial exercise to be judicially carried by a competent Magistrate under S. 190, Cr.P.C.---If the allegations levelled and the evidence collected are found worth a trial, then cognizance is taken of the case and the accused is summoned to face the trial---Detailed inquiry is prescribed and a thorough probe into the matter is required where the prosecution has full right to adduce its evidence to establish the guilt of the offender and where the accused has a comprehensive right to impeach the credibility and the reliability of the evidence produced by the prosecution---Accused then has the right to explain different pieces of evidence offered against him by the prosecution---Accused can make a statement on oath in disproof of the allegations leveled against him and finally he can produce his own evidence to discredit the prosecution case against him.

Shehzad Mehmood for Applicants (in Criminal Miscellaneous Application No. 177 of 2016).

Nisar Ahmed Tarar for Applicants (in Criminal Miscellaneous Application No. 49 of 2017).

Respondent in person.

Zahoor Ahmed Shah, DPG for the State.

2020 P Cr. L J 928

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ali Sangi, J

SAJJAN---Appellant

Versus

MEHBOOB ALI and 2 others---Respondents

Criminal Acquittal Appeal No. S-44 of 2019, decided on 23rd September, 2019.

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

----Ss. 324, 504 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of peace, common intention---Appreciation of evidence---Appeal against acquittal---Identification parade not conducted before Magistrate---Effect---Accused persons allegedly attempted at the life of complainant and his relatives---Accused persons were neither nominated in the FIR nor their description was given by the complainant---No identification parade was conducted---Acquittal of respondents did not suffer from any illegality so as to call for interference---Appeal against acquittal was dismissed.

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

----Art. 22---Identification parade---Scope---Identification parade in court even after considerable delay of the incident cannot satisfy the requirement of law for proving identity of the culprit.

Asghar Ali's case 1992 SCMR 2088 and Sohail Abbas's case PLD 2001 SC 546 ref.

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

----S. 417--- Appeal against acquittal--- Scope--- Appeal against conviction is distinguishable from appeal against acquittal, because presumption of double innocence is attached in the latter case---Order of acquittal can only be interfered with if it is found on the face of it as capricious, perverse, arbitrary or foolish in nature.

Inayat Ullah Butt v. Muhammad Javed and others PLD 2003 SC 563 ref.

(d) Criminal trial---

----Benefit of doubt---Scope---One substantial doubt is enough to acquit the accused.

Manzoor Ali Jessar for Appellant.

2020 P Cr. L J 957

[Sindh]

Before Abdul Mobeen Lakho, J

SOHAIL UDDIN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 13 of 2020, decided on 27th February, 2020.

Criminal Procedure Code (V of 1898)---

----S. 498---Gas (Theft Control and Recovery) Act (XI of 2016), Ss. 15, 17 & 24---Pre-arrest bail, confirmation of---Further inquiry---Raiding party upon checking found one bhatti which was running using the illegal direct connection through a steel pipe for melting plastic---Raw manufacturing material and finished or unfinished product was not recovered from the premises, which made the case of the accused of further inquiry---Pre-arrest bail already granted to accused was confirmed, in circumstances.

Amir Nawaz for Applicant.

Malik Sadaqat Ali Khan, Special Prosecutor, SSGC for the State.

2020 P Cr. L J 976

[Sindh]

Before Mrs. Rashida Asad, J

MUHAMMAD ZESHAN alias ALI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 1262 of 2019, decided on 12th February, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 324, 336-B, 34---Attempt to commit qatl-i-amd, hurt caused by corrosive substance, common intention----Bail, refusal of---Acid throwing---Medico legal certificates showed that the victims, her brother and her infant nephew had been affected badly by the alleged cruel act of the accused and as a result, the victim lost/ damaged her both eyes and beauty of her face---Face of the infant was also severely burnt---Complainant and victim in her statement under S. 161, Cr.P.C., had nominated the accused with specific act of throwing acid---Presence of the accused in the odd hours of night at the place of incident without any reason showed his involvement with the commission of the offence---Case of the co-accused was distinguishable from the case of the accused, hence, rule of consistency was not applicable to his case---Delay of 03 hours in lodging FIR could be examined by the Trial Court after recording evidence of the prosecution witnesses---Sufficient evidence/material was available on record to connect the accused with the commission of alleged offence---Bail application of accused was dismissed, in circumstances.

Qamar Iqbal for Applicant.

Ms. Amna Ansar, Additional Prosecutor General Sindh for the State.

Salahuddin Panhwar for the Complainant.

2020 P Cr. L J 984

[Sindh (Sukkur Bench)]

Before Zulfiqar Ali Sangi, J

MUHAMMAD AYOOB and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No. S-583 of 2019, decided on 17th January, 2020.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 269, 272, 273 & 337-J---Negligent act likely to spread infection of disease dangerous to life, adulteration of food or drink intended for sale, sale for noxious food or drink, causing hurt by means of poison---Pre-arrest bail, confirmation of---Further inquiry---Recovery of 18 bags containing 900 packets of Gutka/betel nuts injurious to health---Complainant on spy information arrested the accused persons and recovered the alleged Gutka from the car---Police had ample time to arrange the private persons to associate as witnesses in the recovery proceedings but failed---Applicability of S. 337-J, P.P.C. was yet to be determined by the Trial Court after recording the evidence of the prosecution witnesses---Section 337-J, P.P.C. provided punishment for a term which might extend to ten years---Word "may" provided discretion to the court in punishing the accused found guilty after complete trial---Keeping in view the above punishment provided in S. 337-J, P.P.C. the offence as alleged against the accused persons did not fall within the ambit of S. 497(1), Cr.P.C.---While deciding the bail application the lesser punishment provided in the law was to be considered---Accused persons were arrested by the police and later on they were granted bail by Judicial Magistrate and on furnishing surety they were released---Record did not reflect that such order of the Magistrate was challenged by the prosecution by filing cancellation application and there was no evidence that the custody of accused persons was required to the investigation officer after their release---Only the accused persons who on insertion of S. 337-J, P.P.C. in the challan felt an apprehension of their arrest and approached the Court of Sessions Judge for bail before arrest which was declined---Trial of the case was nearing to conclusion as in the cases of recovery only complainant, mashir and investigation officer was required to be examined---Declining pre-arrest bail and sending accused to the jail, in circumstances, was not justifiable---While deciding bail plea, the material was to be assessed tentatively, deeper appreciation of evidence was not permissible under the law---Interim pre-arrest bail already granted to the accused persons was confirmed, in circumstances.

Noor Muhammad Memon for Applicants.

2020 P Cr. L J 1015

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Abdul Mobeen Lakho, JJ

GHULAM MUHAMMAD---Petitioner

Versus

PROVINCE OF SINDH through Secretary Home Department, Sindh Secretariat Karachi and 8 others---Respondents

Constitutional Petition No. 1241 of 2019, decided on 10th October, 2019.

Constitution of Pakistan---

----Art. 199--- Constitutional petition---Investigation, interference with---Scope---Petitioner contended that final report had been submitted against him by the Investigating Officer for mala fide reasons---Validity--- Case was pending before the Court of competent jurisdiction---Proper course for the petitioner would be to approach the Trial Court for seeking any relief available to him under the law---Mala fide against the Investigation Officer could not be specifically pointed out by the petitioner---Petition being without merits was dismissed accordingly.

J.K. Jarwar for Petitioner.

Zulfiqar Ali Jatoi, Additional Prosecutor General for Respondents.

2020 P Cr. L J 1035

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Mahar and Irshad Ali Shah, JJ

The STATE/ANF through Assistant Director ANF---Applicant

Versus

HAZAR KHAN and 2 others---Respondents

Criminal Revision Application No. D-36 of 2017, decided on 31st January, 2019.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 265-E---Constitution of Pakistan, Art. 10-A---Possession of narcotics---Plea of guilty---Fair trial---Scope---No one could be condemned unheard---Applicant assailed order of Trial Court whereby Trial Court, on the application of accused persons, convicted him (applicant) to the sentence already undergone by him---Accused persons had not pleaded guilty to the charge in first instance but had at subsequent stage pleaded guilty to the charge before Additional Sessions Judge---Additional Sessions Judge, without loss of time, convicted and sentenced the accused persons without providing chance of hearing to the prosecution---Impugned order was against the spirit of natural justice and mandate contained in Art. 10-A of the Constitution which prescribed that every person was entitled to fair trial and due process of law for determination of his rights and obligations in civil or criminal charges against him---Accused persons had undergone over 5 years and few months of imprisonment which was too short to meet with the requirements of law in a case where 340 kilograms of charas was recovered--- Impugned order having been passed in improper exercise of jurisdiction which was not sustainable---Trial Court was directed by the High Court to proceed with the case afresh in accordance with law---Revision application was disposed of accordingly.

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

----Ss. 265-D & 265-E---Charge---Plea of guilty---Scope---Charge in a criminal case by Sessions Court is to be framed under S. 265-D, Cr.P.C.---Where accused pleaded guilty to the charge then his plea was to be recorded under S. 265-E, Cr.P.C. and then the Court under subsection (2) could in its discretion convict the accused---Use of word "may" prima facie suggested that it was not necessary or mandatory for the Court that in every case accused was to be convicted of the offence for which he was charged, on the basis of his admission to guilt---Circumstances of the case had to be taken into consideration.

Ubedullah Malano, SPP ANF Sukkur for Applicant.

Nemo for Respondents.

2020 P Cr. L J 1060

[Sindh]

Before Salahuddin Panhwar, J

MIR ALI---Applicant

Versus

The STATE and another---Respondents

Criminal Miscellaneous Application No. 23 of 2018, decided on 21st May, 2018.

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

----Ss. 173 & 200---Submission of challan---Power of Magistrate---Scope---Magistrate could competently agree or disagree with police report---Such act, however, does not prejudice the rights of complainant party to file a complaint even in case of disposal of the case.

Bahadur and another's case PLD 1985 SC 62 rel.

(b) Criminal trial---

----Opinion of police---Scope---Ipse dixit of the police was not of any binding effect upon the Magistrate.

Syed Paryal Shah v. Behram Ali and 3 others 2012 PCr.LJ 189 rel.

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

----S. 561-A---Penal Code (XLV of 1860), Ss. 324 & 34---Attempt to commit qatl-i-amd, common intention---Application under S. 561-A, Cr.P.C. for quashing of order of Magistrate---Magistrate returning charge sheet (challan) for its submission before a Special Court---Scope---Magistrate had neither taken the cognizance of the matter nor had ordered for cancellation of the case, but had simply opined that facts of case involved application of S. 6 of the Anti-Terrorism Act, 1997, which was to be tried by a Special Court---Magistrate had returned the papers (charge sheet) back to Investigating Officer for its presentation before competent court having jurisdiction---Magistrate had left things opened for the Special Court either to agree with the view of the Magistrate or to competently disagree therewith---Said order of the Magistrate having no binding effect, challenge thereto would not be available under inherent jurisdiction of High Court under S. 561-A, Cr.P.C.---Petition being pre-mature, was dismissed, in circumstances.

Asfandyar and another v. Kamran and another 2016 SCMR 2084 rel.

Aamir Mansoob Qureshi for Applicant.

2020 P Cr. L J 1079

[Sindh]

Before Nazar Akbar, J

Sardar MUHAMMAD BUX MAHAR through Attorney---Petitioner

Versus

Mst. SAMAN MUHAMMAD MAHAR and another---Respondents

C.P. No. S-836 of 2019, decided on 16th August, 2019.

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

----S. 491---Constitution of Pakistan, Art. 199---Guardians and Wards Act (VIII of 1890), Ss. 25, 5 & 7---Habeas corpus---Recovery and custody of minors---Defective forum---Scope---Petitioner assailed order of Sessions Judge whereby he had directed the petitioner to produce minors before the court---Petitioner had filed application under Ss. 5 & 7 of Guardians and Wards Act, 1890 against his wife seeking declaration that the welfare of the minors was in their custody with father---Mother of minors had filed application under S. 491, Cr.P.C. and had prayed for their recovery and custody---Validity---Held; that none of the parties had filed application in terms of S. 25 of Guardians and Wards Act, 1890 for determination of their title as "guardian" to claim custody of the wards as against the other---Parties had chosen a defective forum for redressal of their grievance and/or claim against each other---High Court converted the petition under S. 491, Cr.P.C. into an application under S. 25 of Guardians and Wards Act, 1890 and changed the application under Ss. 5 & 7, Guardians and Wards Act, 1890 into written reply of the application--- Constitutional petition was disposed of, accordingly.

(b) Guardians and Wards Act (VIII of 1890)---

----Ss. 7 & 8---Power of court to make order as to guardianship---Person entitled to apply for such order---Scope---Provisions of S. 7 of Guardians and Wards Act, 1890 are generally invoked by strangers to the minor children for their appointment as guardian to look after the welfare of minors in the event of death of at least one of the natural guardians---Section 7 is to be read with S. 8 of Guardians and Wards Act, 1890, which provides that such an application can be made by "the person desirous of being" appointed as guardian of minor---Parents are natural guardians and therefore, they do not require an order of the court to support their right to act as guardian of the minors---Court under S. 7 of Guardians and Wards Act, 1890 is not empowered to decide the title of guardian about custody of the ward.

Ms. Arjumand Khan holding brief for Ms. Ismat Mehdi for Petitioner.

2020 P Cr. L J 1097

[Sindh]

Before Mrs. Rashida Asad, J

GHULAM QADIR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 623 of 2017, decided on 19th November, 2019.

(a) Criminal trial---

----Witness---Police witness---Scope---In absence of any kind of enmity or animosity, evidence of police is worthy of reliance as of any other independent witness.

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

----Ss. 302(b) & 302(c)--- Criminal Procedure Code (V of 1898), S. 342--- Qatl-i-amd--- Appreciation of evidence--- Mitigating circumstances---Motive not proved---Statement of accused---Accused was police constable who was alleged to have committed Qatl-i-amd of his fellow police constable during duty---Plea raised by accused was that all evidence produced by prosecution was circumstantial---Accused could be convicted or sentenced on basis of circumstantial evidence provided no link of chain was found missing and all circumstances had led to guilt of accused---Deceased was done to death by accused by firing from Submachine Gun (SMG) and medical evidence also stipulated that death was result of firearm injuries---Report of Forensic Science Laboratory showed that empties matched with official SMG of accused---Nothing substantial was available in statement of accused recorded under S. 342, Cr.P.C. to discredit confidence inspiring evidence and plea raised by accused was rightly discarded by Trial Court---Charge of murder against accused was established and Trial Court had rightly come to conclusion that prosecution had proved its case against accused beyond any reasonable doubt---Motive could not be proved by prosecution during trial through reliable evidence---Evidence suggested that something happened all of a sudden that ignited a situation ultimately leading to homicidal death of deceased---Such mitigating circumstance had made out a case to convert conviction of accused from Ss. 302(b) to 302(c), P.P.C.---High Court reduced sentence from imprisonment for life to imprisonment for 10 years---Appeal was dismissed accordingly.

Sh. Muhammad Amjad v. The State PLD 2003 SC 704 rel.

(c) Criminal trial---

----Evidence---Scope---While deciding case pertaining to criminal administration of justice, court is required to take into consideration intrinsic value of evidence instead of laboring unnecessarily to find out such contradictions and improvements in evidence which ultimately turns to nothing.

Mushtaq v. The State PLD 1995 SC 46 rel.

Altaf Hussain and Khurram Memon for Appellant.

Ms. Rubina Qadir, Deputy Prosecutor-General Sindh for the State.

2020 P Cr. L J 1122

[Sindh]

Before Abdul Mobeen Lakho, J

MOHAMMAD USMAN SHAR---Appellant

Versus

The STATE through DAG and others---Respondents

Criminal Acquittal Appeal No. 158 of 2018, decided on 6th November, 2019.

Criminal Procedure Code (V of 1898)---

----S. 249-A---Power of magistrate to acquit accused at any stage "Complainant was condemned unheard"---Effect---Complainant assailed order passed by Trial Court whereby it had allowed the application filed by accused under S. 249-A, Cr.P.C. resulting in his acquittal---Contention of complainant was that no notice of such application as moved was given to him---Validity---Pre-mature acquittal under S. 249-A, Cr.P.C., without providing opportunity of hearing to the complainant, who was present on each date, was against the principles of natural justice which provided that one could not be condemned unheard---Impugned order was set aside and the case was remanded to the Trial Court for hearing the application so moved afresh after notice and affording opportunity of hearing to both parties---Appeal was disposed of accordingly.

Miss Shagufta Parveen Khan v. Fateh Jung and 2 others 2012 YLR 2907; Mohammad Nawaz v. The State and others 2011 MLD 299 and Ch Abid Mehmood v. Mirza Zafar Javed and others 2019 PCr.LJ 1241 ref.

Kausar Ali Shar for Appellant.

Ms. Amna Ansari, DAG for the State.

2020 P Cr. L J 1147

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ali Sangi, J

PEERAL---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-222 of 2016, decided on 17th October, 2019.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of weapon---Proof---Non-sending of crime weapon to Forensic Science Laboratory---Two accused persons faced trial for committing Qatl-i-amd---One accused was acquitted while other was convicted---Recovered gun and empty cartridge was not sent to Forensic Science Laboratory nor such report was produced by prosecution during trial therefore, recovery of gun had become doubtful---Prosecution failed to prove case against accused beyond shadow of reasonable doubt---Even a single doubt in story of prosecution was disastrous and its benefit must go to accused---High Court set aside conviction and sentence to accused and acquitted him of charge---Appeal was allowed in circumstances.

Abdul Rahim v. Ali Bux and 4 others 2017 PCr.LJ 228; Muhammad Asif v. The State 2017 SCMR 486; Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

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

----S. 342---Qanun-e-Shahadat (10 of 1984), Arts. 2(c), 71 & 132---Words 'for the purpose of enabling the accused to explain any circumstances appearing in evidence against him' occurring in S. 342, Cr.P.C.---Scope---Word "evidence" in the said phrase in S. 342, Cr.P.C.---Connotation---Such words demonstrate that not only circumstances appearing in examination-in-chief are put to accused but circumstances appearing in cross-examination or re-examination are also required to be put to accused if they are against him---"Evidence" means examination-in-chief, cross-examination and re-examination as provided under Arts. 2(c), 71 & 132 of Qanun-e-Shahadat, 1984.

Muhammad Shah v. The State 2010 SCMR 1009 rel.

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

----S. 342---Incriminating evidence not putting to accused---Effect---Piece of evidence which is not put to accused in statement under S. 342, Cr.P.C. cannot be used against such accused---Phrase "for the purpose of enabling the accused to explain any circumstances appearing in evidence against him"---Analysis.

Nusrat Ali Shar and others v. The State Criminal Appeals Nos.24-K, 25-K and 26-K of 2018; Imtiaz alias Taj v. The State 2018 SCMR 344; Qadan and others v. The State 2017 SCMR 148; Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others 2017 SCMR 1710 rel.

Sajjad Ahmed Chandio for Appellant.

Ms. Safa Hisbani, APG for the State.

2020 P Cr. L J 1170

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Abdul Mobeen Lakho, JJ

UMEDOO---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-72 of 2019, decided on 10th October, 2019.

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

----Ss.7 & 10(11-A)---Constitution of Pakistan, Arts. 9, 10(1) & 10-A---Act of terrorism---Trial in absentia---Scope---Fair trial---Accused was declared proclaimed offender and he was convicted by Trial Court in his absence---Validity---Trial of accused was conducted in absentia without providing him opportunity of hearing---Such conviction and sentence awarded to accused by Trial Court was not sustainable under law and was violative of provisions of the Constitution---High Court set aside the conviction and sentence awarded to accused and case was remanded to Trial Court for trial afresh---Appeal was allowed accordingly.

Mir Ikhlaq Ahmed and another v. The State 2008 SCMR 951; Muhammad Arif v. The State 2008 SCMR 829; Muhammad Saddique v. The State 2018 SCMR 71; Arbab Khan v. The State 2010 SCMR 755 and Khanzado alias Ketoo Sabzoi v. The State 2015 PCr.LJ 1561 rel.

Nusrat Ali Shar for Appellant.

Zulfiquar Ali Jatoi, Additional Prosecutor General for the State.

2020 P Cr. L J 1203

[Sindh (Larkana Bench)]

Before Shamsuddin Abbasi, J

ZULFIQUAR AHMED and 2 others---Appellants

Versus

Mst. SAGHEERAN and another---Respondents

Criminal Appeal No. S-82 of 2016, decided on 15th July, 2019.

Penal Code (XLV of 1860)---

----Ss. 302(b), 148 & 149---Criminal Procedure Code (V of 1898), Ss. 202 & 403---Constitution of Pakistan, Art. 13---General Clauses Act (X of 1897), S. 26---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Double jeopardy, principle of---Applicability---Private complaint was filed after decision of state case---Scope---Accused were charged for committing murder of two persons on the charge of karo kari---Record showed that the direct complaint had been filed after acquittal of accused in State case---During investigation or trial, complainant did not avail such remedies provided by law and waited for final adjudication of the State case and after its disposal on merits complainant had filed the direct complaint---Conduct of the complainant seemed to be doubtful that she remained silent for such a long period and did not approach the police or court of law for redressal of her grievance---Verdict of acquittal having not been challenged before any higher forum, neither the Constitution, nor the Cr.P.C. read with General Clauses Act, 1897 permitted retrial of an offence---Person having once been tried as an accused and finally acquitted, he acquired a vested right and Constitutional protection against a second trial for the same offence---First Information Report lodged by police ended into acquittal and attained finality---Retrial of the appellant in the subsequent direct complaint offended against appellants' Fundamental Rights of immunity from double prosecution or punishment---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

Alam Dar Hussain Shah v. Abdul Baseer Qureshi PLD 1978 SC 121; Zia-ur-Rehman v. The State 2015 PCr.LJ 1502 and Muhammad Ali Abbas v. The State PLD 2014 Lah. 148 ref.

Shehr Yar v. Bacha and 4 others 1997 MLD 1672 rel.

Athar Abbas Solangi for Appellants.

Muhammad Ali Mangi for the Complainant

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

2020 P Cr. L J 1221

[Sindh (Sukkur Bench)]

Before Zulfiqar Ali Sangi, J

ATTA MUHAMMAD---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-694 of 2019, decided on 24th January, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 395 & 337-L(2)---Dacoity, hurt---Bail, grant of---Further inquiry---First Information Report was registered after about 22 days and explanation furnished for such delay was not satisfactory---Final medical certificate was issued by the doctor wherein injuries declared as hurts were simple for which punishment provided was only two years, which was bailable---Recovery shown from the accused was also doubtful and mashir of recovery was already on inimical terms with him---No identification was conducted to prove that the articles recovered from the accused were the same which were allegedly robbed from the complainant---Heinousness of offence was no ground to reject the bail plea---Liberty of innocent person was not to be curtailed until and unless proved otherwise---Essential prerequisite for the grant of bail by subsection (2) of S. 497, Cr.P.C. was that the court must be satisfied on the basis of the material placed on record that there were reasonable grounds to believe that the accused was not guilty of an offence punishable with death or imprisonment for life---Sufficient grounds existed for further inquiry into the guilt of the accused, which would mean that question should be such which had nexus with the result of the case and could show or tend to show that the accused was not guilty of offence with which he was charged---Word discretion when applied to court meant sound discretion judiciously guided by law to lessen the hardship of the people---Bail was not to be refused as punishment---Section 337-L(2), P.P.C. was bailable carrying punishment for 2 years---Considering the alternate lesser sentence as provided in S. 395, P.P.C., bail application of the accused was allowed, in circumstances.

Jalal-ul-Din M. Akbar Chandio for Applicant.

Mukhtiar Ahmed Shoro for the Complainant.

2020 P Cr. L J 1250

[Sindh]

Before Mohammad Iqbal Kalhoro and Abdul Mobeen Lakho, JJ

MUHAMMAD JAMEEL and another---Applicants

Versus

The STATE and another---Respondents

Criminal Revision Application No. 77 of 2017, decided on 28th January, 2020.

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

----S. 249-A---Penal Code (XLV of 1860), Ss. 409, 468 & 471---Power of magistrate to acquit accused at any stage---Factual dispute requiring evidence---Submission of final challan---Scope---Accused assailed the dismissal of their application under S. 249-A, Cr.P.C.---Accused had allegedly opened a Bank account in complainant's name in collusion with the Branch Manager---Validity---Opening of the bank account in the name of complainant was not disputed---Contention of accused was that it was opened with consent of complainant in order to avoid payment of bhatta to unscrupulous elements---Complainant had controverted the stance taken by accused---Factual dispute between the parties required evidence---Accused had directly placed on record several documents without first placing them before the Trial Court---Trial Court had not undertaken exhaustive analysis of said documents and had only considered the interim challan---High Court while dismissing the petition observed that since the final challan had been submitted and the trial was ripe for commencement, therefore, accused could repeat such an application for its appreciation afresh before said Court.

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

----Ss. 435 & 439---Power to call for records of subordinate court---Revisional jurisdiction of High Court---Scope---Placing documents directly before revisional court---Scope---Consideration of documents directly filed before revisional court, without first being placed them before Trial Court, is beyond the scope of revisional jurisdiction.

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

----Ss. 435 & 439---Power to call for records of subordinate court---Revisional jurisdiction of High Court---Scope---Scope of revisional jurisdiction is limited to correctness, legality, regularity or propriety of the proceedings of the courts below rather than a full-fledged reappraisal of the evidence.

Khawaja Shams-Ul-Islam for Applicants.

Qamar Iqbal for Respondent/Intervener.

Muhammad Adnan, Deputy Attorney General for Respondents.

2020 P Cr. L J 1273

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Khadim Hussain Tunio, JJ

AYAZ AHMED SOOMRO and others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and others---Respondents

C.P. No. D-837 of 2016 along with C.Ps. Nos. D-892, 1408, 1825, 1905 of 2016, 364, 365, 366 and 943 of 2019, decided on 5th November, 2019.

(a) Criminal trial---

----Challenging prosecution on ground of discrimination by State cannot be a complete valid defense to absolve an accused from criminal liability arising from his actions or inactions--- Any person charged for a crime is answerable for his own acts and omissions and has to defend himself in a trial for said charged offence.

Malik Din v. Chairman National Accountability Bureau and another 2019 SCMR 372 rel.

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

----Ss. 9(a)(iv)(v)(vi) & (b)---Constitution of Pakistan, Art. 199---Constitutional petition--- Pre-arrest bail, refusal of---Deposit of money---Deeper appreciation of evidence---Scope---Petitioners were officers in irrigation department and sought grant of pre-arrest bail against reference before Trial court for misappropriating government funds---Validity---Distinction was to be drawn between ordinary criminal cases and that of corruption---Introduction to National Accountability Ordinance, 1999 elucidated that it was enacted to eradicate 'corruption' and 'corrupt practices' and hold accountable all those persons accused of such practices---High Court declined to extend concession of pre-arrest bail to petitioners subject to deposit of liability for reasons that petitioners caused huge loss to national exchequer and sufficient material was collected against them during investigation---Other contentions raised by petitioners required deeper appreciation of evidence which was not permissible at bail stage---High Court observed that Trial Court had recorded evidence of four witnesses and any findings of High Court on merits of case could prejudice case of either party---National Accountability Bureau (NAB) inquiry was initiated on the orders of the High Court and petitioners could not satisfy the High Court on point of mala fide on part of NAB against petitioners---Grant of pre-arrest bail was an extraordinary remedy in criminal jurisdiction and was diversion of usual course of law---Prima facie, there appeared reasonable grounds for believing that petitioners committed alleged offence in which they were facing reference before Trial Court---Bail was dismissed in circumstances.

Abdul Sattar v. National Accountability Bureau (NAB) and others SBLR 2019 Sindh 1109; Abdul Qadir Memon and others v. Director General National Accountability Bureau (Sindh) and others 2019 YLR 689; Syed Ather Hussain and others v. Chairman, National Accountability Bureau and another 2019 YLR 788; Muneer Ahmad Sheikh and another v. Director-General NAB Karachi and another 2019 SCMR 1738 and Shamraiz Khan v. The State 2000 SCMR 157 ref.

Rana Abdul Khaliq v. The State and others 2019 SCMR 1129 rel.

Nisar Ahmed Bhanbhro for Petitioners (in C.Ps. Nos. D-837, 1825, 1905 of 2016, 365, 366 and 943 of 2019).

Shah Muhammad Bango for Petitioners (in C.Ps. Nos. D-892 and 1408 of 2016).

Humayoun Sheikh for Petitioners (in C.P. No. D-364 of 2019).

Muhammad Zubair Malik, Special Prosecutor NAB Sukkur along with Danish Iqbal, Investigation Officer, NAB Sukkur.

Ali Raza Pathan, Assistant Attorney General.

2020 P Cr. L J 1342

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Mahar and Irshad Ali Shah, JJ

RAJIB---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos. D-26, D-27 and Criminal Confirmation Case No.D-02 of 2016, decided on 14th March, 2019.

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

----Ss. 302, 324, 353 & 34---Pakistan Arms Ordinance (XX of 1965), S. 13(e)---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of the duty, common intention, possessing illicit weapon---Appreciation of evidence---Benefit of doubt---Police received information through telephone that accused had entered into the house for committing robbery---Complainant along with other Police Officials proceeded towards the pointed place by foot---Police reached the house and had seen two persons one armed with country made pistol and other with pistol---Accused seeing the police party fired upon them with intention to commit their murder and went away---Police Official when reached near the accused, he fired upon him whereupon he fell down and was shifted to the hospital where he succumbed to the injuries---Admittedly, neither the names and descriptions of accused were transpired in the FIR nor the accused-appellant had been put to identification parade before any Magistrate---Name of the accused including appellant were disclosed by co-accused, who was arrested at the spot in injured condition during police encounter--- Names of the accused persons were disclosed by witnesses---Record showed that when the injured was being shifted to hospital by the complainant, the other Police Official and injured were also with complainant but they did not disclose the names of accused to complainant---False implication of the accused could not be ruled out, in circumstances---No questions regarding medical evidence and examination report of weapon were put to appellant in his statement recorded under S. 342, Cr.P.C.---Such evidence could not be used against him---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

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

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

----Art. 38---Admission of accused before police---Scope---Admission of accused before police could not be used as evidence against co-accused.

Farman Ali v. The State 1997 SCMR 971 rel.

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

----Ss. 302, 324, 353 & 34---Pakistan Arms Ordinance (XX of 1965), S. 13(e)---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of the duty, common intention, possessing illicit weapon---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence and empty---Delay in dispatch of recovered weapon---Effect---Record showed that one empty of .30 bore was recovered from the place of incident on 11.1.2011 and the recovery of alleged pistol was shown on 20.12.2011---Empty and pistol were delivered in the office of expert on 3.2.2011---No explanation for such delay in sending the property was furnished---Such recovery and report could not be considered as corroborative piece of evidence against appellant.

Nazakat Ali v. The State 2013 YLR 2411 rel.

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

----Ss. 302, 324, 353 & 34---Pakistan Arms Ordinance (XX of 1965), S. 13(e)---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of the duty, common intention, possessing illicit weapon---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence---Contradiction---Record showed that there were contradictions in the evidence of prosecution witnesses---First Information Report and evidence of complainant showed that when the police party reached near the house they saw two accused persons who fired upon the police party but witnesses had disclosed the names of three accused persons---Complainant had deposed that injured was sent to hospital through two Police Officials but the Medical Officer deposed that injured was brought by a Police Constable who was not member of the police party---Incident had allegedly taken place in thickly populated area but none from the locality had been examined by the prosecution in support of the evidence of Police Officials---Co-accused had been acquitted by Trial Court on similar allegation while disbelieving the prosecution evidence, hence, it could not be relied upon against the appellant without independent corroboration which was lacking---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Muhammad Asif v. The State 2017 SCMR 486 rel.

(e) Criminal trial---

----Benefit of doubt--- Principle--- Single circumstance creating reasonable doubt about the guilt of the accused, made him entitled to its benefit.

Mohammad Zaman v. The State 2014 SCMR 749 rel.

Ali Ahmed Khan for Appellant.

Aftab Ahmed Shar, Additional Prosecutor General for the State.

2020 P Cr. L J 1373

[Sindh]

Before Muhammad Iqbal Kalhoro and Zulfiqar Ahmad Khan, JJ

NADEEM alias CHITTA---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Jail Appeal No. 62 of 2018, decided on 21st October, 2019.

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

----Ss. 4 & 5---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 6(2)(ee)---Criminal Procedure Code (V of 1898), S. 103---Attempt to cause explosion or for making or keeping explosive with intent to endanger life or property---Possessing explosives under suspicious circumstances---Unlicensed possession of arms---Search to be made in presence of witnesses---Act of terrorism---Appreciation of evidence---Benefit of doubt---Un-natural conduct---Safe custody---Failure to seal case property---Corroboratory evidence, non-availability of---Effect---Accused was alleged to have been found in possession of two bombs, one .30 bore pistol with loaded magazine, 35 live bullets, one automatic stand gun of .30 bore along with rounded shape magazine and two straight magazines---Accused was not found connected with any militant group---Police had not associated private witnesses despite being present, in a well-populated area---Prosecution case had failed to satisfy the test of reasonableness on the ground that when the accused was loaded with such weapons, why did he not make a single fire or resisted his arrest---Tampering with case property could not be ruled out as some of the same was not sealed---Scrutiny of prosecution evidence revealed that grenades found on the person of accused were shown to have different serial numbers at various places---Safe custody of the case property at police station and safe transit to experts was also not established---Evidence of police officials did not appear to be trustworthy, thus required independent corroboration, which was lacking in the case---Prosecution had failed to bring guilt to the accused person's doorsteps beyond any taint or shadow of doubt, therefore, High Court while extending benefit of doubt to the accused, acquitted him of the charge---Appeal against conviction was allowed, in circumstances.

Muhammad Pervaiz v. The State 2005 SCMR 1038; Waris Ali and 5 others v. The State 2017 SCMR 1572 and The State v. Muhammad Shafique alias Pappo PLD 2004 SC 39 rel.

(b) Criminal trial---

----Benefit of doubt---Scope---Several circumstances are not required for creating a doubt, even a single circumstance creating reasonable doubt in a prudent mind is enough to give its benefit to the accused not as a matter of grace or concession but as a matter of right.

2009 SCMR 230 ref.

Tariq Pervez v. The State 1995 SCMR 1145 rel.

Mumtaz Ali Khan Deshmukh for Appellant.

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

2020 P Cr. L J 1403

[Sindh]

Before Mohammed Karim Khan Agha and Omar Sial, JJ

MUZAFFAR ALI ABBASI and another---Appellants

Versus

The STATE through National Accountability Bureau---Respondent

Criminal Accountability Appeals Nos. 19 and 23 of 2017, decided on 29th July, 2019.

National Accountability Ordinance (XVIII of 1999)---

----S. 9---Corruption and corrupt practices---Misuse of authority---Appreciation of evidence--- Benefit of doubt--- Discriminatory investigation---Scope---Accused persons were alleged to have appointed 537 daily wagers whereas the Board of Directors had given approval for 428 appointments---Board of Directors in its earlier meetings had authorised the employment of 121 personnel for regular positions but the appointments were not made due to lack of funds, hence, daily wagers were appointed---No law, rule, regulation or SOP in vogue, existed for appointment of daily wagers---Appointments were made as per the prevailing practice---Six Members Scrutiny Committee had recommended the daily wagers for appointment; the appointments were needed for smooth running of the company---No witness had testified that the accused persons had made any illegal or unlawful gain or advantage from the appointment of daily wagers---Prosecution could not prove beyond reasonable doubt that the accused persons had misused their authority--- Incomplete and discriminatory investigation was carried out by the Investigating Officer---Appeals against conviction were allowed, in circumstances.

Abbas Rasheed Rizvi for Appellant No.1.

Khadim Hussain Soomro for Appellant No. 2.

Khalid Mehmood Awan, Special Prosecutor NAB along with Raza Talpur, I.O. for the State.

2020 P Cr. L J 1465

[Sindh]

Before Salahuddin Panhwar and Shamsuddin Abbasi, JJ

MUNAWAR ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 126 of 2018, decided on 22nd August, 2019.

Penal Code (XLV of 1860)---

----Ss. 409 & 34---Criminal breach of trust by public servant, or by banker, merchant or agent, common intention---Sentence, reduction in---Scope---Accused was convicted under Ss. 409 & 34, P.P.C. for embezzling certain amount from the strong room of the bank---Counsel for accused contended that he would not press the appeal on merits if sentence was reduced as already undergone---High Court observed that punishment for certain offences provided for sentence "no less than" while others provided for sentence which "may extend upto"---Law itself had categorized the offences into two categories regarding quantum of punishment---Courts, for the first category, were empowered to award any sentence while in the other category the discretion was limited by use of the phrase "not less than"---Such difference itself was indicative that the Courts had to appreciate certain circumstances before setting quantum of punishment in first category which appeared to be dealing with those offences the guilty whereof could be given an opportunity of "reformation" by awarding less punishment which, howlowsoever, might be, would be legal---Concept of reformation was to be given much weight because conviction normally did not punish the guilty only but whole of his family/dependents too---Reformed person was not only a better brick for society but was also helpful for future by properly raising his dependents---Conviction was maintained but his sentence was reduced to the one already undergone.

Abdul Sattar Mahesar for Appellant.

2020 P Cr. L J 1486

[Sindh]

Before Mohammed Karim Khan Agha and Khadim Hussain Tunio, JJ

Syed RIFFAT HUSSAIN and others---Appellants

Versus

The STATE---Respondent

Criminal A.T. Appeals Nos. 96, 97 and Confirmation Case No. 3 of 2018, decided on 27th August, 2019.

Per Khadim Hussain Tunio, J

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused persons made firing upon the complainant party, due to which one person died while complainant sustained injuries---Record showed that the crime was un-witnessed and the complainant, who was also one of the victims of the shooting, failed to identify any one of the shooters in the heat of the moment---Complainant had not disclosed any description of the culprits in his statement nor was any mention in the FIR---Accused persons were not known to the victims previously or to any other witness for that matter---No distinguishing features were available at the time of identification parade, which would make it highly doubtful that the accused persons were correctly picked out of the dummies as it left the identifier with a chance to falsely implicate anyone from the crowd---Contention that the accused persons were picked out of the dummies because the police believed them to be the suspects or for ulterior motives could not be ruled out---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed in circumstances.

PLD 2018 SC 178; PLD 2019 SC 481 and Mian Sohail Ahmed v. The State 2019 SCMR 956 ref.

Javed Khan v. The State 2017 SCMR 524 rel.

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Arts. 22 & 129(g)---Qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Test identification parade, infirmities in---Withholding of best evidence---Scope---Prosecution case was that the accused persons made firing upon the complainant party, due to which one person died while complainant sustained injuries---In the present case, identification parade had been conducted after 28 days of arrest of accused persons and 2-1/2 months after commission of the incident through a witness whose name had not been disclosed during investigation proceedings by any of the witnesses, but had been introduced at the time of conducting the identification parade before the Magistrate---Even otherwise, said person had not been examined by the prosecution and had been given up---Presumption would be that if he would have been examined, he would not have supported the prosecution case---Memo of identification test did not contain the name of the complainant, witness, mashir and CNIC numbers and addresses of the dummies---Identification parade suffered from irregularities and illegalities and could not be safely relied upon to uphold the conviction and the sentence so awarded to the accused by the trial court, in circumstances.

Kanwar Anwaar Ali's case PLD 2019 SC 488 rel.

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

----S. 173--- Crime report--- Admissibility--- Report under S. 173, Cr.P.C. is inadmissible in evidence.

Province of Punjab through Secretary Punjab Public Prosecution Department and another v. Muhammad Rafiq and others PLD 2018 SC 178 fol.

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

----Art. 38---Confession before police-officer---Scope---Confession of accused before the police do not have any evidentiary value and is inadmissible in evidence.

(e) Criminal trial---

----Benefit of doubt---Scope---Acquittal of ten guilty persons is better than conviction of one innocent person.

The State v. Mushtaq Ahmad PLD 1973 SC 418 and Khalid Mehmood v. The State 2011 SCMR 664 ref.

(f) Criminal trial---

----"Justice"---Scope---Term 'justice' does not stand satisfied unless at the end of the day 'truth is not found' because justice is not meant to follow the dotted line(s) of prosecution or defence but is the name of 'finding the truth'---Courts can neither swipe off a tear falling from the eye of a victim nor it can bring a single moment of liberty back for which an accused otherwise was entitled---Court is hoped and believed to hold the scale of justice strongly without being influenced with sorrow of a victim or heinousness of an allegation---No doubt, conviction is one of the two scales of criminal administration of justice, but it shall never over-weigh the scale of acquittal unless all reasons of law and judicial logic deny the acquittal because the whole structure of criminal administration of justice revolves around the golden principle of benefit of doubt.

Per Mohammed Karim Khan Agha, J; agreeing with Khadim Hussain Tunio, J

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

----S. 231---Re-call of witnesses when charge altered---Scope---Prosecution sought remand of case to the trial court on the ground that the witnesses were not re-examined after alteration of charge---Case could not be automatically remanded on the request of the prosecution for such lapses, without application of judicial mind especially if such a remand prejudiced the accused persons and benefited the prosecution---None of the accused persons, despite being aware of the lapses, wanted the case to be remanded---Even if the witnesses had given fresh evidence which was the same as before, it would have had no effect on the outcome of the judgment of Trial Court---Language of S. 231, Cr.P.C., in the peculiar facts and circumstances of the case, did not call for remanding the case as the amended charge was essentially the same as the original charge--- Remanding the case at the instance would have either prejudiced the accused persons or resulted in a pointless exercise which would only have lead to the accused persons spending more time in jail before their ultimate acquittal--- High Court declined to remand the case to the Trial Court for re-examination of witnesses or for any other reason. [pp. 1499, 1502, 1503, 1505] I, K, L, M, N, O & R

Abdul Ghaffar v. The State and another 2006 SCMR 56 rel.

(h) Criminal trial---

----Appreciation of evidence---Statements of prosecution witnesses recorded by trial court in absence of defence counsel---Case of capital punishment---Scope---If evidence of witness was not recorded in the presence of the counsel of the accused or a counsel appointed for him by the court in the absence of his own counsel that would justify the remand of the case to the Trial Court for the re-recording of the evidence of those witnesses in front of the accused and his counsel who were absent at the original trial.

(i) Constitution of Pakistan---

----Art. 10-A---Fair trial---Duty of judge---Scope---Role of the judge, in an adversarial system, is that of a neutral umpire, unruffled by emotions, a judge is to ensure fair trial between the prosecution and the defence on the basis of the evidence before it---Judge should not enter the arena so as to appear that he is taking sides---Court cannot allow one of the parties to fill lacunas in their evidence or extend a second chance to a party to improve their case or the quality of the evidence tendered by them---Any such step would tarnish the objectivity and impartiality of the court which is its hallmark---Such favoured intervention, no matter how well-meaning, strikes at the very foundation of fair trial, which is now recognized as a Fundamental Right under Art. 10-A of the Constitution.

Muhammad Naeem v. The State in Criminal Appeals Nos. 81-L and 82-L of 2017 dated 10.5.2019 fol.

(j) Criminal trial---

----Duty of judge---Scope---Judges should apply the law dynamically in criminal cases so that fair, commonsense decisions are made within the four corners of the law based upon the evidence before them without giving the prosecution any unjust premium which may enable it to improve or fill in the lacuna's in its case, to the disadvantage/prejudice of the accused/convict after the case has been closed by the side of the prosecution.

Shah Imroz Khan and Abdul Razzak for Appellants.

Muhammad Farooq for Appellant No. 2.

Ali Hyder, D.P.G. for the State.

2020 P Cr. L J 1515

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Fahim Ahmed Siddiqui, JJ

DEEDAR ALI---Petitioner

Versus

Learned CIVIL JUDGE AND JUDICIAL MAGISTRATE-III SANGHAR and 3 others---Respondents

Constitutional Petition No. D-3072 of 2017, decided on 14th December, 2018.\

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

----Ss. 190, 173 & 265-K---Penal Code (XLV of 1860), Ss. 302, 324, 337-H(2), 147 & 148---Qatl-i-amd, attempt to commit qatl-i-amd, hurt by rash or negligent act and rioting---Interim report placing accused in Column No. 2---Cognizance of offence by the Judicial Magistrate---Final report submitted before the Judicial Magistrate---Scope---Police investigated the case against the accused and submitted interim report placing accused in Column No. 2---Judicial Magistrate sent up the said interim report to Sessions Court without taking cognizance of offence and just mentioned 'accepted'---Police submitted final report before Judicial Magistrate wherein accused was mentioned as main accused---Judicial Magistrate took cognizance of the offence and issued non-bailable warrants of the accused---Validity---Action taken by the Judicial Magistrate at the time of sending interim report wherein he had just mentioned 'accepted' did not amount to take cognizance as no order had been passed with regard to negative report of accused---Sending up of a criminal case triable by the Sessions Court without taking cognizance was nothing but nullity---Proper cognizance had been taken by the Judicial Magistrate at the time of furnishing final challan where he had opined that accused mentioned in Column No. 2 had been assigned main role in a murder case---Cognizance had been taken by the Judicial Magistrate when he had passed a well-reasoned order on a final report submitted by the police---Judicial Magistrate had already passed an order against the accused and if accused considered that he had been falsely involved then he could file an application before the Trial Court for his premature acquittal---Non-bailable warrants issued by the Judicial Magistrate was converted into bailable warrants--- Constitutional petition was dismissed, in circumstances.

Allah Wadhayo v. The State and 16 others 2013 YLR 54; Safdar Ali v. Zafar Iqbal and others 2002 SCMR 63; Abdul Malik and 3 others v. The State 2014 YLR 660 and Pakistan Institute of Labour Education and Research and another v. Province of Sindh through Chief Secretary, Karachi and 4 others 2017 YLR Note 343 ref.

Bahadur and another v. The State PLD 1985 SC 62; Mehar Khan v. Yaqub Khan and another 1981 SCMR 267; Ghulam Sarwar v. The State 2008 YLR 704 and Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131 rel.

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

----S. 190---Interpretation and scope of S. 190, Cr.P.C.---Cognizance of offence by Magistrate---Principles to be followed---Tendency of Magistrates to mention in the Police Report "accepted" deprecated by High Court.

Taking cognizance by a Magistrate does not involve any formal action or indeed an action of any kind but it occurs as soon as Magistrate applies his mind to the suspected commission of an offence and involvement of any known or unknown person in the same. Cognizance can only be taken if some mallum prohabitum is caused by a person or group of persons.

The ipse dixit of police is not binding for a Magistrate, as such, he is not bound to accept a negative report of police and can take cognizance if the facts alleged by the complainant, as well as other material disclose the commission of an offence. It is clear from the use of the words "may take cognizance" in section 190, Cr.P.C, in the context in which they occur cannot be equated with must act on the police report as gospel truth. In fact, the word "may" give discretion to the Magistrate in the matter and even after application of judicious mind, he can refuse to take cognizance but in every report of police, if he intends to disagree with the opinion of police, he has to write reasons for the same.

From the scheme of Cr.P.C., the content and headings of section 190, Cr.P.C. and the caption of Chapter XIV under which this section appears, it is clear that a criminal case can only be instituted when the 'cognizance' of the offence is taken by a Judicial Magistrate. Now question arises: What is meant by phrase 'taking cognizance of an offence' appearing in section 190 of Cr.P.C.? The procedure of taking cognizance is described in clauses (a), (b) and (c) of section 190 of Cr.P.C. but the word 'cognizance' has not been defined in Cr.P.C. The cognizance of an offence depends upon the circumstances of the case and mode in which it is sought to be instituted and the preliminary action, if any, taken by the Magistrate. Meaning thereby that after receiving a complaint, report by police or information communicated by any person, it is necessary for a Magistrate to apply his mind judiciously before taking any action.

A Magistrate is not a post office but he has to look into the entire material placed before him and he is also not required to act hastily but it is necessary for him to apply his mind judiciously in a criminal case, before taking cognizance. At the time of cognizance, he may form an opinion whether it is triable by him or required to commit to Sessions Court if, it is triable by the Sessions Court. The Magistrate is fully competent to agree or disagree with a negative report. In case of a positive report, wherein the police have submitted a report against the accused person for the commission of offence in a Sessions trial, then a Magistrate may accept such a report and send up the same to the Sessions Judge after taking cognizance. However, in case of a negative report, it is necessary for the Magistrate to record his reasons in a few lines for agreeing or disagreeing with such a report. We have observed that a tendency is growing day by day that the Magistrate usually forward a positive report without expressing that he is taking cognizance of the offence and a case is required to be registered against the accused persons, and they usually write 'accepted and sent up to Sessions Court', which is not proper as it has not disclosed that he had gone through the entire material and after applying his judicial mind passing the order and such practice is not appreciable. Nevertheless, in case of a positive report, an order of accepting the final report and sending the case for trial to Sessions Court may be considered sufficient but in case of a negative report, it is necessary for a Magistrate that his orders should indicate that he has examined the entire material and then came to a conclusion about cancellation of case or taking cognizance.

There are two sorts of negative reports submitted by the police after investigation i.e. negative report in respect of offence and negative report in respect of offenders. In first type of negative reports, the police have opined that no offence has taken place and the case is either required to be cancelled on the ground that the FIR is maliciously false (usually known as a report in B-class) or the same is required to be cancelled being false due to some mistake of fact or law or the matter is purely of civil nature (usually known as a report in C-class). There is another sort of negative report wherein the happening of the incident i.e. commission of the offence is not denied but nominated accused are let off by placing their names in Column-2 in blue ink. Meaning thereby that in the second type of negative report, the opinion of police is that the offence is not taken place as described by the complainant in his FIR. As per provision of section 23 of the Police Act, it is one of the duties of the Police Officers to detect and bring offenders to justice', and for any reason, the Police Officer remains failed to discharge such duty and placed an improper negative report before the supervising Magistrate, then the Magistrate has to act according to law by applying his judicial mind and take cognizance of such an offence. It is pertinent to mention here that in both sorts of negative report, it is necessary for a Magistrate to give reason for agreeing or disagreeing with the same and if no reason is given by the Magistrate then it is not amounting to examine the material judiciously, as such, it is also not amounting to take cognizance. In the present case, the action taken by the judicial Magistrate at the time of filing interim challan, wherein he has just mentioned 'Accepted' is certainly not amounting to take cognizance as he has not passed any order in respect of the negative report regarding the offender, whose name was placed in column-2 in blue ink. Sending up of a criminal case triable by the Sessions Court without taking cognizance is nothing but nullity. The proper cognizance was taken by the Magistrate at the time of furnishing complete and final challan, wherein he has opined that the accused was mentioned in Column-2, who was assigned the main role in a murder case, is actually a reasoned order passed by him on a negative report of police, as such, the cognizance was actually taken by the learned Magistrate when he has passed a well-reasoned order on a final report submitted by the police.

Ayatullah Khawaja for Petitioner.

Ms. Rameshan Oad, Assistant Prosecutor General, Sindh for Respondents Nos. 1, 2 and 4.

Ishrat Ali Lohar for Respondent No. 3.

2020 P Cr. L J 1534

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Mahar and Irshad Ali Shah, JJ

ASGHAR ALI MALLAH---Applicant

Versus

Learned SPECIAL JUDGE ANTI-TERRORISM COURT and 2 others Respondents

Criminal Miscellaneous Application No. D-09 of 2019, decided on 17th September, 2019.

Penal Code (XLV of 1860)---

----S.193---Criminal Procedure Code (V of 1898), Ss.476, 195 & 161---False evidence--- Non-cognizable offence--- Procedure in cases mentioned in S. 195, Cr.P.C.---Examination of witnesses by police---Statement not given on oath---Scope---Trial Court, after acquittal of accused persons, charged the applicant/prosecution witness for offence under S. 193, P.P.C.---Applicant was a witness of the incident and his statement during the course of investigation was recorded by the police under S. 161, Cr.P.C. and it was not on oath---Applicant was not declared to be hostile by the prosecution which suggested that whatever was stated by the applicant was accepted by the prosecution to be impliedly true---Accused persons were acquitted with the conclusion that the prosecution had not been able to prove its case against the accused---Failure of the prosecution to prove its case could hardly be attributed to the applicant alone---Initiation of proceedings against the applicant were not justified and were set aside

Mumtaz Alam Laghari for Applicant.

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

2020 P Cr. L J 1550

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Abdul Mubeen Lakho, JJ

MUHAMMAD WAJID and others---Applicants

Versus

The STATE and others---Respondents

Criminal Jail Appeal No. D-102, Confirmation Case No. D-04, Criminal Acquittal Appeals Nos. D-140 and D-141 of 2018, decided on 3rd October, 2019.

(a) Criminal trial---

----Evidence---Direct evidence, absence of---Scope---Direct evidence was not the only methodology to prove an indictment---Requirement could be accomplished through indirect or circumstantial evidence---Chain of circumstances was to be constituted in such a way that no reasonable inference except the guilt was drawn to the exclusion of every hypothesis of innocence.

Jaffer Ali v. The State 1998 SCMR 2669 rel.

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

----Ss. 302, 364, 201, 336-B & 34---Anti Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abducting in order to murder, causing disappearance of evidence, hurt by corrosive substance, common intention, act of terrorism---Appreciation of evidence---Sentence, reduction in---Accused were charged that they with their common intention for unknown enmity abducted the son of complainant and caused his murder and set the dead body on ablaze to cause disappearance of the evidence of the offences---Witnesses had no enmity to falsely implicate the accused persons---A boy of 12 years had been murdered by the accused persons---Prosecution could not prove motive at trial---Element of terror was missing in the prosecution evidence---Prosecutor conceded that conviction and sentence of the accused recorded by the Trial Court under S. 7(1)(a) of Anti-Terrorism Act, 1997 could not be sustained---Provisions of Anti-Terrorism Act, 1997, were not attracted in the case---Conviction and sentence of the accused under S. 7(1)(a) of Anti-Terrorism Act, 1997, were set aside and accused persons were acquitted of the said charge---Conviction of the accused persons under S. 302(b), P.P.C., were maintained but their death sentence was reduced to the imprisonment for life---Appeal against conviction was dismissed with the said modification.

Ghulam Mohy-ud-Din alias Haji Babu and others v. The State and Haji Muhammad Sadiq v. Liaquat Ali and others 2014 SCMR 1034; Ijaz Ahmad v. The State 2017 SCMR 1941 and Muhammad Akram alias Akrai v. The State 2019 SCMR 610 ref.

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

----Ss. 302 & 201---Qatl-i-amd---Appreciation of evidence---Motive not proved---Scope---If prosecution asserted the motive but failed to prove the same then such failure on the part of the prosecution might react against a sentence of death.

Mst. Nazia Anwar v. The State 2018 SCMR 911 rel.

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

----Ss. 302 & 201---Qatl-i-amd, causing disappearance of evidence---Appreciation of evidence---Accused charged with main offence i.e. murder could not be convicted for disappearance of the evidence of offence to screen or save himself.

Nasar Khan v. The State 2000 SCMR 130 and Ahmed v. The State 2015 SCMR 993 rel.

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

----S. 417---Appeal against acquittal---Scope---Ordinarily, scope of appeal against acquittal was narrow and limited and obvious approach for dealing with the appeal against the conviction would be different and should be distinguished from the appeal against acquittal because presumption of double innocence of accused was attached to the order of acquittal.

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

Abdul Ahad Buriro for Appellants (in Cr. Jail Appeal No. D-102 of 2018)

Naeemuddin Z. Kasmi for the Complainant (in Cr. Jail Appeal No.D-102 of 2018 and for appellant/complainant in Cr. Acquittal Appeals Nos.D-140 of 2018 and D-141 of 2018).

Zulifqar Ali Jatoi, Additional P.G. for the State.

2020 P Cr. L J 1589

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Fahim Ahmed Siddiqui, JJ

JAMAL KHAN---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-127 and Confirmation Case No. 24 of 2016, decided on 30th May, 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---Withholding of best evidence--- Contradictory statements--- Chance witnesses--- Non-production of material witnesses---Motive not proved---Delayed FIR---Scope---Complainant alleged that he was informed on phone, when his brother and nephew were in a marriage ceremony, that his brother-in-law/accused had not permitted his sister to attend the marriage ceremony and had also beaten her---Complainant's brother and nephew returned back to the house of accused and stayed there in the night and at 2:00 a.m., they saw on electric light that the accused being armed with hatchet caused sharp side hatchet blow to his sister on her face while she was sleeping; her brother and nephew made hakkals but the accused succeeded to run away along with hatchet---Nephew of complainant deposed that after attending the marriage ceremony his maternal uncle had gone to the house of accused while he had stayed in the marriage ceremony, whereas complainant's brother deposed the same facts but he contradicted the evidence of the nephew and stated that he and the nephew both had stayed in the house of accused---Deceased had four sons and two daughters and they were present in the house at the time of incident, however, they were not examined by the prosecution---Investigating officer had also failed to record the statement of the children of deceased though some of them were major---Children of deceased should have been examined by the prosecution but the prosecution had purposely avoided to produce such important witnesses, which went against the prosecution case and supported the defense plea---Motive as stated by the complainant and witnesses was not established as the complainant had admitted the love and affection of the accused with his wife---Prosecution had also failed to explain about the delay in lodging of FIR---Eye-witnesses were chance witnesses and they could not establish that there was a marriage ceremony which they had attended---Prosecution had not been able to prove its case against the accused beyond a shadow of doubt---High Court allowed the appeal and set aside the conviction and sentence awarded by the Trial Court, in circumstances.

(b) Criminal trial---

----Evidence---Conviction cannot be awarded to accused until and unless reliable, trustworthy and unimpeachable evidence, containing no discrepancy casting some cloud over the veracity of the prosecution story, was adduced by the prosecution.

Muhammad Jameel Ahmed for Appellant.

Ms. Rameshan Oad, Assistant Prosecutor General Sindh for the State.

Despite issuance of notice complainant failed to put his appearance before Court.

2020 P Cr. L J 1609

[Sindh]

Before Mohammed Karim Khan Agha and Zulfiqar Ali Sangi, JJ

Syed MEHROZ MEHDI ZAIDI---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeal No. 163 of 2018 and Confirmation Case No. 7 of 2018, decided on 25th November, 2019.

(a) Criminal trial---

----Judicial confession--- Retraction--- Admissibility--- Principles---Accused can be convicted even on the basis of retracted judicial confession provided it is (a) made voluntarily, (b) is truthful and (c) fits in with case of prosecution and is corroborated by other independent evidence.

Azeem Khan v. Mujahid Khan 2016 SCMR 274 rel.

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

----Ss. 302(b) & 324---Anti-Terrorism Act (XXVII of 1997), S.7(1)(a)---Qatl-i-amd and attempt to Qatl-i-amd---Appreciation of evidence---Delay in registration of FIR---Benefit of doubt---Retracted judicial confession---Crime weapon, non-recovery of---Blind murder---Retracted judicial confession alone could not form basis for convicting accused in case of capital punishment without independent corroborative evidence---No such evidence against accused was available as weapon of offence was not recovered from him---Positive report of Forensic Science Laboratory was inconsequential, in circumstances---No eye-witness to the incident was on record and there was no circumstantial evidence linking accused with the offence---Burden to prove guilt was upon prosecution who was bound to prove its case beyond shadow of reasonable doubt--- If single circumstance had created doubt in case of prosecution, its benefit was to go to accused not as a matter of grace or concession but as a matter of right--- High Court set aside conviction and sentence awarded to accused by Trial Court and acquitted him of charge---Appeal was allowed in circumstances.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Muhammad Farooq for Appellant.

Khadim Hussain, Addl. Prosecutor General, Sindh for the State.

2020 P Cr. L J 1639

[Sindh]

Before Muhammad Saleem Jessar, J

Malik CHANGEZ KHAN---Applicant

Versus

The STATE through P.-G. Sindh and 11 others---Respondents

Criminal Revision Application No. 179 of 2018, decided on 6th September, 2019.

Criminal Procedure Code (V of 1898)---

----Ss. 190 & 193---Cognizance of offences by Magistrate and Court of Session---Transfer of case from court of ordinary jurisdiction to Anti-Terrorism Court---Scope---Applicant assailed order passed by Trial Court whereby his application for transfer of case to Anti-Terrorism Court was dismissed---Validity---Applicant had not challenged the order passed by Magistrate whereby he had taken cognizance of the offences and sent the case to Sessions Court, thus, it had attained finality---Application for transfer of case filed before the Trial Court at a belated stage was rightly dismissed by the Trial Court---Sessions Judge/ Additional Sessions Judge did not have any power to transfer any case from his docket to Anti-Terrorism Court---Revision application was dismissed.

Muhammad Arshad Daud v. The State and another PLD 1978 Quetta 187 distinguished.

Junaid Rehman and others v. The State and others PLD 2011 SC 1135; Dost Muhammad v. The State and another 2005 MLD 1111; Waris Ali v. The State 2017 SCMR 1572; 2016 SCMR 174; Muhabat Ali and another v. The State 2007 SCMR 142 and PLD 2008 SC 178 ref.

Muhammad Akbar Khan v. SHO. Gahri Khairo. District Jacobabad 2017 PCr.LJ 1280 rel.

Mehmood Anwar Baloch for Applicant.

Shahadat Awan for Respondent No. 2.

Manzoor Hameed Arain for Respondents Nos. 3, 5 and 8.

Raja Jawwad Ali for Respondent No. 4.

Ms. Rubina Qadir, Deputy Prosecutor General, Sindh for the State.

2020 P Cr. L J 1657

[Sindh]

Before Fahim Ahmed Siddiqui, J

Mian KARIM JAN---Applicant

Versus

ADDITIONAL SESSIONS JUDGE-IX, WEST KARACHI and 3 others---Respondents

Criminal Revision Application No. 173 of 2018, decided on 19th July, 2019.

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

----S. 489-F--- Dishonestly issuing a cheque---Appreciation of evidence---Benefit of doubt---Delivery of cheque under duress---Issuance of cheque as surety---Scope---Prosecution case against accused was that he had received certain amount from the complainant for the purpose of business and on his failure to pay the profit he gave a cheque to the complainant, which was dishonoured---Held; that compromise agreement, under which cheque was issued, was executed at the time when accused was already arrested in another case lodged by the complainant---Delivery of cheque could not be said to have been made voluntarily, in circumstances---Prosecution witness in a previous case had admitted during cross-examination that almost entire amount of the complainant was returned by the accused---Complainant stated in his complaint that the cheques were issued in surety regarding some business promotion activity---Issuance of cheque 'in surety' neither fulfilled the requirement of "future obligation" nor the same amounted to 'dishonestly issuing a cheque'---Sufficient material was available on record to create doubt in the prosecution case---Revision application was allowed and the accused was acquitted of the charge.

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

----S. 489-F---Dishonestly issuing a cheque---Ingredients---Scope---Essential ingredient to attract the offence under S. 489-F, P.P.C. is that the cheque should be given in respect of a loan or future obligation.

Noor Muhammad for Applicant.

Syed Meeral Shah Bukhari, Additional P.-G. for the State/ Respondent No. 4.

2020 P Cr. L J 1672

[Sindh]

Before Mohammed Karim Khan Agha and Zulfiqar Ali Sangi, JJ

PERVEZ alias LADDU---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Jail Appeal No. 187 of 2018, decided on 29th October, 2019.

Penal Code (XLV of 1860)---

----Ss. 336-B & 337-L(2)---Anti Terrorism Act (XXVII of 1997), S. 7---Hurt by corrosive substance, act of terrorism---Appreciation of evidence---Ocular account supported by medical evidence---Accused was charged for throwing acid on the complainant---Complainant, being an eye-witness and also the victim gave reliable, trustworthy and confidence inspiring evidence---Complainant knew the accused who lived in an adjacent house and it was a day time incident and thus, his identity was not an issue---Complainant had argued with the accused and restrained him through nekmards when he teased her and thus he had a motive to throw acid over her on account of that humiliation---First Information Report was lodged promptly so there was no time for either consultation or concoction leading to false implication---Complainant's whole story rang true in terms of the sequence of events---None of the other witnesses had enmity with the accused to falsely implicate him---Burn wounds in the medical evidence were consistent with the complainant/victim's FIR which stated that she put her hand up in order to prevent her face being hit by the acid thrown by the accused---Acid which caused the injuries to the complainant was a corrosive substance as could be seen from the nature of her injuries as per the medical report and evidence of Medico-Legal Officer and thus, fell within the purview of S. 336-B, P.P.C.---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed, in circumstances.

Ghulam Sabir v. The State 2017 YLR Note 209 and Pir Munir v. State 2017 YLR Note 207 ref.

Muhammad Ehsan v. The State 2006 SCMR 1857 rel.

Ms. Abida Parveen Channar for Appellant.

Abrar Ali Khichi, Assistant Prosecutor General for the State.

2020 P Cr. L J 1693

[Sindh]

Before Mohammed Karim Khan Agha and Zulfiqar Ali Sangi, JJ

TAJ MOHAMMAD and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 113 and Confirmation Case No. 2 of 2016, decided on 20th November, 2019.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Material contradictions in evidence---Accused persons were convicted by Trial Court for murder of two persons---Material contradictions existed in evidence of key prosecution witnesses---Empty of cartridge was not recovered from place of incident though place of incident was inspected by police on the same day---No weapon was recovered from either of the accused which could connect them with commission of offence---Bloodstained earth recovered from place of incident was not sent to Chemical Examiner---Prosecution was bound to produce confidence inspiring and trustworthy evidence--- If a single circumstance created doubt in prosecution case its benefit must go to accused not as a matter of grace or concession but as a matter of right---Prosecution failed to produce such evidence against accused persons---High Court set aside conviction and sentence awarded by Trial Court and both accused were acquitted of the charge---Appeal was allowed in circumstances.

Nazir Ahmed and others v. The State and others PLD 2005 Kar. 18; Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652; Muhammad Mansha v. The State 2018 SCMR 772 and Muhammad Shah v. The State 2010 SCMR 1009 ref.

G. M. Niaz v. The State 2018 SCMR 506 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

(b) Criminal trial---

----Medical evidence--- Scope--- Medical evidence is used for ascertaining cause of death, nature of injury, use of weapons, period in between injury and death etc. and cannot be used to identify the culprits.

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

----S. 342---Incriminating evidence not put to accused---Remand of case---Scope---Case cannot be remanded to Trial Court for recording statement under S. 342, Cr.P.C. afresh so that prosecution can fill in lacunas in its case.

Nusrat Ali Shar and others v. The State Criminal Appeals Nos. 24-K, 25-K and 26-K of 2018 rel.

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

----S. 342--- Incriminating evidence not put to accused---Effect---Evidence which has not been put to accused at the time of recording his statement under S. 342, Cr.P.C. cannot be considered against him.

Imtiaz alias Taj v. The State 2018 SCMR 344; Qadan and others v. The State 2017 SCMR 148 and Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others 2017 SCMR 1710 rel.

Mehmood A. Qureshi and Jamshed Iqbal for Appellant No. 1.

Inamullah Khan for Appellant No. 2.

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

Muniruddin Khan for the Complainant.

2020 P Cr. L J 1

[Lahore (Multan Bench)]

Before Anwaarul Haq Pannun and Sadiq Mahmud Khurram, JJ

ASIF KAMAL---Petitioner

Versus

The JUDGE ACCOUNTABILITY COURT, MULTAN and others---Respondents

Writ Petition No. 1646 of 2019, decided on 18th March, 2019.

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

----S. 344---Trial, postponement of---Scope---Remand with Physical Custody---Scope---Control of court over under-trial accused while remanding his physical custody primarily remains intact with object to proceed with trial of the case---Matter is only adjourned due to non-availability of evidence or any other reasonable cause but such remand cannot exceed period of fifteen days so that right of expeditious trial of an accused may not be prejudiced by way of postponement of proceedings for a longer period and transfer of his custody by Executive/Government abusing its power on any other extraneous consideration behind it.

(b) Interpretation of Constitution---

----Fundamental Rights--- Courts, duty of--- Superior courts are custodians and defenders of Fundamental Rights guaranteed by Constitution who are required and expected to interpret Constitutional provisions in such manner which is beneficial to citizens instead of interpreting them in a stringent way giving them a strict construction.

(c) Constitution of Pakistan---

----Art. 4---Protection of law---Prisoners, rights of---Prisoners being a special class subject, to special regime and special status are not entirely denude of all Fundamental Rights which are inherent in the Constitution---Such rights of citizens circumscribed by penalty/sentence are a permanent concern of courts unless clearly, without any ambiguity, barred by law---Jurisdiction, unless is expressly barred, can be exercised by superior courts to safeguard Fundamental Rights of citizens---Courts are in general, are ultimate extension of rights and liberties of subject whatever his status and whoever attenuated those rights and liberties may be, as result of some punitive or other process---Essential characteristic right of a subject is that it carries with it a right of recourse to courts unless some statute decrees otherwise.

National Commission on Status of Women through Chairperson and others v. Government of Pakistan through Secretary Law and Justice and others PLD 2019 SC 218 rel.

(d) Prisoners Act (III of 1900)---

----Ss. 29 & 42---Pakistan Prisons Rules, 1978, Rr. 147, 148 & 149---Transfer of under-trial prisoner---Principle---Petitioner was an under-trial prisoner who was facing trials before three Accountability Courts situated in different districts---Petitioner sought permission from Trial Court at place 'M' to allow him to appear before other courts situated at places 'L' and 'R' but application was dismissed by Trial Court---Validity---Petitioner was domiciled at place 'L', his family members were also residing there where he was facing trial simultaneously in three references pending before Accountability Courts at places 'M', 'L' and 'R' respectively---Arrangement for production of petitioner before all three courts was to be made by Government through its relevant agencies---District 'L' was in middle of District 'R' and District 'M' with regard to their inter se distances, therefore, transfer of custody of petitioner from District jail at place 'M' to District jail at place 'L' would place none under any extra burden rather it ensured materialization of his admissible rights and privileges under law---By shifting custody of petitioner at place 'L', it enabled him to maintain himself by way of receiving homemade food and also company of his near and dear ones to fulfil his desire to communicate with his children, being elder of family, right to which he was entitled to under relevant provision of law---Trial Court had passed order in question in slipshod manner without properly adhering to entire range of issues involved and without considering facts and circumstances of case in their true perspective---High Court set aside order in question as same lacked due application of judicial mind and was passed illegally, without lawful authority, was a result of failure in exercise of jurisdiction so vested in Trial Court particularly when jail authorities had no objection to transfer custody of petitioner from District jail at place 'M' to District jail at place 'L'---High Court directed authorities to transfer custody of prisoner from District Jail at place 'M' to District Jail at place 'L'--- Constitutional petition was allowed accordingly.

Muhammad Tufail Khokhar v. The Inspector-General of Prisons Punjab, Lahore and 3 others PLD 1980 Lah. 162; Zia-ud-Din v. Superintendent, Camp Jail, Lahore and another PLD 1976 Lah. 93; Shahabudin v. Home Secretary, Home Department Punjab Lahore and 4 others 2005 YLR 1902; Sheikh Rashid Ahmad v. The State PLD 1996 SC 168; Ali Muhammad v. The State 1974 PCr.LJ 249; Atta Ullah Maingal v. The State and others PLD 1965 (WP) Kar. 320; Zia ud Din's case PLD 1976 Lah. 93 and Malik Ghulam Jilani v. The Government of Pakistan through the Secretary, Ministry of Interior, Islamabad and 3 others PLD 1976 Lah. 38 ref.

Barrister Momin Malik for Petitioner.

Muhammad Akram Rao, Special Prosecutor NAB assisted by Shafqat Abbas Mighiana, Research Officer, Lahore High Court, Lahore (Research Centre).

2020 P Cr. L J 45

[Lahore (Bahawalpur Bench)]

Before Ch. Abdul Aziz and Farooq Haider, JJ

SHABBIR AHMAD and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 165, 176 of 2016/BWP and Murder Reference No. 24 of 2016/BWP, decided on 23rd September, 2019.

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

----Ss. 302, 324, 337-A(i), 337-F(i) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-damiyah, common intention---Appreciation of evidence---Benefit of doubt---Night time occurrence---Source of light---Un-natural conduct of eye-witnesses---Scope---Prosecution case was that accused/appellants were on motorcycle with a goat, complainant party while finding them suspicious stopped them but they made firing upon the complainant party, due to which, complainant received injuries while his son died---Ocular account had been furnished by two eye-witnesses including complainant/injured---Though the firearm injuries on the person of complainant indicated his presence at the spot, however, same were not conclusive proof of what he deposed before the court was true---Record showed that complainant was asleep in his house and woke up at the time of incident on dogs barking---Complainant came out of the house and had seen a motorcycle coming from a distance of one square from eastern side which was statedly boarded by two persons who had loaded stolen goat upon it---Prosecution witnesses had canvassed that both the perpetrators were having chequered criminal track record of being involved in numerous criminal cases thus, when signalled to stop both of them fired from their respective weapons, leading to the death of son of complainant and injuries to complainant---Record transpired that neither during investigation any material was secured nor at trial any evidence was led from which it might be alluded that on the eventful night, any goat was stolen from the vicinity---No material was available on record to show that two accused/appellants were habitual thieves---Crime report showed that veil was lifted from the identification of both the appellants through torchlight, however, the frailty of such claim was probably felt by the witnesses as well and changed their stance during trial by saying that it was so done in the light of bulb and torch---Existence of electricity bulb at the scene of occurrence was not found mentioned in the site plan---Investigating Officer of the case, after his arrival in hospital, moved an application and raised a query from the Medical Officer as to whether deceased then injured was in a condition to make statement or not---Perusal of application revealed that it contained endorsement of Medical Officer which was to the effect that victim was answering the questions---No clue was found from the recital of whole of prosecution evidence as to what was the tale of occurrence put forth by victim before police---Keeping in view the fact that victim was in receipt of multiple firearm injuries, his statement should have been recorded in terms of Chapt. 25, R. 21 of Police Rules, 1934 so as to be used under Art. 46 of Qanun-e-Shahadat, 1984 as dying declaration---Failure of prosecution to bring on record the statement of victim as dying declaration showed that it was not in line with the story of crime mentioned in the FIR, hence was withheld---Evidence of dying declaration could have provided ample strength to the case of prosecution---Said omission of prosecution was in terms of Art. 29(g) of Qanun-e-Shahadat, 1984---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

(b) Criminal trial---

----Witness---Injured witness, testimony of---Scope---Testimony of an injured witness is to be subjected to scrutiny for making it basis of conviction.

Nazir Ahmad v. Muhammad Iqbal and another 2011 SCMR 527 rel.

(c) Criminal trial---

----Identification of accused---Torch light---Evidentiary value---Source of identification of accused through light of the torch is always regarded as weak in nature.

Mehr Ali and others v. The State 1968 SCMR 161; Mst. Amiran and others v. The State and others 2017 PCr.LJ 1591; Abdul Rahim v. Ali Bux and 4 others 2017 PCr.LJ 228 and Saddam Hussain Shambozai Brohi and 2 others v. The State 2017 YLR 1667 rel.

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

----Ss. 302, 324, 337-A (i), 337-F (i) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-damiyah, common intention---Appreciation of evidence---Benefit of doubt---Ocular account was not supported by medical evidence---Effect---Prosecution case was that accused/appellants were on motorcycle with a goat, complainant party while finding them suspicious stopped them but they made firing upon the complainant party, due to which, complainant received injuries while his son died---Complainant had stated that he received injuries of .12 bore cartridge from a distance of 12 to 13 feet---Other eye-witness of the occurrence had also deposed on the same line and described the distance between the assailants and the victims as 12-feet---Medical Officer had deposed that though complainant was in receipt of multiple pellet injuries, however, all of them were only skin deep and none of them penetrated deep into his body---So far as, deceased was concerned, injuries on his person were also of similar nature and observed by Medical Officer as skin deep only---Two injuries were observed by the Medical Officer to be multiple wounds having made ingress into the body cavity of deceased---Circumstances suggested that inexorable conclusion could be formed after taking into account skin deep firearm injuries of both the victims that .12 bore shots were fired from a considerable distance---Facts of the case showed that it needed no mention that had these injuries been caused from the distance of 12/13 feet, the pellets should have made ingress in the bodies of both the victims---Dimension of solitary firearm entry wound on the chest of deceased was .9 x .9 cm as stated by Medical Officer---Injuries of deceased, in circumstances, were outcome of two independent shots, out of whom one was fired from a long distance and the other relatively from close margin otherwise all the firearm injuries on the body of deceased should have been of alike nature and kind---Incident occurred in the month of April and the deceased was not wearing some winter clothing as was evident from the statement of witness, who was the witness of memo relating to the last worn clothes, it could not, therefore, be presumed that the difference in the nature of entry wounds was due to some jacket etc.---Ocular account, in view of facts and circumstances was belied by the medical evidence---Circumstances established that the occurrence did not take place in the manner canvassed by the prosecution witness---Prosecution had failed to prove the guilt of the appellants beyond doubt---Appeal was allowed and accused were acquitted by setting aside conviction and sentences awarded by the Trial Court, in circumstances

Abdul Jabbar and another v. The State 2019 SCMR 129 rel.

Muhammad Umair Mohsin and Malik Muhammad Rab Nawaz for Appellants.

Muhammad Sharif Bhatti, Vice counsel for the Complainant.

Asghar Ali Gill, Deputy Prosecutor-General for the State.

2020 P Cr. L J 73

[Lahore (Rawalpindi Bench)]

Before Ch. Abdul Aziz, J

MUHAMMAD FAYYAZ---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 1138-B of 2019, decided on 4th July, 2019.

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

----S. 498---Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, roiting, armed with deadly weapon, common object---Pre-arrest bail, grant of---Supplementary statement---Non-mentioning of the name of accused in statements under S. 161, Cr.P.C.---Cousin of complainant lost his life whereas two others received injuries in pursuance of an aggression launched by the accused and others---Burden of committing the crime rested upon the shoulders of four nominated and six unknown accused persons---Accused was not nominated in the crime report, his name surfaced on record through the supplementary statement of complainant, which was recorded shortly after the registration of FIR---Accused along with five others was implicated in the case with the allegation of raising lalkara and resorting to firing, which remained ineffective---Statements of three witnesses were recorded under S. 161, Cr.P.C. on the following day, however, the name of accused found no mention therein---Supplementary statement was recorded immediately after registration of FIR, however, even then complainant stated that "till today" he was looking for the unknown perpetrators and now had acquired knowledge about their identity---Use of expression "till today" adversely reflected upon the supplementary statement and reasonably demonstrated that indeed it was recorded after some days of the registration of FIR---Accused, as per accusations, had neither caused any injury to the victims nor had attempted to do so---Such aspect was sufficient to lean in favour of the accused for granting pre-arrest bail---Main accused was exonerated by father of injured from all charges at the time of his pre-arrest bail, though he was saddled with the responsibility of causing multiple firearm injuries to the injured person---Two co-accused persons had already been granted post-arrest bail---Prima facie, there were reasons to believe that accused fell prey to wider net---Petition for grant of pre-arrest bail was allowed, in circumstances.

Nazra and 5 others v. The State 1977 PCr.LJ 480; Ashraf and 3 others v. The State 1978 PCr.LJ 903; Arshad v. The State 1999 PCr.LJ 611; Muhammad Tariq and another v. The State 2008 YLR 22; Miss Zubaida Parveen v. State 2004 MLD 1812 and Zahoor Ahmad alias Bhawal Sher and another v. State 2007 PCr.LJ 1161 ref.

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

----S. 498---Pre-arrest bail---Tentative assessment---Scope---Court, while deciding pre-arrest bail, can have a look upon the merits of case though on the yardstick of tentative assessment.

Hidayatullah Khan v. The Crown PLD 1949 Lah. 21; Emperor v. Muhammad Fandh AIR (21) 1934 Sind (36 Cr.P.C L J 711); Johur Mat and others 10 C W N 1093 (4 Cr.P.C L J 221); Sh. Zahoor Ahmad v. The State PLD 1974 Lah. 256; Murad Khan v. Fazla-e-Subhan PLD 1983 SC 82 and Meeran Bux v. The State and another PLD 1989 SC 347 rel.

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

----S. 498---Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Pre-arrest bail---Recovery of crime weapon---Scope---Where the Court arrives at conclusion that person seeking pre-arrest bail is falsely implicated in the case; his liberty cannot be curtailed solely on the ground that some recoveries are to be effected from him.

Aamir Bashir and another v. State and another 2017 SCMR 2060 rel.

Sardar Safir Akram for Petitioner.

Muhammad Ahmad Saeed, DPG with M. Arshad, S.I. for the State.

2020 P Cr. L J 84

[Lahore]

Before Aalia Neelum and Farooq Haider, JJ

The STATE through Deputy Director (Assets) Regional Directorate Anti-Narcotics Force, Lahore---Appellant

Versus

ABDUL MAJEED BUTT and 3 others---Respondents

Criminal Appeal No. 191 of 2011, heard on 6th May, 2019.

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

----Ss. 37 & 19---Freezing of assets---Forfeiture of assets of pre-claimed offender---Scope---Anti-Narcotics Force assailed the order passed by Judge Special Court whereby application by subsequent purchaser of the property in question for discontinuation of freezing of properties was allowed---Validity---Anti-Narcotics Force had freezed the properties on 30/08/2001, whereas it had submitted the application under Ss. 37 & 19, Control of Narcotic Substances Act, 1997 for further freezing before Judge Special Court on 30/04/2002---Application for further freezing was submitted after expiry of 8 months, whereas freezing notice, as per S. 37(2), Control of Narcotic Substances Act, 1997 lost its sanctity after expiry of 7 days---Agreement to sell between proclaimed offender and subsequent purchaser was executed on 18/02/1998--- Properties were transferred in the name of subsequent purchaser by Co-operative Housing Society on 30/05/1998---Accused person was declared to be a proclaimed offender in the year 2001---Entire transaction of purchase/transfer was conducted when no notice of freezing of properties was in field---Impugned order was based on solid reasons and no illegality was pointed out, calling interference by High Court---Appeal was dismissed accordingly.

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

----S. 37---Freezing of assets---Scope---Order under S. 37(1), Control of Narcotic Substances Act, 1997 of freezing of the assets by the court is in the nature of interim arrangement till forfeiture or release of assets is directed, which is subject to final orders of the court---Section 37(2), Control of Narcotic Substances Act, 1997 directs Director General of Anti-Narcotics Force or authorized person to place freezing notice issued by them for freezing of the assets before the court within seven days and it is the court which has to decide the continuation or otherwise of such freezing notice.

Kashif Javed Chaudhary, Special Prosecutor for ANF.

Ahmad Faheem Bhatti for Respondent No.2.

2020 P Cr. L J 105

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

ABDUL REHMAN NAJAM and 43 others---Petitioners

Versus

TECHNICAL EDUCATION VOCATIONAL TRAINING AUTHORITY through Chairperson TEVTA and others---Respondents

Writ Petition No. 35978 of 2019, decided on 28th June, 2019.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(ix)---Cheating members of public-at-large---College without affiliation---Petitioners were students of said college and were aggrieved of non-issuance of roll number slips---Plea raised by the authorities was that college was de-affiliated for non-compliance on 12.6.2018 but still admitted petitioners---Validity---Affiliation of College was regretted on 12-06-2018 whereas petitioners were granted admission by the college in the month of August-2018 after de-affiliation---High Court directed National Accountability Bureau authorities to investigate matter at length as case was fully covered under S. 9(a)(ix) of National Accountability Ordinance, 1999---High Court also directed National Accountability Bureau authorities to associate previous, present regime of TEVTA and other quarters including college administration while inquiring into whether prerequisites for registration were fulfilled prior to establishment of institution and education was imparted in accordance with law---Constitutional petition was dismissed in circumstances.

Mian Ali Haider for Petitioners.

Shoaib Zafar, Additional Advocate-General Punjab.

Nauman Qaiser and Akhtar Abbas with Hafiz Farhat Abbas, Chairman TEVTA, Irfan Qaisar, Ex-Chairman TEVTA and Shahzad Butt, Manager (AA&R) TEVTA in person.

Mian Jafar Hussain on behalf of PBTE.

2020 P Cr. L J 142

[Lahore]

Before Aalia Neelum and Syed Shahbaz Ali Rizvi, JJ

ARSHAD MEHMOOD---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 44-J of 2017, heard on 27th May, 2019.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 5 & 6---Seizure of narcotics---Appreciation of evidence--- Chemical analysis--- Non-mentioning of quantity of consumed narcotics for testing and unconsumed narcotics in report---Effect---Prosecution case was that 02-packets of charas weighing 1200-grams each, total 2.400 kilograms was recovered underneath the driving seat of vehicle driven by accused---Out of the recovered substance, 10-grams charas from each packet was separated for chemical analysis---Record showed that the reports of Analyst were vague since it did not show the extent of protocols---After completing the test, the Analyst would forthwith supply report to the sender in quadruplicate together with full protocols of the tests applied as specified in Form-II; full protocols of the each test/analysis were integral part of para No.1 of Form-II---Since the samples did not conform to test protocols, same was declared not tested on standard quality as defined in the Rules---Such was not a sufficient compliance as the applied test was not mentioned in the reports---Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001contemplated the analysis and test as two different things---Rule and Form-II required that full protocols of the test should be stated after test or analysis---Analyst reports could not be said to be full and complete, disclosing the full protocols of the test applied, except bare opinion that the samples contained charas---Nothing was available on record, on the basis of which, the truthfulness of the reports could be assessed---Patent infirmity had been noticed in the reports and it was not possible to uphold and sustain the judgment of conviction and sentence against the accused, in circumstances---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Ikram Ullah and others v. The State 2015 SCMR 1002; The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 and Khair-ul-Bashar v. The State 2019 SCMR 930 rel.

Arif Hussain Tatla for Appellant.

Zafar Iqbal Chohan, Special Prosecutor for ANF for the State.

2020 P Cr. L J 164

[Lahore]

Before Muhammad Waheed Khan, J

NASEEM ABBAS SHAH---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 9826-B of 2019, decided on 21st June, 2019.

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

----S. 497---Prevention of Corruption Act (II of 1947), S. 5---Penal Code (XLV of 1860), Ss. 409, 420, 468 & 471---Criminal misconduct, criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Bail, grant of---Further inquiry---Scope---Petitioners were booked in the crime report with the allegation that they connived with the revenue officials, who by receiving bribe, illegally entered mutation, embezzled mutation fees and also mutated excessive property in favour of one of the accused persons by committing forgery in the revenue record and thereby not only defrauded the complainant but also caused a huge loss to the public exchequer by misappropriation and embezzlement of mutation fees---Two accused persons, who were seeking post-arrest bail, although were named in the FIR but they had not sold out any property to the complainant and no role whatsoever was ascribed to them by the complainant---Investigation had already been completed---Sufficient reasons were available to believe that the cases of both petitioners called for further probe into their guilt within the scope of S. 497(2), Cr.P.C.---Petitioners were admitted to post-arrest bail, in circumstances.

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

----S. 498---Prevention of Corruption Act (II of 1947), S. 5---Penal Code (XLV of 1860), Ss. 409, 420, 468 & 471---Criminal misconduct---Criminal breach of trust by public servant---Cheating and dishonestly inducing delivery of property---Forgery for purpose of cheating---Using as genuine a forged document---Pre-arrest bail, grant of---Delay in lodging FIR---Pendency of civil litigation---Effect---Petitioners were booked in the crime report with the allegation that they connived with the revenue officials, who by receiving bribe, illegally entered mutation, embezzled mutation fees and also mutated excessive property in favour of one of the accused persons by committing forgery in the revenue record and thereby not only defrauded the complainant but also caused a huge loss to the public exchequer by misappropriation and embezzlement of mutation fees---One of the accused person's name was although mentioned in the FIR, but he had neither sold out any property to the complainant nor had he played any role in the alleged crime---Second accused person's role was that he had sold out the property in excess of his respective share to the complainant and thereby committed fraud, but at the same time complainant admitted that he was in possession of the land which he had purchased from the accused party---Complainant had already filed a suit for specific performance which was sub-judice before the civil court and that was the best forum to resolve the entire controversy---First Information Report was lodged by the complainant after four years of the alleged occurrence for which no plausible explanation had been given---Accused persons were admitted to pre-arrest bail, in circumstances.

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

----S. 497(5)---Prevention of Corruption Act (II of 1947), S. 5---Penal Code (XLV of 1860), Ss. 409, 420, 468 & 471---Criminal misconduct---Criminal breach of trust by public servant---Cheating and dishonestly inducing delivery of property---Forgery for purpose of cheating---Using as genuine a forged document---Scope---Application for cancellation of bail---Accused persons were booked in the crime report with the allegation that they connived with the revenue officials, who by receiving bribe, illegally entered mutation, embezzled mutation fees and also mutated excessive property in favour of one of the accused persons by committing forgery in the revenue record and thereby not only defrauded the complainant but also caused a huge loss to the public exchequer by misappropriation and embezzlement of mutation fees---No allegation was levelled against the accused persons regarding any misuse or abuse of concession of bail---Report under S. 173, Cr.P.C. had already been prepared and was sent to the prosecution branch by the investigating agency, therefore, cancellation of bail was not proper---Applications for cancellation of bail were dismissed.

Shahid Imran v. The State and others 2011 SCMR 1614 and Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

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

----S. 498---Pre-arrest bail---Mala fide of complainant---Scope--- Court can look into and evaluate the mala fide from the facts and circumstances of the case.

Ajmal Khan v. Liaqat Hayat and another PLD 1998 SC 97 and Syed Muhammad Firdous and others v. The State 2005 SCMR 784 ref.

Mukhtar Ahmed Telokar for Petitioner.

Kashif Ali Chaudhry for the Complainant.

Tariq Javed, District Public Prosecutor.

Muhammad Khurram Anwar, Assistant Director, Mianwali.

Umar Hayat, Deputy Director in person.

2020 P Cr. L J 178

[Lahore]

Before Sardar Muhammad Sarfraz Dogar and Farooq Haider, JJ

ARZI GULL and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 183768 and Criminal Revision No. 235939 of 2018, heard on 7th February, 2019.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Broken chain of safe custody---Effect---Police, on spy information, apprehended accused persons and recovered charas from the possession of both accused persons, which was separately secured and sealed into two parcels---Report of Forensic Science Agency revealed that after sampling for analysis, the remaining portion of case property was sealed and handed over to the person submitting the same---Statement of Moharir reflected that sample-bearer had not handed over parcels of case property back to him after return from Forensic Science Agency---Sample-bearer, in his statement under S. 161, Cr.P.C., had not mentioned the fact that after receiving parcels of case property from Forensic Science Agency he had handed over the same to Moharir---Sample-bearer had not even deposited the parcels of case property in the malkhana---Statement of Investigating Officer revealed that neither sample-bearer nor the Moharir had uttered before him that case property was received back from the Forensic Science Agency through the sample-bearer---Complainant had categorically stated that the recovered charas was in the shape of slabs and was wrapped in white plastic shopping bag, whereas case property produced in court was wrapped in dark brown colour and in shape of countless small pieces---Chain of custody of case property from its recovery to its production in the court was not established, rather it was broken---Prosecution had failed to prove the case against the accused beyond shadow of doubt---Appeal was allowed, conviction and sentence recorded against the accused persons was set aside, in circumstances.

Ikramullah and others v. The State 2015 SCMR 1002 and The State through Regional Director ANF v. Imam Bakhsh 2018 SCMR 2039 ref.

Abdul Razzaque v. The State Criminal Review Petition No.69 of 2018 in Jail Petition No.301 of 2014 ref.

(b) Criminal trial---

----Benefit of doubt---Single dent in the case of prosecution is sufficient for acquittal of accused.

Tariq Pervez v. The State 1995 SCMR 1345; Muhammad Akram v. The State 2009 SCMR 230; Muhammad Zaman v. The State and others 2014 SCMR 749; Muhammad Mansha v. The State 2018 SCMR 772; Abdul Jabbar and another v. The State 2019 SCMR 129 and Mst. Asia Bibi v. The State and others PLD 2019 SC 64 ref.

Hammad Akbar Wallana for Appellants.

Usman Iqbal, Deputy Prosecutor-General for the State.

2020 P Cr. L J 197

[Lahore (Multan Bench)]

Before Mujahid Mustaqeem Ahmed, J

MUHAMMAD SIDDIQUE and another---Petitioners

Versus

PROVINCE OF PUNJAB and others---Respondents

Writ Petition No. 14593 of 2013, decided on 20th June, 2019.

(a) Punjab Anti-Corruption Establishment Rules, 2014---

----R. 6---Tampering and forgery in judicial record---Preparing ficticious order sheet---Registration of case---Competent authority---Accused and his co-accused brother, who was a stenographer of Sessions Court, were alleged to have prepared a fake order sheet---Sessions Judge after recording statements of accused and co-accused gave directions to the Anti-Corruption Establishment for registration of criminal case against both of them---Legality and propriety---Before lodging of FIR, Anti-Corruption Establishment was to hold an inquiry, for guidance, but the Sessions Judge himself gave orders for lodging of FIR---In the given facts and circumstances of the case, the matter was to be remitted by competent authority to the Anti-Corruption Establishment for legal action by the said Establishment---Impugned order of Sessions Judge only to the extent of directing the Anti-Corruption Establishment to register the FIR without formal and independent inquiry at their own was without jurisdiction, lawful authority and as such was set aside---High Court directed that the Anti-Corruption Establishment was to proceed in the matter as per Anti-Corruption Establishment Rules, 2014, after affording right of audience to the accused and co-accused and all concerned and if commission of any scheduled offence was made out against any public servant and his other accomplice/s, the Anti-Corruption Establishment was to proceed strictly in accordance with law/rules---Constitutional petition was partly allowed accordingly.

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

----Ss. 154, 156 & 195--- Prosecution of accused under S. 195, Cr.P.C.---Registration of FIR and investigation---Section 195, Cr.P.C. dealt with taking cognizance of offences enumerated in the said provision of law only on a complaint in writing of the public servant/Court, but did not debar lodging of the FIR and investigation of case---Taking cognizance of an offence by a Court of law (on a complaint of the Court) and lodging of FIR were two distinct legal terminologies/remedies under criminal law and in any case S. 195, Cr.P.C. did not bar lodging of FIR in respect of commission of cognizable offence.

Muhammad Nazir v. Fazal Karim and others PLD 2012 SC 892; Industrial Development Bank of Pakistan and others v. Mian Asim Fareed and others 2006 SCMR 483 and Muhammad Bashir Alia Bakola and 8 others v. Superintendent of Police, City Division, Lahore and 9 others 2007 PCr.LJ 864 ref.

(c) Administration of justice---

----Superior Courts had ample jurisdiction to refuse a relief where granting the same would tantamount to injustice.

Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415 ref.

Sh. Muhammad Rafiq Goreja for Petitioners.

Nadeem Ahmad Tarar for Respondents.

2020 P Cr. L J 206

[Lahore (Bahawalpur Bench)]

Before Sadiq Mahmud Khurram, J

MUHAMMAD IRSHAD---Petitioner

Versus

GOVERNMENT OF THE PUNJAB and others---Respondents

Writ Petition No. 5762 of 2019, decided on 30th July, 2019.

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

----Preamble & S. 3---Constitution of Pakistan, Arts. 2-A, 3, 4, 9, 14 & 18---Liberty of citizens---Detention---Fundamental Rights---Scope---Liberty is an 'inalienable right' of citizen as enshrined in Arts. 4 & 9 of the Constitution---Detention of any citizen tantamount to violation of Fundamental Rights guaranteed under Arts. 2-A, 3, 4, 9, 14 & 18 of the Constitution---Object of Punjab Maintenance of Public Order Ordinance, 1960 is to ease public and ensure public safety, public interest and maintenance of public order---Applicability of provisions of Punjab Maintenance of Public Order Ordinance, 1960 is subject to guarantees provided by the Constitution.

Abdul Latif Shamshad Ahmad v. District Magistrate Kasur 1999 PCr.LJ 2014 rel.

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

----S. 3---Constitution of Pakistan, Arts. 4, 9, 10-A & 13---Criminal Procedure Code (V of 1898), S. 403---Detention---Violation of Fundamental Rights---Pendency of criminal cases---Double jeopardy, principle of---Applicability---Scope---Petitioner was aggrieved of detention of detenu by authorities on grounds of disturbing public order---Plea raised by authorities was that there were eight cases pending against the detenu---Validity---Detention of detenu was violative of principle of fair trial as enshrined in Art. 10-A of the Constitution and detention, prima facie, was double jeopardy---High Court set aside order of detention passed by authorities as there was no evidence collected and detention under S. 3 of Punjab Maintenance of Public Order Ordinance, 1960 was not justifiable--- High Court ordered release of detenu as order passed by authorities was illegal, without lawful justification and ineffective upon rights of detenu---Constitutional petition was allowed in circumstances.

Mst. Sana Jamil v. Government of the Punjab through Secretary and 5 others 2016 PCr.LJ 424; Syed Mubbashar Raza v. Government of Punjab through Secretary Home Department and 2 others PLD 2015 Lah. 20; Mrs. Arshad Ali Khan v. Government of the Punjab through Secretary Home 1994 SCMR 1532 and Abdul Rasheed Bhatti v. Government of Lahore, Punjab PLD 2010 Lah. 484 rel.

Syed Zahid Hussain for Petitioner.

Malik Shah Nawaz Kalyar, Assistant Advocate-General for Respondents.

2020 P Cr. L J 245

[Lahore (Bahawalpur Bench)]

Before Sadiq Mahmud Khurram, J

MUHAMMAD YOUSAF---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 2056-B of 2019, decided on 27th August, 2019.

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

----S. 497---Penal Code (XLV of 1860), Ss. 376 & 365-B---Kidnapping, abducting or inducing woman to compel for marriage, rape---Bail, grant of---Existence of valid nikahnama---Statement of victim before court--- Completion of investigation--- Further inquiry--- Scope---Allegation against accused was that he committed rape with the complainant after abducting her---Complainant, as per allegation in the FIR, was abducted but the matter was never reported to the police regarding her abduction---First InformationReport was registered, after the return of complainant to her home, after a lapse of about four months from the day of abduction---Delay and failure to report the matter of abduction of the complainant was indicative of the lack of reliability upon the evidentiary material produced before the court in support of prosecution case---Complainant had levelled allegation of abduction and rape against the accused and his co-accused, but according to nikahnama appended with the bail petition, a valid nikah existed between the alleged victim and the accused---Attested copies of orders passed by High Court were also appended wherein the complainant had categorically stated that she had contracted marriage with the accused with her free will, consent and without any duress---Nikahnama was verified during investigation of the case and it was found that the same was genuine---Complainant had already filed a suit for jactitation of marriage which was still pending---Accused was a previous non-convict--- Investigation qua accused was complete and his person was not required for further investigation---Case of accused was one of further inquiry covered by subsection (2) of S. 497, Cr.P.C.---Accused was admitted to post-arrest bail, in circumstances.

Muhammad Azam v. Muhammad Iqbal and others PLD 984 SC 95 rel.

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

----S. 497---Bail---Benefit of doubt---Scope---Benefit of doubt can be extended in favour of the accused even at bail stage.

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

----S. 497--- Bail--- Heinous nature of offence--- Effect--- Mere involvement in a heinous offence is no ground for refusing bail to an accused, who otherwise becomes entitled for the concession of bail.

Masroor Ahmad Khan and Malik Abdul Razzaq Bhupla for Petitioner.

Muhammad Ibrahim Khan for the Complainant/Respondent No.2.

2020 P Cr. L J 271

[Lahore (Bahawalpur Bench)]

Before Anwaarul Haq Pannun, J

ASHIQ ELAHI and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 689 of 2017 and Criminal Revision No. 35 of 2018, decided on 13th February, 2019.

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

----Ss. 319 & 80---Qatl-i-khata---Appreciation of evidence---Accidental fire shot---Deceased handed over the gun to accused for killing the snake which went off suddenly hitting the deceased---Accused had neither used the gun nor had fired any shot therefrom by design or with intention to do so---Nothing was available on record to show that accused had not used proper care and caution---Gun having gone off accidentally invoking of provisions of S. 319, P.P.C., was not justified---Case was fully covered by provisions of S. 80, P.P.C.---Conviction and sentence passed by lower court was set aside in circumstances.

Nasir Abbas v. The State and another 2011 SCMR 1966 and Munir Ahmad v. The State PLD 2000 Lah. 425 ref.

(b) Criminal trial---

----Conviction---Benefit of doubt---Scope---Conviction must be founded on unimpeachable evidence and certainty of guilt---Any doubt arising in prosecution case must be resolved in favour of accused.

Muhammad Khan and another v. State 1999 SCMR 1220 ref.

(c) Criminal trial---

----Benefit of doubt---Single instance giving rise to a reasonable doubt in the mind of court, entitled the accused to benefit of doubt not as a matter of grace but as a matter of right.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Malik Muhammad Sajid Feroze and Azeem Ashraf Cheena for Appellants.

Abdul Rasheed Rashid for the Complainant.

Shahid Farid, Assistant District Public Prosecutor for the State.

2020 P Cr. L J 289

[Lahore]

Before Ali Baqar Najafi and Sardar Ahmed Naeem, JJ

Hafiz Mian MUHAMMAD NAUMAN---Petitioner

Versus

DIRECTOR GENERAL NAB and others---Respondents

Writ Petition No. 581 of 2019, decided on 18th September, 2019.

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

----S. 9(a)(iii)(vi)(xii)--- Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Case of further inquiry---Subsequent developments---Plea bargain by co-accused---Effect---Accused persons were investigated and arrested on providing undue gratification and monetary misappropriation in parking contracts to companies---Plea raised by National Accountability Bureau (NAB) was that some accused persons entered into plea bargain therefore, commission of offence was established against petitioners---Validity---High Court declined to appreciate plea of NAB at bail stage as prosecution had to independently prove case against petitioners and not by taking advantages of developments made subsequent to investigation---Prosecution was not able to dig out any transfer of funds or receiving kickbacks by petitioners for executing agreement with parking companies to extend them any favour with corresponding loss to exchequer---Constitution of offences under S. 9(a)(iii)(vi)(xii) of National Accountability Ordinance, 1999 needed further inquiry in circumstances---High Court allowed constitutional petitions of accused persons and bail was granted.

Tallat Ishaq v. National Accountability Bureau through Chairman and others PLD 2019 SC 112; National Accountability Bureau through Chairman v. Murad Arshad and others PLD 2019 SC 250; Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division Islamabad and others PLD 2001 SC 607; Secretary Revenue Division and others v. Muhammad Saleem 2008 SCMR 948; Government of Sindh through the Chief Secretary, Karachi and 4 others v. Raeesa Farooq and 5 others 1994 SCMR 1283; Regarding Corruption in Hajj Arrangements in 2010 2011 PLC (C.S.) 1489; Federation of Pakistan through Secretary, Ministry of Interior, Islamabad v. Mrs. Amatul Jalil Khawaja and others PLD 2003 SC 442; Suo Motu Action Regarding Allegation of Business Deal Between Malik Riaz Hussain and Dr. Arsalan Iftikhar Attempting to Influence the Judicial Process PLD 2012 SC 664; Watan Party and another v. Federation of Pakistan and others PLD 2011 SC 997; Mustafa Ansari v. Deputy Commissioner, Chittagong Hill Tracts, Rangamati and others PLD 1965 Dacca 576; Corruption in Hajj Arrangements in 2010 PLD 2011 SC 963; Subhash Kumar v. State of Bihar and others AIR 1991 SC 420; Olas Khan and others v. Chairman NAB through Chairman and others PLD 2018 SC 40; Nadeem Majeed v. The State and others 2007 SCMR 1958; Chairman National Accountability Bureau, Islamabad and another's case 2004 SCMR 91; Mrs. Riaz Qayyum v. The State and another 2004 SCMR 1889; Haji Ghulam Ali v. The State through A.G. N.-W.F.P. Peshawar and another 2003 SCMR 597; Mst. Fatima Ismail v. The State 2003 SCMR 733; Muhammad Saeed Mehdi v. The State and 2 others 2002 SCMR 282; Dr. Mujahid Kamran v. Chairman National Accountability Bureau (NAB) and others 2019 PCr.LJ 34; Engineer Raja Qamar Ul Islam v. National Accountability Bureau through Chairman and others 2019 PCr.LJ 582; Syed Ather Hussain and others v. Chairman National Accountability Bureau and another 2019 YLR 788; Ghani-ur-Rehman v. National Accountability Bureau and others PLD 2011 SC 1144 and The State and others v. M. Idrees Ghauri and others 2008 SCMR 1118 rel.

(b) Bail---

----Power of court---Scope---Grant of bail lies with discretion of court---Granting or denial is regulated, to a large extent, by facts and circumstances of each particular case but bail can be withheld only in exceptional circumstances.

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

----S. 9(b)--- Constitution of Pakistan, Art. 199---Constitutional petition---Bail---Scope---Statutory ouster of jurisdiction of all courts cannot affect jurisdiction of High Court to grant bail under Art. 199 of Constitution---Primary feature of Art. 199 of the Constitution is to provide a forum to an aggrieved person who has no other adequate remedy; secondary feature is protection of Fundamental Rights---When a citizen complaints violation of Fundamental Rights, High Court exercise its power under Art. 199 of the Constitution to investigate matter and pass such order as may be found just, legal and equitable---Scheme of Constitution makes it obligatory on part of superior courts to interpret the Constitution, law and enforce Fundamental Rights---Ultimate arbiter is court which is custodian of the Constitution---Extraordinary jurisdiction under Art. 199 of the Constitution is to be exercised with conceptive and caution just to advance cause of justice and not to frustrate or defy intent of law---Such exercise is made to prevent miscarriage of justice and abuse of National Accountability Ordinance, 1999 and it cannot be withheld as a punishment--- Court also cannot elaborate sifting of evidence but make a tentative assessment of material laid before court.

(d) Constitution of Pakistan---

----Arts. 10-A, 25 & 199---Constitutional jurisdiction of High Court---Equality of citizens---Due process of law--- All people are entitled to due process of law and are assumed to be innocent unless proved guilty---Every citizen must be treated with equality and his dignity, liberty, life and honor must be guaranteed as envisaged in the Constitution---High Court not only has a right but a fundamental Constitutional duty that Fundamental Rights are not infringed.

(e) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Judicial review---Scope---Every executive action of government or other public bodies, if found arbitrary, unreasonable or contrary to law, is amenable to Constitutional jurisdiction of superior courts to be validly scrutinized on touchstone of Constitutional mandates.

Subhash Kumar Sharma v. State AIR 1991 SC 420 rel.

Syed Ali Zafar for Petitioner (in W.P. No. 581 of 2019 argued on 17.09.2019).

Muhammad Asad Manzoor Butt and Hafiz Nauman Zafar for Petitioner (in W.P. No. 220081 of 2018).

Ch. Ghulam Sarwar Nihang for Petitioner (in W.P. No. 229728 of 2018).

2020 P Cr. L J 310

[Lahore (Multan Bench)]

Before Ch. Mushtaq Ahmad and Sadiq Mahmud Khurram, JJ

MUHAMMAD JUNAID UR REHMAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 3783 of 2019, decided on 30th September, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497--- Anti-Terrorism Act (XXVII of 1997), Ss. 11-EE(4), 11-F(2), 11-F(5), 11-F(6), 11-J, 11-N, 11-H, 11-I & 11-W(2)---Proscription of person, membership, support and meetings relating to a proscribed organization, collection of money for proscribed organization, funding arrangements for the purpose of terrorism, fund raising, use and possession of money for the purpose of terrorism, projection of proscribed organization---Bail, grant of---Further inquiry---Non-availability of private witnesses---Accused was alleged to have issued receipts to the public after receiving money in the name of a proscribed organization, but not a single person from the public was associated with investigation who could say that the accused was collecting money in the name of said proscribed organization---No person from the vicinity who had given money to the accused came forward to support prosecution version---Trial Court had to determine after recording evidence as to whether alleged money recovered from the accused was to be spent on terrorism or anti-State activities---Guilt of accused required further probe and his case fell within the ambit of S. 497(2), Cr.P.C.---Offences with which the accused was charged did not fall within the prohibitory clause of S. 497, Cr.P.C.---Petition for grant of bail was allowed, in circumstances.

Malik Arab Hassan Asif and Hafiz Haris Mehmood for Petitioner.

2020 P Cr. L J 335

[Lahore (Multan Bench)]

Before Sardar Muhammad Sarfraz Dogar, J

MUHAMMAD ASIM---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 2558-B of 2019, decided on 15th May, 2019.

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

----S. 498---Penal Code (XLV of 1860), S. 406---"Criminal breach of trust"---Pre-arrest bail, grant of---Delayed FIR---Contractual obligation---Further inquiry---Scope---Allegation against accused was that he along with his co-accused took complainant's jewelry for the purpose of selling it, however, he declined to return the jewelry or the cash---Occurrence was reported to the police with a delay of 6 months without any plausible explanation---Even on the stated facts case was one of default in fulfillment of a contractual obligation or a claim to be settled through rendition of accounts in plenary jurisdiction of civil court---Investment for profit could not be equated with entrustment within the contemplation of S. 406, P.P.C.---Alleged guilt of the accused was necessarily a matter of further inquiry---Prima facie, prosecution had no sufficient incriminating material to connect the accused with the commission of alleged offence---Case of accused was covered under subsection (2) of S. 497, Cr.P.C. calling for further inquiry into his guilt---Accused had joined the investigation---Offence under S. 406, P.P.C. did not fall within the prohibitory clause of S. 497, Cr.P.C.---Petition for grant of pre-arrest bail was accepted, in circumstances.

Nadeem alias Nanha alias Billa Sher v. The State 2010 SCMR 949; Ehsanullah v. The State 2012 SCMR 1137 and Mian Allah Ditta v. The State and others 2013 SCMR 51 ref.

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

----S. 406---Criminal breach of trust---Scope---Voluntary entrustment of property is sine qua non to constitute an offence under S. 406, P.P.C.

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

----S. 406---"Criminal breach of trust"---Scope---Mere breach of promise, agreement or contract, in the absence of clear entrustment, does not ipso facto attract the definition of criminal breach of trust.

Shahid Imran v. The State and others 2011 SCMR 1614 rel.

Ubedullah v. The State 2003 PCr.LJ 1921 and Haji Javed Iqbal v. The State 2004 YLR 2288 ref.

Muhammad Khalid Ashraf Khan for Petitioner.

Muhammad Ali Shahab, Deputy Prosecutor General along with Muhammad Asif, ASI for the State.

2020 P Cr. L J 350

[Lahore (Rawalpindi Bench)]

Before Muhammad Tariq Abbasi and Raja Shahid Mehmood Abbasi, JJ

TARIQ MEHMOOD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 958 of 2017, heard on 30th October, 2018.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Contradictory statements of witnesses---Scope---Accused was convicted by Trial Court for possession of 1110 grams of heroin---Complaint had mentioned that 60 grams were separated as sample and prepared two sealed parcels, one of the sample and other of the remaining quantity---Complainant during his statement before Trial Court deposed that his stance in the complaint regarding preparation of two sealed parcels was incorrect---Moharrar admitted that in his statement recorded under S. 161, Cr.P.C., he had not mentioned that two sealed parcels were delivered to him---Investigating officer admitted that he had not mentioned in any statement that he handed over the parcel of remaining recovered heroin to Moharrar---Facts and circumstances showed that prosecution case and the charge against the accused could not be proved beyond shadow of doubt---Appeal was accepted and impugned judgment was set aside.

(b) Criminal trial---

----Benefit of doubt---Scope---Accused is entitled for due benefit of acquittal not as a matter of grace or concession but as a matter of right.

Ayub Masih v. The State PLD 2002 SC 1048 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

(c) Criminal trial---

----Benefit of doubt---Scope---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused will entitle him to such benefit, not as a matter of grace or concession but as a matter of right.

Ayub Masih v. The State PLD 2002 SC 1048 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

(d) Criminal trial---

----Administration of justice---Mistake of Court in releasing a criminal is better than its mistake in punishing an innocent.

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

(e) Criminal trial---

----Administration of justice---High Court observed that it was better that ten guilty persons be acquitted rather than one person innocent be convicted.

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

Barrister Osama Amin Qazi for Appellant.

Umar Hayat Gondal, Additional Prosecutor-General with Waqas, SI for the State.

2020 P Cr. L J 374

[Lahore (Multan Bench)]

Before Anwaarul Haq Pannun, J

SAQLAIN---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 1172-M of 2019, decided on 10th April, 2019.

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

----Ss. 7 & 2(b)---Determination of age---Ossification test---Duty had been cast upon Incharge of Police Station or Investigating Officer that if a person alleged to have committed an offence physically appeared or he himself claimed to be a juvenile, immediately an inquiry would be initiated for determination of his age.

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

----Ss. 324, 337-F(ii), 337-F(iii) & 34---Juvenile Justice System Act (XXII of 2018), S. 8---Juvenile Justice System Ordinance (XXII of 2000), S. 7---Attempt to commit qatl-i-amd, badiah, mutalahimah, common intention---Determination of age of accused person claiming himself to be minor---Application for ossification test was dismissed by Judicial Magistrate as well as by the Sessions Judge---Validity---Birth Certificate and Education Certificate were relevant material to inquire the actual age of the accused---Absence of stipulated documents was a condition precedent for seeking medical examination report---Court before authorizing further detention of an accused would record its findings regarding his age on the basis of available record---Section 8 of the Juvenile Justice System Act, 2018 was suggestive of holding medical examination only when the documents stipulated in the said section were not forthcoming---If accused of an offence laid his claim, sought a declaration of his juvenility after submission of a report under S. 173, Cr.P.C. during trial, the Trial Court might entertain his claim but without defeating the object and without rendering the provisions of the Ordinance redundant---In the present case, the case was registered on 19.05.2018---Petitioner as per report under S. 173, Cr.P.C. was arrested on 22.05.2019---Juvenile Justice System Act, 2018 was promulgated on 22nd May, 2018---Petitioner remained with police on duly authorized physical remand by the Judicial Magistrate---Neither the petitioner appeared to the SHO or Investigating Officer from his physical appearance to be a juvenile nor the petitioner laid any claim about his juvenility---Petitioner, after submission of the challan, had moved application before the Trial Court claiming that his date of birth according to his school leaving certificate was 02.02.2003, therefore, he might be declared as a juvenile---Claim of the petitioner regarding juvenility was delayed one---Revisional court found that according to the voters list the name of the petitioner figured at Sr. No.180 with his CNIC number, issued on his attaining the age of 18 years---Perusal of the voter list further revealed that name of younger brother of the petitioner was also mentioned in the same voter list at Sr. No 181 with his CNIC number meaning thereby that even his younger brother was more than eighteen years of his age at the time of preparation of voters list---Petitioner had not been able to rebut the entries in the voters list or his CNIC---Petitioner at a belated stage was trying to make an abortive effort/attempt for getting himself declared as a juvenescent---Both the courts below had passed the impugned orders while taking into consideration the material available on the record in its true perspective which were quite in accordance with law, therefore, the same called for no interference by High Court---Application being patently devoid of any force was dismissed.

Qazi Sadar-ud-Din Alvi for Petitioner.

Abdul Wadood, DPG for the State.

2020 P Cr. L J 407

[Lahore (Multan Bench)]

Before Anwaarul Haq Pannun and Sadiq Mahmud Khurram, JJ

SHAH MUHAMMAD alias SHAHU---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 436 of 2018, heard on 10th April, 2019.

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

----Ss. 9(c) & 29---Possession of narcotics---Appreciation of evidence---Prosecution case was that 1250 grams of charas and 400 grams of heroin were recovered from the possession of the accused---Record showed that case of the prosecution hinged on the evidence of marginal witness of recovery memos and Investigating Officer---Statements of said witnesses were coherent and inspired confidence---Said witnesses had corroborated each other on all material points, including date, time and place of occurrence, the quantity of the recovered narcotics and the manner in which recovery was effected---Said witnesses were consistent on all facts and their version was vouched by the report of the Forensic Science Laboratory---Once the prosecution was able to bring on record evidence to discharge the initial onus of proof then the burden would shift upon the accused to prove otherwise which he failed to do so in the present case---Report of Forensic Science Laboratory showed that the received items were found to contain heroin and charas respectively, which was in line with the relevant provisions of law---Prosecution had proved its case against the accused beyond reasonable doubt, in circumstances--- Appeal was dismissed accordingly.

The State through Regional Director ANF v. Imam Baksh and others 2018 SCMR 2039 rel.

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

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotics, aiding, abetting or associating in narcotic offences---Appreciation of evidence---Prosecution case was that 1250 grams of charas and 400 grams of heroin was recovered from the possession of the accused---Prosecution witnesses were police officials---Defence had alleged that prosecution had not produced even a single independent/private witness who could corroborate their testimony---Validity---Section 25 of the Control of Narcotic Substances Act, 1997, had excluded the applicability of S. 103, Cr.P.C., therefore, association of witnesses from the public was not mandatory in such cases.

Aala Muhammad and another v. The State 2008 SCMR 649 and Muhammad Hanif v. The State 2003 SCMR 1237 rel.

(c) Criminal trial---

----Evidence---Testimony of Police Officials---Scope---Testimony of Police officialwas as good as evidence of any other witness unless the accused was able to establish that the police witness who appeared against him had personal motive/mala fides to falsely implicate him in the offence.

Hakim Khan v. The State 2013 SCMR 547; Surraya Bibi v. The State 2008 SCMR 825; Riaz Ahmad v. The State 2004 SCMR 988; Naseer Ahmad v. The State 2004 SCMR 1361; Fida Jan v. The State 2001 SCMR 36; Muhammad Azam v. The State PLD 1996 SC 67 and Muhammad Naeem v. The State 1992 SCMR 1617 rel.

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

----Rr. 4 & 5---Delay in sending samples of contraband for chemical analysis---Effect---Control of Narcotic Substances (Government Analysts) Rules, 2001 were directory and not mandatory in nature---Mere fact that the samples were sent beyond the prescribed period of 72 hours would not be fatal unless the accused showed that the samples were tampered or he was otherwise prejudiced by the delay.

Tariq Mehmood v. The State PLD 2009 SC 39 and The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 rel.

Syed Muzamil Hussain Shah Bukhari for Appellant.

Hassan Mehmood Khan Tareen, Deputy Prosecutor-General for the State.

2020 P Cr. L J 447

[Lahore]

Before Asjad Javaid Ghural, J

AKHTAR MAQSOOD---Petitioner

Versus

SUPERINTENDENT OF CAMP JAIL, LAHORE and 4 others---Respondents

Writ Petition No.25232 of 2019, decided on 12th September, 2019.

Criminal Procedure Code (V of 1898)---

----Ss. 382-B, 35, 397 & 561-A--Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Concurrent running of sentences---Inherent jurisdiction of High Court---Petitioner was arrested in an earlier registered case wherein he was granted post arrest bail on 08.07.1996 and during the pendency of the trial, he was declared proclaimed offender on 25.09.1999---Another criminal case stood registered against him at the same Police Station wherein he was captured on 28.10.2000 and sent into the judicial lockup without showing his arrest in the earlier case in which he had already been declared proclaimed offender---Petitioner had faced the trial in both the cases as an under-trial prisoner till to year, 2009---After conclusion of trial in the earlier registered case, petitioner was convicted and sentenced to capital punishment, by the Trial Court which was converted into the imprisonment for life by a Division Bench of High Court---Petitioner was convicted and sentenced to imprisonment for life by the same court in the subsequently registered case but, in appeal, he was acquitted of the charge---Only hurdle in the way of releasing the petitioner from jail was that the jail authorities were reluctant in counting the period from 28.10.2000 to 24.06.2009 for the purpose of benefit of S.382-B, Cr.P.C. because his arrest on 28.10.2000 was not entered in the earlier registered case by the police officer wherein he was presently undergoing the sentence of imprisonment for life although he had faced the trial on summoning from jail by the Trial Court---Petitioner had faced the agony of trial for about nine years in both the cases being under-trial prisoner and also the proceedings of appeal for more than ten years---Under S. 397, Cr.P.C., Court had wide discretion to direct two different sentences in two different trials to run concurrently---Question before the court was to whether the period in which an accused was in the judicial lockup in one case and the trial is/was in progress in the other case in which he had been granted bail but not released from jail due to the pendency of the other cases would be reckoned in order to extend him the benefit of S.382-B, Cr.P.C.---Record showed that petitioner was facing hardship due to the mistake of the police officer, who had arrested him in the subsequently registered case but did not enter his arrest on the judicial remand paper of his earlier registered case in which he was declared proclaimed offender---Jail authorities had no legal justification in excluding the period undergone by the petitioner as an under trial prisoner in both the cases simultaneously merely on account of a mistake of the police officer--- Petitioner would be entitled to the benefit of S. 382-B, Cr.P.C.--- Constitutional petition was allowed, in circumstances.

Sajjad Ikram and others v. Sikandar Hayat and others 2016 SCMR 467; Khadim Hussain v. Province of Punjab and others 2014 SCMR 669 and Rahib Ali v. The State 2018 SCMR 418 rel.

Syed Zahid Hussain Bokhari for Petitioner.

2020 P Cr. L J 462

[Lahore]

Before Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ

KHALID MAHMOOD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.1023 of 2013, heard on 10th October, 2019.

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

----S. 9---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6---Possession of narcotics---Report of analyst---Non-mentioning of full protocols of the test---Duquenois Levine test---Tetrahydrocannabinol test---Scope---Accused person was alleged to have been in possession of charas, for which he was convicted---Report of Chemical Examiner revealed that full protocols of the test were not applied; that the same was not in the prescribed form and not fully answered; that it contained only the result of test analysis and that Duquenois Levine test was applied and the examiner had expressed his opinion on its basis that the sample was of charas---Duquenois Levine test only detect presence of 'drug' in the sample and it did not determine nature or kind of 'drug'---For detection of charas, Chemical Examiner's Report was to show tetrahydrocannabinol as positive---Patent infirmity in the report of Chemical Examiner was found, which was fatal to the prosecution case---Appeal was accepted and the appellant was acquitted of the charge, in circumstances.

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

----R. 6---Report of test or analysis---Scope---Where the report of Chemical Examiner does not state the protocols applied for the test, it cannot be said that the report is "in the prescribed form"---Omission to state either the result of the test or the protocols of the test applied, is a substantial omission which goes to the root of the evidence of the report "with prescribed form"---If the protocols of the test are not stated in the report, the report must be held to be not a report "in the prescribed form" within the meaning of R. 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 and cannot be treated as evidence of the facts stated therein.

Mian Muhammad Rauf for Appellant.

Malik Muhammad Irfan, Special Prosecutor for ANF for the State.

2020 P Cr. L J 477

[Lahore]

Before Syed Shahbaz Ali Rizvi and Malik Shahzad Ahmad Khan, JJ

SAMAR HAYAT---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.247851 of 2018, heard on 24th September, 2019.

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

----Ss. 9(c) & 9(a)---Possession of narcotics---Appreciation of evidence---Sentence---Scope---Failure of prosecution to separate sample from each parcel---Effect---Accused was apprehended by the police and during his personal search 2115 grams of charas was recovered---Complainant admitted during cross-examination that charas was packed in several number of pieces and from all such pieces only 10 grams of charas was separated---Sample parcel containing 10 grams of charas allegedly taken from different pieces of the contraband sent to the Forensic Science Laboratory could not be considered as a representative sample of the bulk in view of the which, conviction for the bulk of narcotics weighing 2115 grams of charas was not warranted under the law---Accused could only be convicted and sentenced for the possession of contraband only to the extent of sample parcel---Conviction and sentence awarded to the accused under S. 9(c) of Control of Narcotic Substances Act, 1997 was set aside and he was convicted under S. 9(a) of the Act and sentenced to rigorous imprisonment for six months--- Appeal was dismissed.

Ameer Zeb v. The State PLD 2012 SC 380 and Mst. Nasreen Bibi v. The State 2014 SCMR 1603 ref.

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

----Ss. 221(7), 265-I, 511 & 342---Charge---Previous conviction---Procedure---Previous conviction or acquittal---Proof---Examination of accused---Scope---Trial Court awarded enhanced sentence to the accused because of his previous conviction but record revealed that Trial Court had awarded sentence to the accused without complying with the provisions of Ss. 221(7), 265-I(1), Cr.P.C. and also by ignoring the requirements of S. 265-I(2), Cr.P.C.---Section 221(7), Cr.P.C. provided that to hold conviction, the fact, date and place of previous conviction had to be stated in the charge at any time before the sentence was passed whereas provisions of S. 265-I, Cr.P.C. showed that if a charge was framed against accused regarding his previous conviction and the said accused replied to the charge in affirmative, the court could pass a sentence upon him in accordance with law, but if he replied in negative, the court could take evidence with regard to previous conviction as alleged in the charge, record finding thereon and then sentence the accused in accordance with law---Question as to what was required to prove the previous conviction of a convict was answered in S. 511, Cr.P.C.---In the present case, no question with regard to previous conviction was put to the accused during his statement recorded under S. 342, Cr.P.C.---Trial Court had inflicted enhanced sentence upon the accused without adopting the prescribed procedure.

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

----S. 75---Control of Narcotic Substances Act (XXV of 1997), S. 9---Enhanced punishment after previous conviction---Possession of narcotics---Scope---Section 75, P.P.C. did not have any nexus with the question of enhanced sentence to be inflicted under the penal provisions of Control of Narcotic Substances Act, 1997 as the legislature has confined its scope only to the extent of conviction and sentence for offences punishable under Chap. XII or Chap.XVII of Pakistan Penal Code, 1860---Application of S. 75, P.P.C. with regard to awarding enhanced sentence to a previously convicted person of an offence punishable under any law other than Chap. XII or Chap. XVII of Pakistan Penal Code, 1860, would not be justifiable.

Mukhtar Ahmad Tatry, Zafar Iqbal Qaisar and Shahid Javed Chohan for Appellant.

Nisar Ahmad Virk, Deputy Prosecutor General for the State.

2020 P Cr. L J 489

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Muhammad Waheed Khan, JJ

MUHAMMAD ARSHAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 7100-B of 2019, decided on 5th March, 2019.

Criminal Procedure Code (V of 1898)---

----S. 498---Drugs Act (XXXI of 1976) [as amended in Punjab], Ss. 23, 27 & 28(3)---Import, manufacture and sale of drug, contravention of---Pre-arrest bail, refusal of---Offence did not fall within prohibitory clause of S. 497, Cr.P.C.---Previous conviction of petitioner---Scope and effect---Petitioner owner of pharmacy, contended that he was entitled to concession of bail as offence with which he was charged did not fall within prohibitory clause of the S. 497, Cr.P.C.---Record revealed that the petitioner on seeing the raiding party slipped away; while in the presence of sale-staff employed at said pharmacy, huge quantity (of spurious drugs, unregistered medicines, drugs without sale-purchase record and drugs without warranty) was recovered which were seized and Form No. 5 was prepared at the spot---Manufacturing of one drug was stopped by the manufacturing company in the year 1992, said drug was also recovered at the time of raid of the pharmacy in the year 2018---Petitioner was previously convict in two cases of similar nature, hence, his case fell within the purview of S. 28(3) of the Drugs Act, 1976, which stipulated that sentence up to ten years could be awarded to a previous convict so case against the petitioner squarely fell within the ambit of the prohibitory clause of S. 497, Cr.P.C.---Liberty of a person was a precious right but at the same time it was bounden duty of the Court to come for the rescue of the public-at-large---Huge quantity of spurious and unregistered drugs had been recovered from petitioner in a row despite being convicted twice by the Court in cases of similar nature, which reflected his mindset which had to be curbed/dealt with iron hands---Bail was refused to the petitioner, in circumstances.

Muhammad Ahsan Bhoom for Petitioner.

Malik Asif Ahmed Nissoana, Deputy Attorney General with Sana Ullah, Drug Inspector for the State.

2020 P Cr. L J 497

[Lahore (Multan Bench)]

Before Anwaarul Haq Pannun, J

MUHAMMAD WASEEM---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 7065-B of 2018, decided on 15th April, 2019.

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

----Ss. 497 & 466---Penal Code (XLV of 1860), S. 295-B---Defiling, etc., of copy of Holy Quran---Bail, grant of---Release of lunatic pending investigation or trial---Scope---Petitioner sought post-arrest bail in FIR registered under S. 295-B, P.P.C.---Contention of petitioner was that he was a lunatic, therefore, not in a position to stand trial on account of his physical and mental health---High Court, after taking into consideration medical report of the petitioner, held that his case was fully covered by S. 466, Cr.P.C.---Petitioner, prima facie, was not mentally fit and was of unsound mind, so it was not possible for him to understand the proceedings of the trial---Petition for grant of bail was allowed, in circumstances.

Asghar Ali v. The State 1992 PCr.LJ 2083; Yasir v. The State and another 2018 YLR 379; Saifullah Khan alias Turab v. The State PLD 2006 Pesh. 140 and Ghulam Mustafa Waseem through Bashir Ahmad v. The State and another PLD 2013 Lah. 643 ref.

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

----S. 466---Release of lunatic pending investigation or trial---Scope---Section 466, Cr.P.C. envisages that, during an inquiry or a trial, if the court, has a reason to believe that the accused is of unsound mind and consequently incapable of making his defence, the fact of unsoundness of mind of accused shall be inquired into and for this purpose the accused shall be caused to be examined by a civil surgeon of the district or any other Medical Officer, as the Provincial Government may direct---Medical Officer, after medical examination of such person shall reduce the examination into writing---During the pendency of such inquiry or trial, the court may deal the accused in terms of S. 466, Cr.P.C.---Consequential effect of the opinion of the Magistrate that the accused is of unsound mind and incapable of making his defence, a finding shall have to be recorded to such effect and the proceedings of trial postponed.

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

----S. 466---Release of lunatic pending investigation or trial---Scope---According to S. 466(1), Cr.P.C. whenever an accused person is found to be of unsound mind and incapable of making his defence, the Magistrate or the court, as the case may be, whether the case is one in which the bail may be taken or not, may release him on sufficient security being given that the accused shall be properly taken care of and shall be prevented from doing any injury to himself or any other person and for his appearance when required before the Magistrate or court or such officer as the Magistrate or the court may appoint in this behalf.

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

----S. 466---Lunacy Act (IV of 1912), Preamble---Release of lunatic pending investigation or trial---Scope---Section 466(2), Cr.P.C. deals with a situation where the court or Magistrate is of the opinion that neither the bail of the accused should be taken nor the sufficient security is given to the court or the Magistrate as the case may be, shall order that the accused be detained in safe custody in such place and manner, as he or it may think fit---Report, however, shall have to be made in this regard to Provincial Government by Court or Magistrate, stating the action taken---However, under said provision, if the court considers it appropriate that the accused be detained in a lunatic asylum, it shall be made in accordance with such rules, made under Lunacy Act, 1912.

Syed Jaffar Tayyar Bokhari for Petitioner.

2020 P Cr. L J 524

[Lahore (Multan Bench)]

Before Muhammad Tariq Abbasi and Mujahid Mustaqeem Ahmed, JJ

ALLAH RAKHA---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 1 of 2012, heard on 23rd May, 2019.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Contradictions in statements of witnesses---Safe custody of recovered narcotic not proved---Effect---Accused was found to be in possession of 1500 grams of charas---Complainant sealed the narcotic into two separate parcels and took them into possession---Moharrer of Police Station deposed that complainant/Investigator deposited a sealed sample parcel, which he handed over to a constable for onward transmission to the office of Chemical Examiner---Moharrer had not stated that the remaining quantity of contraband (other than sample parcel) was also deposited with him---Constable deposed that the Moharrer handed him over one sealed parcel of charas which he deposited in the office of Chemical Examiner and he never took the parcel of sample to the office of Excise and Taxation Officer---Report of Chemical Examiner depicted that the sample was forwarded through Excise and Taxation Officer---Safe custody of case property and sample thereof from day one was missing and no conclusive proof was available to prove that the recovered charas was deposited in Maalkhana and the same was not tampered with---Foundation on which whole case of prosecution was built had no legs to stand and the evidence thus produced was not free from doubts--- Appeal against conviction was allowed, in circumstances.

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

----Ss. 20 & 21---Power to issue warrants---Power of entry, search, seizure and arrest without warrant---Scope---Section 20, Control of Narcotic Substances Act, 1997 empowers a Special Court to issue search warrant of any building, etc where it believes that narcotics has been kept or concealed---Section 21, Control of Narcotic Substances Act, 1997 empowers a police officer of the rank of Sub-Inspector to search any building, etc without warrant in which he has the information of keeping or concealing any narcotics and a warrant of search cannot be obtained without affording the person an opportunity of concealment of evidence---Said officer could seize such narcotics.

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

----Ss. 32 & 27---Criminal Procedure Code (V of 1898), S. 516-A---Police Rules, 1934, Rr. 22.16 & 22.18---Articles connected with narcotics---Disposal of seized articles---Custody of property case---Scope---Specific procedure has been prescribed for disposal/destruction of case property which, if consists of narcotic drug, psychotropic substance or controlled substance constituting an offence under the Control of Narcotic Substances Act, 1997 is liable to be confiscated and only the court is authorized for destruction of such case property---Police officer of the rank of Sub-Inspector or any other police officer duly authorized in that behalf by the Government can seize a property which has been used in the commission of an offence, but he has no power to dispose of the same---Police officer is obligated to deposit the same in court or with the officer in charge of a police station as described in the Police Rules, 1934---Rule 22.16 of Police Rules, 1934 provides that weapons, articles and property in connection with criminal cases recovered during the course of searches made in police investigation are to be entered in the store-room Register---Rule 22.18 of Police Rules, 1934 instructs that the officer in charge of the police station shall make suitable arrangements for its safe custody.

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

----Ss. 20, 21 & 27---Police Rules, 1934, R. 22.18---Constitution of Pakistan, Art. 10-A---Power to issue warrants, power of entry, search, seizure and arrest without warrant, disposal of seized articles, custody of case property---Fair trial---Scope---Police officer/Investigating officer is required to forward the articles seized under section 20, 21 or 27 of the Control of Narcotic Substances Act, 1997 or under other enabling provisions of law immediately to the officer in charge of the police station, who in turn under Rule 22.18(2), Police Rules, 1934 shall keep such recovered property in store-room or make other suitable arrangements for its safe custody against entries to be made in the relevant Register---Prosecution was duty bound to produce case property in court as it is the evidence, which has been collected during investigation and is being used against the accused to prove offence or as the corroborative piece of evidence---If the investigator is allowed to dispose of the same without any order of competent court, it would deprive the accused of his right to examine allegedly recovered property during trial---Act of investigator for not immediately forwarding the seized article to the officer in charge of the police station for safe custody/depositing the same in Maalkhana is flagrant violation of the relevant provisions of law thus depriving the accused "fair trial", a Right guaranteed under Art. 10-A of the Constitution---Disposal of case property by means other than prescribed above causes serious damage to the prosecution case.

Ali Muhammad v. The State PLD 2010 SC 623 ref.

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

----S. 9---Possession of narcotics---Chain of safe custody---Scope---Chain of safe custody begins with the recovery of narcotics; it includes the separation of representative sample and its dispatch to the Narcotics Testing Laboratory---Prosecution must establish that the chain of custody is unbroken, unsuspicious, indubitable, safe and secure---Any break in the chain of custody or lapse in the control of sample would cast doubts, impair and vitiate the conclusiveness of the report prepared by Chemical Examiner.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 ref.

(f) Criminal trial---

----Benefit of doubt---Scope---Benefit of doubt must go to the accused not as a matter of grace but as of right.

Muhammad Mansha v. The State 2018 SCMR 772; Mst. Nazia Anwar v. The State and others 2018 SCMR 911; Azhar Mehmood and others v. The State 2017 SCMR 135; Ayub Masih v. The State PLD 2002 SC 1048; Muhammad Akram v. The State 2009 SCMR 230; Amin Ali and another v. The State 2011 SCMR 323; Arif Hussain and another v. The State 1983 SCMR 428 and Tariq Pervaiz v. The State 1995 SCMR 1345 ref.

Muhammad Imran Shahzad Bhatti for Appellant along with Appellant in person.

Adnan Latif, Deputy District Public Prosecutor for Respondents.

2020 P Cr. L J 543

[Lahore]

Before Muhammad Qasim Khan and Asjad Javaid Ghural, JJ

WAJID HUSSAIN and others---Appellants

Versus

The STATE and others---Respondents

Capital Sentence Reference No. 44/T of 2005, Criminal Appeals Nos. 843 and 864 of 2015, heard on 24th June, 2019.

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

----Ss. 302(b), 365-A, 201, 148 & 149---Qatl-i-amd, kidnapping or abduction for extorting property, valuable security etc., causing disappearance of evidence of offence, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Delay of about one month in lodging the FIR---Effect---In the present case, the matter was reported to the police, after one month of the occurrence---First Information Report showed that servant of the deceased came back of his own and told the complainant about their abduction---If that fact was admitted even then the FIR was got lodged nineteen days after the return and disclosure by the servant---No justifiable reason existed on the record to explain delay of one month in registration of FIR from the date of occurrence and delay of nineteen days from the date of return and disclosure by servant, one of the abductees---In the presence of such inordinate and unexplained delay in registration of FIR, the rest of the prosecution case was to be seen with extra care and caution.

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

----Ss. 302(b), 365-A, 201, 148 & 149---Qatl-i-amd, kidnapping or abduction for extorting property, valuable security, causing disappearance of evidence of offence, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Accused were charged for abducting the brother and his servant and then murdering the brother of the complainant and releasing the servant---Ocular account was furnished by complainant and one of the abductees/servant of the deceased---Statement of complainant remained limited to the extent that he visited the dera, found his brother and servant missing, some dandas were lying there and he noticed marks of tyre at the place of occurrence---Statement of complainant to participate in identification parade was of no avail to the prosecution for the reason that admittedly he had neither seen the occurrence nor the accused at the time of occurrence---Complainant while appearing in the witness box although stated as to how the entire occurrence and subsequent events ensued but he did not mention that all the said facts were told to him by his servant, one of the alleged abductees, whereas, according to the FIR, all the said details were narrated to the complainant by said servant/alleged abductee---While giving detail of the occurrence, the complainant in the examination -in-chief had stated that four unknown persons while armed with deadly weapons came on two cars---One car was parked behind the dera, whereas other car was parked near the fodder cutter in the dera---Said part of the statement of the complainant neither found support from the statement of servant nor it was in line with the contents of FIR---Servant/one of the alleged abductees during his statement made certain improvements on most important aspects of the case and he was duly confronted by the defence during cross-examination---Said witness had specifically mentioned in his statement about one Maulvi as one of the accused of the occurrence---Furthermore, according to the statement of said witness, said Maulvi had also inflicted him a blow with pistol but no such person was associated during investigation or sent up to face trial---Nothing on the record that servant of the complainant was ever medically examined to establish the factum of injury purportedly sustained by him, which became obvious that the witness had materially changed his stance---If the deceased had been killed as told by the accused then the Investigating Officer must have taken the accused to the place where the deceased was beheaded and also the place where he was buried---No such effort was made by the Investigating Officer---Dead body or its skeleton also could not be recovered, as such the death itself carried a question mark---No proof about death of deceased was available on the file---Prosecution had failed to bring home the guilt against the accused beyond any shadow of doubt---Appeal was allowed, in circumstances.

(c) Criminal trial---

----Witness, statement of--- Subsequent improvement in such statement--- Validity--- Such statement having been improved dishonestly, could not be relied upon---Improvements once found to be deliberate and dishonest, would cast serious doubt on veracity of such witness.

Farman Ahmed v. Muhammad Inayat and others 2007 SCMR 1826 rel.

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

----Ss. 302(b), 365-A, 201, 148 & 149--- Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, kidnapping or abduction for extorting property, valuable security etc., causing disappearance of evidence of offence, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Test identification parade, having infirmities---Effect---In the present case, alleged abductee/ witness had not given the personal features of the accused and also had not assigned them specific role---Statement of said witness about identifying the accused would remain useless or atleast not free from doubt---Formal arrest of the accused was shown on 03.03.2015 and on 4.3.2015, they were sent to the judicial lockup---Identification of the accused was got arranged on 9.3.2015---No plausible reason existed on the file to explain that if accused had already been arrested then why they were not put to identification parade at the earliest---Identification was supervised by the Judicial Magistrate who admitted that he had not mentioned the heights, colour, features, body structure, shave and beard of the dummies sitting along with suspect accused were not of exact similarity with his beard---Said witness had admitted that accused were having specific identification marks---Incumbent for the Judicial Magistrate supervising the identification parade to have ensured that accused/dummies were not only similar in features but their special identification marks, if any, must have been covered, so that the witnesses could not use such mark to their benefit---Identification parade, in circumstances, was a nullity in the eyes of law.

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

----Art. 22---Identification parade---Conducting identification in parade at the earliest---In order to eliminate the possibility of the accused being known to the witnesses prior to the test identification parade, it was desirable that a test identification would be conducted as soon as possible after the arrest of the accused.

(f) Criminal trial---

----Confession---Exculpatory confession---Scope---If the maker of confession would exonerate himself from important allegations then his such statement at the most could be termed as exculpatory confession, which could not be regarded as confession and had little value even against the maker.

Pervaiz Iqbal's case PLD 1976 Kar. 583 rel.

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

----S. 164---Confession---Retracted---Scope---Conviction could not be based on retracted conviction alone; in order to record conviction, it was imperative for the prosecution to bring on record corroborative piece of evidence.

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

----Ss. 302(b), 365-A, 201, 148 & 149---Criminal Procedure Code (V of 1898), S. 164---High Court (Lahore) Rules and Orders, Vol. III, Ch. 1, Rr. 1, 7 & Ch. 13, R. 6---Qatl-i-amd, kidnapping or abduction for extorting property, valuable security etc., causing disappearance of evidence of offence, rioting armed with deadly weapon, unlawful assembly--- Appreciation of evidence--- Confessional statement, recording of---Procedure---Confessional statement was recorded after court hours---Effect---In the present case, Judicial Magistrate, who recorded confessional statement had admitted that proceedings were completed at Maghrib time, which meant that he recorded the statement after court hours---High Court (Lahore) Rules and Orders, Vol. III, Chap. 1 in its R. 1 provided that trial should be conducted during court hours at court houses only---Rule 7 of the said Chapter provided an exception that the hearing of the case taken up before closing hours might have continued for a short time after that hours---Chapter 13 of the Vol. III, which dealt with confessions and statements of accused persons---Rule 6 of the said chapter had categorically provided that confession should be recorded in open court and during court hours unless there were exceptional reasons to contrary---If there were exceptional reasons for recording confessional statement after court hours then the Judicial Magistrate was bound to record in writing all such exceptions, why he had recorded the statement after the close of court hours and what was the urgency in that respect, otherwise, the proceedings would become doubtful---In such eventualities, possibilities could not be ruled out that there was apprehension that if the matter was adjourned for the next day, the accused might have not made a statement which could involve him in the commission of offence---In exceptional cases, unless counsel of accused was present, confessional statement after court hours could not be recorded---Statement of Judicial Magistrate showed that he did not follow the procedure for recording confession/statement of the accused---Apparently, Judicial Magistrate had acted in haste to record confessional statement after court hours without any legal justification---Said lacuna had rendered the entire proceedings with regard to recording of confessional statement illegal.

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

----Ss. 302(b), 365-A, 201, 148 & 149---Qatl-i-amd, kidnapping or abduction for extorting property, valuable security etc., causing disappearance of evidence of offence, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recovery of wallet and CNIC belonging to deceased from accused---Reliance---Scope---Record showed that except his statement before the court, complainant had not stated anywhere either in the FIR or in his complaint that CNIC and wallet of his deceased brother were missing---Alleged abductee/witness nowhere had mentioned in his statement that at the time of kidnapping wallet and CNIC of the deceased were also with him---Alleged recoveries of wallet and CNIC of the deceased were effected, almost six years after the occurrence-Circumstances suggested that it was repellent to common sence that accused would keep the belongings of the deceased including his wallet and CNIC with them, to be subsequently recovered and used against them---Allegedly said articles were got recovered by co-accused from a room of dera---No details were available as to where those articles had been kept, whether said articles were lying in open place in the room or had been hidden in box etc.---Nothing had come on record as to who was the owner of the dera where from the allegedly wallet and CNIC were got recovered by co-accused---No other person from the vicinity was associated in recovery proceedings and similarly statement of none of such persons from the area was recorded who might have seen the accused persons ever visiting the said dera---Recovery of wallet and CNIC allegedly belonging to deceased was disbelieved, in circumstances.

Arif Mehmood Rana for Appellants.

Arshad Nazir Mirza for the Complainant.

Ch. Muhammad Sarfraz Khatana, DPG for the State.

2020 P Cr. L J 584

[Lahore]

Before Muhammad Qasim Khan and Asjad Javaid Ghural, JJ

Hafiz SHAHBAZ and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 367-J of 2013, heard on 4th April, 2019.

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

----S. 365-A--- Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping or abduction for extorting property, valuable security etc., act of terrorism---Appreciation of evidence---Benefit of doubt---Accused were charged for kidnapping the son of complainant for ransom---Record showed that evidence of the complainant was completely silent as to who had demanded the payment and to whom he had paid the same---Complainant, during trial proceedings, did not pinpoint and raise finger towards any specific person, who had made call or received the amount---Complainant could easily get assistance of police before making payment of ransom but he kept the police in dark---Demand and payment of ransom had not been established---Mere establishing contact of the abductee at the cell phone of the complainant was not sufficient to prove the demand of ransom---Second call was made from another cell phone, however, after the recovery of cell phones from the appellants, the Investigating Officer did not collect any data to establish contact amongst complainant and accused/appellants---Testimony of the complainant, in circumstances, could not be used against the appellants---Investigating officer recovered abductee from the house of co-accused and let him go to his house without recording his statement, on the next day he recorded his statement and that of his father for the reasons best known to him---Said fact showed the possibility that abductee was tutored by some legal expert---Circumstances established that prosecution had failed to substantiate the charge levelled against the appellants through confidence inspiring evidence---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

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

----S. 365-A--- Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping or abduction for extorting property, valuable security etc., act of terrorism---Appreciation of evidence---Benefit of doubt---Last seen evidence---Chance witness---Scope---Accused were charged for kidnapping the son of complainant for ransom---Prosecution witness had stated before the Trial Court that he had seen three male and one female standing near a white Carry vehicle at about 07:30 p.m., when he along with one other person was standing in the street---Abductee came close to them while hearing call on cell phone and on reaching near Carry vehicle, they pushed him inside and on gun-point took him away---On 18.02.2013, said witness participated in test identification parade in jail premises and identified the appellants out of 60-dummies---Sole statement of the said witness with regard to the last-seen evidence could not get corroboration from any other source of evidence---Material witness who was accompanying the said witness did not appear in support of the prosecution---Witness had admitted, during cross-examination, that the complainant and the abductee were permanently residing at the distance of 20/22 kilometres from his village, he was serving as a driver of the complainant for last about 3/4 years---Said witness remained in the company of the complainant but he disclosed and got recorded his statement before the police with the questionable delay of 24-hours, which by itself rendered his authenticity to be legally unacceptable---Said witness was a chance witness being resident of 20/22 kilometres away from the residence of the complainant---Neither he made any attempt to rescue the abductee nor furnished information to the police or the complainant---Disclosing that fact on the next day by itself spoke in volumes with regarding to his authenticity being counter to human conduct---Prosecution had failed to substantiate the charge against the appellants through confidence inspiring evidence---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Muhammad Asif v. The State 2017 SCMR 486 rel.

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

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7 (e)---Qanun-e-Shahadat (10 of 1984), Art. 22---Kidnapping or abduction for extorting property, valuable security etc., act of terrorism---Appreciation of evidence---Benefit of doubt---Joint identification parade---Scope---In the present case, appellants were arrested at the instance of co-accused and they were sent to judicial lockup for the purpose of test identification parade---Test identification parade was conducted jointly in jail premises along with 60-dummies in one go and in the same row wherein witness had identified the appellants being the actual culprits---Undoubtedly, said witness had not given the features, height, complexion and body physic etc. of any of the accused persons in his statement recorded under S. 161, Cr.P.C. or at any subsequent stage up to the Trial Court---Practice of joint identification parade in one go with multiple dummies was disapproved.

Gulfam and another v. The State 2017 SCMR 1189 rel.

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

----S. 161---Delay in recording statement under S. 161, Cr.P.C.---Delay in recording statement under S. 161, Cr.P.C. rendered the testimony of eye-witness/material witness unacceptable.

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

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7 (e)---Qanun-e-Shahadat (10 of 1984), Art. 22---Kidnapping or abduction for extorting property, valuable security etc., act of terrorism---Appreciation of evidence---Recovery of abductee---Reliance---Scope---In the present case, abductee was recovered from the house of co-accused---Investigating Officer did not disclose before the Trial Court as to how he got information about the presence of the abductee in the house of co-accused/appellant---Admittedly, neither witnesses had named co-accused/appellant as an accused nor had they given her feature---Police conducting raid at her house of its own, created serious doubt with regard to the mode and manner of the recovery of alleged abductee.

(f) Criminal trial---

----Circumstantial evidence---Scope---Prosecution is bound to build the chain of interlinking circumstances---If any link of the chain is found missing, whole of its case will be destroyed.

Hashim Qasim and another v. The State 2017 SCMR 986 rel.

Ch. Ameen Rehmat and Kamran Javed Malik for Appellants.

Uzma Razzaq Khan and Zahida Bano, Defence Counsel.

Javed Bashir for the Complainant.

Rana Sultan Mehmood Khan, Additional Prosecutor-General for the State.

2020 P Cr. L J 598

[Lahore]

Before Ch. Abdul Aziz, J

ATIF SHAHZAD alias KALU---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 206421-J of 2018, decided on 3rd December, 2019.

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

----Ss. 376, 511 & 354---Oaths Act (X of 1873), Ss. 5 & 13---Attempt to commit rape, assault or criminal force to woman with intent to outrage her modesty---Appreciation of evidence---Delayed FIR---Failure to get the victim medically examined---Scope---Allegation against accused was that he launched sexual assault upon the victim in order to commit rape but witnesses were attracted to the spot and upon their arrival accused fled away from the scene---Information of the crime was imparted to the police after eight days of the occurrence but it had no adverse significance as the delay was quite natural---Complainant and eye-witnesses did not have any previous vengeance, grudge or grouse against the accused so as to provide basis for the hypothesis of false implication---Victim was not medically examined after the occurrence for valid reasons, as the attempt to commit rape had remained unproductive---No oath was administered to the star witness/victim but such omission could not be resolved to the detriment of the prosecution case as omission to administer oath to a child of less than twelve years of age did not render his deposition inadmissible---Victim had given all necessary details of the occurrence before the Trial Court, her deposition inspired confidence thus, had attained credence---Incident had occurred at a thoroughfare and that too in broad daylight, hence, it appeared that the accused out of sexual frustration had only intended to sexually molest the victim without the act of penetration---Conviction of the accused under Ss. 376 & 511, P.P.C., was not sustainable, however, accused was convicted under S. 354, P.P.C.---Appeal was disposed of accordingly.

Rameshwar v. The State of Rajasthan AIR 1952 SC 54 rel.

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

----S. 5---Oaths or affirmations to be made by witnesses---Scope---All witnesses are required to take oath before recording of their deposition in court---Such oath is not to be administered to a child witness having age of less than twelve years, if he understands his obligation of speaking the truth but does not understand the nature of an oath---Non-administering of oath to a child witness does not render his testimony inadmissible---Child witness is not be absolved from his obligation of stating the truth before the Court, even if he is not asked to take oath.

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

----Art. 3---Oaths Act (X of 1873), S. 5---Competency of witness---Oath or affirmation to be made by child under twelve years of age---Credibility of witness---Child witness---Scope--- Competency and credibility of witness are two distinct terms which cannot be intermingled with each other---Competency of a witness to testify is to be decided in accordance with Qanun-e-Shahadat, 1984---Credibility of a witness is a question of fact, to be decided by Court while keeping in view the principles laid down for appraisal of evidence---All persons are competent to testify until they are found prevented from understanding the question put to them or from giving their rational answers, either due to tender/extreme age or for some physical or mental disability---Person in receipt of conviction for perjury is not competent to testify unless the court is satisfied that he has repented from doing so and has mended his ways---Testimony of a witness of tender age can attain acceptance, if the court is satisfied that he can understand a question and is in a position to offer an answer based on reason---Satisfaction of the court in terms of Art. 3 of Qanun-e-Shahadat, 1984 is not a simple formality but legal obligation hence, it is to be discharged with utmost circumspection---Deposition of a child witness, who is found competent to testify, is not to lose credence even if oath is not administered in terms of S. 5 of the Oaths Act, 1873---Child evidence can ensue the consequence of conviction to an accused, hence the satisfaction of court in terms of Art. 3 of Qanun-e-Shahadat, 1984, must reflect the application of legal mind---Such object can best be attained through proper questioning to a child witness.

Bashir Ahmed v. The State PLD 1979 Kar. 147 and Abdul Jabbar v. The State 1992 PCr.LJ 101 rel.

Mehar Gulzar Ahmed Nanga for Appellant.

Ch. Muhammad Mustafa, Deputy Prosecutor-General Punjab for the State.

Complainant in person.

2020 P Cr. L J 627

[Lahore]

Before Ch. Abdul Aziz, J

TAJAMMUL ABBAS---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No. 64759 of 2017, decided on 27th November, 2019.

(a) Juvenile Justice System Ordinance (XXII of 2000) [since repealed]---

----S. 7---Penal Code (XLV of 1860), Ss. 302 & 109---Qatl-i-amd, abetment---Age determination of---Scope---Petitioner assailed order of Trial Court whereby his request to be declared as a person of less than 18 years of age was turned down---Petitioner had placed reliance on Form-B issued by NADRA, school leaving certificate and report of medical board---Respondent had brought on record birth registration certificate of petitioner issued by Secretary Union Council which showed that the age of petitioner on the day of occurrence was much above 18 years---Held; Form-B was issued after about three months of the occurrence, therefore, it had lost its credibility---Date of birth mentioned in Form-B was in sharp conflict with the school leaving certificate which was produced by none other than the petitioner---Birth certificate of petitioner was based on an entry made in the record of Union Council approximately a decade before the incident---Petitioner had not questioned the genuineness of the birth certificate---Determination of age through ossification test was vulnerable to variation of 2 to 3 years, therefore, the trial court had rightly given preference to unchallenged/unrebutted birth certificate---Petition was dismissed, in circumstances.

Muhammad Naeem v. The State and another 2003 YLR 321; S. Ghulam Mustafa v. The State and 2 others PLD 2004 Pesh. 236; Muhammad Zubair v. The State and others 2014 PCr.LJ 1680; Muhammad Basit v. The State and 3 others 2016 PCr.LJ 1745 and Khushal v. The State 2018 YLR 1605 ref.

Intizar Hussain v. Hamza Ameer and others 2017 SCMR 633 and Naveed Abbasi v. Hassan Zamir Abbasi and another 2019 YLR 1033 rel.

(b) Juvenile Justice System Act (XXII of 2018)---

----Ss. 8, 4 & 2(b)---Criminal Procedure Code (V of 1898), S. 167---Age determination of---Juvenile court---Procedure when investigation cannot be completed within twenty-four hours---Scope---Section 2(b) of Juvenile Justice System Act, 2018 defines a child as a person who at the time of commission of offence has not attained the age of 18 years---Juvenile Court is established under S. 4 of the Juvenile Justice System Act, 2018 to deal with such cases---Certain privileges are granted to "child"-accused through Juvenile Justice System Act, 2018 some of which pertain to arrest, bail, release on probation and prohibition of inflicting capital sentence, etc---Section 8 of Juvenile Justice System Act, 2018 obligates the Officer Incharge of Police Station or the Investigating Officer to determine the acclaimed age of juvenile from his birth certificate, educational certificates or any other relevant document from the very inception of investigation---Juvenile is to be medically examined only if there is no other trustworthy documentary proof in support of his age plea---Findings about the age of an accused who physically appears to be a juvenile is to be given by the court before whom he is brought under S. 167, Cr.P.C. and that too before granting his further detention---Such findings are to be based on the record made available before the court including report prepared by the police officer or the medical examination report, if any.

(c) Medical jurisprudence---

----Ossification test--- Scope--- Term ossification stands for developmental process of bone formation whereby their shape and size is changed with passing age in childhood and adolescence---Symptoms are helpful for determining age until ossification is completed, however, owing to variations in climatic conditions, dietetic values, hereditary differences and other factors, it is not possible to formulate a uniform standard for determination of the age of union of epiphysis in different regions of the sub-continent---Determination of age through ossification is, therefore, vulnerable to variation of 2 to 3 years.

Lyon's Medical Jurisprudence for India; Forensic Age Estimation in Living Individuals: Methodological Considerations in the Context of Medico-Legal Practice by Framblin D' et al, and Research Paper titled as Predicting Height from the Length of Limb Bones by Emily Morey-Holton ref.

Medical Jurisprudence and Toxicology Modi Chapter-10 rel.

(d) Medical jurisprudence---

----Odontology test---Scope---Teeths are of two types i.e. milk teeth and permanent teeth---Development of each kind is subject to variation, thus, determination of age through odontology is prone to an error of two to three years.

Forensic Science in Criminal Investigation and Trials by Dr. B.R. Sharma, 5th Edition rel.

Malik Abdul Sattar and Bashir Abbas Khan for Petitioner.

Zafar Iqbal Chowhan for the Complainant.

Sana Ullah, Deputy Prosecutor-General for the State.

2020 P Cr. L J 644

[Lahore]

Before Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ

GHULAM ABBAS and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 103 of 2011, heard on 18th September, 2019.

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

----Ss. 9(c) & 15---Possession of narcotics---Aiding, abetment or association in narcotic offences---Receipt in the laboratory and examination of sample with reference to Test Memorandum---Appreciation of evidence---Benefit of doubt--- Contradictory statements of witnesses---Collective report of more than one samples---Non-production of case property---Safe custody---Scope---Accused persons were alleged to have been found transporting narcotics---Complainant deposed that all the accused persons pointed out the narcotics lying in the trunks of the cars whereas recovery witness contradicted him by saying that the complainant had opened the trunks---Complainant and recovery witness had not specifically stated about affixture of any impression seal on the articles seized from the spot---Chemical Examiner had given collective report of all the samples---Cars in question were not produced before the trial court---Complainant had not disclosed about the location of narcotics during the time between drafting of complaint and his reaching back in the police station after completion of proceedings---Prosecution was not able prove its case beyond all reasonable doubts---Appeal was accepted, in circumstances.

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

----S. 342---Examination of accused---Scope---Court has to accept or reject defense plea in toto and not in piecemeal.

Major (Retd.) Aftab Ahmad Khan for Appellant No.1 with Appellant No.1 in person.

Muhammad Younas Bhular for Appellant No. 2 with Appellant No.2 in person.

Zafar Iqbal Chohan, Special Prosecutor for ANF for the State.

2020 P Cr. L J 657

[Lahore (Multan Bench)]

Before Ch. Abdul Aziz and Mujahid Mustaqeem Ahmed, JJ

ARSHAD NADEEM and 2 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 7237-B of 2019, decided on 10th December, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497--- Drugs Act (XXXI of 1976), Ss. 23 & 24--- Import, manufacture and sale of drug, control of advertisement---Bail, grant of---Further inquiry---Unregistered alternative therapeutics goods were recovered from the premises of the owner/co-accused who was not yet arrested---Accused persons were hired by the co-accused for the preparation and packing of unregistered cosmetic material---Question as to whether the accused persons were having knowledge that the products being prepared by them were not registered with Drugs Regulatory Authority of Pakistan was yet to be probed---Lesser punishment provided for the offence was to be considered in matter of bail, which in the present case was three years---No progress in the trial since the accused persons were arrested---Case of accused persons was covered by S. 497(2), Cr.P.C., they were entitled to the concession of bail, in circumstances.

Ch. Mehmood Ali for Petitioners.

2020 P Cr. L J 662

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram and Anwaarul Haq Pannun, JJ

MUHAMMAD RASHID---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 576 of 2018, heard on 1st April, 2019.

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

----S. 9(c)--- Possession of narcotics--- Appreciation of evidence---Complainant functioning as Investigating Officer--- Mitigating circumstances---Scope---Appellant filed appeal against his conviction and sentence challenging the judgment passed by Trial Court whereby he was convicted and sentenced for an offence punishable under S. 9(c), Control of Narcotic Substances Act, 1997---Witnesses produced by prosecution narrated the facts leading to recovery of charas weighing 1025 grams---Recovered charas was duly exhibited in evidence, which was taken into possession through recovery memo---Witnesses had given each and every detail of the recovery proceedings and were cross-examined at length but nothing fruitful cropped up during cross-examination---Tenor of cross-examination revealed that the facts in issue were not challenged seriously---Report of Forensic Science Agency confirmed the nature of recovered substance---No prejudice was caused to the accused by functioning of the complainant as an investigating officer---Prosecution had successfully proved its case beyond shadow of doubt by producing relevant and admissible evidence---High Court, while maintaining the conviction but taking into consideration mitigating circumstances such as appellant was a young man, that this was his first conviction and that he, while being on bail and during the trial, had not repeated the offence, reduced the sentence of imprisonment of four years to that of already undergone---Appeal was dismissed with such modification of sentence.

(b) Criminal trial---

----Police Officer as complainant and investigating officer---Propriety---Scope---No legal prohibition exists under the law for a police officer to be a complainant if he is a witness to the commission of an offence and also to be an investigating officer as long as it does not in any way prejudice the accused person.

State through Advocate General, Sindh v. Bashir and others PLD 1997 SC 408 rel.

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

----S. 29---Possession of illicit articles---Presumption---Scope---Once the prosecution is able to bring on record, the evidence to discharge the initial onus of proof then the burden shifts upon the accused to prove otherwise.

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

----S. 9(c)--- Possession of narcotics--- Indeterminate sentence---Reformative punishment---Scope---Offence under S. 9(c) of the Control of Narcotic Substances Act, 1997 has been made punishable with imprisonment which may extend to fourteen years or imprisonment for life or death---Intention of Legislature for providing indeterminate sentencing, by using the words "may extend to" in S. 9(c) of the Control of Narcotic Substances Act, 1997, is that it provided for rehabilitation of a convict---Such provision of law is indicative that the Courts have to appreciate circumstances indicative of reformation of a convict before deciding about the quantum of sentence.

(e) Criminal trial---

----Punishment, theories of---Scope---Theories of punishment are of five types---First one is retribution and its purpose is to emphasize taking revenge on a criminal, perpetrator or offenders; next theory is incapacitation which means a way to reduce the chances of an offender committing another crime; next theory is deterrence in which a criminal is made to fear going back to jail or prison; next theory is rehabilitation by which an effort is made to reform and rehabilitate a criminal, such as trying to give him a second chance and reparation is the last of the five theories of punishment in which effort is made to repay victim(s).

(f) Criminal trial---

----Sentence--- Reformative punishment--- Indeterminate sentence---Discretionary punishment---Scope---Indeterminate sentence promotes rehabilitation through the use of unspecified sentences---Unspecific sentences indicate that the court has to appreciate circumstances indicative of reformation of a convict before deciding about the quantum of sentence---Discretionary punishments are flexible enough to take into account the needs of individual and society and also to realize the maximum general benefit to society and the reformation possibilities of the criminal---Ultimate goal of rehabilitation is to restore a convicted offender to a constructive place in society through some combination of treatment, education, and training.

(g) Islamic jurisprudence---

----Crime and punishment--- Object of punishment--- Kinds of punishment---Scope---Main goal of Islamic Penology is to secure human welfare, maintain peace and to establish a righteous society---Allah has sent His messengers and the Holy Quran, so that men can establish justice---Islamic jurisprudence has defined different types of discretionary punishments some of which are; admonition (Al-Waz); reprimand (Al-Tawbikh); threat (Al-Tahdid); boycott (Al-Hajr); public disclosure (Al-Tashhir); fines and seizure (Al-Gharamah wal Musadarah); imprisonment (Al-Habs) and banishment (Al-Nafy).

Masood Riaz for Appellant.

Nadeem Haider Rizvi, Deputy Prosecutor-General with Muhammad Riaz, ASI for the State.

2020 P Cr. L J 693

[Lahore (Bahawalpur Bench)]

Before Ch. Abdul Aziz and Anwaarul Haq Pannun, JJ

ALI AHMAD---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 406 and Murder Reference No. 49 of 2016, heard on 15th January, 2019.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Benefit of doubt---First Information Report was lodged promptly---Scope---Accused was charged for committing murder of the brother of the complainant---Alleged incident took place at about 1.30 a.m. (night) and was reported to the police at 1.30 a.m. the same night---Facts remained that the distance between the place of occurrence and the police station was 1/2 kilometre-Complainant had not mentioned the time of occurrence in the complaint---Police Officer had endorsed the time 1:30 a.m. (night) on receiving the complaint-Since police station statedly was not located at a far away from the place of occurrence, therefore, reaching of the police at the spot within a short period after the occurrence being possible, could not be ruled out---Even otherwise, the FIR recorded at the spot or elsewhere from the police stations was suspicious as the possibility of its having been lodged after due deliberation and preliminary inquiry could not be ruled out---Promptitude in lodging the FIR could not be readily accepted, as a complimentary factor, for believing the prosecution story contained in the FIR to be true---Promptitude in lodging the FIR did not necessarily exclude the chances of consultation and deliberations by the complainant, therefore, it could not be treated as a substantive piece containing an element of correctness about the story of the prosecution.

Ata Muhammad and another v. The State 1995 SCMR 599 rel.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---"Ocular account" and "medical evidence"---Contradiction---Effect---Accused was charged for committing murder of the brother of complainant---Complainant was the real brother, whereas other witness was happened to be paternal cousin of the deceased---Both the witnesses were not residents of the locality, where the alleged occurrence had taken place---Said witnesses had also not given any plausible reason for their presence at the relevant time at the place of occurrence---Bald assertion of witnesses of having been invited by the groom at the function could not be accepted on its face value, therefore, the evidence of said witnesses needed serious scrutiny---No other independent witness had entered appearance as a witness in the case; so much so, the groom in whose mehndi ceremony the deceased had come to participate as a guest, in which the deceased lost his life, did not come forward to substantiate the prosecution's version---Trial Court in view of the peculiar circumstances of the case did not exercise its jurisdiction and power to summon the groom even as a court witness---Complainant had deposed that there was a distance of three feet between the accused/appellant and the deceased at the time of his sustaining firearm injury---Said fact was also confirmed by the entries of site plan, drafted by draftsman/witness on the instructions of the eye-witnesses as well as the Investigating Officer---If a fire shot is made from a distance of less than 3 feet, there might be blackening or charring marks on the corresponding wounds---Medical Officer who conducted post-mortem examination did not observe any sign of blackening or burning over the dead body of the deceased---Ocular account was in contrast with the medical evidence---Occurrence had not taken place in the mode and manner, in which the prosecution had claimed---Eye-witnesses had utterly failed to prove their presence---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Amin Ali and another v. The State 2011 SCMR 323 and Nooro alias Noor Muhammad Shar and another v. The State 2018 PCr.LJ Note 52 rel.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Benefit of doubt---Recovery of weapon of offence---Delay in dispatch of recovered weapon---Effect---Accused was charged for committing murder of the brother of complainant---Record showed that .30-bore pistol was recovered at the instance of the accused and positive report of Forensic Science Laboratory was received---Recovery of empty of pistol .30-bore had been shown to be effected by the Investigating Officer on 24.10.2014, whereas the accused was arrested on 17.11.2014---Recovery of pistol .30-bore was allegedly effected by the accused-appellant from the iron box lying in his residential room on 20.11.2014---Forensic Science Laboratory Report showed that the said empty was sent to the said office on 17.11.2014 and weapon of offence i.e. pistol .30-bore on 19.12.2014---Said fact showed that the recovered empty was sent after the arrest of the accused/appellant and after 23 days of the occurrence---Positive report of the Laboratory ­lost its evidentiary value, in circumstances.

Jehangir v. Nazar Farid and another 2002 SCMR 1986; Israr Ali v. The State 2007 SCMR 525 and Ali Sher and others v. The State 2008 SCMR 707 rel.

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

----S. 302(b)--- Qatl-i-amd-Appreciation of evidence---Benefit of doubt---Motive was not proved---Effect---Accused was charged for committing murder of the brother of the complainant---Motive for the occurrence was that the accused persons had committed the murder of brother of complainant on the instigation of some of their opponent---No personal grudge/motive had been attributed to the appellant for the commission of the alleged offence---Complainant had stated that his brother sat with the groom on a sofa set---At about 01:00 a.m., accused armed with pistol .30-bore along with an unknown person came there---Accused had asked his brother to get up from the said sofa, his brother refused, on which the unknown persons asked accused to shoot his brother---On which accused took out his pistol from the "nefa" of his "shalwar" and made straight fire which landed on the back side of head of his brother---Complainant further deposed in examination-in-chief that the accused persons had committed the murder of his brother on the instigation of their opponents---Both the said stances of the complainant regarding the motive were mutually destructive and inherently, inconsistent with each other---Said facts fully established that there was no motive behind the occurrence as alleged by the prosecution---Circumstances established that motive was non-existent and had been introduced by the complainant to furnish a justification for giving a be-suiting turn or colour to the occurrence, instead of bringing on record the true facts.

Muhammad Khan and another v. State 1999 SCMR 1220 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---Single instance giving rise to a reasonable doubt in the mind of the court entitled the accused to the benefit of doubt not as a matter of grace but as a matter of right.

Muhammad Akram v. The State 2009 SCMR 230 and Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Syed Asim Ali Bukhari for Appellant.

Nemo for the Complainant.

Najeeb Ullah Khan Jatoi, Deputy Prosecutor-General for the State.

2020 P Cr. L J 714

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram and Tariq Saleem Sheikh, JJ

ABDUL RASHEED alias SOMI---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No. 427 of 2019, heard on 4th December, 2019.

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

----Ss. 23 & 6---"Terrorism"---Power to transfer cases to regular court---Enmity between the two groups---Absence of mens rea---Scope---Petitioner assailed order passed by Judge Anti-Terrorism Court whereby he had dismissed the application under S. 23, Anti-Terrorism Act, 1997 for transfer of case to the court of ordinary jurisdiction---Prosecution case was that an altercation had taken place between two groups over the dispute pertaining to seating of passengers from the bus stand which resulted in exchange of fires with each other resulting into death of three persons and injuries to others---Evidentiary material collected during investigation indicated that the occurrence had takenplace in consequence of personal enmity as there existed a long history of litigation between the parties on the issuance of license of a particular bus stand and the said litigation was pending before the High Court till date, which clearly reflected existence of personal enmity between the two groups---Prime object of the parties was to settle personal score rather than to create a sense of "terrorism"---No evidence was available to suggest that the action was taken with any design, purpose, intention and mens rea of causing "terrorism"---High Court directed Judge Anti-Terrorism Court to transfer the record of case to the court of ordinary jurisdiction---Revision petition was allowed accordingly.

Shahbaz Khan v. Special Judge Anti-Terrorism Court Lahore PLD 2016 SC 1; Criminal Appeals Nos. 95 and 96 of 2019; Civil Appeal No. 10-L of 2017 and Criminal Appeal No. 63 of 2013 rel.

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

----Ss. 23 & 6---"Terrorism"---Power to transfer case to regular court---Material to be considered---Scope---Court, in order to determine whether a case is triable under the Anti-Terrorism Act, 1997 or not, is required to examine the FIR, the statements recorded under S. 161, Cr.P.C., the material collected by the investigating agency and other documents available with the prosecution---Inclusion of surrounding circumstances, depicting the commission of the offence, prima facie permits taking into consideration the documents/material that comes onto surface with regard to the previous enmity or the dispute.

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

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

----S. 6---"Terrorism"---Scope---Terrorists operate on a level different from that on which ordinary criminals operate, their operations and tactics are different and the offence of terrorism is more concerned with the object and design behind an action than with the action itself---Action taken, in order to qualify as "terrorism", must be designed to accomplish a larger objective and primarily the act must not be directed against the actual victims themselves who are treated merely as 'collateral damage'---Extent of the actual damage caused or injuries inflicted by the act is not the determinative factor in this regard---Ferocious action against neutrals that has no dogmatic, conceptual or religious aims is just an act of criminal delinquency, a crime, or simply an act of senselessness unrelated to terrorism.

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

----Ss. 23 & 6---"Terrorism"---Power to transfer cases to regular courts---Personal enmity---Scope---Old feud between the parties has always been considered as one of the circumstances to bring a case out of the scope of "terrorism" because normally in such like matters the prime object is always to settle personal score rather than creating a sense of terrorism.

Shahbaz Khan v. Special Judge Anti-Terrorism Court Lahore PLD 2016 SC 1; Criminal Appeals Nos. 95 and 96 of 2019; Civil Appeal No. 10-L of 2017 and Criminal Appeal No. 63 of 2013 rel.

Rana Muhammad Asif Saeed for Petitioner.

Muhammad Ali Shahab, Deputy Prosecutor General for Respondents.

2020 P Cr. L J 742

[Lahore (Multan Bench)]

Before Anwaarul Haq Pannun, J

Ch. MUHAMMAD ASLAM and others----Petitioners

Versus

SESSIONS JUDGE, MUZAFFARGARH and others----Respondents

Writ Petition No.11067 of 2016 and Criminal Miscellaneous No.14-Q of 2016, decided on 30th April, 2019.

(a) Jurisprudence---

----"Crime"---Connotation---Wrongs are divisible in two sorts or species (i) personal wrong and (ii) public wrong---Crime is a public wrong, breach and violation of public right effects whole community---Crime is deemed by law to be harm to society in general.

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

----S. 154---Registration of FIR---Complainant---Scope---In absence of availability of any private person to be a complainant, State functionaries themselves can report a crime for bringing to book, person who had committed crime---Any individual cognizant of commission of crime can put machinery of law in motion---In doing so, individual is not under any legal obligation to show that personally he is aggrieved of an act complained of---Commission of crime is deemed not only a wrong against individual but same is deemed to be a crime against society---Object behind putting machinery of law against person accused of commission of criminal wrong is to get person punished for act illegal he had done---Punishment may be corporeal or in fine or in both.

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

----Ss. 3, 5 & 7--- Illegal dispossession--- Impleading of parties---Jurisdiction of court--- Complainant was aggrieved of authorities not handing over possession of his illegally dispossessed property despite there being order from the High Court---Accused persons during pendency of proceedings, filed application seeking adding of parties to proceedings which was allowed by Trial Court---Validity---No provision was available in Criminal Procedure Code, 1898 enabling a criminal court to exercise its jurisdiction for impleading any person even at his own as a party during proceedings while trying an offence---Trial Court while passing order failed to consider that criminal court was not conferred upon jurisdiction under any law, either to strike or add any party in pending criminal proceedings---High Court set aside order passed by Trial Court as same was passed illegally, without jurisdiction, without lawful authority and as such same was of no legal effect--- High Court declined to interfere in orders for handing over possession of land in question to complainant as it was unchallenged and attained finality---Constitutional petition was disposed of accordingly.

Muhammad Saleem v. Muneeza Begum and 6 others 2019 PCr.LJ 364; Captain S.M. Aslam v. The State and 2 others PLD 2006 Kar. 221; Muhammad Akram and 9 others v. Muhammad Yousaf and another 2009 SCMR 1066; Mst. Gulshan Bibi and others v. Muhammad Sadiq and others PLD 2016 SC 769; Dossan Travels Pvt. Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1; District Bar Association, Rawalpindi and others v. Federation of Pakistan and others PLD 2015 SC 401 and S.M. Waseem Ashraf v. Federation of Pakistan through Secretary, M/o Housing and Works, Islamabad and others 2013 SCMR 338 ref.

Muhammad Shakeel-ur-Rehman's case PLJ 2014 Lah. 1192 distinguished.

(d) Punjab Civil Courts Ordinance (II of 1962)---

----S.3---Constitution of civil courts--- Scope--- Provisions of Punjab Civil Courts Ordinance, 1962 constitutes classes of courts to be established for civil justice and also authorizes Provincial Governments to demarcate civil district and headquarters.

(e) Civil Procedure Code (V of 1908)---

----O. I, R. 10--- Necessary and proper party--- Scope--- Necessary or proper party to suit is that party whose presence is necessary before court to effectively adjudicate upon suit---Such party can be ordered to be impleaded in suit at any stage of proceedings.

Ch. Abdul Ghaffar and Ali Akhtar Bodla for Petitioners.

Sardar Mahboob for Petitioner (in Criminal Miscellaneous No.14-Q of 2016) and for Respondents (in Writ Petition No.11067 of 2016).

Ch. Zulfiqar Ali Sidhu, Assistant Advocate General Abdul Wadood, Deputy Prosecutor General for the State.

2020 P Cr. L J 776

[Lahore]

Before Sardar Muhammad Sarfraz Dogar, J

ASAD ALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 58888-B of 2019, decided on 31st October, 2019.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qanun-e-Shahadat (10 of 1984), Art. 38---Qatl-i-amd, common intention---Bail, grant of---Confession to police officer not to be proved---Delayed supplementary statement--- Implication of accused on the statement of co-accused---Extra judicial confession---Further inquiry---Completion of investigation---Scope---Accused along with others was alleged to have committed murder---Accused was not nominated in the FIR rather implicated on the basis of extra judicial confession of co-accused---Complainant had made supplementary statement on the basis of extra judicial confession of co-accused after a delay of eight months of the alleged incident---Statements of witnesses of extra judicial confession did not contain any manner of commission of offence---Nothing was available on record to show as to who had strangulated the deceased---Only a rassi was recovered from the possession of accused, which was not sent to the Forensic Science Laboratory for analysis---Question of vicarious liability had to be determined at the time of trial---Except the statement of co-accused under S. 161, Cr.P.C., no evidence was collected by the Investigating Agency, which made the case of accused that of further inquiry under S. 497(2), Cr.P.C.---Statement of co-accused recorded by police during investigation was inadmissible in evidence---Investigation of the case was complete---Accused was not required by the police for further investigation---Accused was behind the bars since his arrest without any progress in the trial---Fair and speedy trial was one of the fundamental rights of accused---No moral or legal compulsion existed to keep the accused behind the bars for an indefinite period, which amounted to punishment without trial---Petition for grant of bail was accepted, in circumstances.

Khan Sardar and another v. The State and another 2009 YLR 1076 ref.

The State through Deputy Director Anti-Narcotic Force, Karachi v. Syed Abdul Qayum 2001 SCMR 14 fol.

Raja Muhammad Younas v. The State 2013 SCMR 669 rel.

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

----S. 497--- Bail--- Tentative assessment--- Scope--- Only tentative assessment is to be made and deeper appreciation of evidence is neither permissible nor desirable at the stage of bail.

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

----S. 497---Bail---Vicarious liability---Scope---Question of vicarious liability is to be determined at the time of trial and not at the time of bail.

Khan Sardar and another v. The State and another 2009 YLR 1076 ref.

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

----S. 497---Bail---Ipse dixit of police---Scope---Ipse dixit of police is not binding upon the court and even for the purpose of bail, law is not to be stretched in favour of the prosecution.

Abid Ali alias Ali v. The State 2011 SCMR 161 ref.

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

----Art. 38---Confession to police officer not to be proved---Scope---Statements of co-accused recorded by police during investigation are inadmissible in evidence.

The State through Deputy Director Anti-Narcotic Force, Karachi v. Syed Abdul Qayum 2001 SCMR 14 fol.

Raja Muhammad Younas v. The State 2013 SCMR 669 rel.

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

----Arts. 16 & 129(b)---Accomplice---Presumption---Scope--- Evidence of an accomplice is ordinarily regarded suspicious; therefore, extent and level of corroboration has to be assessed keeping in view the peculiar facts and surrounding circumstances of the case.

Nawab Ali Mayo for Petitioner.

Muhammad Ahmed Saeed, DPG with Iftikhar, SI for the State.

2020 P Cr. L J 789

[Lahore (Multan Bench)]

Before Anwaarul Haq Pannun, J

ARFAN---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 573 of 2017, heard on 9th October, 2019.

Penal Code (XLV of 1860)---

----S. 376---Rape---Victim, a deaf and dumb female---Examination of victim by Medical Board---Scope---Accused assailed the judgment of Trial Court whereby he was convicted under S. 376, P.P.C.---Record of Trial Court revealed that the complainant had filed application for summoning the Deaf and Dumb Expert for examination of victim, which was allowed, however, the application filed by accused for constitution of Medical Board to medically examine the victim was dismissed---Interpreter reported that the victim was not only deaf and dumb but she was also mentally retarted and was unable to make her statement---Dismissal of application filed by accused was not sustainable since the victim was stated to be deaf and dumb---Held, Trial Court should have got the victim medically examined from a medical expert; examined the expert in the court; provided an opportunity to the defence to cross-examine the said witness and decided the matter accordingly---Appeal was partially allowed, conviction and sentence awarded to the accused was set aside, matter was remanded to the Trial Court to refer the victim to a Medical Board and re-write the judgment after examination of the Chairman of Medical Board.

Prince Rehan Iftikhar Sheikh for Appellant.

Muhammad Abdul Wadood, Deputy Prosecutor General for the State.

Mehar Ali Raza for the Complainant.

2020 P Cr. L J 807

[Lahore]

Before Asjad Javaid Ghural and Farooq Haider, JJ

STATE through Assistant Director (Law), Regional Directorate Anti-Narcotics Force, Punjab, Lahore---Petitioner

Versus

JUDGE ANTI-TERRORISM COURT, FAISALABAD and another---Respondents

Criminal Revision No. 25867 and Criminal Miscellaneous Nos. 4 and 3 of 2019, decided on 23rd October, 2019.

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

----S. 6---"Terrorism"---Murderous assault on the police in order to save oneself from arrest---Scope---Question requiring determination by the court was whether the alleged act of the accused and his co-accused of launching murderous assault on the police party, who had intercepted and recovered narcotic substance from him, was accompanied by a "design" or "purpose" within the ambit of subsection (1)(b) & (c) of S. 6 of the Anti-Terrorism Act, 1997 in order to attract any of the categories specified in subsection (2) thereof or not---Allegation was serious one but it was not accompanied by the design of creating the sense of fear and terrorism---Theme for insurgence of the provisions was specifically mentioned as an act designed to coerce, intimidate or overawe the government or the police or section of the public to create the sense of insecurity, fear and panic in the society---Alleged act of the accused was the result of his attempt to save himself from the arrest, which did not fall within the categories specified under subsection (2) of S. 6 of the Anti-Terrorism Act, 1997---Allegations leveled against the accused did not attract the jurisdiction of Anti-Terrorism Court---Impugned order did not suffer from any illegality, perversity or jurisdictional defect warranting interference by the High Court---Revision petition was dismissed in limine.

2020 P Cr. L J 826

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram, J

ZUBAIR and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 3938-B of 2019, decided on 11th September, 2019.

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

----S. 497---Penal Code (XLV of 1860), S. 365-B---Kidnapping, abducting or inducing woman to compel for marriage---Bail, grant of---Delayed FIR---Existence of nikahnama---Failure to conduct medical examination of victim---Effect---Completion of investigation---Further inquiry---Scope---Accused persons were alleged to have abducted the daughters of complainant---Despite the fact that the daughters of complainant were abducted, the matter was reported to the police with a delay of 18 days---Nikahnamas appended with the bail petition showed that valid nikha existed between the alleged victims and accused persons---Sworn affidavits of alleged victims supported the factum of their nikahs---Alleged victims were never produced before any Medical Officer for medical examination so as to support the allegations leveled against the accused persons---Investigation qua accused persons was complete and their persons were not required for further investigation---Case of accused persons was one of further inquiry covered by S. 497(2), Cr.P.C.---Petition for grant of bail was accepted and the accused persons were admitted to post-arrest bail, in circumstances.

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

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

----S. 365-B---Kidnapping, abducting or inducing woman to compel for marriage---Disputed nikahnama---Determination of---Jurisdiction---Disputes relating to nikahnama have to be decided by Family Court.

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

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

----S. 497---Bail---Benefit of doubt---Scope---Benefit of doubt can be extended in favour of the accused even at bail stage.

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

----S. 497--- Bail--- Heinous nature of offence--- Scope--- Mere involvement of accused in a heinous offence is no ground for refusing bail to accused, who otherwise becomes entitled for the concession of bail.

Muhammad Shahbaz Khan for Petitioners.

2020 P Cr. L J 839

[Lahore (Rawalpindi Bench)]

Before Muhammad Tariq Abbasi, J

NADEEM AKHTAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 83-J of 2016, heard on 18th March, 2019.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Contradictory evidence---Scope---Accused was alleged to have murdered the deceased by firing---Occurrence, as per complaint, took place at 5:40 p.m., and the complaint was lodged at 7:00 p.m. and the FIR was chalked out at 7:20 p.m.---Post-mortem report showed that the death occurred at 5:30 p.m., dead body was received in mortuary at 6:00 p.m., the documents from the police were received by the doctor at 6:30 p.m. and autopsy was conducted at 6:45 p.m.---Post-mortem and autopsy were conducted prior to making the complaint and registration of FIR---Said facts made the prosecution story and the charge, against the accused, highly doubtful---Appeal was accepted and the impugned judgment was set aside, in circumstances.

(b) Criminal trial---

----Benefit of doubt---Scope---Even a single doubt in the prosecution story makes an accused entitled for due benefit of acquittal, not as a matter of grace or concession but as of right.

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

(c) Criminal trial---

----Benefit of doubt--- Scope--- Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused will entitle him to benefit not as a matter of grace or concession but as of right.

Tariq Pervez v. The State 1995 SCMR 1345 ref.

(d) Criminal trial---

----Benefit of doubt---Scope---Mistake of judge in releasing a criminal is better than his mistake in punishing an innocent.

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

(e) Criminal trial---

----Benefit of doubt---Scope---Better that ten guilty persons be acquitted rather than one innocent person be convicted.

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

Barrister Usama Amin Qazi for Appellant.

Muhammad Sharif Ijaz, District Public Prosecutor for the State.

Muhammad Ilyas Siddiqui for the Complainant.

2020 P Cr. L J 851

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Muhammad Waheed Khan, JJ

FAISAL IMTIAZ and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 961, 944, Criminal Revision No. 1031 and Murder Reference No. 282 of 2015, heard on 16th October, 2019.

(a) Criminal trial---

----Each criminal case has its own peculiar facts and circumstances and same seldom coincided with other, therefore, cannot be evaluated/weighed on judicial parlance with similarity.

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

----S. 161--- Supplementary statement--- Scope--- Supplementary statement is always seen with suspicion until and unless it is corroborated/supported by independent facts and circumstances floating on the record.

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

----Ss. 302(b), 380, 411 & 34---Qatl-i-amd, theft in dwelling house, dishonestly receiving stolen property, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that during the course of dacoity in the house, brother of complainant was fired at by the assailants, who died, while currency amounting to Rs. one lac and five tolas golden ornaments were also missing---Ocular account of the occurrence had been furnished by tenant of the deceased---Said witness claimed that he along with his brother woke up early in the morning for fajjar prayers and they had minutely witnessed both the accused while talking to each other and subsequently on the asking of lady accused, co-accused made fire shot on the deceased and he was facilitated by co-accused in fleeing away from the scene of occurrence---Said witness along with his brother were most natural/independent witnesses of the occurrence; however, they were not cited as witnesses in the FIR despite the fact that they were tenants in the house and their landlord was murdered by the assailants in their presence---Said witnesses were not joined into proceedings qua preparation of inquest report---Record revealed that when the dead body was being evacuated to mortuary, tenants joined the proceedings---Said fact straightway hit the prosecution case---Witness of waj-takkar stated that when he was going to offer his Fajjar prayers in the nearby mosque, he had seen co-accused holding pistol while fleeing away from the scene of occurrence---However, it had come on record that said witness was resident of a colony and two Masjids were situated at a distance of half kilometre from his house while place of occurrence was at a distance of one kilometre from his house---Record showed that on the way to the house of the deceased no Masjid was situated which fact was admitted by said witness at the time of making his statement during the course of trial---Said fact created serious dent about the presence of said witness of waj-takkar at the place of occurrence as claimed by him---Circumstances established that the prosecution had failed to advance any cogent and confidence inspiring evidence to establish link of the accused persons with the occurrence---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court.

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

----Ss. 302(b), 380, 411 & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, theft in dwelling house, dishonestly receiving stolen property, common intention---Appreciation of evidence---Confessional statement of accused, recording of---Procedure---In the present case, the lady accused made her confessional statement, recorded by the Judicial Magistrate---In her statement, she allegedly conceded the commission of offence thereby narrating that fire shot upon the person of deceased was made by her co-accused---However, perusal of record available on file reflected that lady accused was taken into custody on 21.10.2010 while her statement under S. 164, Cr.P.C. was recorded on 29.10.2010 when she had already remained with the Investigating Officer on physical remand for a period of eight days---Recording of confessional statement with such a delay when its maker remained in police custody for such a long period straightway casted doubt about its voluntariness---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Khan Muhammad and another v. The State 1981 SCMR 597 and Khalid Javed and another v. The State 2003 SCMR 1419 rel.

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

----S. 164---Confessional statement---Scope---Statement of accused under S. 164, Cr.P.C. not to be recorded in the presence of other accused.

Dhani Bakhsh v. The State PLD 1975 SC 187 rel.

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

----Ss. 302(b), 380, 411 & 34---Qatl-i-amd, theft in dwelling house, dishonestly receiving stolen property, common intention---Appreciation of evidence---Recovery of weapon of offence from the possession of accused---Reliance---Scope---Prosecution case was that during the course of dacoity in the house, brother of complainant was fired at by the assailants, who had died, while currency amounting to Rs. one lac and five tolas golden ornaments were also missing---Record showed that a pistol was recovered from the possession of accused during the course of investigation---Report of the Forensic Science Agency was positive--- Recovery was deemed to be corroborative in nature and it was used for support of direct evidence---If direct evidence was disbelieved it would not be safe to maintain conviction on confirmatory evidence (recovery).

Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 rel.

(g) Criminal trial---

----Benefit of doubt---Principle---One circumstance creating reasonable doubt in the veracity of the prosecution version would be sufficient to extend benefit of doubt to 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.

Ch. Majid Hussain for Appellants (in Criminal Appeal No. 961 of 2015).

Mian Muhammad Ramzan for Appellants (in Criminal Appeal No.944 of 2015).

Mudassar Iqbal, Deputy Prosecutor General for the State.

Abid Saqi, Mudassar Farooq and Sohail Zafar Khan for the Complainant (for Petitioner in Criminal Revision No. 1031 of 2015).

2020 P Cr. L J 885

[Lahore]

Before Muhammad Tariq Abbasi and Sardar Ahmed Naeem, JJ

MUHAMMAD FAROOQ ---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 34-J and Murder Reference No. 102 of 2011, heard on 8th September, 2015.\

(a) Criminal trial---

----Circumstantial evidence--- Scope--- Standard of adjudging the criminality of an act may not be different but each circumstance must be linked with other---If there was no break in link of circumstances, there can be no difficulty to reach at a definite conclusion.

(b) Criminal trial---

----Circumstantial evidence--- Requirements--- Circumstances from which conclusion is to be drawn should be fully established; all facts should be consistent with hypothesis; circumstances should be of a conclusive nature and should lead to a moral certainty and actually exclude every hypothesis but one proposed to be proved.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Circumstantial evidence---Chance witness---Unnatural conduct of witness---Scope---Accused was charged for committing murder of his wife and two daughters---Admittedly, it was an unseen occurrence---Prosecution case against the accused was based on circumstantial evidence---Accused was not nominated in the FIR, however, the evidence of wajtakar offered by the witness revealed that he was coming along with another person from his duty at 12:30 at night and had seen that the accused wearing white coloured blood stained shalwaar kameez while coming out of his own house and sitting in a car hurriedly---On the next morning said witness went to his job/work and observed that so many people had gathered there and once again upon his return from his duty, he had seen the Police Officials standing there in connection with the incident and then he informed the Investigating Officer about the fact that he had seen the accused/appellant hurriedly going away---No explanation was offered by the prosecution as to why the witness kept quiet for about 24 hours, in particular, when early in the morning so many people had gathered there and he did not inquire from any of them as to what had happened---Behavior of the said witness was questionable---Said witness did not enquire/ask anyone the purpose of that gathering and on the other hand nobody was inquired by the witness about the purpose of their gathering---Witness made no effort, whatsoever, throughout the day to describe the story to anybody---Another aspect of the matter could not be lost sight of that the complainant was informed about the occurrence by two other persons that they both were coming back after relieving a bus bound for other city and then they both had seen the accused coming out of his house at 12.00 at night---If it was believed that the complainant was told about the disappearance/departure of the accused in blood stained clothes at odd hours then the complainant should have apprised the Investigating Officer of that fact but FIR was silent about that aspect of the matter which suggested that either the complainant was not informed by the said two persons or the witnesses were planted after about 24 hours of the occurrence---Evidence of wajtakar produced by the prosecution, in the instant case was neither confidence inspiring nor reliable---Prosecution had failed to prove its case against the accused beyond the shadow of any reasonable doubt---Appeal against conviction was allowed, in circumstances.

Akhtar Ali and others v. The State 2008 SCMR 6; Ahmed v. The State 2008 SCMR 119 and Zafar Iqbal and others v. The State 2006 SCMR 463 ref.

(d) Criminal trial---

----Evidence---Wajtakar evidence---Scope---Evidence of wajtakar alone was not a strong evidence and being a weak evidence could not corroborate another enervated evidence---Weak evidence could not become the basis of conviction---Evidence must be unimpeachable to sustain conviction.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Extra judicial confession--- Scope--- Accused was charged for committing murder of his wife and two daughters---Extra judicial confession was made by the accused before two witnesses, one was given up---Witness of extra judicial confession had described that the accused came to them and apprised of the fact that he had slaughtered his wife and daughters as he intended to contract second marriage---Accused requested to resolve the matter amicably and by way of compromise---Accused was asked to stay there but he slipped away as witness went out on a pretext to ask the legal heirs of the deceased---Accused had made extra judicial confession after four days of the occurrence, before said witness who was not authoritative socially or officially---Said witness was neither a close confident nor friend having some common habits and that there was no convincing reason that the accused had gone onto the witness to ventilate his suffocating conscience---Witness had admitted that he informed the complainant party about the confession of the accused on the same very night---If it was so, why the complainant kept quiet and why the witnesses made no effort to apprehend/arrest the accused as he was alone and witness was sitting in his baithak along with other given up witness---Extra judicial confession was not helpful to the prosecution, in circumstances---Appeal against conviction was allowed, in circumstances.

Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231 rel.

(f) Criminal trial---

----Extra judicial confession---Scope---Extra judicial confession being not a direct evidence, needed corroboration from available material---No reliance could be placed on the evidence of extra judicial confession produced by the prosecution, which even otherwise was not corroborated by any other independent evidence.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Weapon of offence recovered at the instance of accused---Reliance---Scope---Accused was charged for committing murder of his wife and two daughters---Churri was recovered at the instance of the accused but same did not connect him with the commission of crime, even if it was accepted as correct and the medical evidence only confirmed the ocular evidence with regard to seat/nature of injuries, weapon used in the case but it could not link the accused with commission of crime---Existence of injuries on the person of all the three deceased was of no avail to the prosecution, in circumstances---Appeal against conviction was allowed, in circumstances.

Ghulam Mustafa and another v. State 2009 SCMR 916 rel.

Miss Saiqa Javed for Appellant.

Muhammad Jafar, Deputy Prosecutor-General for the State.

Saqib Jillani, Defence Counsel for the Complainant.

2020 P Cr. L J 914

[Lahore]

Before Tariq Saleem Sheikh, J

MUHAMMAD AYAZ SHAMAS---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 5716-B of 2020, decided on 11th March, 2020.

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

----S. 497---Penal Code (XLV of 1860), S. 377---Post-arrest bail, grant of---Delay in registration of FIR---Unnatural offence---Accused, charged with commission of unnatural offence against a minor, sought post-arrest bail, inter alia, on ground of unexplained delay of three days in registration of FIR---Validity---Prosecution story could not be doubted on ground of delay in registration of FIR alone, due to the fact that society is generally hesitant in reporting such incidents (unnatural offence) to police---Bail was denied, in circumstances.

Ghulam Husain Soomro v. The State PLD 2007 SC 71; Muhammad Imran v. The State and others 2014 PCr.LJ 456 and Ihsanullah alias Sanu v. The State through Additional Advocate General and another 2015 YLR 2592 rel.

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

----Ss. 375, 376 & 377---Criminal Procedure Code (V of 1898), S. 164-B---Sexual offences, rape and unnatural offence(s)---Collection of vital evidence---DNA testing---Use of Sexual Assault Evidence Collection Kits (SAECKs)---Obligation of Provincial Government to ensure provision of SEACKs and prompt and effective testing of victims of sexual offences, explained.

Lee, Henry C. and Carll Ladd. "Preservation and Collection of Biological Evidence", Croatian Medical Journal 42, No. 3 (2001): 225-228; Salman Akram Raja and another v. Government of Punjab through Chief Secretary and others 2013 SCMR 203 and Scientific Working Group on DNA Analysis Methods (SWGDAM). Recommen-dations for the Efficient DNA Processing of Sexual Assault Evidence Kits. Available at http://www.evidencemagazine.com/index.php rel.

Ch. Sameed Ahmad Wains for Petitioner.

Sh. Muhammad Nauman Siddique, Deputy Prosecutor General with Muhammad Hanif/ASI with record for the State.

Zulfiqar Ali Dhudhi for the Complainant.

Aslam Javed, Senior Law Officer with Capt. (Retd.) Muhammad Usman, Secretary, Primary and Secondary Healthcare Department and Dr. Suleman Shahid, Additional Secretary, Specialized Healthcare and Medical Education Department.

2020 P Cr. L J 939

[Lahore]

Before Sardar Ahmed Naeem and Farooq Haider, JJ

AHAD KHAN CHEEMA and another---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU and others---Respondents

Writ Petitions Nos. 35056 of 2019 and 11006 of 2020, decided on 13th April, 2020.

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

----S. 9(a)---White collar crime---Proof---Evidence, quality of---White collar crime cases are usually committed in planned manner by well-organized persons and they work underhand mechanism---In such cases standard of evidence normally available in ordinary circumstances cannot be expected---White collar crime is totally different in nature from common crimes that take place in society--- Documents in such cases are generally prior to or during commission of the offence which is essential and normally make up the major part of evidence---Bank records, accounting records, legal documents or instruments are normally the basis for the case---Documents may very well prove circumstances around alleged offence but they may not necessarily provide all essential elements of criminal charge e.g. the intention of subject---Personal correspondence, notes in daily timers, mobile phone records must not be overlooked as there may be evidence needed to prove element that was not readily apparent in the books and record.

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

----Ss. 9(a)(iv)(vi) & 9(b)--- Constitution of Pakistan, Art. 199---Constitutional petition---Bail, refusal of---Prima facie case---Contract for construction of a housing project was awarded and both the accused were arrested on the allegations that one had misused his authority while the other was beneficiary---Validity---Offences alleged to have been committed by accused persons were within the purview of 'white collar crimes' and such offence had effect on the society at large---Allegations against accused persons were not only of cheating or defrauding an individual but causing huge loss to public exchequer---Prima facie the case against accused persons did not fall in exceptional circumstances where bail could only be granted when Court had come to the conclusion that material available on record prima facie was not sufficient to link accused with commission of offence such would bring the case within the meaning of 'further inquiry' where release of accused was a matter of right---For recovery of state money and for checking corruption and corrupt practices and for taking action against those who misused their power and authority while enriching themselves at the cost of society, the National Accountability Ordinance, 1999, was promulgated---Contract in question was not a civil liability as the same was covered by National Accountability Ordinance, 1999--- Alleged offence and its mode of commission fell within the ambit of 'white collar crimes' which had its own salient features and peculiar circumstances---Line of distinction was to be drawn between ordinary offence and that of a 'white collar crime' which was to be kept in view while sifting evidence---Approach for such evaluation must be dynamic so that conjectural presumptions and hyper technicalities having no nexus with merits of the case could be eliminated even at bail stage---High Court declined to interfere in the arrest of accused persons---Bail was declined in circumstances.

Tallat Ishaq v. National Accountability Bureau through Chairman and others PLD 2019 SC 112 and Muhammad Yousaf Butt v. P.C. Abdul Lateef Shar and another 2012 SCMR 1945 rel.

Ashtar Ausaf Ali for Petitioner (in Writ Petition No.11006 of 2020).

Azam Nazir Tarar and Muhammad Amjad Pervaiz for Petitioner (in Writ Petition No.35056 of 2019).

2020 P Cr. L J 964

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Syed Shahbaz Ali Rizvi, JJ

AHMAD ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 90-J and Murder Reference No. 73 of 2011, heard on 26th January, 2015.

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

----Ss. 302 & 109---Qatl-i-amd, abetment---Appreciation of evidence---Delay of about one hour and forty five minutes in lodging the FIR---Effect---Accused was charged for committing murder of his own minor sons---Record showed that matter was reported to the police one hour and forty five minutes after the occurrence and the FIR which reflected that crime report, keeping in view the relationship between the deceased minors and accused, was got recorded without any conscious and deliberate delay---Even otherwise, it was a case of single nominated accused and no unchaste concession seemed to have been derived by the complainant out of the two hours intervening time---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302 & 109---Qatl-i-amd, abetment---Appreciation of evidence---Ocular account corroborated by medical evidence---Accused was charged for committing murder of his minor sons---Ocular account of the incident had been furnished by four witnesses including complainant---Admittedly, complainant was the real maternal uncle, one witness was real brother, one was maternal grandfather and other was relative of the deceased minors, residing in the same vicinity at a distance of about 10/12 acres from the place of occurrence---Presence of such persons at the scene of incident was self-explanatory---Place and time of occurrence was not denied by the defence---All the witnesses had given a clear and straightforward account of the occurrence of murder of both the deceased minors---Witnesses/close relatives of the deceased could not be expected that they would let the real murderer of their real and dear ones go scot-free and would falsely involve real father of the deceased minors in such a case of heinous nature---All the witnesses, during their statements before the Trial Court, remained stuck to their statements and they firmly and successfully faced rigor of cross-examination by the defence---Record transpired that defence had avoided to cross-examine all the witnesses regarding the actual occurrence of inflicting the fatal churri blows to the deceased minors by the accused which confirmed the veracity of ocular account of the case---Real son of the accused who was a minor of the age of 12/13 years, student of 4th class, appeared as witness---Evidence of said minor witness could not be discredited in any manner as he remained firm during the cross-examination after making a straightforward and crystal clear statement against his own father having no malice prior to the occurrence against him, which was fully trustworthy, cogent and confidence inspiring---Ocular account was in line with the medical evidence as the injuries attributed to the accused caused with sharp edged weapon were reflected in the post-mortem examination reports of the deceased minors---Circumstances established that the accused had inhumanly and ruthlessly killed his two sons, thus he did not deserve any leniency and that the prosecution had successfully proved its case against the accused beyond reasonable doubt through the ocular account, fully corroborated by the medical evidence, evidence of recovery of churri and evidence of the motive part of the occurrence, therefore the appeal against conviction was dismissed accordingly.

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

----Ss. 302 & 109---Qanun-e-Shahadat (10 of 1984), Art. 3---Qatl-i-amd, abetment---Appreciation of evidence---Child witness---Scope---Accused was charged for committing murder of his minor sons---In the present case, the child witness who had been produced by the prosecution was of the age of 12/13 years, student of 4th class, and he was not of the age who could not understand the questions put to him---After perusal of the evidence of said witness, he was found to be an intelligent witness because he had given rational and coherent answers to the questions put to him by the defence---Appeal against conviction was dismissed, in circumstances.

Muhammad Yaqub v. The State 1993 PCr.LJ 1852 rel.

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

----Ss. 302 & 109---Qatl-i-amd, abetment---Appreciation of evidence---Motive, proof of---Effect---Accused was charged for committing murder of his minor sons---Motive behind the occurrence was that the accused was to marry co-accused, since acquitted and on her asking, the accused wanted to divorce his wife and committed the murder of his two minor sons---Prosecution, in order to prove motive, had produced three witnesses including complainant and real son of the accused---Complainant was the real brother of wife of the accused and after having a quarrel with her husband, she used to come to his house and told him the reason of quarrel with her husband---Son of accused was the most natural witness who had been living with his mother as well as the father and witnessed all the events which were taking place in the family, qua the dispute between husband and wife and the activities of the accused regarding his affairs with co-accused lady---Said witness, being son of the accused, by any stretch of imagination, had no motive to falsely implicate his real father for the murder of his real brothers---Prosecution was successful to prove motive part of the occurrence--- Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302 & 109---Qatl-i-amd, abetment---Appreciation of evidence---Recovery of weapon of offence at the instance of the accused---Reliance---Scope---Accused was charged for committing murder of his minor sons---Accused got recovered churri from underneath a sheesham tree after digging the earth---Though, the place from where the churri was recovered was a field yet the tree underneath of which the churri was buried was in the exclusive knowledge of the accused--- Even the said churri was found stained with blood and as per reports of Chemical Examiner and that of Serologist, the said blood was of human---Appeal against conviction was dismissed accordingly.

Saqib Jillani, Defence counsel at the State expenses for Appellant.

Mian Muhammad Awais Mazhar, Deputy Prosecutor General for the State.

Qamar Hanif Ramay for the Complainant.

2020 P Cr. L J 980

[Lahore]

Before Jawad Hassan, J

PGP CONSORTIUM LTD. through Director---Petitioner

Versus

SECURITIES AND EXCHANGE COMMISSIONOF PAKISTAN through Chairman and 2 others---Respondents

W.P. No. 61480 of 2019, decided on 4th December, 2019.

National Accountability Ordinance (XVIII of 1999)---

----S. 23---Companies Act (XIX of 2017), S. 448--- Transfer of property void--- Registration charges--- Scope--- Petitioner sought registration charges on its assets but Securities and Exchange Commission informed that its request was placed on hold due to caution marked on its assets by the National Accountability Bureau (NAB) under S. 23 of National Accountability Ordinance, 1999---National Accountability Bureau, upon being summoned, responded that it had reservation regarding alienation of shares of only one shareholder of the petitioner who was an accused in an inquiry being conducted by NAB---Petitioner unconditionally guaranteed and undertook not to transfer/alienate any of the shares of accused to third party without prior approval of NAB and showed its willingness in depositing an amount in the court equal to the shares of the accused---High Court, while disposing of the constitutional petition, directed the petitioner to deposit said amount and directed the Securities and Exchange Commission to do what it was required by law to do and register the charge.

Muhammad Azhar Siddiqui, Barrister, M.N. Beg, Mian Shabir, Mian Ali Azhar and Miss Aqsa Jabeen for Petitioner.

Muhammad Wasiq Malik, Senior Prosecutor NAB with Malik Uzair, Assistant Director NAB, Rawalpindi, Barrister Umair Khan Niazi, Additional Advocate General and Ms. Sadia Malik, Assistant Attorney General.

2020 P Cr. L J 991

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Muhammad Waheed Khan, JJ

AMJAD alias BILLA and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 358-J of 2015 and Capital Sentence Reference No.9-T of 2017, heard on 28th October, 2019.

Penal Code (XLV of 1860)---

----Ss. 295-C, 324, 337-A(i)(ii), 337-L(2), 296, 440, 148 & 149---Criminal Procedure Code (V of 1898), Ss. 156-A & 173---Attempt to commit qatl-i-amd, Shajjah-i-Khafifah, Shajjah-i-Mudihah, disturbing religious assembly, use of derogatory remarks, etc., in respect of the Holy Prophet (PBUH) and mischief---Appreciation of evidence---Delay in lodging of FIR---Investigation report, carrying overwriting/cutting---Effect---Benefit of doubt--- Accused were arrested on charges of use of derogatory remarks in respect of Holy Prophet (PBUH), disrupting religious assembly and attempt to cause qatl-i-amd---Trial Court convicted and sentenced accused persons to death---Validity---Nothing was on record to give even glimpse that after presentation of application at police station by complainant any delaying tactics were adopted by local police in registration of case---Delay in reporting matter could only be resolved at the part of complainant and there was nothing on record as to under what compelling circumstances such delay was occasioned--- Memo prepared by investigating officer carried overwriting/cutting which meant that changes were made at a belated/subsequent stage against actual facts and circumstances brought forth during course of investigation carried out at initial stage---Provisions of S. 295-C, P.P.C. were added after a lapse of two months and twenty-two days and element of accusation which was reflected in report prepared under S. 173, Cr.P.C. at very initial stage which could have been given more weight and seriousness was absolutely missing---Ingredients of S. 295-C, P.P.C. were not available and there was nothing on record that accused ever used any derogatory remarks which was sine qua non of S. 295-C, P.P.C.---Legislation required that in cases involving S. 295-C, P.P.C. investigation could be conducted by police officer not below rank of Superintendent of Police as per S. 156-A, Cr.P.C.---Investigation was carried out by Sub-Inspector which was squarely in contravention to explicit provisions of S. 156-A, Cr.P.C.---High Court set aside conviction and sentence awarded to accused persons by Trial Court and acquitted---Appeal was allowed in circumstances.

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

Kashif Nadeem Malik and Ms. Sheeba Qaiser for Appellants.

Muhammad Naveed Umar Bhatti, Deputy Prosecutor General for the State.

Muhammad Abraiz Anjum for the Complainant.

2020 P Cr. L J 1004

[Lahore]

Before Sardar Ahmed Naeem and Farooq Haider, JJ

Mrs. SHAHINA SHAKEEL and another---Petitioners

Versus

The CHAIRMAN NAB and others---Respondents

Writ Petitions Nos. 15993 and 17809 of 2020, heard on 7th April, 2020.

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

----S. 19--- Notice for attendance--- Necessary ingredients---Notice should contain a specific reference of required information in respect of the offence alleged or any material which can suggest that provision of Ordinance/Rule or order made thereunder have been contravened.

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

----Ss. 9(a)(b) & 24---Qanun-e-Shahadat (10 of 1984), Art. 129(e)---Bail, refusal of---Physical remand---Official acts---Petitioner was arrested by NAB who sought his release on bail on the plea that his arrest was illegal and physical remand allowed by Accountability Court was also illegal---Validity---Warrants of arrest were issued by Chairman NAB who had also authorized inquiry---Allegation against petitioner was regarding the period when "Mian Muhammad Nawaz Sharif" was Chief Minister of Punjab---Petitioner had acknowledged receipt of call up notice and did not plead that contents of those notices were ambiguous or incomplete and Accountability Court had extended remand of petitioner---Plea of his false involvement on account of mala fide in retaliation to video clip or audio transcript at bail stage was not well founded---Presumption under Art. 129(e) of Qanun-e-Shahadat, 1984 was that official acts were regularly performed i.e. with due regard to relevant formalities and within the relevant powers and that a conclusion of excess and irregularity was not to be reached lightly--- No immunity from accountability was available to any person particularly when the matter concerned commission of crime or fraud and question was loss to public exchequer and misuse of public power---Question of violation of Art. 13 of the Constitution did not arise at bail stage---If someone hampered the inquiry deliberately and with malice, provision of S. 31 of National Accountability Ordinance, 1999, would take care of such situation---No law conferred immunity from criminal prosecution--- Information laid down before Accountability Court was not false which raised suspicion that petitioner had committed offence within the purview of National Accountability Ordinance, 1999---Custody of petitioner could neither be termed as illegal nor improper for the purpose of maintaining a Constitutional petition to declare his arrest as unlawful---High Court declined to interfere in remand order passed by Accountability Court---Petition was dismissed in circumstances.

Muhammad Hanif and 2 others v. National Accountability Bureau (NAB), Sindh through Director General, Sindh and another PLD 2007 Kar. 429; Rehman v. The State 2009 SCMR 181 and Maj-Gen. (Retd.) Mian Ghulam Jilani v. The Federal Government through the Secretary, Government of Pakistan, Interior Division, Islamabad PLD 1975 Lah. 65 ref.

Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142 fol.

Aitzaz Ahsan, Shaukat Ali Javed, Shahid Saeed, Barrister Tayyab Jan and Malik Amjad Pervaiz for Petitioners.

Syed Faisal Raza Bukhari, Muhammad Asim Mumtaz Special Prosecutors for NAB, Muhammad Ali Shahab, Deputy Prosecutor General with Muhammad Abid Hussain AD/IO, Muhammad Sultan Nazir, case officer and Khawar Ilyas Director for the State.

2020 P Cr. L J 1025

[Lahore]

Before Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ

NAZIR AHMED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 1469 of 2011, decided on 10th October, 2019.

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

----S. 9(c)---Possession and trafficking of narcotics---Appreciation of evidence---Benefit of doubt---Safe custody of contraband substance by police not established---Safe transmission of samples to the Chemical Examiner not established---Effect---Prosecution case was that 91 packets of charas each weighing one kilogram, total weighing 91 kilograms were recovered from the secret cavities installed in the floor of truck of accused---Out of recovered charas, 20 grams from each packet was separated for chemical analysis---Record showed that complainant in his examination-in-chief claimed that he knew the accused previously, but surprisingly the final report was submitted against the accused in S. 512, Cr.P.C. without describing any effort of arrest of the accused---Such attitude on part of the police was quite strange and even was against the implied duties--- In the present case, the identification of the accused was based on hearsay evidence and the same did not come under the definition of "res-gestae" which required direct evidence---Such identification of the accused was not reliable---Investigating Officer deposed that he handed over the case property and samples parcels to the Moharrar at the police station---Moharrar in his examination-in-chief acknowledged only receiving of 91 sample parcels from the Investigating Officer---Deposition of Moharrar was silent with regard to receiving of case property or its safe custody---Meaning thereby, the case property had not been kept in Malkhana in safe custody, as such the safe custody of case property could not be proved---Prosecution had tendered in evidence copy of report of Chemical Examiner instead of original one---No explanation on the record was available as to why the original was not produced---Author of the said report had also not been produced before the Trial Court---Truck had not been produced before the Trial Court---Circumstances established that prosecution case was highly doubtful and based on un-natural and unbelievable story---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

The State through Regional Director ANF v. Imam Bukhsh 2018 SCMR 2039 rel.

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

----S. 9(c)---Recovery of narcotics---Scope---Prosecution had to prove the recovery from the possession of accused and then a claim of conviction could be examined.

Muhammad Noor and others v. The State 2010 SCMR 927 rel.

(c) Criminal trial---

----Benefit of doubt--- Principle--- Single doubt in the prosecution story is disastrous for its case and its benefit will go to the accused.

Tariq Pervez v. The State 1995 SCMR 1345; Muhammad Akram v. The State 2009 SCMR 230 and Muhammad Zaman v. The State 2014 SCMR 749 rel.

Rana Imtiaz Hussain for Appellant.

Waqas Anwar, DPG for the State.

2020 P Cr. L J 1048

[Lahore (Rawalpindi Bench)]

Before Anwaarul Haq Pannun, J

MUHAMMAD USMAN and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 19-J and 20-J of 2017, decided on 31st January, 2019.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Ocular and medical evidence---Contradiction---Prosecution case was that the accused/appellants gave hatchet blows at the neck, face and head of the deceased, whereas the proclaimed offender caught hold of the deceased from his legs---Motive behind the occurrence was previous quarrel took place between the accused and the deceased---Ocular account of the incident had been furnished by two witnesses including complainant---Said witnesses, while deposing in the court, had claimed that they had seen the occurrence in the torch light from a distance of 8 Karam i.e. 44 feet---Distance between the eye-witnesses and the assailants was duly established from scaled site plan---Assembly of all the prosecution witnesses at the place of occurrence, during the dead hours of night, who were neither related to each other nor had a common business, appeared to be doubtful---Over anxious photographic account of the occurrence by the prosecution witnesses vis-a-vis, the weapon of offence, number and locale of injuries allegedly caused by the appellants to the deceased, witnessed from a distance of about 44-feet, appeared to be a self-harming maneuvered, improbable and preposterous when the occurrence had taken place in a 'Khaal' surrounded by sugarcane fields from both sides---During the month of December, the sugarcane crop stood tall in the fields and created a blur in the smooth and uninterrupted vision of a person out of the crop and moreso, in the small alley surrounded by thick and tall sugarcane crop, which was not acceptable---Inquest report indicated that the mouth of the deceased was found open at that time meaning thereby that the dead body remained unattended which was brought to the hospital for conducting post mortem examination under the surveillance of Police Official and identified by official witness and not by a private person---Neither the complainant nor any other prosecution witness had accompanied the Police Officials escorting the dead body of the deceased to the hospital for post-mortem examination nor they had identified the same at that time---Medical Officer had stated that although he received the dead body of the deceased at 03:30 a.m. but he had to wait for the police documents for conducting the post-mortem examination and on request of police he conducted the post-mortem of deceased after about 12 hours of the occurrence---Unexplained delay of 12-hours in conducting the post-mortem examination on the dead body of the deceased pointed out a real possibility that the time had been consumed by the local police and the complainant party in order to procure and plant the eye witnesses after cooking up a false story for the prosecution---Nothing could have been brought on record during the course of investigation about the previous quarrel took place between the accused and the deceased---Said facts clearly established that the claim of the prosecution's witnesses regarding having seen the occurrence was nothing but a pretention---Circumstances established that present case was replete with doubts---Appeal was allowed and accused were acquitted by setting aside the conviction and sentence recorded by the Trial Court, in circumstances.

Muhammad Rafique v. State 2014 SCMR 1698; Faqeer Muhammad v. Shahbaz Ali and others 2016 SCMR 1441 and Muhammad Ilyas v. Muhammad Abid alias Billa and others 2017 SCMR 54 rel.

(b) Criminal trial---

----Identification of accused---Night time occurrence---Source of light---Scope---Identification of the accused through light of torch was a weak type of source and was unsafe to be relied upon.

The State v. Hakim Ali and 3 others 1996 PCr.LJ 231 rel.

(c) Criminal trial---

----Medical evidence---Scope---Purpose of post-mortem examination was to ascertain the cause of death, number and locale of injuries, kind of weapon used in the crime and duration between injuries and death as well as death and post mortem---Medical evidence by itself did not raise finger towards any specific culprit.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence---Delay in dispatch of recovered weapon---Effect---Prosecution case was that the accused/appellants gave hatchet blows at the neck, face and head of the deceased, whereas the proclaimed offender caught hold of the deceased from his legs---Record showed that accused/appellants were arrested and allegedly on their pointing out two hatchets were recovered from the sugarcane fields by way of their digging out each but the same, in the given facts of the case, did not appeal to the logic---If the claim of witnesses regarding making of their hue and cry, attracting a number of persons from the village and then the making of search about the accused was believed to be true then it could more safely be presumed that the accused/appellants, being perplexed, full of anxiety and fear, had no opportunity to avail for concealing the hatchets underneath the soil---Claim that hatchets, which were concealed in a sugarcane crop, during the night hours, in a state of fear of own safety of accused persons could have straight away got recovered with exactitude pointing out the relevant place of their concealment was not believable---Such recovery was of inconsequential, in circumstances.

(e) Criminal trial---

----Direct evidence---Scope---Where the prosecution had relied upon the direct evidence in the form of ocular account and the same was disbelieved by the court, medical evidence and recoveries, if any, which otherwise only rendered corroboration to the ocular account were of no avail to the prosecution for securing conviction.

(f) Criminal trial---

----Benefit of doubt---Principle---Benefit of reasonable doubt would favour the accused as a matter of right and not of grace.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Afzar Saeed Jillani for Appellants.

Nemo for the Complainant.

Shahid Fareed, Assistant District Public Prosecutor for the State.

2020 P Cr. L J 1070

[Lahore]

Before Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ

KHALID KHAN---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 1069-J of 2015, heard on 8th October, 2019.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6---Possession and trafficking narcotics--- Appreciation of evidence---Report of Government Analyst---Mentioning of protocols of test applied---Effect---Prosecution case was that 17 packets of charas, 1200 grams each total weighing 20.400 kgs were recovered from a car driven by accused, out of which ten grams charas from each of 17 packets was separated for chemical analysis, while remaining charas of 17 packets was made into another sealed parcel---On disclosure of accused, 1-1/2 kgs opium contained in three packets of 500 grams each were also recovered from another car belonging to him---Record showed that recovery witness and Investigating Officer remained consistent and firm qua recovery effected from the accused---Said witnesses were tested through a lengthy cross-examination but their evidence could not be shattered---Apparently, sufficient evidence was available to prove the guilt of the accused---Accused being the driver of the car was the incharge of the vehicle and his culpability was established beyond any shadow of doubt---Chemical Report also provided due support to the prosecution case---Mandatory requirement of R. 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001, had been complied with and no legal infirmity in the same was found---Accused had failed to produce any tangible material to rebut the trustworthy and confidence inspiring evidence of the prosecution witnesses---Appeal against conviction was dismissed, in circumstances.

Khair-ul-Bashar v. The State 2019 SCMR 930 and The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 rel.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 342---Possession and trafficking narcotics---Appreciation of evidence---Specific plea taken by accused in his statement---Effect---Accused took specific plea in his defence that only 500 grams opium was recovered from his possession but the Anti Narcotic Force staff in collusion with actual culprits from whom the charas and opium was recovered, let them off and planted two cars and huge quantity of charas and opium upon him---Despite specific defence plea, neither accused opted to record his statement under S. 340(2), Cr.P.C., nor any evidence in defence was produced---Mere bald and general assertions were not sufficient to discard the overwhelming prosecution evidence---Admittedly, accused was driver of the car from which the alleged narcotic was recovered---Concealment of narcotics in the car was well within his knowledge---Appeal against conviction was dismissed, in circumstances.

Kashif Amir v. The State PLD 2010 SC 1052; Ghulam Qadir v. The State PLD 2006 SC 61 and Riaz Mian v. The State 2014 SCMR 1165 rel.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 4 & 5---Possession and trafficking narcotic---Delay in sending samples of contraband for chemical analysis---Effect---In the present case, alleged recovery was effected on 7th November, 2013 whereas sample parcels were sent to the office of Chemical Examiner on 11th November, 2013---Although there was minor delay in sending parcels to the Chemical Examiner but the Rules to that effect were directory and not mandatory---Even otherwise, there was nothing on record to establish that the said parcels were ever tampered with rather the evidence led by the prosecution established that the parcels received by the said agency remained intact---Statements of three official witnesses went un-rebutted to that effect---Prosecution had successfully established the safe custody and transmission of the case property to the office of Chemical Examiner---Even otherwise, dispatching of sample beyond 72 hours was not a sine qua non---Mere delay in sending the sample to the laboratory was not at all fatal to the prosecution case because Rr. 4 & 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, did not place any bar on the Investigating Officer to send the samples beyond 72 hours of seizure or recovery of the contraband---Appeal against conviction was dismissed, in circumstances.

Muhammad Sarfraz v. The State and others 2017 SCMR 1874; Shah Muhammad v. The State 2012 SCMR 1276 and Tariq Mehmood v. The State through Deputy Attorney-General, Peshawar PLD 2009 SC 39 rel.

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

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S. 103---Possessing, trafficking of narcotics, aiding, abetting or associating in narcotic offences---Appreciation of evidence---Prosecution case was that 17 packets of charas, 1200 grams each total weighing 20.400 kgs and 1½ kgs opium contained in three packets of 500 grams each, were recovered from two cars belonging to 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---Mere non-association of the witnesses from the public was not sufficient to vitiate the search and recovery proceedings as the applicability of S. 103, Cr.P.C., had been specifically ousted to the proceedings conducted under the Control of Narcotic Substances Act, 1997, in terms of S. 25 of the said Act---Being special law, the Act, was given overriding effect by virtue of its S. 76---Non-association of public witness during the recovery proceedings was of no consequence---Police Officials were equally good witnesses in absence of any proven enmity---Appeal against conviction was dismissed, in circumstances.

Salah-ud-­Din v. The State 2010 SCMR 1962; Ismaeel v. The State 2010 SCMR 27 and Fida Jan v. The State 2001 SCMR 36 rel.

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

----S. 9(c)---Possessing, trafficking of narcotics---Appreciation of evidence---Complainant as Investigating Officer---Effect---Law did not place any embargo on the complainant to assume the role of the Investigating Officer---Under the law police officer was not prohibited to be complainant if he was a witness to the commission of an offence and also to be an Investigating Officer, so long as it did not in any way prejudice the accused person.

Zafar v. The State 2008 SCMR 1254 and State through Advocate General, Sindh v. Bashir and others PLD 1997 SC 408 rel.

Ch. Nasir Mahmood Tiwana for Appellant.

Irfan Ahmad Malik, Special Prosecutor for ANF for the State.

2020 P Cr. L J 1084

[Lahore (Rawalpindi Bench)]

Before Sadaqat Ali Khan and Anwaarul Haq Pannun, JJ.

STATE through Prosecutor General Punjab---Appellant

Versus

MUHAMMAD ESA and others---Respondents

Criminal Appeal No. 519 of 2018, decided on 4th February, 2020.

(a) Interpretation of statutes---

----Special and general law--- Applicability--- In absence of any particular provision in special law dealing with any specific aspect, provisions of general law are to be applied and invoked.

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

----Ss.3, 29(2)(a)(b) & First Sched.---Special and general law---Scope---Where different period of limitation for institution of a suit preferring an appeal or making an application is prescribed under the provisions of any special or local law, then in Limitation Act, 1908, it is deemed as if the same has been prescribed by First Schedule under S. 3 of Limitation Act, 1908.

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

----S. 3---Limitation, application of---Scope---Law of limitation is not merely a reflection of public policy, it creates and extinguishes rights of parties with the efflux of time.

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

----S. 25(4)---Limitation Act (IX of 1908), Ss. 5 & 25---Criminal Procedure Code (V of 1898), Ss. 417 & 421---Appeal against acquittal---Condonation of delay---Maxim, actus curiae neminem gravabit---Applicability---Scope---Attested copy, non-availability of---Accused persons were acquitted of the charge by Trial Court---Appeal against judgment passed by Trial Court was filed beyond the period of 30 days from the date when judgment was pronounced---Plea raised by authorities was that copy of judgment was not supplied by Trial Court and delay was caused in procuring attested copy of the same---Validity---Even if the copy was not supplied either to the public prosecutor or the accused, there existed no bar under S. 25(4) of Anti-Terrorism Act, 1997, in filing an appeal after obtaining copy of judgment on their own---Maxim, actus curiae neminem gravabit had no applicability---Provision of S. 421, Cr.P.C. also permitted filing of appeal in the form of a petition in writing accompanied by a copy of judgment appealed against, however at the same time the Court to which appeal was presented, if requested could have dispensed with such requirement---Acquittal of the charge recorded by Court of competent jurisdiction was not appealable and was deemed to be final---Acquittal could be challenged in certain circumstances within a period of limitation prescribed by law---Request for condonation of delay by invoking jurisdiction of superior courts, in the larger interest of justice, if made, could only be entertained on showing that delay in filing appeal was caused either by an act of acquitted accused or by circumstances of some compelling nature beyond human control---High Court declined to condone the delay caused in filing of appeal against acquittal as the same was filed beyond the prescribed period of limitation i.e. 30 days from the date of pronouncement of judgment---Appeal was dismissed in circumstances.

Khalid Pervaiz Uppal, DPG for the State.

Ahsan Bhoon, Zulfiqar Abbas Naqvi, Sheharyar Tariq, Ch. Hafeez-ur-Rehman and Mustafa Naqvi for Respondents.

2020 P Cr. L J 1113

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram, J

MUHAMMAD SAFDAR alias BHOOMA---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No. 245 of 2018, heard on 31st October, 2019.

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

----S. 540---Power to summon material witness or person present---Recalling a witness for further cross-examination---Scope---Petitioner challenged the vires of order passed by Trial Court whereby an application, filed by the petitioner seeking re-summoning of prosecution witness for further cross-examination was dismissed---Prosecution witness had got recorded his examination-in-chief and was cross-examined by the counsel on behalf of the petitioner (accused facing trial before the Trial Court)---Only reason for filing of the application was that subsequent to the earlier cross-examination of prosecution witness, the petitioner had appointed a new counsel---Petitioner had failed to establish that the re-summoning of prosecution witness for further cross-examination was essential for a just decision of the case---Petition was vague as it had not explained that on what points the witness was not cross-examined---Petitioner could not recall witnesses for cross-examination as a matter of right, particularly when opportunity was afforded to him for cross-examination---No illegality was pointed out in the impugned order---Revision petition, being devoid of merits, was dismissed.

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

----S. 540---Power to summon material witness or person present---Recalling a witness for examination---Scope---Witnesses can be recalled for examination where the interest of justice so demands or to rectify an obvious mistake---Prosecution witness cannot be summoned by any party for further cross-examination just to fill in the lacunas.

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

----S. 540---Power to summon material witness or person present---Recalling a witness for examination---Scope---Trial Court has been vested with adequate powers under S. 540, Cr.P.C. to summon and examine or re-summon and re-examine any witness in the trial before pronouncing the final verdict---Said provisions of the Code do not ingrain any interpretation whereby it should be allowed to be used by a party to fill-in the lacunas of its case or to unnecessarily protract proceedings of the trial to defeat the ends of justice.

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

----S. 439---Revision---Jurisdiction of High Court---Scope---Revisional jurisdiction of High Court can be exercised only when there are exceptional circumstances and the order impugned is perverse or suffering from any type of infirmity.

Mian Arshad Waqas Chajra for Petitioner.

Malik Naseer Ahmad Thaheem for Respondent No.2.

Muhammad Ali Shahab, Deputy Prosecutor-General for the State.

2020 P Cr. L J 1135

[Lahore]

Before Aalia Neelum andSardar Muhammad Sarfraz Dogar, JJ

The STATE through Deputy Director (Law)---Appellant

Versus

MUHAMMAD JAVED---Respondent

Criminal Appeal No. 50388 of 2019, decided on 16th September, 2019.

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

----S. 36---Criminal Procedure Code (V of 1898), S. 540---Power to summon material witness or examine person present---Report of Government Analyst---Scope---Prosecution moved application under S. 540, Cr.P.C. for summoning the Forensic Scientist/Analyst for covering shortfall in the Chemical Examiner Report---Validity---Held, for summoning the Forensic Scientist/Analyst it was necessary that he should have expressed his opinion in the report that after conducting the required test the entire mass was a sample of contraband substance---Expert report in the present case had not mentioned as to which test was applied before forming opinion and name or number of the Scientist/Analyst who formed the opinion---Such defects could not be filled by summoning the witness---What could not be done directly could not be done indirectly---Accused had failed to point out any legal or factual infirmity in the impugned order, which could justify interference---Appeal was dismissed.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 ref.

Khair-ul-Bashar v. The State 2019 SCMR 930 rel.

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

----S. 540---Power to summon material witness or examine person present---Scope---Held, exercise of the power conferred by S. 540, Cr.P.C. is conditioned by the requirement that such exercise would be essential to the just decision of the case---Evidence should appear to be essential to the court for just decision and not to fill in lacuna in the prosecution case i.e. inherent weakness---Oversight committed by prosecutor or defence during trial either in producing any material document or in eliciting relevant answer from the witnesses could not be equated with a lacuna in the prosecution case, however any such mistake during the trial cannot be considered as lacuna.

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

----S.36---Report of Government Analyst---Object---Evidentiary value---Scope---Report of the Forensic Scientist/Analyst is relevant document in cases related to contraband substance and the opinion expressed by the expert was to be honoured and not called into question if it follows the statute---Real function of the Forensic Scientist/Analyst is to put before the court its opinion, together with test protocols and reasons which induce him to come to the conclusion, so that the court, although not an expert, may form its own judgment by its own observation of those materials---Forensic Scientist/Analyst is not a witness of fact and his opinion is that of expert nature---Duty of expert is to furnish report with the necessary scientific criteria for testing the accuracy of the conclusions in order to enable the Court to form its independent judgment by the application of said criteria.

(d) Administration of justice---

----What cannot be done directly cannot be done indirectly.

2020 P Cr. L J 1144

[Lahore]

Before Ch. Abdul Aziz, J

IRTAZA MAHMOOD---Petitioner

Versus

CAPITAL CITY POLICE OFFICER, LAHORE and others---Respondents

Writ Petition No. 51545 of 2019, decided on 7th February, 2020.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Interim custody of vehicle---Administration of justice---Good Governance---Implementation of order---Magistrate passed order in favour of petitioner for Superdari of vehicle in question but police officials did not comply with the order---Validity---High Court observed that if a public functionary is found to have encroached upon rights of a subject or is guilty of flouting order of a Court and that too with a sinister intent of providing undue benefit to an adversary, the Court must come forward with a pragmatic approach of curbing such tendencies---Survival of a society vests in fair administration of justice and such objective can only be achieved if the rights of individuals are jealously guarded by Courts---High Court directed the concerned police official to implement the order passed by Magistrate in favour of petitioner--- High Court further directed the police official concerned to pay a sum of Rs.200,000/- as compensation for his unlawful act of not releasing the vehicle even after the order of Superdari was passed by Magistrate--- Constitutional petition was allowed accordingly.

Suleman Jameel Owaisi and Asif Ali Haider for Petitioner.

Asif Afzal Bhatti, Additional Advocate-General, Punjab.

2020 P Cr. L J 1158

[Lahore]

Before Muhammad Qasim Khan, J

MUHAMMAD SHER KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No. 62052 of 2019, decided on 21st October, 2019.

(a) Juvenile Justice System Ordinance (XXII of 2000) [since repealed]---

----S. 7---Determination of age---Non-availability of corroborative evidence---Beneficial construction---Scope---Petitioner assailed order passed by Trial Court whereby it had declared the accused to be a juvenile---Trial Court had refused to accept the record of NADRA and Union Council by observing that entries made therein were got recorded much after the date of occurrence---Date of birth recorded much after the commission of the crime could not be safely relied upon without any corroborative piece of evidence---Trial Court had rightly considered the report of Medical Board which included the ossification test---Accused had come out to be juvenile under the relevant law and such fact was supported by school leaving certificate---Age of accused on the day of occurrence was left by Medical Board to swing between 17 to 18 years---Where there were two interpretations then the one favourable to the subject had to be adopted---Approach of the Trial Court was perfectly in accordance with the law, no legal flaw, error or jurisdictional defect was found therein---Petition was dismissed.

(b) Juvenile Justice System Ordinance (XXII of 2000) [since repealed]---

----S. 7---Determination of age---Rule of lenity---Scope---Petitioner assailed order passed by Trial Court whereby it had declared the accused to be a juvenile---Medical Board had left the age of accused, on the day of occurrence, to swing between 17 to 18 years---High Court observed that the case was a fit case to apply the rule of lenity, which was intended to apply in the instances, where the court recognized the existence of more than one interpretations and where the decision which the court reached harmed or benefited the defendant to some greater or lesser degree, in such an eventuality, this rule required the court to select the interpretation most beneficial (or least detrimental) to the accused and to nullify the harsh by construing the ambiguity in favour of the accused---Trial Court had rightly considered the age of the accused which was more favourable to him---Petition was dismissed, in circumstances.

(c) Interpretation of statutes---

----Beneficial construction--- Scope--- Where there are two interpretations, the one favourable to the subject have to be adopted.

(d) Interpretation of statutes---

----Rule of lenity---Scope---Rule of lenity applies in the instances, where the court recognizes the existence of more than one interpretations and where the decision on which the court reaches harms or benefits the defendant to some greater or lesser degree, in such an eventuality, the rule requires the court to select the interpretation most beneficial (or least detrimental) to the accused and to nullify the harsh by construing the ambiguity in favour of the accused.

Malik Zafar Iqbal for Petitioner.

2020 P Cr. L J 1164

[Lahore (Rawalpindi Bench)]

Before Ch. Abdul Aziz, J

ISRAR HUSSAIN SHAH---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal Misc. No. 462-B of 2020, decided on 6th April, 2020.

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

----S. 497---Penal Code (XLV of 1860), Ss. 320, 322, 279, 337-G & 427---Qatl-i-khata by rash or negligent driving, qatl-bis-sabab, rash driving or riding on a public way, hurt by rash or negligent driving, mischief causing damage to the amount of fifty rupees---Bail, grant of---Rule of consistency---Scope---Prosecution case was that the accused was driving the van in a rash and negligent manner; that at the same time a ten wheeler troller parked on the road side came on the road without any signal or indicator; that the van collided with the troller and the accident culminated into the death of seven persons while leaving behind thirteen others as injured---Cause of accident was the careless approach of the truck driver---No statement of passengers boarding the van was available on record from which it could even remotely insinuate that the accused driver was fast and reckless---Accused was lodged in jail due to offence under S. 322, P.P.C. as the rest of the provisions were bailable in nature---Section 322, P.P.C. did not attract the prohibition contained in S. 497, Cr.P.C.---Driver of the troller who was the main person responsible for the accident was released on bail by the Magistrate, thus on the principle of consistency the petitioner was also entitled to the similar treatment---Petition for grant of bail was accepted, in circumstances.

Tariq Mahmood v. State 2005 YLR 1968; Aamir v. The State 2006 PCr.LJ 1236; Ramesh v. The State 2012 MLD 1702 and Zia-ur-Rehman v. The State 2018 YLR 1810 ref.

Muhammad Nadeem v. State 1998 MLD 1537 rel.

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

----S. 497--- Penal Code (XLV of 1860), S. 322---Qatl-bis-sabab---Bail---Scope---Punishment for S. 322, P.P.C. is made punishable by the Legislature through diyat only, the value of which is mentioned in S. 323, P.P.C. as 30630 grams of silver---Section 322, P.P.C. is not made punishable with some imprisonment and in Second Schedule of Code of Criminal Procedure, 1898 it is shown as non-bailable, hence the provision of S. 322, P.P.C. is to be treated as not attracting the prohibitory clause of S. 497, Cr.P.C.

(c) Interpretation of statutes---

----Where a provision can be interpreted in two different manners, then the one which favours an accused is to be adopted.

Interpretation of Statutes (Twelfth Edition) by P. St. J. Langan rel.

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

----S. 497---Bail---Principles---Scope---Offences, for the purposes of bail, are sorted in two different categories, as is evident from S. 497(1), Cr.P.C.---Section 497(1), Cr.P.C. alludes that positive language is couched for the grant of bail in offences having imprisonment less than ten years by use of expression 'he may be released on bail'---Word 'may' is generally used in a statutory provision in permissive or enabling sense---Stringent criteria is laid down for the grant of bail as regards, the offences entailing punishment of ten years imprisonment and upward and such relief can only be extended if from the tentative perusal of record reasonable grounds to connect an accused with the commission of crime are found lacking---Law of bail, as it evolved over the years, defines two classes of offences mentioned in S. 497(1), Cr.P.C. as non-prohibitory and prohibitory clause; in the earlier kind of cases i.e. having imprisonment of less than ten years, the bail is granted as a rule and only existence of some exceptional circumstances entails its dismissal---Exceptional circumstances exist, where there is likelihood of absconding of the accused; where there is apprehension of the accused tampering with the prosecution evidence; danger of the offence being repeated if the accused is released on bail; and the accused is a previous convict.

Subhan Khan v. The State 2002 SCMR 1797; Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488 and Muhammad Tanveer v. The State and another PLD 2017 SC 733 ref.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 fol.

Syed Wasi Abbas Shah for Petitioner.

2020 P Cr. L J 1184

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh and Sadiq Mahmud Khurram, JJ

MUNAWAR HUSSAIN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 42-ATA of 2008 and Criminal Miscellaneous No.1393 of 2019, decided on 4th December, 2019.

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

----Ss. 561-A, 345 & Chapt. XXV [Ss. 353 to 365]---Qanun-e-Shahadat (10 of 1984), Art. 164---Punjab Witness Protection Act (XXI of 2018), S. 10---Penal Code (XLV of 1860), Ss. 302, 324, 364, 449, 430, 109, 148 & 149--- Recording of statement through video link---Scope---Evidence recorded through modern device---Scope---Petitioner moved the present application under S. 561-A, Cr.P.C., contended that a compromise had been effected between the parties and prayed that the Special Judge be directed to record the statement of one of the legal heirs of deceased, through video link or other modern device as he was working abroad and could not come---Scope---High Court observed that Chapt. XXV of the Code of Criminal Procedure, 1898, prescribed the method for taking and recording of evidence in inquiries and trials in criminal cases---Said Code did not provide for taking evidence by video conference---Nonetheless, there was no provision in the Code which prohibited it--- However, Art. 164, Qanun-e-Shahadat, 1984, empowered the court to admit any evidence that might have become available because of technological advancement---Said provision could reasonably be invoked for recording evidence through video link---Section 10 of the Punjab Witness Protection Act, 2018 could be invoked for the said purpose---If both the parties did not consent to a witness giving evidence by telephone or video-conference then it would be open to the court on motion or on its own initiative to make an order directing a video-conference on such terms as were just---Circumstances suggested that courts were allowed to record evidence through video conference; nevertheless, it had some problems; most important among them are the identification of the witness and were assurance that he was not being prompted when his statement was recorded---In the present case, witness whose statement was sought to be recorded was abroad and could not come to Pakistan without incurring a huge expense---Since, there was no legal impediment in granting permission for recording his statement on video link, the request was allowed, subject to the protocols---Application was allowed accordingly.

Shaikh Aijazur Rehman v. The State (NAB) through Director-General (NAB) and another PLD 2006 Kar. 629; Muhammad Hanif and others v. Karachi Electric Supply Company Limited and another 2013 CLC 571; State (through CBI/New Delhi) v. S. J. Choudhary 1996 AIR SCW 1128; SIL Import USA v. Exim Aides Silk Exporters AIR 1999 SC 1609; Aubrey v. The Queen (2017) HCA 18; State of Maharashtra v. Dr. Praful B. Desai AIR 2003 SC 2053; Salman Akram Raja and another v. Government of Punjab through Chief Secretary, and others 2013 SCMR 203; Maryland v. Craig 497 U.S. 836 (1990); David Harrell v. State of Florida 709 So.2nd 1364 (Fla. 1998); and United States v. Gigante 166 F.3rd 75, 84 (2nd Cir. 1999) rel.

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

----Art. 164---Recording of statement through video link---Evidence recorded through modern device---Protocols---Video conference could be held at the place approved by the court---If witness is in Pakistan, a commission was to be issued to the Magistrate of the first class under S. 503 or 506, Cr.P.C. to facilitate and supervise the process---If the witness resides in any country with which Pakistan has reciprocal arrangements, commission could be issued to such court or Judge having authority in that behalf as specified in terms of subsection (2-B) of S. 503, Cr.P.C.---Where no such arrangements existed, the statement of the witness must be recorded in Pakistan Embassy/High Commission or Consulate or, if the court permitted, in a Notary's office in the presence of an officer of that Embassy/High Commission or Consulate or the Notary, as the case may be---Judge, Magistrate, Officer of the Pakistan Embassy/High Commission, Consulate or Notary, as the case may be, must ensure that the witness is alone at the time of video conference and is not coached, tutored or prompted and he must submit his certificate to that effect to the court---Before examination of the witness under audio-video link, he must submit to the Judge, Magistrate, Officer of the Pakistan Embassy/High Commission, consulate or Notary, as the case may be, his original identity card, passport, driving licence or other document to prove his identity along with an affidavit (signed and thumb marked) duly verified before a Judge, or a Magistrate or a Notary that the person who is shown as the witness is the same person who is going to depose on the screen---Said identification document and affidavit must be shown on the screen to the other side and the officer concerned must forward a copy of those papers duly attested by him in a sealed cover to the court for which expenses must be paid to him in advance which must be made part of the record---As soon as the identification part is completed, oath should be administered to the witness (if required by law) through the media according to the Oaths Act, 1873, or any other law for the time being in force---Witness should, as far as possible, be examined during the working hours of the courts in Pakistan---Proceedings must be conducted, as far as practicable, without any interruption and no adjournment should be granted unless the court thinks that it is extremely necessary to meet the ends of justice---Court must provide to the witness copies of any documents that he might be entitled to demand under any law for the time being in force---Court must record any remark as is material regarding demeanour of the witness while on the screen and should note the objections raised during the proceedings either manually or mechanically---Deposition of the witness either in the question-answer form or in the narrative form must be reduced to writing by the court and must be read over to the witness and if possible his digital signature must be obtained as a proof of its correctness, and after that the Presiding Officer must also sign it and make the same part of record---Visual must be recorded at the court's end, secured with the seal of the court and made part of the record---If a video link failed during the proceedings, the court may adjourn the proceedings or make such other order as it may deem appropriate---In case of perjury, court would be competent to proceed not only against the witness who has given false evidence but against the person who abetted it---Unless the court directed otherwise, the expenses for the arrangements should be borne by the applicant who wanted that facility---Same should be deposited with the court in advance---Court may put such other conditions and issue directions as may be required in the circumstances of a case to meet the ends of justice and attain the object---Depositions of the Magistrate in terms of Letter No.2045/MIT/HC/2017 dated 27.1.2017, and other official witnesses should be recorded in accordance with the instructions issued by High Court from time to time---Court may at any time vary or revoke its direction/permission for examination of a witness on video link---Court must not make a direction for examining a witness on video link if: the necessary facilities are not available or could not reasonably be made available; or the court is satisfied that the evidence could more conveniently be given or made in the courtroom; or the court is satisfied that the direction would be unfair to any party to the proceedings; or the court is satisfied that the person in respect of whom the direction is sought would not give evidence or make the submission.

Ali Akhtar Bodla for Appellants.

2020 P Cr. L J 1201

[Lahore]

Before Anwaarul Haq Pannun, J

SHAHID IQBAL and others---Petitioners

Versus

STATION HOUSE OFFICER and others---Respondents

Writ Petition No. 32222-Q of 2019, decided on 16th March, 2020.

Criminal Procedure Code (V of 1898)---

----Ss. 173, 154, 249-A & 265-K---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of FIR after Trial Court had taken cognizance of the offence and after filing of report under S. 173, Cr.P.C.---Legality---Petitioner sought quashment of FIR against him, even though report under S. 173, Cr.P.C. had been submitted before court of competent jurisdiction---Validity---When report under S. 173, Cr.P.C. had been submitted before court of competent jurisdiction, then FIR could not be quashed and petitioner/accused could agitate his grievances by way of filing of appropriate application before Trial Court under relevant laws---Constitutional petition was disposed of, accordingly.

Dr. Syed Iqbal Raza and others v. Justice of Peace Islamabad and others 2019 CLD 642 and Director General, FIA and others v. Kamran Iqbal and others 2016 SCMR 447 ref.

Muhammad Abbasi v. SHO, Bhara Kahu and 7 others PLD 2010 SC 969 and Director-General, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others PLD 2013 SC 401 rel.

Sheraz Zaka for Petitioner.

2020 P Cr. L J 1215

[Lahore (Bahawalpur Bench)]

Before Sardar Muhammad Sarfraz Dogar and Tariq Saleem Sheikh, JJ

SHAMEER---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 417-ATA of 2018/BWP, decided on 16th January, 2020.

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

----Ss. 11-F, 11-G & 11-N---Membership, support and meetings relating to a proscribed organization, uniform---Appreciation of evidence---Scope---Prosecution case was that accused being a member of the proscribed organization was collecting funds for its financial support---Complainant on receiving the information had given a marked note to a constable and had sent him as decoy---Prosecution case was silent as to how did the constable identify the accused because none of the witnesses had deposed that the informer had accompanied him---Accused had allegedly issued two receipts for one transaction---Names of constable were not written on the receipts---Eighteen leaves were used from the receipt book and the perusal of the counterfoils showed that neither date nor amount nor names of the donors were mentioned on as many as fifteen counterfoils---Receipts allegedly issued by the accused were not sent to the handwriting expert for confirmation---Investigating officer had not probed as to from where the accused got the receipt books---No evidence was available to prove that the accused had ever remitted any money to the organization or spent it for promotion of it's objects---Prosecution had not produced any evidence which showed that the accused had ever contacted any of the known activists of the proscribed organization by phone or otherwise---Appeal was accepted, in circumstances.

Syed Zeeshan Haider and Mian Izhar Hussain for Appellant.

Asghar Ali Gill, Deputy Prosecutor-General for the State.

2020 P Cr. L J 1228

[Lahore (Bahawalpur Bench)]

Before Sardar Muhammad Sarfraz Dogar and Tariq Saleem Sheikh, JJ

MUHAMMAD ASIF and others---Petitioners

Versus

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

Writ Petitions Nos. 501 of 2019 and 10368 of 2018, heard on 20th January, 2020.

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

----Ss. 6(1)(b)(c), 7 & 23---Penal Code (XLV of 1860), Ss. 302, 324 & 427---Act of terrorism---Jurisdiction of special court---Transfer of case---Complainant lodged FIR against accused persons for causing qatl-i-amd, attempt to qatl-i-amd and causing loss to property---Accused persons were aggrieved of order passed by Anti-terrorism court whereby their application for transfer of case to court of ordinary jurisdiction was dismissed---Validity---Motive for alleged offences was nothing but personal enmity and private vendetta---Motivation on part of accused persons was not to overawe or intimidate government, etc., or to destabilize society at large or to advance any sectarian cause, etc.---Intention of accused persons had not depicted or manifested any 'design' or 'purpose' as contemplated by S. 6(1)(b) or (c) of Anti-Terrorism Act, 1997---Actus reus attributed was not accompanied by necessary mens rea so as to brand actions as "terrorism" triable exclusively by a special court constituted under Anti-Terrorism Act, 1997---High Court set aside order passed by Anti-terrorism Court as same was without lawful authority and of no legal effect---High Court accepted application filed by accused persons under S. 23 of Anti-Terrorism Act, 1997 and declared their case to be triable by court of ordinary jurisdiction---Constitutional petition was allowed accordingly.

Ghulam Hussain and others v. The State and others PLD 2020 SC 61 rel.

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

----S. 6---"Act of terrorism"---Prerequisites---Only that action is to be accepted as terrorism which action falls within purview of S. 6(2) of Anti-Terrorism Act, 1997---Such action which is committed with a 'design' or 'purpose' specified in S. 6(1)(b) or (c) of Anti-Terrorism Act, 1997 irrespective of gravity of an offence, shocking nature of violence committed or mere fear and insecurity generated or likely to be generated by commission of a brutal, gruesome or heinous act are not to be treated as yardsticks for determining whether action is labeled as 'terrorism' or not.

Ghulam Hussain and others v. The State and others PLD 2020 SC 61 and Province of Punjab v. Muhammad Rafique and others PLD 2018 SC 178 rel.

Manzoor Ahmad Warriach for Petitioner (in W.P. No. 501 of 2019).

Aslam Javed Minhas for Petitioner (in W.P. No. 10368 of 2018).

Khurram Saleem Baig for the Complainant.

Jam Abdul Maalik, AAG.

Miss Mehwish Mahmood, Research Officer.

2020 P Cr. L J 1243

[Lahore]

Before Malik Shahzad Ahmad Khan, J

MUHAMMAD TARIQ---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 2023 of 2011, heard on 5th June, 2020.

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

----Ss. 376, 365 & 511---Rape, kidnapping or abducting with intent to secretly and wrongfully confine person, attempt to commit offence---Appreciation of evidence---Benefit of doubt---Enmity with accused---Non-production of victim---Contradictory statements---Un-natural conduct of witnesses---Delay in producing clothes of victim to police---Effect---Prosecution case against accused was that he abducted the daughter of complainant when she reached near his house; took her to his house; tore her clothes with intention to commit rape but the mother of victim while passing through the street saw the victim being abducted; which attracted two persons and the accused fled away from the spot---Admittedly, complainant party had enmity with the accused---No medico legal examination of the victim was produced which could have shown marks of dragging or violence on her body---Victim, although deaf and dumb, was not produced in the witness box---Statements of eye-witnesses were contradictory---Accused, despite being empty handed, was not apprehended by the complainant party even though it consisted of three adult members---Torn 'qameez' of the victim was produced before the police after seventeen days of the occurrence---Admittedly, accused and his brother lived in the house where the occurrence took place and it was not probable that the accused would attempt to commit rape where his family and family of his brother was living---Prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction, was allowed, in circumstances.

(b) Criminal trial---

----Witness---Related witness---Scope---Statement of related eye-witness can be relied upon to decide a case but such statement is required to be corroborated by independent evidence and it should be confidence inspiring and trustworthy.

(c) Criminal trial---

----Benefit of doubt---Scope---Single circumstance creating reasonable doubt in the prosecution case is sufficient to give benefit of doubt to the accused.

Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Barrister Danyal Ijaz Chadhar for Appellant with the Appellant in person.

Ch. Muhammad Ishaq, Additional Prosecutor-General for the State.

Nemo for the Complainant.

2020 P Cr. L J 1259

[Lahore]

Before Muhammad Qasim Khan and Asjad Javaid Ghural, JJ

ABDUL RAUF GUJJAR---Petitioner

Versus

JUDGE ATC-III, LAHORE and others---Respondents

Criminal Revision No. 21037 of 2019, heard on 20th November, 2019.

(a) Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006)---

----S. 10---Powers of Prosecutor---Stay of proceedings---Non-availability of witness---Failure to obtain authorization from the Prosecutor General---Effect ---Petitioner assailed the order of Trial Court whereby it, while acceding to the request of Deputy Prosecutor General had adjourned the case sine die in the light of S. 10(3)(f) of Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006---Validity---Prosecutor General or any Prosecutor especially authorized in that behalf by the Prosecutor General had to inform the court and he had to submit before the court the reasoning and decision of the Cabinet/Government---Neither any decision was made by the Government i.e. approval by the Cabinet nor any Prosecutor was specifically authorized in that behalf by the Prosecutor General---Deputy Prosecutor General had not even submitted before the Court that he was making the request under the instructions of the Prosecutor General---Mere fact that earlier case against the accused had already been postponed due to non-availability of a witness did not constitute a valid reason for postponement---Statement of the Deputy Prosecutor General had no sanctity in the eyes of law---Impugned order was set aside being illegal and void---Trial Court was directed to start the proceedings from that juncture when the case was adjourned sine die---Criminal revision was allowed, in circumstances.

(b) Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006)---

----S.10---Powers of Prosecutor---Stay of proceedings---Pre-requisites---Expression 'Government', meaning---Scope---Approval of the Government in order to obtain a stay under S. 10(3)(f) of the Act is necessary and that should be based on specific reasons---Such reasons should be in writing---Case is to be forwarded either by the Prosecutor General by advancing reasons to the cabinet or the cabinet itself is to take the decision but such decision must be based on some cogent reasons---Government, as mentioned in the S. 10 of the Act does not mean the Prosecutor, Prosecutor General or Secretary Prosecution or Chief Secretary, it is the 'Cabinet'.

Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance Islamabad and others PLD 2016 SC 808 ref.

Najeeb Faisal Chaudhry for Petitioner.

Muhammad Nawaz Shahid, Deputy Prosecutor-General for the State.

Nemo for the Complainant.

2020 P Cr. L J 1286

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Ch. Abdul Aziz, JJ

ABDUL GHAFOOR and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 750, Criminal Revision No. 27127, PSLA No.27128 and Murder Reference No. 261 of 2017, heard on 28th January, 2020.

Criminal Procedure Code (V of 1898)---

----S. 367---Judgment---Contents of---Scope---Trial court convicted two of the accused persons under Ss. 302(b), 148 & 149, P.P.C.; charge against them was also framed under Ss. 324, 337-A(i), 337-F(i) & 337-F(iii), P.P.C., however, impugned judgment was silent qua acquittal or conviction of accused persons in said provisions---Impugned judgment was held to be against the mandate of S. 367, Cr.P.C.---Conviction awarded to the appellants was set aside and the case was remanded to the Trial Court for re-writing of judgment---Trial Court was directed to give its findings with regard to acquittal or conviction of each accused person with reference to the offences with which he was charged---Appeal was disposed of accordingly.

Muhammad Yar Khan Dah for Appellants.

Pir Ashraf Ali Qureshi and Muhammad Nasir Dilshad Joyya for the Complainant.

Munir Ahmad Sial, Deputy Prosecutor General for the State.

2020 P Cr. L J 1295

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh and Anwaarul Haq Pannun, JJ

MUHAMMAD YASEEN and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 49 and 158 of 2019, heard on 28th October, 2019.

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

----Ss. 9(c) & 36---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6---Transportation of narcotics---Reports of test or analysis by the Government Analysts---Appreciation of evidence---Full protocols of tests applied---Scope---Accused were apprehended with 28 packets of charas weighing 33.600 kilograms---Complainant, out of the recovered charas, drew 10 grams from each packet and prepared 28 sealed samples for chemical analysis and preserved the remaining bulk through three separate plastic bags---Reports of Forensic Laboratory were deficient in material particulars being consolidated of three to five samples and were not in the prescribed form as they did not contain the details of the protocols applied---Rule 6, Control of Narcotic Substances (Government Analysts) Rules, 2001 was mandatory to the extent that full protocols had to be mentioned in the report of the Chemical Examiner and its non-compliance rendered the report inconclusive and unreliable---In the present case, reliable reports of the Government Analyst were not available to support the evidence of recovery furnished by complainant---Convictions of the accused could not be sustained---Appeals against conviction were accepted, in circumstances.

Ameer Zeb v. The State PLD 2012 SC 380; The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 and Khair-ul-Bashar v. The State 2019 SCMR 930 rel.

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

----R. 6---Report of test or analysis---Non-mentioning of full protocols of tests applied---Effect---Rule 6, Control of Narcotic Substances (Government Analysts) Rules, 2001, is mandatory to the extent that full protocols ought to be mentioned in the report of the Chemical Examiner and its non-compliance renders the report inconclusive and unreliable.

Ameer Zeb v. The State PLD 2012 SC 380; The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 and Khair-ul-Bashar v. The State 2019 SCMR 930 rel.

Hafiz Muhammad Abu Bakar Ansari for Appellants (in Criminal Appeal No. 49 of 2019).

Khawaja Qaiser Butt assisted by Faisal Aziz Chaudhry for Appellants (in Criminal Appeal No. 158 of 2019).

Khalid Ibni Aziz, Special Prosecutor for ANF for the State.

2020 P Cr. L J 1315

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh, J

MUHAMMAD TARIQ and 6 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Revision No. 292 of 2019, heard on 24th October, 2019.

Criminal Procedure Code (V of 1898)---

----S. 265-F---Evidence of prosecution---Closure of right of cross examination---Petitioner assailed order of Trial Court whereby his right of cross-examination was closed---Effect---Record showed that during the proceedings the prosecution examined ten witnesses---Examination-in-chief of three prosecution witnesses was recorded on 14.2.2018 and that of one prosecution witness on 8.11.2018 but their cross-examination was reserved on the request of the defence---Trial Court afforded a number of opportunities to the petitioners to produce their counsel and cross-examine the said witnesses but they did not---Eventually due to their contumacious conduct, Court closed their right of cross-examination---Validity---Fair trial was central to the administration of justice---Right to cross-examine the witnesses was a component of the right to a fair trial and is considered to be "the greatest legal engine ever invented for the discovery of truth"---In the present case, the petitioners used dilatory tactics from the very inception and hampered the trial---Most often petitioners did not produce their counsel on the pretext that he was busy elsewhere---Eventually, on 14.2.2018, the Trial Court recorded the examination-in-chief of complainant and two other prosecution witnesses---Petitioners did not cross-examine them and sought adjournment---On 7.3.2018, examination-in-chief of two witnesses was recorded while on 4.4.2018, 15.5.2018 and 8.11.2018, the statements of four more witnesses were put down---Petitioners did not cross-examine any of them and kept seeking adjournments due to non-availability of their counsel---Trial Court had given them warning on various dates of hearing but they fell on deaf ears---On 26.9.2019, when the petitioners again asked for adjournment, the Trial Court refused and directed them to cross-examine the witnesses then in attendance themselves---Petitioners did not do so, whereupon court closed their right to cross-examine qua them---Admittedly, there was no provision in the Criminal Procedure Code, 1898, which specifically empowered the Trial Court to guillotine the accused's right of cross-examination, however, that did not mean that petitioners could abuse the process of law with impunity and took the court hostage, hence, when petitioners deliberately avoided to produce their lawyer, the Trial Court might appoint a defence counsel at State expense and proceed with the trial---Evidently, the impugned order dated 26.9.2019 was contrary to law and had caused serious miscarriage of justice---Accordingly, the petition was accepted by setting aside the impugned order---Trial Court was directed to provide the petitioners one opportunity to produce their counsel and cross-examine the prosecution witnesses, if petitioners failed to do so, appoint a defence counsel and conclude the trial in accordance with law.

Browne v. Dunn, Lord Halsbury (1893) 6 R. 67; Abel v. The Queen [(1955), 115 C.C.C. 119 (Que. Q.B.)]; Mechanical and General Inventions Co. Ltd. v. Austin and the Austin Motor Co. Ltd. [(1935) AC 346; Wakeley v. The Queen (1990) 93 ALR 79, 86; Davis v. Alaska 415 U.S. 308 (1974); Wolff, Warden, Et Al v. McDonnell 418 U.S. 539 (1974); Michael Garfield Lyttle v. Her Majesty The Queen 2004 SCC 5; Muhammad Hussain alias Julfikar Ali v. State (Govt. of NCT of Delhi) AIR 2012 SC 750 = 2012 SCMR 1610; Ghulam Rasool Shah and another v. The State 2011 SCMR 735; Powell v. Alabama 287 U.S. 45 (1932); Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Muhammad Shahid v. The State 2010 PCr.LJ 812; Ghulam Sarwar v. The State 2010 MLD 1775; Waqar and another v. The State 2013 PCr.LJ 1279 and Sadam Hussain v. The State 2018 MLD 1025 and Abdul Ghafoor v. The State 2011 SCMR 23 rel.

Muhammad Nasrullah Qureshi for Petitioners.

Malik Mudassar Ali, Deputy Prosecutor General for the State.

Rana Muhammad Luqman Khan for Respondent No.2.

2020 P Cr. L J 1333

[Lahore (Bahawalpur Bench)]

Before Sardar Muhammad Sarfraz Dogar and Sadiq Mahmud Khurram, JJ

MUHAMMAD SAFDAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 290-2016/BWP and Murder Reference No. 42-2016/BWP, heard on 10th February, 2020.

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

----S. 302(b)---Qatl-i-amd--- Appreciation of evidence---Postmortem, delay in---Effect---Interested witnesses---Complainant lodged FIR at spot of occurrence against accused persons for committing qatl-i-amd of deceased---Present was a case of delayed postmortem which casted serious doubts that FIR was recorded with promptitude---Inference could be drawn that intervening period was consumed in fabricating prosecution story after preliminary investigation---No justification existed for conducting postmortem examination on next day instead of conducting it on the same night when dead body of deceased was received in hospital---Chance witness was one who in normal course was not supposed to be present on crime spot unless he could offer cogent, convincing and believable explanation justifying his presence there---Both witnesses showed no work or definitive purpose to visit crime spot therefore, their presence on crime spot was not believable and their testimony was liable to be rejected---Many loopholes/lacunas were observed which not only made presence of eye-witnesses doubtful at crime spot at relevant time but also raised an eyebrow on story of prosecution---High Court set aside conviction and sentence awarded to accused and acquitted him of charge as prosecution failed to prove its case against accused beyond reasonable doubt---Appeal was allowed, in circumstances.

Mst. Nazia Anwar v. The State and others 2018 SCMR 911; Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068; Ulfat Hussain v. The State 2018 SCMR 313; Muhammad Yaseen v. Muhammad Afzal and another 2018 SCMR 1549; Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 and Qaddan and others v. The State 2017 SCMR 148 ref.

(b) Criminal trial---

----Benefit of doubt---Principle---Once a single loophole is observed in case presented by prosecution much less glaring conflict in ocular account and medical evidence or where presence of eye-witnesses is not free from doubt, benefit of such loophole/lacuna in prosecution case automatically goes in favor of accused.

Abdul Jabbar and another v. The State 2019 SCMR 129 rel.

(c) Medical jurisprudence---

----"Blackening on dead body"---Connotation---Blackening appears on dead body in case deceased has received injuries at a distance of 4 feet.

Abdul Jabbar and another v. The State 2019 SCMR 129 and Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812 rel.

(d) Criminal trial---

----Witness---Testimony of eye-witness---Recovery of crime articles---Corroboratory evidence--- Prerequisites--- Eye-witnesses cannot corroborate themselves but corroboratory evidence was to come from independent source and be supported by independent witnesses other than eye-witnesses.

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

----S. 342---Statement of accused---Evidence, non-presenting of---Effect---Piece of evidence not put to an accused person at time of recording of his statement under S. 342, Cr.P.C. cannot be considered against him.

Imtiaz alias Taj v. The State and others 2018 SCMR 344; Qaddan and others v. The State 2017 SCMR 148 and Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others 2017 SCMR 1710 rel.

(f) Criminal trial---

----Witness---Unreliable eye-witnesses---Case of co-accused---Effect---Once prosecution witnesses are disbelieved with respect to co-accused then they cannot be relied upon with regard to other co-accused unless they are corroborated by corroboratory evidence coming from independent sources unimpeachable in nature.

Nazir Ahmad v. The State 2018 SCMR 787 and Haroon Shafique v. The State and others 2018 SCMR 2118 rel.

(g) Criminal trial---

----Report of serologist---Blood samples---Prerequisites---Unless blood-stained earth or cotton and blood stained clothes of deceased/victim are not sent with same for opinion of serologist to effect that it was human blood and was of same group which was available on clothes of deceased/victim and blood-stained earth/cotton, such inconclusive opinion cannot be used as a piece of corroboratory evidence.

Muhammad Asif v. The State 2017 SCMR 486 rel.

Muhammad Naeem Bhatti for Appellant.

Malik Rab Nawaz for the Complainant.

Ch. Asghar Ali Gill, Deputy Prosecutor General and Miss Mehwish Mahmood, Research Officer for the State.

2020 P Cr. L J 1358

[Lahore (Rawalpindi Bench)]

Before Muhammad Tariq Abbasi, J

GUL ASIF---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No. 184 of 2019, heard on 6th November, 2019.

Criminal Procedure Code (V of 1898)---

----S. 265-D---Framing of charge---Scope---Petitioner assailed order passed by Trial Court whereby it deleted the offences under Ss. 367-A, 377 & 511, P.P.C. and referred the matter to Judicial Magistrate for trial of other offences under Ss. 337-A(i) & 337-L(2), P.P.C.---Prosecution case was that the victim was going to his school when the respondents/accused persons abducted him on gun-point, took him near a shrine and demanded him to remove his pants, on his refusal, they started beating him; he raised hue and cry, which attracted prosecution witnesses, whereupon accused persons fled away---Section 265-D, Cr.P.C. indicated that the court, for the purpose of framing a charge, had to consult the police report, complaint, other documents, statements filed by prosecution and nothing else---Complaint, FIR and statements under S. 161, Cr.P.C. showed prima facie attraction of offences under Ss. 376-A, 377 & 511, P.P.C. but the Trial Court while ignoring the same had deviated from the powers given under S. 265-D, Cr.P.C.---Revision petition was allowed and the Trial Court was directed by the High Court to take up the file and carry on the proceedings warranted under the law.

Malik Muhammad Iqbal for Petitioner.

Ghulam Abbas Gondal, DPG with Abid Hayat, ASI for the State.

Ahsan Hamid Lillah for Respondents Nos. 2 to 5.

2020 P Cr. L J 1381

[Lahore (Multan Bench)]

Before Ch. Mushtaq Ahmad and Sadiq Mahmud Khurram, JJ

MUMTAZ AHMAD and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 85, 91 of 2016, Criminal Revision No. 693 and Murder Reference No. 32 of 2016, heard on 26th September, 2019.

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

----Ss. 302(b), 324, 397 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, attempt to commit qatl-i-amd, qatl-i-amd not liable to qisas, common intention---Appreciation of evidence---Benefit of doubt---Ocular and medical evidence---Contradictions---Test identification parade---Scope---Prosecution case was that the accused party made firing upon the complainant party, due to which, the wife of the complainant was hit and died and his two sons were injured---Ocular account of the incident had been furnished by four witnesses including complainant and injured---Record showed that neither the names of the assailants were mentioned in the written application nor in the statement of witnesses recorded under S. 161, Cr.P.C.---Out of the four eye-witnesses of the occurrence, two witnesses did not take any part in the three test identification parades of the accused---No explanation had been offered by the said two witnesses as to why they did not join any of the three test identification parades---Failure to join the said test identification parades had forced to disbelieve their evidence with regard to the identity of the accused---Said witnesses did not know the accused prior to the occurrence and had not named them in their statements recorded by the Investigating Officer---Witness stated that the names of the accused and the alleged roles played by them in the occurrence were told to him by the police just after ten-fifteen days of the occurrence; holding of identification parade of the accused was an exercise in futility---Witness who joined the test identification proceedings had stated that at the time of identification parade, the faces of the accused were covered---If the faces of the assailants were muffled, it was impossible that the witnesses could identify them in the test identification parades---Such identification of the accused was of no evidentiary value---Site plan showed that the deceased had received injury inside a room from a very short distance---However, the Medical Officer did not find presence of any blackening on the entry wound which should have been there if the distance of fire was as short as suggested by the eye-witnesses---Prosecution had failed to prove its case against the accused beyond any shadow of doubt, in circumstances---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court.

Mian Sohail Ahmed and others v. The State and others 2019 SCMR 956 rel.

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

----Art. 22--- Test identification parade--- Scope--- Identity of the assailants in court by the witnesses had no legal value and it was imperative for the witnesses, who earlier did not know the assailants, to have identified them during a test identification parade.

Asghar Ali alias Sabah and others v. The State and others 1992 SCMR 2088; Ghulam Shabbir Ahmad v. The State and another 2011 SCMR 683 and Siraj Ul Haq and another v. The State 2008 SCMR 302 rel.

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

----Ss. 302(b), 324, 397 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, attempt to commit qatl-i-amd, qatl-i-amd not liable to qisas, common intention---Appreciation of evidence---Benefit of doubt---Test identification parade, infirmities in---Description of suspects given by the witnesses---Scope---In the present case, the Judicial Magistrates, who conducted the identification parade of the accused stated that before conducting the identification parades the features of the unknown assailants were not in their knowledge---Matching the description in the FIR was the starting point towards identification of the unknown accused---How the accused were hurdled and lined-up for the identification parade without the Judicial Magistrates first matching the description given by the complainant was uncertain---Selection of the suspects, without any co-relation with description of the accused in the FIR, raised doubts and made the identification proceedings unsafe and doubtful rendering the identification evidence inconsequential---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

Mian Sohail Ahmed and others v. The State and others 2019 SCMR 956 and Muhammad Afzal alias Abdullah v. The State and others 2009 SCMR 436 rel.

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

----Art. 22---Test identification parade---Scope---Mere fact that witness was able to pick out an accused person from amongst a crowd did not prove that he had identified that accused person as having taken part in the crime which was being investigated; such circumstances suggested that the witness happened to know that accused person---Such test identification proceedings had no legal value.

Majeed alias Majeedi and others v. The State and others 2019 SCMR 301 and Azhar Mehmood and others v. The State 2017 SCMR 135 rel.

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

----Art. 22---Test identification parade---Duty of Magistrate---Judicial Magistrate conducting test identification proceedings is duty bound to decide any objection raised by the accused with regard to their being shown to the witnesses at the police station---Failure of Judicial Magistrate to do so would reduce the value of such test identification proceedings.

(f) Criminal trial---

----Witness---Injured witness---Statement of injured witness---Scope---Stamp of injuries on the person of a witness can be a proof of his presence at the place of occurrence---However, it can never be held that he will also tell the truth---Facts narrated by an injured witness are not to be implicitly accepted rather he was to be attested and appraised on the principle applied for the appreciation of evidence of any prosecution witness regardless of his being injured or not.

Nazir Ahmad v. Muhammad Iqbal and another 2011 SCMR 527 and Amin Ali and another v. The State 2011 SCMR 323 rel.

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

----Ss. 302(b), 324, 397 & 34---Criminal Procedure Code (V of 1898), S. 103--- Qatl-i-amd, attempt to commit qatl-i-amd, qatl-i-amd not liable to qisas, common intention---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Scope---Prosecution case was that the accused party made firing upon the complainant party, due to which, the wife of the complainant was hit and died, whereas his two sons were injured---Recoveries of pistols from the accused persons could not be relied upon as the Investigating Officer of the case did not join any witness of the locality during the recovery of said pistols from the accused persons, which was clear violation of S. 103, Cr.P.C.---Such recovery could not be used as incriminating evidence against the accused, being evidence which was obtained through illegal means and was hit by the exclusionary rule of evidence---Report of Forensic Science Laboratory revealed that the empties were received in the Forensic Science Laboratory on the date of arrest of the accused---Chances of fabrication, in circumstances, could not be ruled out, therefore, it was not safe to relay upon the alleged recovery of pistols from the possession of accused and positive report of Forensic Science Laboratory---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

Muhammad Ismail and others v. The State 2017 SCMR 898 rel.

(h) Criminal trial---

----Appreciation of evidence--- Motive and recovery were only corroborative pieces of evidence and if the ocular account was found to be unreliable then motive and recovery had no evidentiary value and lost their significance.

(i) Criminal trial---

----Benefit of doubt--- Principle--- If single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit will be extended to an accused not as a matter of concession but as of right.

Muhammad Mansha v. The State 2018 SCMR 772 and Muhammad Akram v. The State 2009 SCMR 230 rel.

James Joseph, M.A. Hayat Haraj and Malik Amir Manzoor Awan for Appellants.

Ch. Muhammad Akbar, Deputy Prosecutor General for the State.

Shaharyar Mehboob for the Complainant.

2020 P Cr. L J 1410

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh and Sadiq Mahmud Khurram, JJ

NASIR IQBAL and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 447 of 2015, heard on 26th November, 2019.

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

----Ss. 9(c) & 36---Possession of narcotics---Appreciation of evidence---Failure of prosecution to specify number of packets containing narcotics---Non-production of vehicle used for transporting narcotics the sample-bearer---Consolidated report of more than one samples---Photocopy of report of Chemical Examiner---Effect---Customs Inspector, on prior information, apprehended the accused persons while transporting 234 kilograms of charas and 22 kilograms of opium---Prosecution case was silent about the total number of packets that were recovered, therefore, samples could not be considered as representative samples---Prosecution had neither produced the car in which the accused persons were transporting narcotics nor its registration book before the trial court---Safe transmission of sample parcels to the laboratory was not established---Reports of Chemical Examiner reflected that two sealed parcels of charas and two of opium were received in his office but instead of preparing separate reports for each sample containing details of the protocols applied, the Chemical Examiner drew up consolidated reports from the aforesaid samples which was flagrant violation of R. 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001---Reports of Chemical Examiner were not produced in original and the prosecution did not even lead any secondary evidence to prove them---Case property, sealed in an iron box, when produced before trial court showed signs of tampering---Conviction and sentences handed down by Trial Court were set aside---Appeal was allowed, in circumstances.

Ameer Zeb v. The State PLD 2012 SC 380; The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 and Khair-ul-Bashar v. The State 2019 SCMR 930 ref.

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

----S. 36---Report of Government Analysts---Photocopy, evidentiary value of---Scope---Report of Government Analyst is admissible in evidence per se and is a conclusive proof of facts stated therein but photocopy of the report cannot be equated with the original.

Muhammad Siddique alias Bheria v. The State 2005 PCr.LJ 726 ref.

Mian Muhammad Ahmad Ansari for Appellants.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

2020 P Cr. L J 1419

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh and Sadiq Mahmud Khurram, JJ

ALTAF HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 72-J and Capital Sentence Reference No. 5 of 2015, heard on 4th December, 2019.

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

----Ss. 302, 324, 336-B, 337-A(i), 337-F(i) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, hurt by corrosive substance, shajjah-i-khafifah, damiyah, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt--- Night-time occurrence--- Source of light---Delayed FIR---Un-natural conduct of chance witnesses---Scope---Accused was alleged to have thrown acid on the wife and daughters of complainant---Matter was reported to the police after three hours although the police station was just six miles away from the place of occurrence---Eye-witnesses claimed that they had identified the accused in the light of electric bulb but no bulb was taken into possession by the Investigating Officer---Statement of complainant was in conflict with that of the surviving victim---Conduct of complainant was quite unnatural as he neither accompanied the injured to the hospital nor rushed to the police station to lodge the FIR---Eye-witnesses other than complainant and victim were chance witnesses---Testimony of victim of tender age could not be safely relied upon for the reasons that the gory scene was enacted in a few minutes; that the victim herself was in a trauma and it was not possible for her to cognize the situation in such a short span of time---Evidence produced by the prosecution was highly discrepant and suffered from serious legal infirmities---Appeal against conviction was allowed, in circumstances.

Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344; Arshad Khan v. The State 2017 SCMR 564 and Gulfam and another v. The State 2017 SCMR 1189 ref.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 rel.

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

----Ss. 302, 324, 336-B, 337-A(i), 337-F(i) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, attempt to commit qatl-i-amd, hurt by corrosive substance, shajjah-i-khafifah, damiyah, common intention, act of terrorism---Appreciation of evidence---Dying declaration---Scope---Accused was alleged to have thrown acid on the wife and daughters of complainant---Prosecution placed reliance on the statement of victim who was then in her senses---Medical officer testified that victim's total burnt area was 41% (deep) involving left side of the face neck, chest, abdomen, back, both arms and legs and that it was not possible for the victim to have seen the assailant---High Court held that victim's statement was dubious and was accordingly discarded---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 324, 336-B, 337-A(i), 337-F(i) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, hurt by corrosive substance, shajjah-i-khafifah, damiyah, common intention, act of terrorism---Appreciation of evidence---Recovery of acid bottle---Scope---Accused was alleged to have thrown acid on the wife and daughters of complainant---Accused allegedly got recovered acid bottle from the roof of the baithak of his house which was seized by the Investigating Officer---Held; alleged recovery hardly inspired confidence---Accused could not be expected to preserve such an incriminating piece of evidence as a souvenier---Appeal against conviction was allowed, in circumstances.

Muhammad Asif v. The State 2017 SCMR 486 rel.

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

----Ss. 302, 324, 336-B, 337-A(i), 337-F(i) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, hurt by corrosive substance, shajjah-i-khafifah, damiyah, common intention, act of terrorism---Appreciation of evidence---Motive not proved---Scope---Accused was alleged to have thrown acid on the wife and daughters of complainant---Complainant alleged that the accused had illicit relations with a female who used to visit the victim; the accused suspected that the latter helped her meet other people and due to that grudge he threw acid on her and her daughters---Prosecution did not make any effort to prove the motive during trial, except a half-hearted bald statement by the complainant---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 324, 336-B, 337-A(i), 337-F(i) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, hurt by corrosive substance, shajjah-i-khafifah, damiyah, common intention, act of terrorism---Appreciation of evidence---Acquittal of co-accused---Effect---Accused along with another was alleged to have thrown acid on the wife and daughters of complainant---Trial Court had disbelieved the eye-witnesses qua co-accused and had acquitted him---Once the prosecution witnesses were disbelieved in respect of an accused, they could not be relied upon to convict other accused in the same transaction unless there was strong independent corroboratory evidence against the other accused---No such evidence was available against the accused---Appeal against conviction was allowed, in circumstances.

Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Iftikhar Hussain and others v. The State 2004 SCMR 1185; Akhtar Ali and others v. The State 2008 SCMR 6; Irfan Ali v. The State 2015 SCMR 840; Shahbaz v. The State 2016 SCMR 1763 and Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344 ref.

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

----Arts. 3 & 17---Who may testify---Competence and number of witnesses---Witness of tender age---Scope---Testimony of victim cannot be discarded because of his tender age but Court had to be very cautious in relying on the evidence of such witness.

State through Advocate General, Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1; Shaukat Ali alias Bagga and 2 others v. The State 1995 PCr.LJ 1108; Mir Muhammad Farid v. Mst. Amreen and 4 others 2003 YLR 2234 and Ulfat Hussain v. The State 2010 SCMR 247 rel.

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

----Art. 46---Cases in which statement of relevant fact by person who is dead or cannot be found is relevant---Dying declaration---Scope---Question as to weight to be attached to the statement of a dead person depends on the circumstances of each case---If the court comes to the conclusion that the dying person was truthful while making his statement, it does not require further corroboration and conviction can be recorded on the basis thereof---If the court finds it unreliable, it must be corroborated by other independent evidence.

Zarif Khan v. The State PLD 1977 SC 612 rel.

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

----Art. 46--- Dying declaration--- Law relating to dying declaration, stated.

Following is law relating to dying declaration:

i. It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated;

ii. Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made;

iii. It cannot be laid down as a general proposition that a dying declaration is a weaker evidence than other pieces of evidence;

iv. A dying declaration stands on the same footing as other piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence;

v. A dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of the human memory and human character;

vi. In order to test reliability of a dying declaration, the Court has to keep all the relevant circumstances in view, for example, whether there was sufficient light if the crime was committed at night; whether the dying man had the capacity to remember the facts stated and his memory was not impaired at the time he was making the statement;

vii. The statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and

viii. The statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. [p. 1431] I

Mst. Shamim Akhtar v. Fiaz Akhtar and 2 others PLD 1992 SC 211; Ghulam Mustafa v. The State and others PLD 2015 Pesh. 23 and Dilmurad Diljan alias Dilo 2015 PCr.LJ 1389 ref.

Khushal Rao v. State of Bombay PLD 1958 SC (Ind.) 203 fol.

(i) Criminal trial---

----Benefit of doubt---Scope---Several circumstances creating doubt in the prosecution case are not necessary, even a single circumstance creating reasonable doubt in a prudent mind about the guilt of accused entitles him to acquittal.

Allah Bachaya and another v. The State PLD 2008 SC 349; Muhammad Akram v. The State 2009 SCMR 230 and Abdul Jabbar and another v. The State 2019 SCMR 129 ref.

Javed Iqbal Bhatti for Appellant.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

Muhammad Wakeel Chaudhry for the Complainant.

2020 P Cr. L J 1438

[Lahore]

Before Muhammad Tariq Abbasi and Ch. Mushtaq Ahmad, JJ

FAWAD HASSAN FAWAD---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No. 74858 of 2019, heard on 21st January, 2020.

Constitution of Pakistan---

----Art. 199--- National Accountability Ordinance (XVIII of 1999), S. 9---Corruption and corrupt practices---Bail, grant of---Scope---Accused sought post arrest bail in a case lodged by National Accountability Bureau (NAB)---Held; NAB had failed to substantiate the grounds of arrest---National Accountability Bureau had alleged that the accused had acquired huge assets disproportionate to his known sources of income but no such assets in the name of accused were highlighted in the reference---National Accountability Bureau had alleged that the accused had no significant sources of income but his dependents owned a property worth Rs. 500 million but in the reference value of the property was stated to be Rs. 78.5 million and nothing was brought on record to prove that it was purchased or acquired through any amount, paid by accused---NAB had alleged that 14 Bank accounts were being maintained by accused and his family members but reference was silent to that extent---Family members of the accused were arrayed as accused in the reference, without any arrest---Accused was arrested without any cogent and convincing evidence/material---Accused was in confinement for about 01 year and 07 months without any progress in the case---Even the charge was not framed---Accused could not be kept behind the bars for indefinite period---Post-arrest bail was allowed, in circumstances.

Ashtar Ausaf Ali, Azam Nazir Tarrar, Barrister Asad Rahim Khan, Muhammad Amjad Pervaiz and Salman Sarwar Rao for Petitioner.

Syed Faisal Raza Bukhari, Special Prosecutor NAB with Usman Iftikhar, Assistant Director, NAB, Lahore/I.O. for the State/NAB.

2020 P Cr. L J 1445

[Lahore]

Before Farooq Haider, J

SOHAIL ALAM SIDDIQUE---Petitioner

Versus

The STATE and others---Respondents

Criminal Misc. No. 23042-B of 2020, decided on 28th July, 2020.

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

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, grant of---Non-availability of material showing fulfillment of obligation---Further inquiry---Scope---Allegation against the accused was that the complainant supplied iron to the accused in lieu of which he issued a cheque which was dishonoured---Mere issuance of cheque or its dishonouring was not sufficient for invocation of S. 489-F, P.P.C. rather first of all it had to be proved that cheque was issued for fulfilment of an obligation, meaning thereby that there must be material available on record to show said obligation---Complainant although had alleged that the iron was supplied but no material whatsoever, was brought on record to establish supply of iron, therefore, applicability of S. 489-F, P.P.C. was a matter of further probe in the case--- Bail was granted, in circumstances.

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

----S. 489-F---Dishonestly issuing a cheque---Fulfilment of obligation---Scope---Mere issuance of cheque or its dishonouring is not sufficient for invocation of S. 489-F, P.P.C. rather first of all it has to be proved that cheque was issued for fulfillment of an obligation, meaning thereby that there must be material available on record to prove said obligation.

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

----S. 489-F--- Criminal Procedure Code (V of 1898), S. 497---Dishonestly issuing a cheque---Bail---Scope---Punishment under S. 489-F, P.P.C. is three years, or fine or with both irrespective of the big amount and said punishment does not fall within the ambit of prohibition contained in S. 497, Cr.P.C.

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

----S. 489-F---Dishonestly issuing a cheque---Scope---Section 489-F, P.P.C. cannot be used as a tool for the purpose of recovery of amount.

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

----S. 497(2)--- Bail--- Absconsion--- Further inquiry---Scope---Where case of accused falls in the ambit of further inquiry then bail cannot be refused on the ground of absconsion.

Mitho Pitafi v. The State 2009 SCMR 299; Qamar alias Mitho v. The State and others PLD 2012 SC 222; Ehsan Ullah v. The State 2012 SCMR 1137; Muhammad Shafi and others v. The State and others 2016 SCMR 1593 and Attaullah v. The State through AG Khyber Pakhtunkhwa and another 2020 SCMR 451 ref.

Burhan Moazzam Malik and Muhammad Shahzad Khan Kakar for Petitioner.

Muhammad Arshad Ali Farooqi, Deputy Prosecutor General with Muhammad Riaz, S.I. with record for the State.

2020 P Cr. L J 1464

[Lahore]

Before Shehram Sarwar Ch., J

GHULAM MUHAMMAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Misc. No. 29709-B of 2020, decided on 12th August, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 376, 452 & 506---Rape, house-trespass after preparation for hurt, assault or wrongful restraint and criminal intimidation---Bail, grant of---Further inquiry---Scope---Accused was alleged to have committed rape with the complainant---No tears, lacerations, bruises or abrasions were found around the private parts of complainant during medical examination---Accused had sent certain amounts from abroad to the complainant which were duly received by her---Accused had claimed that he had contracted marriage with the complainant but no opinion in that regard was given by the investigating officer---Receipts showing receiving of cash amounts were available on the police file---Accused was not required for the purpose of investigation---Case of accused called for further inquiry within the ambit of subsection (2) of S. 497, Cr.P.C.---Bail was allowed.

Barrister Danyal Ijaz Chadhar for Petitioner.

Ahmad Saed, Deputy Prosecutor General along with Ayesha, S.I. with record for the State.

2020 P Cr. L J 1473

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh, J

MUHAMMAD QASIM---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 572 of 2009, heard on 28th October, 2019.

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

----S. 302--- Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd---Appreciation of evidence---Examination of accused---Scope---Accused was alleged to have murdered his sister-in-law and launched murderous assault upon his brother-in-law---Medical officer had stated in the postmortem report that the probable time between death and postmortem was 30 hours but later on she (doctor) issued a corrigendum in which it was stated that the time between death and postmortem was 6 hours---Accused challenged his conviction on the ground that the trial court did not confront him with the corrigendum issued by the medical officer while examining him under S. 342, Cr.P.C., which had prejudiced him---High Court observed that the accused was prejudiced and miscarriage of justice had occasioned---Appeal was accepted and the case was remanded to the Trial Court for re-trial from the point where the irregularity had occurred.

Muhammad Nawaz alias Muhammad and 6 others v. The State 1991 PCr.LJ 156 and Ch. Abdul Majeed v. The State 2004 YLR 747 ref.

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

----S. 342---Examination of accused---Scope---Section 342, Cr.P.C. consists of two parts---First part ordains that at any stage of inquiry or trial the court may, without previously warning the accused, put him questions to elicit his explanation and in respect of any evidence brought against him, the second part casts a duty on the court to question the accused generally on the case after the prosecution witnesses have been examined and before he is called on for his defence.

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

----S. 342---Examination of accused---Scope--- Salient features of S. 342, Cr.P.C. may be summarized as (a) statement must be recorded without oath; (b) the accused cannot be punished for refusing to answer the questions or giving false replies; (c) the court may take into consideration the answers given by the accused while ruling for or against him.

Atta Muhammad and 2 others v. The State 1994 PCr.LJ 181; Asif Ali Zardari and another v. The State PLD 2001 SC 568; S.A.K. Rehmani v. The State 2005 SCMR 364; Ashiq Ali v. The State 2005 PCr.LJ 48 and Muhammad Mumshad Nadeem and another v. The State 2015 YLR 663 ref.

Abdus Salam Molla v. The Crown PLD 1955 FC 129 rel.

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

----S. 342---Examination of accused---Scope---Examination of accused under S. 342, Cr.P.C. must relate to the evidence and the circumstances which are brought against him by the prosecution during the trial---Such is not an inane formality but it has to be carried out in the interest of justice and fair play.

Abdul Wahab v. The Crown PLD 1955 FC 88; S.A.K. Rehmani v. The State 2005 SCMR 364 and Sarkar on Criminal Procedure (7th Edition at p.939) rel.

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

----S. 342--- Power to examine the accused--- Scope--- Each incriminating evidence or circumstance that is sought to be used against an accused must be put to him under S. 342, Cr.P.C.---Any piece of evidence which an accused is not confronted with cannot be considered against him for recording a conviction.

Sheral alias Sher Muhammad v. The State 1999 SCMR 697; Muhammad Shah v. The State 2010 SCMR 1009; Qaddan and others v. The State 2017 SCMR 148; Muhammad Siddique v. The State 2018 SCMR 71 and Imtiaz alias Taj v. The State and others 2018 SCMR 344 ref.

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

----S. 342---Examination of accused---Scope---Question before High Court was whether any omission to confront each and every piece of evidence vitiated the trial---One view was that it would in all eventualities but the other set of decisions laid down that trial would be vitiated only if the omission to examine had caused prejudice or had resulted in a failure of justice.

Shivaji Sahebrao Bobade and another v. State of Maharashtra AIR 1973 SC 2622 and Nar Singh v. State of Haryana (2015) 1 SCC 496 rel.

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

----S. 342---Examination of accused---Scope---Appellate Court has to examine all the incriminating material produced by the prosecution and see what damning piece of evidence or circumstance has not been put to the accused and its impacts on the fate of the case---Appellate Court shall also determine whether the questions put to accused were in accordance with law and he was not misled by any one of them---If Appellate Court comes to the conclusion that non-compliance with the provisions of S. 342, Cr.P.C. has prejudiced the accused, it may remit the matter to the Trial Court for re-trial from the point where the irregularity occurred, that is, from the stage of questioning the accused under S. 342, Cr.P.C.---Trial Court would then examine the accused again and examine the defence witnesses and decide the matter afresh.

Mohammad Bilal v. The State 2019 MLD 1291; Bashir Ahmad and 2 others v. The State PLD 2008 Lah. 146 and Habibullah Khan and another v. The State 1989 PCr.LJ 1555 ref.

Badar Raza Gillani for Appellant.

Ansar Yaseen, Deputy Prosecutor General for the State.

Muhammad Hassan Khawar for the Complainant.

2020 P Cr. L J 1505

[Lahore (Bahawalpur Bench)]

Before Tariq Saleem Sheikh, J

Syed MOHSIN ABBAS---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal Miscellaneous No. 560-Q/2018/BWP, decided on 28th January, 2020.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860) Ss. 395, 412 & 109---Expunction of condemnatory remarks against complainant---Inherent powers of court, exercise of---Petitioner/complainant sought expunction of remarks made by Magistrate while acquitting accused person of offences under Ss. 395, 412 & 109, P.P.C.--- Contention of petitioner/complainant, inter alia, was that impugned remarks stated that petitioner/complainant had falsely lodged FIR against accused to cover-up his own embezzlement, and the same were made without any basis---Validity----High Court observed that courts should not pass any pejorative remarks against a person/authority not party to proceedings and must not castigate even those who appeared before it and vilipend comments against even witnesses and counsel should be avoided---While acquittal of accused was one thing, question of whether complainant embezzled any money was another---Impugned remarks that complainant / petitioner lodged fake FIR to cover-up his own crime were not supported by any legal evidence and petitioner/complainant was not afforded any opportunity to explain his position---High Court further observed that impugned remarks adversely affected petitioner/complainant and stigmatized him---Impugned remarks were expunged---Revision was allowed, accordingly.

Emperor v. Ch.Mohd. Hassan AIR (30) 1943 Lahore 298; In the matter of expunging certain remarks made by a Magistrate against Additional District and Sessions Judge, Lyallpur PLD 1950 Lah. 34; Sh. Inayat Ullah Butt v. Cantonment Board, Rawalpindi PLD 1957 Lah. 583; Malik Firoz Khan Noon, Prime Minister's House, Karachi v. The State PLD 1958 SC (Pak.) 333; Ch. Muhammad Ashraf v. The State 1975 PCr.LJ 632; Syed Saleh Muhammad Shah v. The State 1986 PCr.LJ 2772; The State of Uttar Pradesh v. Mohammad Naim AIR 1964 SC 703; Panchanan Banerji v. Upendra Nath Bhattacharji AIR 1927 Allahabad 193; Izhar Ahmad Khan v. The State 1994 PCr.LJ 353; R. K. Lakshmanan v. A. K. Srinivasan and another AIR 1975 SC 1741; Niranjan Patnaik v. Sashibhusan Kar and another AIR 1986 SC 819 and S. K. Viswambaran v. E. Koyakunju and others AIR 1987 SC 1436 rel.

Syed Zeeshan Haider assisted by Zafar Iqbal Sheikh for Petitioner.

Shahid Fareed, ADPP for the State.

2020 P Cr. L J 1530

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram, J

MUHAMMAD SHAFI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 4015-B of 2019, decided on 16th October, 2019.

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

----S. 497---Penal Code (XLV of 1860), S. 322---Qatl-bis-sabab---Bail, grant of---Further inquiry---Completion of investigation---Accused, previous non-convict---Scope---Petitioner sought post-arrest bail in FIR wherein he was alleged to have been a cause of the death of complainant's son---Contents of FIR revealed that deceased, on his own accord and volition, had started drinking liquor and thereafter left the house of co-accused alone and subsequently died---Prosecution evidence was devoid of any allegation against the petitioner that he was responsible for the death of the deceased by doing an unlawful act---Co-accused persons were admitted to bail on the concessionary statements made by complainant as well as witnesses---Section 322, P.P.C. showed that no punishment of any period was provided except the payment of diyat---Petitioner was a previous non-convict---Investigation qua petitioner was complete and his person was no more required for further investigation---Case of petitioner was one of further inquiry covered by subsection (2) of S. 497, Cr.P.C.---Petition for grant of bail was accepted, in circumstances.

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

----S. 497---Bail---Diyat, payment of---Prohibitory clause of S.497, Cr.P.C.---Scope---No express provision of law exists to show that the punishment of diyat attracts the prohibitory clause of S. 497, Cr.P.C. [p. 1532] D

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

----S. 497---Bail---Further inquiry---Absconsion---Scope---Bail is to be granted to an accused as of right and not by way of grace or concession in a case calling for further inquiry into his guilt---Mere absconsion in such a case is not sufficient to refuse bail to accused

Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182; Ibrahim v. Hayat Gul and others 1985 SCMR 382 and Qamar alias Mitho v. The State and others PLD 2012 SC 222 ref.

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

----S. 497---Bail---Absconsion---Further inquiry---Scope---Sometimes a person, instead of facing the situation/cries opts to go into hiding believing, that his period of desolation and distress may go by as the time would pass along---If one despite being innocent takes a decision out of fearfulness or anxiety to escape to a safer haven, the other one, also placed in identical situation, despite having certain reservations, may decide to bear the brunt of the upheavals in a virile way---Factum of absconsion may not be a deciding factor while deciding the bail plea of an accused---Attending circumstances of the case and a cautious study thereof would be relevant for decision of a bail application on the touchstone of further inquiry as contemplated under S. 497(2), Cr.P.C.---Element of absconsion must give way to the plea for grant of bail of accused whose case categorically constitutes need for further inquiry.

Feroz Zaman Khan Minhas for Petitioner.

Muhammad Rafique Khan Daidh for the Complainant/ Respondent No.2.

2020 P Cr. L J 1538

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh, J

MUHAMMAD AFZAL---Petitioner

Versus

The STATE and others---Respondents

W.P. No. 8830 of 2019, decided on 6th November, 2019.

(a) Police Order (22 of 2002)---

----Art. 18(10)---Separation of function of investigation---Expression 'verify', meaning of---Scope--- Petitioner/accused assailed order of Deputy Superintendent of Police whereby he, being supervisory officer of the investigating office in terms of Art. 18(10) of Police Order, 2002, declared the petitioner to be guilty although investigating officer had found him innocent---Validity---Words "verify" and "verification" were not synonymous with "investigation" or for that matter, "reinvestigation" which essentially implied collection of evidence---Petitioner had appeared before the investigating officer and had proved his innocence---Deputy Superintendent of Police though was a supervising officer but he had no authority to conduct fresh investigation or substitute his own conclusions for those of investigating officer---Deputy Superintendent of Police could have brought the faults in the investigation to his superior, who could then have initiated the process contemplated in Art. 18-A of the Police Order, 2002 for change of investigation---High Court declared the proceedings initiated by Deputy Superintendent of Police to be without lawful authority and of no legal effect---Constitutional petition was accepted.

Qamar Jehan and 2 others v. Bashir Ahmad through Legal Heirs and 5 others PLD 2006 Lah. 99; Mst. Naseem Begum and others v. SHO and others PLD 2006 Lah. 509; Ijaz Ali v. D.P.O. and others 2006 PCr.LJ 1596 and Mirza Jahangeer Baig v. D.I.G. of Police, Gujranwala Range and 7 others 2007 MLD 579 ref.

Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lah. 470 rel.

(b) Words and phrases---

----'Verify'---Meaning.

P Ramanatha Aiyar's Advanced Law Lexicon Dictionary (4th Edition, Vol.4) and Words and Phrases Permanent Edition, Volume 44, p.251 rel.

(c) Words and phrases---

----'Verification'---Meaning.

Concise Oxford Dictionary rel.

Ch. Faqir Muhammad, Rana Muhammad Asif Saeed and Tahir Khan Malezai for Petitioner.

Ch. Zulfiqar Ali Sidhu, AAG with Khalid DSP for the State.

2020 P Cr. L J 1571

[Lahore (Multan Bench)]

Before Anwaarul Haq Pannun, J

MAZHAR ALI---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 4890-B of 2019, decided on 13th November, 2019.

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

----Ss. 497(2) & 498--- Penal Code (XLV of 1860), Ss. 337-A(i), 337-F(i)(v), 337-L(2) & 34---Shajjah-i-Khafifah,Damihah, Hashimah and other hurts---Pre-arrest bail, grant of---Further inquiry---Fabrication of injury---Determination---Failure to appear before District Standing Medical Board---Investigation---Object, purpose and scope---Two co-accused persons who were real sons of accused had already been extended benefit of pre-arrest bail while that of the accused was declined---Validity---Complainant who was injured despite service of process, deliberately did not appear before District Standing Medical Board, which was indicated through a letter issued by Medical Superintendent---Re-examination of injured complainant could be done---Deliberate and evasive attitude of the examinee amounted to cover up the alleged fabrication of injury---When realities of prosecution's case were not clear and transparent, possibility of false involvement and implication of accused by way of fabrication of injuries and by levelling exaggerated allegations with mala fide intention and ulterior motive of complainant while throwing a widened net to the extent of accused could not be ruled out---Investigating officer was supposed to find out truth of the matter under investigation---Object of investigating officer was to discover actual facts of the case and to arrest real offender or offenders and not to commit himself prematurely to any view of facts for and against any person---Where investigating officer suspected that injuries were self-suffered, in order to further strengthen his opinion, besides an aggrieved party, investigating officer could invoke jurisdiction of Magistrate to exercise his power for reconstitution of District Standing Medical Board of Provincial Standing Medical Board---Case against accused was one of further inquiry---Bail was allowed in circumstances.

Muhammad Rizwan v. The State and others 2017 MLD 1828 and Muhammad Khalid and others v. State and others 2018 YLR 2433 rel.

(b) Police Rules, 1934---

----R. 25.22---Instructions regarding conduct of Medico Legal/Post-Mortem Examination, notification No. SO(H&D) 5-5/2002, dated 1.12.2004---Medical examination of women---Fabrication of injury---Opinion---Medical Officer/Woman Medical Officer, after physical examination of an injured person, while issuing Medico Legal Certificate, holding possibility of fabrication of any injury, as "Yes", he/she must record reasons in unambiguous terms on the basis of principles of Medical Jurisprudence---In case of more than one injury, Medical Officer/Women Medical Officer must mention regarding which injury there exists possibility of fabrication.

Sahibzada Nadeem Farid and Haji Tariq Aziz Khokhar for Petitioner and Petitioner in person.

2020 P Cr. L J 1598

[Lahore (Bahawalpur Bench)]

Before Tariq Saleem Sheikh, J

FAIZ RASOOL---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 3480-B of 2019, decided on 9th January, 2020.

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

----S. 497---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, criminal misconduct---Bail, grant of---Further inquiry---Scope---Accused was alleged to have fabricated the directives to procure his transfer---Accused had not produced the directives in the office of the Deputy Commissioner---Office of the Deputy Commissioner had received the directives in official routine---No evidence was available to show that the accused had prepared the directives or managed their transmission to the office of Deputy Commissioner---Anti-Corruption Establishment had not investigated any one from where the directives had originated and had exonerated the main accused---Accused himself had filed an application for his transfer but he had not referred the directives---Had the accused been in the knowledge of the directives he would have mentioned them to bolster his request---Circumstances called for further inquiry within the meaning of S. 497, Cr.P.C.---Accused was indeed the beneficiary of the directives but in criminal cases guilt of an accused was determined on the basis of evidence and not on presumptions---Accused was a public servant and there was no likelihood of his absconsion if he was admitted to bail---Petition for grant of bail was allowed, in circumstances.

Mehmood Ali Bhatti v. The State and others 2016 SCMR 1549; Saeed Ahmed v. The State 1995 SCMR 170 = 1996 SCMR 1132; Syed Abdus Salam v. The State 2004 MLD 1947; Shaukat Ali v. The State and another 2012 YLR 596 and Nadeem Aslam v. The State and another 2019 YLR 415 ref.

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

----S. 497---Bail---Principles---Scope---Section 497, Cr.P.C. divides non-bailable offences into two categories viz. (a) offences punishable with death, imprisonment for life or imprisonment for 10 years, and (b) offences punishable with imprisonment for less than 10 years---Grant of bail is a rule and refusal is an exception in non-bailable cases falling in the second category---Bail in non-bailable cases should be declined only in exceptional circumstances, for example (i) where the accused is likely to abscond; (ii) where there is apprehension that the accued would tamper with the prosecution evidence; (iii) where there is danger that the accused would repeat the offence if he is released on bail; and (iv) where the accused is a previous convict.

Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488; Riaz Jafar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708; Muhammad Tanveer v. The State and another PLD 2017 SC 733 and Arslan Masih and others v. The State and others 2019 SCMR 1152 ref.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 rel.

(c) Criminal trial---

----Presumption---Scope---Guilt of an accused is determined on the basis of evidence and not on presumptions.

Syed Zeeshan Haider for Petitioner.

2020 P Cr. L J 1630

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram, J

ZAHID HUSSAIN---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 4023-B of 2019, decided on 18th September, 2019.

Criminal Procedure Code (V of 1898)---

----S. 498---Punjab Prevention of Gambling Ordinance (VII of 1978), Ss. 5, 6, 7 & 8---Penal Code (XLV of 1860), Ss. 294-A & 294-B---Gambling and running a gambling house---Pre-arrest bail, grant of---Mala fide---Absence of recovery---Accused sought pre-arrest bail on grounds that FIR registered was based on mala fide and nothing was recovered from him---Validity---If a raid was to be conducted in any house, room, tent, enclosure, vehicle, vessel or any other place provisions of S. 8 of Punjab Prevention of Gambling Ordinance, 1978 was to be applied---Raid conducted by police was in complete violation and disregard of mandatory provisions of Ss. 5, 6 & 8 of Punjab Prevention of Gambling Ordinance, 1978 and nothing was recovered from accused---Investigation of case was complete and version of accused as well as complainant was verified---Involvement of accused was based on mala fide and sending accused behind bars could cause irreparable loss to his reputation---Pre-arrest bail was confirmed in circumstances.

Shakeel Javed Chaudhry for Petitioner.

2020 P Cr. L J 1648

[Lahore (Multan Bench)]

Before Sardar Muhammad Sarfraz Dogar and Tariq Saleem Sheikh, JJ

ASGHAR VIRK---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU and 2 others---Respondents

W.P. No. 4500 of 2020, decided on 5th May, 2020.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9 & 24---Constitution of Pakistan, Art. 199---Constitutional petition---Corruption and corrupt practices---Accountability Court proceedings--- Post-arrest bail, grant of----Rule of consistency---Scope---Petitioner, who was a Tehsil Officer of Municipal Authority, was accused of issuing completion certificate for a housing scheme under investigation by National Accountability Bureau ("NAB"), and sought post-arrest bail, inter alia, on the ground that his arrest had no substantial basis---Validity----Tehsil Officer of status of petitioner was neither competent nor had expertise to make requisite certification and such certificate was of no legal consequence and there existed no evidence that he received any pecuniary benefit by issuing such false certificate---Further inquiry was required to determine whether petitioner was guilty of corruption or mere negligence---Petitioner's case was at par with his superior officer who had been given relief of post-arrest bail, and therefore petitioner was entitled to the same relief as per rule of consistency---Case against petitioner was entirely based on documentary evidence, which was in possession of prosecution and no possibility of tampering with the same existed---Trial was not likely to be concluded in near future and no useful purpose could be served by keeping petitioner behind bars for indefinite period---Petitioner was accordingly admitted to post-arrest bail subject to furnishing of security---Constitutional petition was allowed, accordingly.

Muhammad Fazal alias Bodi v. The State 1979 SCMR 9; Muhammad Daud and another v. The State and another 2008 SCMR 173 and Gulab Khan v. Chairman NAB and another 2020 SCMR 285 rel.

Sh. Jamshed Hayat assisted by Faiz Rasool Khan for Petitioner.

2020 P Cr. L J 1661

[Lahore]

Before Sardar Muhammad Sarfraz Dogar, J

MUMTAZ HUSSAIN and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 53108-B of 2019, decided on 26th September, 2019.

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

----S. 498---Penal Code (XLV of 1860), S. 406---"Criminal breach of trust"---Pre-arrest bail, grant of---Delayed FIR---Business relations---Scope---Complainant alleged that accused persons received an amount of Rs.7,00,000/- as trust for business purpose and thereafter misappropriated the said amount---First Information Report was recorded after a delay of more than two years without explaining any sufficient reasons---Parties had business relations---Volunteer entrustment of property was sine qua non to constitute an offence under S. 406, P.P.C.---Mere breach of promise, agreement or contract in absence of clear entrustment ipso facto did not attract the definition of "criminal breach of trust"---Prima facie, prosecution had no sufficient incriminating material to connect the accused persons with the commission of alleged offence and chances of their implication with mala fide intention could not be ruled out---Accused persons had joined the investigation---Offence under S. 406, P.P.C. did not fall within the prohibitory clause of S. 497, Cr.P.C.---Petition for grant of pre-arrest bail was accepted, in circumstances.

Ubedullah v. The State 2003 PCr.LJ 1921 and Haji Javed Iqbal v. The State 2004 YLR 2288 ref.

Shahid Imran v. The State and others 2011 SCMR 1614 rel.

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

----S. 406---Criminal breach of trust---Scope---Voluntary entrustment of property is sine qua non to constitute an offence under S. 406, P.P.C.

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

----S. 406---Criminal breach of trust---Scope---Mere breach of a promise, agreement or contract, in absence of clear entrustment, does not ipso facto attract the definition of criminal breach of trust.

Shahid Imran v. The State and others 2011 SCMR 1614 rel.

Rana Zahid Ghaffar for Petitioners with Petitioners in person.

Muhammad Ahmed Saeed, DPG with Shoukat Inspector for the State.

2020 P Cr. L J 1668

[Lahore (Multan Bench)]

Before Ch. Abdul Aziz, J

ABDUL WAKEEL---Petitioner

versus

The STATE and another---Respondents

Criminal Miscellaneous No. 3607-B of 2020, decided on 10th September, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to Qatl-i-amd and rioting armed with deadly weapons---Bail, grant of---Two version---Role of accused---Suppression of injuries---Three alleged co-assailants received injuries and in support thereof respective Medico Legal Reports were available on record---Effect---Cases of two versions are generally regarded appropriate for grant of post arrest bail more importantly when accused seeking such remedy is not ascribed some exceptional aggression---Neither in cross-version nor in statements of witnesses recorded under S. 161, Cr.P.C. any explanation was put forth as to how the three persons received firearm injuries---From suppression of injuries of three persons, a prima facie conclusion could be drawn that both sides did not set out their respective versions as per the actual facts---Suppression of injuries to accused persons was a factor in favour of accused---Bail was allowed in circumstances.

Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845; Muhammad Shahzad Siddique v. The State and another PLD 2009 SC 58; Muhammad Zahid Umar v. The State and others 2016 SCMR 1246; Faisal Khan and 3 others v. The State and another 2017 MLD 1220; Ahmed Hussain v. The State and another 2016 YLR 1503; Khadim Hussain and others v. The State and others 2015 MLD 543; Ramzan alias Jan Qazi v. The State and another 2013 YLR 1307 and Muhammad Aamir v. The State 2010 PCr.LJ 512 rel.

Sardar Mehboob for Petitioner.

Tahir Mehmood and Muhammad Sarwar Awan for the Complainant.

2020 P Cr. L J 1678

[Lahore]

Before Aalia Neelum, J

GHULAM ABBAS---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 185 of 2017, heard on 18th February, 2020.

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

----Ss. 409, 467, 468 & 471---Prevention of Corruption Act (I of 1947), S. 5---Criminal breach of trust by public servant, forgery for valuable security, will, etc, forgery for purpose of cheating, using as genuine a forged document, criminal misconduct---Appreciation of evidence---Accused, a public servant, custodian of cheque books, was alleged to have connived with the co-accused (since convicted) who had put forged signatures on the stolen cheques and had withdrawn certain amount from Banks---Held; no evidence was produced by prosecution to establish any conspiracy or concert of minds of the accused and co-accused or pre-arranged plan between them to commit the offence; connection of accused with the forgery or co-accused; that the accused was entrusted with the cheque books and that the accused had misappropriated the amount withdrawn from the Banks---Offences under Ss. 409, 467, 468 & 471, P.P.C. and S. 5(2) of Prevention of Corruption Act, 1947, were not made out against the accused---Judgment of Trial Court to the extent of accused was set aside---Appeal against conviction was allowed, in circumstances.

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

----S. 409---Criminal breach of trust by public servant---Scope---Where a public servant is entrusted with a property and he commits criminal breach of trust with respect to the said property then he is liable to be punished under S. 409, P.P.C.

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

----S. 405---Criminal breach of trust---Scope---Where any property is entrusted to a person and that person dishonestly misappropriates that property then he commits the offence of criminal breach of trust.

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

----Ss. 464, 467 & 471---Making a false document, forgery for valuable security, will, using as genuine a forged document---Scope---Condition precedent for an offence under Ss. 467 & 471, P.P.C. is forgery, making a false document---Analysis of S. 464, P.P.C. shows that it divides false documents into three categories, that is, a person is said to have made a 'false document', if (i) he has made or executed a document claiming to be someone else or authorized by someone else; or (ii) he has altered or tampered a document; or (iii) he has obtained a document by practicing deception, or from a person not in control of his senses.

Barrister Salman Safdar for Appellant.

Muhammad Latif, Assistant Attorney General for Pakistan.

Barrister Pirzada Aurangzaib for the Complainant.

2020 P Cr. L J 68

[Peshawar (D.I. Khan Bench)]

Before Syed Muhammad Attique Shah and Shakeel Ahmad, JJ

AKBAR KHAN---Appellant

Versus

NAZAR GUL and 6 others---Respondents

Criminal Appeal No. 88-D of 2018, decided on 25th March, 2019.

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

----Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, armed with deadly weapon and common object---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Contradictory statements of witnesses---Effect---Prosecution case against accused party was that complainant party was on its way when accused party emerged from a house and started firing---Complainant stated in cross-examination that at the time of occurrence they were present towards the western side of the accused party, which was belied by the site-plan---Eye-witness stated that the accused started firing when they had reached to the water channel, but stated in cross-examination that they had crossed the water channel when accused fired upon them---Site-plan was prepared on the pointation of the said eye-witness, but neither his statement nor the statements of other witnesses supported the locations of deceased, injured and the accused---Eye-witness stated that there was no other house at the place of occurrence nor had he pointed out any other house to the investigating officer at the time of preparation of site-plan---Eye-witness stated that after receiving injuries, deceased was lying on plain area till he was shifted to the hospital---Said version of eye-witness was belied by site-plan wherein two houses had been shown on the spot, while deceased was shown in another vacant house---Investigating officer admitted in his cross-examination that he had collected blood stained earth from inside the abandoned/demolished house---Complainant stated in his cross-examination that there were no other houses at the place of occurrence---Occurrence, according to first information report (FIR), took place at 6:00 a.m. but the complainant stated that after firing accused decamped from the spot and they called for help which arrived at 6:00 a.m.---Injury was shown as 6 x 4 inches in size, while no entry or exit was mentioned by the doctor in his report---Size of injury could not be caused with firearm---General role of firing had been attributed to all the accused---Empties recovered from the place of occurrence were not sent to Forensic Science Laboratory (FSL)---Guilt of accused was not proved beyond shadow of reasonable doubt---Benefit of doubt was rightly extended to the accused by the Trial Court---Appeal against acquittal was dismissed, in circumstances.

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

----Ss. 302, 324, 148 & 149--- Qatl-i-amd, attempt to commit qatl-i-amd, rioting, armed with deadly weapon and common object---Recovery of empty---Scope---Empty recovered from spot was to be sent to the Laboratory without delay, failing which recovery evidence would be doubtful and could not be used against accused.

Ghulam Akbar and another v. The State 2008 SCMR 1064 ref.

(c) Criminal trial---

----Witness---Numerous infirmities in the statement of witness are not necessary to disbelieve the witness; even one infirmity which impeaches the credibility of the witness is enough to make the entire statement doubtful.

(d) Criminal trial---

----Benefit of doubt---Conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused.

Muhammad Khan and another v. The State 1999 SCMR 1220 and Muhammad Akram v. The State 2009 SCMR 230 ref.

(e) Criminal trial---

----Absconsion--- Absconsion is not substantive piece of evidence and cases where direct evidence fails, corroborative piece of evidence is of no avail---Absconsion can neither cure the inherent defect of the ocular account nor by itself is sufficient to sustain conviction.

Islam Badshah and 2 others v. The State PLD 1993 Pesh. 7 ref.

(f) Criminal trial---

----Recovery of weapon---Corroborative evidence---Recovery is a corroborative piece of evidence and in cases where direct evidence fails, corroborative piece of evidence is of no avail.

2020 P Cr. L J 88

[Peshawar]

Before Waqar Ahmad Seth, C.J. and Ahmad Ali, J

MULTAN JAN---Appellant

Versus

The STATE---Respondent

J. Cr. A. No. 591-P of 2017, decided on 18th September, 2019.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), Ss. 243 & 342---Qanun-e-Shahadat (10 of 1984), Arts. 30 & 43---Recovery of narcotics---Appreciation of evidence---Admission---Proof---Benefit of doubt---Dispatch of material to Forensic Science Laboratory---Scope---Accused persons were arrested and recovery of 10 packets of Charas weighing 1200 grams each from car was made---Trial Court convicted and sentenced accused to imprisonment for life but acquitted co-accused driver on grounds that accused gave an affidavit of admission of guilt to the authorities---Validity---Safe custody of recovered substance as well as safe transmission of samples of recovered substance to Forensic Science Laboratory was not established by prosecution---Complainant/Seizing Officer took into possession contraband but it was not clear as to whom he handed over the remaining contraband---Authorities prepared samples for Forensic Science Laboratory but it was not clear as to whom he handed over the case property and samples at police station---No record or assertion was available to the effect that samples and case property were ever kept in Maalkhana---Accused was in judicial custody when affidavit was scribed and also in judicial custody when affidavit was produced in court---Affidavit did not contain any stamp of jail authorities and Oath Commissioner was also not produced by prosecution to explain as to how he attested affidavit of accused when he was in judicial lockup--- High Court set aside conviction and sentence awarded to accused as Trial Court erred in appreciating evidence in its true perspective and slightest doubt in case of prosecution was sufficient to grant acquittal to accused---Appeal was allowed in circumstances.

2019 SCMR 608; 2018 SCMR 2039; 2019 SCMR 903; Ikramullah and others v. The State 2015 SCMR 1002; 2012 SCMR 577 and 2015 PCr.LJ 62 ref.

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

----Ss. 244, 245-D, 245-E & 245-F---Admission of guilt---Procedure---When accused pleads guilty during course of trial, independent evidence was to be taken and conceded by court---No one be condemned and sentenced on a capital charge merely if he pleads guilty to charge---Some evidence must be recorded which has to be taken in support of guilt of accused---Admission of guilt cannot be made sole basis for sentencing accused.

2017 SCMR 713 rel.

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

----S. 164---Confession---Most important factors and required standards of confession enumerated.

(d) Interpretation of statutes---

----Once a statute or rule directs that a particular act must be performed and shall be construed in a particular way then, acting contrary to that is impliedly prohibited---Doing of something contrary to the requirements of law and rules, is impliedly prohibited.

(e) Criminal trial---

----Confession---Admission of accused could not be a substitute for a true and voluntary confession---Principle.

Ms. Nosheen Ahmad for Appellant.

Muhammad Riaz Khan, AAG for the State.

2020 P Cr. L J 136

[Peshawar]

Before Syed Arshad Ali and Wiqar Ahmad, JJ

MANZAR KHAN---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman NAB, Islamabad and 2 others---Respondents

Writ Petition No. 3832-P of 2019, decided on 19th August, 2019.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(ix) & (b)---Standing Operating Procedures of National Accountability Bureau, Clause 4(d)---Bail, grant of---Cheating public-at-large---"Public-at-large"---Connotation---Accused was arrested on allegation that he cheated 27 persons and alleged to have committed cheating public-at-large---Plea raised by accused was that National Accountability Bureau had no jurisdiction in the matter---Validity---Number of 27 persons did not qualify test of connotation 'public-at-large'--- Such was a serious question regarding taking of cognizance by NAB and same was still to be determined by Trial Court---When there was a question regarding jurisdiction of investigating agency, same was as a good ground for grant of bail---Arrest of accused was made because of authorization of investigation by NAB and if investigation was authorized in a way that a mandatory condition precedent was ignored, then arrest and ensuing judicial custody also became questionable---High Court granted bail to accused as same could not be declined merely for the reason that accused had gone in absconsion if his case was otherwise fit for bail---Bail was granted in circumstanced.

Rafiq Haji Usman v. Chairman, NAB and another 2015 SCMR 1575; Abdul Waheed Khan v. Chairman, National Accountability Bureau through Deputy Prosecutor General and 4 others PLD 2018 Pesh. 59; Zahid Ali Noor v. NAB and others 2017 PCr.LJ 147 and Muhammad Fakhar Javed Khokhar and another v. National Accountability Bureau and others 2018 PCr.LJ 477 fol.

Naseem Abdul Sattar and 6 others v. Federation of Pakistan and 4 others PLD 2013 Sindh 357 and Abdul Aziz Memon and others v. The State and others PLD 2013 SC 594 ref.

Jalal-ud-Din for Petitioner.

Riaz Khan Mohmand, Special Prosecutor for Respondents.

2020 P Cr. L J 158

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim, J

ABDUL QAYUM---Appellant

Versus

The STATE through Additional Advocate-General and another---Respondents

Criminal Appeal No. 216-M of 2018, decided on 19th July, 2019.

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

----Ss. 354, 376 & 511---Attempt to commit rape, outraging modesty of a woman---Appreciation of evidence---Sentence, quantum of---Minor inconsistencies in prosecution case---Mitigating circumstances---Record revealed that there were some negligible and minor inconsistencies, which would not be sufficient enough to discard the entire prosecution case, but the same could be considered as mitigating circumstances while deciding the quantum of sentence.

Ansar Ahmad Khan Barki's case 1993 SCMR 1660 and Falak Sher's case 1999 SCMR 2432 ref.

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

----S. 376---Attempt to commit rape---Word "attempt"---Connotation---No hard and fast rule could be laid down to define "attempt"---"Attempt" had not been defined in the Penal Code, 1860---Attempt was the direct movement towards the commission after the preparation had been made and it must be something more than preparation---If intent was present with some overt act in execution thereof for the purpose of criminal liability, it was sufficient that attempt had gone so far that the crime would have been completed but for extraneous intention, which frustrated its consumption.

Abdul Majid v. The State 1973 SCMR 108 ref.

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

----Ss. 376 & 511---Attempt to commit rape---Complainant was real daughter of the accused who had categorically charged her real father for attempt to commit rape upon her and in that respect she had also stated in her court statement that her trouser was also removed by the accused, after raising hue and cries, and upon the arrival of mother of complainant accused made his escape good from the scene of occurrence---Statements of the complainant and her mother were unanimous on all material points and nothing had been brought on record to tarnish their credibility---Both the witnesses were extensively cross-examined but nothing was elicited from them---Sentence awarded under S. 511, P.P.C., having been reduced, petition for enhancement of sentence was dismissed.

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

----S. 511---Sentence under S. 511, P.P.C.---Scope---Section 511, P.P.C. provides maximum sentence, which may extend to one-half of the longest term of imprisonment---Word "may" clearly manifest the intention of legislature that this is for the court to award appropriate punishment which may extend to one half of the imprisonment provided---Maximum threshold has been laid down in S. 511, P.P.C., but the minimum limit has not been prescribed the same has been left to the discretion of the court by considering the facts and circumstances of the case.

Aziz Ahmad Hashmi for Appellant.

Wilayat Ali Khan, A.A.G. for the State.

Muhammad Yar Malezai for the Complainant.

2020 P Cr. L J 202

[Peshawar]

Before Waqar Ahmad Seth, C.J. and Musarrat Hilali, J

IMTIAZ KHAN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 848-P of 2017, decided on 10th April, 2019.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that 454 packets of charas garda and 10 packets opium, each packet consisting of small tikkies wrapped in different colour wrappers were recovered from the truck driven by accused while co-accused was sitting on front seat---Samples from the recovered charas as well as opium of 10/10 grams were taken from each packet for the purpose of Laboratory analysis, rest of the narcotics were sealed in separate parcels---Pursuant to recovery, both the accused-appellants were booked---In the present case, the joint charge framed against the accused-appellants was vague inasmuch as it did not specify as to who was driving the truck at the relevant time and who was sitting on the side seat---No case property was produced and exhibited before the Trial Court during the course of examination of accused-appellants---Evidence used against the accused-appellants on that account was incomplete---Samples separated from the recovered contraband were sent to the Laboratory situated in other District---No reason was recorded on the part of the prosecution that despite having a full-fledged upto date Laboratory in the city, why the samples were sent to other District for test and analysis---Even if the rule was construed as directory, it did not mean that it need not be complied with at all---Prosecution could not be permitted to ignore such provision of law completely without any reason---Samples were dispatched on 23.02.2013 which were received by the Forensic Science Laboratory on 25.02.2013---Report was prepared and signed by the persons not qualified for the purpose under the Act---No CDR data had been collected by the prosecution to have established the link of accused-appellants with drug traffickers---Circumstances established that the prosecution had failed to prove its case against appellants 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.

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

----S. 342---Examination of accused---Principle---Examination of accused under S. 342, Cr.P.C. was not a mere formality but it embodied the fundamental principle of the maxim: "Audi alteram partem"---Any evidence whether direct or circumstantial could not be used against the accused unless the same had been confronted to him during the course of examination under S. 342, Cr.P.C. and a fair opportunity was provided to the accused to explain the same or to adduce defence, if any.

Noor Alam Khan for Appellants.

Tariq Khan Kakar, SPP for the State.

2020 P Cr. L J 249

[Peshawar (D.I. Khan Bench)]

Before Syed Muhammad Attique Shah, J

PESCO through Chief Executive Officer---Petitioner

Versus

The STATE and 43 others---Respondents

Cr. MQ No. 42-D of 2018 with Criminal Miscellaneous No. 43-D of 2018, decided on 24th June, 2019.

(a) Interpretation of statutes---

----Non-obstante clause---Object and scope---Object and purpose of incorporating non-obstante clause in a provision is that such provision will prevail despite anything to the contrary provided in any other provision of same stature or any other law on same subject---Where there was inconsistency and irreconcilable conflict between two clauses, non-obstante clause would get preference over other clause.

Muhammad Mohsin Ghaman and others v. Government of Punjab through Home Secretary Lahore and others 2013 SCMR 85 rel.

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

----Chapter XVII-B, Ss. 462-G, 462-I & 462-O---Abstraction or tampering with electricity supply--- Cognizance--- Trial Court, jurisdiction of---Principles---Electricity Company got criminal cases registered against private persons for theft of electricity---Trial Court declined to assume jurisdiction as cases were not maintainable---Validity---Offence relating to Chapter-XVII-B, P.P.C. would only be covered by provisions of S. 462-O, P.P.C. which ousted applicability of Criminal Procedure Code, 1898 or any other law for the time being in force relating to assumption of jurisdiction in the matter---Court could not take cognizance of offense under Chapter XVII-B, P.P.C. except on complaint made with reasons to be recorded in writing along with full particulars of offence committed under Chapter XVII-B, P.P.C. by duly authorized officer (not below Grade 17) of Government or Distribution Company---Court could not take cognizance of any offense relating to Chapter XVII-B, P.P.C. but except upon complaint provided by provisions of S. 462-O, P.P.C.---High Court declined to interfere in order passed by Trial Court as same was based on proper interpretation of law---Petition was dismissed in circumstances.

2001 YLR 197 ref.

(c) Interpretation of statutes---

----Enabling provision of Act or Ordinance---Preference---When there is a conflict in an enabling provision of an Act or Ordinance and Schedule thereto, provisions of main Act/Ordinance are to prevail upon provisions of Schedule appended therewith.

Federation of Pakistan through Secretary, Ministry of Finance and others v. Haji Muhammad Sadiq and others 2007 PTD 67 rel.

(d) Administration of justice---

----Doing of a thing---Procedure---When law requires a thing to be done in a particular manner, then it would be a nullity in eyes of law, if not performed in that very prescribed manner.

The Collector of Sales Tax, Gujranwala v. Super Asia Mohammad Din and Sons 2017 SCMR 1427; Hafiz Tassaduq Husain v. Muhammad Din through Legal Heirs PLD 2011 SC 241; Muhammad Akram v. Mst. Zainab Bibi 2007 SCMR 1086; Khyber Tractors (Pvt.) LTD v. Pakistan through Ministry of Finance, Revenue and Economic Affairs, Islamabad PLD 2005 SC 842; Shujat Hussain v. State 1995 SCMR 1249; Hakim Ali v. Muhammad Salim 1992 SCMR 46; Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255; Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others PLD 1971 SC 61; Tehsil Nazim, T.M.A. Okara v. Abbas Ali and 2 others 2010 PLC 259 and Ignees Maria and another v. District Coordination Officer, District Bahawalnagar and 2 others 2012 PLC (C.S.) 772 rel.

Jehanzeb Ahmad Chughtai for Petitioner.

Adnan Ali, Assistant A.-G. for the State.

Ghulam Muhammad Sappal, Jamal Abdul Nasir Awan and Ms. Kaniz Batool for Respondents.

2020 P Cr. L J 284

[Peshawar]

Before Ijaz Anwar and Ahmad Ali, JJ

HAMEED ULLAH QURESHI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 159-P of 2019, decided on 20th August, 2019.

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

----Ss. 48, 32 & 74---Vehicle involved in transporting narcotic substances---Superdari of such vehicle---Scope---Vehicle was taken into custody by the local police being involved in transportation of narcotics---Application for supardari was refused by the Trial Court---Validity---Appellant had sought superdari of the vehicle on the ground of being owner of the vehicle---Appellant was the owner and there was no dispute about that---Section 74 of the Control of Narcotic Substances Act, 1997 deprived the accused, his associate or relative or any private individual from pre-trial custody of the vehicle---Section 74 of the Act, even if strictly construed, would place such person outside the ambit of forbidding clauses of the section---If an innocent owner of vehicle unaware of the crime was entitled to its return at the conclusion of trial, had a corollary, in the absence of express statutory provisions, he would also have the right to obtain and retain its temporary custody pending trial---Ownership documents had been produced by the appellant so much so the names of actual culprits had also been disclosed by the appellant---After lapse of almost six months, challan had not been put in court---Proviso to S. 74 did not forbid the release of vehicle involved in trafficking of narcotics to his owner, who was not connected in any manner with the commission of the crime or the accused and was unaware that his vehicle was being used for the crime---No rival claimant of the vehicle had come forward---Retention of vehicle in police custody for an indefinite period would not serve any useful purpose---Appellant was entitled to the temporary custody of the vehicle, in circumstances---Appeal was allowed by setting aside the impugned order--- Vehicle was directed to be released on superdari.

Mian Arshad Jan, Khan Muhammad and Shahzad Khan for Appellant.

Kamran Hayat, A.A.G. for the State.

2020 P Cr. L J 321

[Peshawar]

Before Qaiser Rashid Khan and Ishtiaq Ibrahim, JJ

ABDUL BAQI and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 600-P of 2017, decided on 28th May, 2019.

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

----Ss. 9(c) & 29--- Possession of narcotics--- Presumption from possession of illicit articles---Appreciation of evidence---Benefit of doubt---Driver of vehicle---Consistent statements of prosecution witnesses---Effect---Accused persons were allegedly found to be in possession of vehicle, the floor of which was found double---Vehicle and the accused persons were taken to the police station where the floor of the vehicle was opened through electric cutter and 54 packets of heroin were recovered from its secret cavities---Statements of complainant, marginal witness to the recovery memo, member of the police party who kept parcel containing the remaining quantity of heroin in malkhana and Investigating Officer were consistent on all material aspects and no distinct discrepancy was noticed to mar the credibility of their testimony---Mode and manner of arrest of the accused, the driver of vehicle, leading to recovery of narcotics was duly proved---Prosecution evidence was unanimous with regard to the arrest of the accused, number of secret cavities, the taking of vehicle to the police station, where the secret cavities were cut through electric cutter and 54 packets of heroin were recovered from the same and to that extent the evidence of the prosecution was also confidence inspiring---Accused, the driver of the vehicle, was responsible for whatever was lying in the vehicle, he could not be absolved of his responsibility of the contraband recovered from the vehicle in question---Prosecution had successfully proved its case against the accused beyond any shadow of doubt---Trial Court had rightly awarded life imprisonment to the accused---Impugned judgment to the extent of accused did not warrant interference by the High Court.

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

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

----Ss. 9(c) & 29---Possession of narcotics---Possession of illicit articles---Presumption---Appreciation of evidence---Benefit of doubt---Accused, present on front seat of vehicle---Conscious knowledge of accused---Scope---Accused persons were allegedly found to be in possession of vehicle, the floor of which was found double---Vehicle and the accused persons were taken to the police station where the floor of the vehicle was opened through electric cutter and 54 packets of heroin were recovered from its secret cavities---Nothing incriminating was recovered from the personal possession of the accused, who was allegedly sitting on the front seat of the vehicle---Nothing was brought on record to show whether he had conscious knowledge of the contraband concealed in the secret cavities of the vehicle or he was just a front seater---Prosecution was duty bound to prove through cogent evidence that accused had conscious knowledge of the contraband recovered from the secret cavities of the vehicle---High Court accepted the appeal of the accused and set aside the impugned judgment to his extent.

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

----S. 29--- Possession of illicit articles--- Presumption--- Scope---Presumption is of possession of illicit articles unless the person being prosecuted rebuts such presumption.

(d) Criminal trial---

----Benefit of doubt---Scope---Court has to minutely appraise the evidence brought on record and if a single doubt arises therefrom, its benefit must be extended to the accused.

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

----S. 9--- Possession of narcotics--- Duty of court---Scope---Safe administration of justice mandates the court to be conscious of not the quantity of contraband but the quality of evidence produced in the court for reaching to a correct conclusion and just decision of the case.

Shahzada's case 2010 SCMR 841 rel.

Noor Alam Khan for Appellants.

Syed Sikandar Hayat Shah, A.A.G. for the State.

2020 P Cr. L J 387

[Peshawar]

Before Syed Muhammad Attique Shah and Sahibzada Asadullah, JJ

ZAHIR SHAH---Appellant

Versus

AYAZ ALI (DECEASED) through Brother and another---Respondents

Criminal Appeal No. 902-P of 2019, decided on 27th August, 2019.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Prosecution case was that the accused made firing upon the complainant party, as a result, complainant got hit and sustained injuries---Motive behind the occurrence was an oral altercation taken place between complainant and accused---Initially, the case was registered under S. 324, P.P.C. but later on the complainant succumbed to injuries, therefore, S. 302, P.P.C. was inserted in the FIR---Main thrust of the defence arguments was the dying declaration as to the bullets landed on the vital organs of the body and in such eventuality the injured lost his senses what to say of full alertness to the time and space---All was engineered to give an impression that all was well with the injured at the time of report---No denial to the fact that the report was prompt in all respects taken down in presence of the doctor duly verified by one of the eye-witnesses and endorsed by the doctor---Doctor was thoroughly cross-examined, who explained that the deceased then injured was taken down in presence of the doctor duly verified by one of the eye-witnesses and endorsed by the doctor---Doctor had explained that the deceased then injured was conscious and could talk---Defence was not contented with the report of the doctor, it questioned the eye-witness on that particular aspect of the case where too the reply came that the deceased then injured was conscious and oriented in time and space---Deceased in injured condition was then referred to Hospital for further treatment where he died---Complainant survived for long seven days and his survival for seven days alone had spoken of his ability to report---Record was silent to tell that what animosity the prosecution had towards the accused, even the defence could not point out previous ill-will or grudge, which the witnesses and the deceased were nourishing against the accused---Beside the deceased, two other eye-witnesses provided the ocular account and they gave specific reasons for their presence at the place of occurrence---Although, the deceased and eye-witnesses were inter related but they had no previous enmity or ill-will against the accused and they could not be termed as interested witnesses in absence of any previous enmity---Both witnesses remained consistent on each and every material point---Minor discrepancies were not helpful to the defence because the accused absconded and was arrested after long time and with the passage of time such discrepancies were bound to occur---Soon after the occurrence, the accused absconded---Circumstances established that the Trial Court had legally and properly scrutinized and assessed the evidence without any misreading and non-reading and the conclusion arrived at by it did not warrant any interference---Appeal was dismissed accordingly.

Niaz-ud-Din and another v. The State and another 2011 SCMR 725 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---Delay of thirty minutes in lodging FIR---Effect---Accused was charged for committing murder of the deceased---Record showed that it was 7.00 p.m. when the deceased received firearm injuries while in the company of witnesses and within 30 minutes i.e. at 7:30 p.m. report of deceased then injured was taken down by police, duly attested by the doctor, in the casualty of Rural Health Centre which excluded every possibility of consultation on the point of charge.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive---Proof---Accused was charged for committing murder of the complainant--- Motive for the occurrence was stated to be oral altercation took place between complainant and accused---Record showed that said altercation took place a little early, although the eye-witnesses were not present at the spot and they never stated that the accused and deceased exchanged hot words in their presence---Motive, in circumstances, was not proved.

(d) Criminal trial---

----Motive---Scope---Motive was not necessary component of crime---Mere absence of motive or weakness of motive attributed to accused would not in any manner adversely affect the prosecution case---Undoubtedly, motive could remain shrouded in mystery, as it was in the mind of the accused, who had committed the crime.

(e) Criminal trial---

----Abscondence---Scope---Abscondence of accused, although by itself was insufficient for conviction, was a strong source of corroboration for other direct and circumstantial evidence in the case.

Shabbir Hussain Gigyani for Appellant.

Aqil Muhammad for Respondent.

Kamran Hayat, AAG for the State.

2020 P Cr. L J 433

[Peshawar]

Before Rooh-ul-Amin Khan and Muhammad Naeem Anwar, JJ

KHADIM NABI---Appellant

Versus

RASHEED UR REHMAN and another---Respondents

Criminal Appeal No. 526-P of 2016, decided on 2nd October, 2019.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Sentence, enhancement of---Delay of about one hour in lodging FIR---Effect---Prosecution case was that accused and co-accused made firing upon the complainant party, as a result, son of complainant got hit and died at the spot---Dispute over landed property had been advanced as motive behind the occurrence---Record showed that occurrence was reported with promptitude within one hour wherein complainant had directly charged the accused and co-accused with specific role of firing at them and deceased---Promptly lodged report was the first circumstance which not only eliminated the probability and possibility of consultation and deliberation on the part of the complainant party in charging the accused but also lent support to the statement of complainant and eye-witnesses---Revision petition of complainant was allowed and sentence of convict was enhanced from life imprisonment to normal penalty of death, in circumstances.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Sentence, enhancement of---Prosecution case was that accused and co-accused made firing upon the complainant party, as a result, son of complainant got hit and died at the spot---Dispute over landed property had been advanced as motive for the occurrence---Ocular account of the occurrence had been furnished by two witnesses including complainant---Complainant reiterated the same episode/version of the occurrence as set forth by him in his initial report/FIR---Eye-witness corroborated the testimony of complainant---Said witness had charged the accused and co-accused for commission of offence---Un-shattered statement of said witness regarding shifting of the dead body of the deceased to the police station where complainant lodged FIR and his verification of the same established his presence at the spot---Said witnesses had been subjected to lengthy and taxing cross-examination by the defence but nothing beneficial to accused could have been extracted from them---Witnesses remained stuck to their stance and corroborated each other on all material events of the incident such as the day, date, time and place of occurrence and firing of the accused at them and the deceased---Certain un-explained events of the occurrence were clarified in their cross-examination by the defence itself---Both the eye-witnesses were consistent with each other on all material particulars of the occurrence---Recovery of blood from the place of the deceased and his last worn blood-stained garments coupled with positive serologist report in respect thereof corroborated the ocular account---Prosecution evidence did not disclose as to fire shots of which of the accused had hit which part of the body of the deceased but it would not create a mitigating circumstances because common intention could be proved through direct or circumstantial evidence---Circumstances and fact of the case showed that the deceased was demanding land/share of his maternal grandmother from accused, therefore, the accused had direct motive with the deceased to remove him from the way---Arrival of the accused persons at the spot armed with deadly weapons, waiting for the arrival of the deceased and then doing him away by indiscriminate firing were sufficient strong circumstances to prove motive in the mind of the accused and their pre-plan to commit the murder, which left no room for any mitigating circumstance to warrant lesser sentence---Circumstances established that the prosecution had proved the guilt of the accused upto the hilt through cogent and confidence inspiring ocular/direct evidence---Revision petition of complainant was allowed and sentence of convict was enhanced from life imprisonment to penalty of death, in circumstances.

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

----Ss.302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Motive---Proof---Prosecution case was that accused and co-accused made firing upon the complainant party, as a result, son of complainant got hit and died at the spot---Dispute over landed property had been advanced as motive for the occurrence---Motive as alleged in the FIR was also proved by the defence itself by putting a positive suggestion to witness to which he replied that the accused had a land dispute with the deceased, which was not resolved till the date of occurrence---Accused while making statement on oath under S. 340(2), Cr.P.C. had also affirmed that the deceased was demanding share of his maternal grandmother from him and his brother co-accused---Motive was proved---Revision petition was allowed and sentence of convict was enhanced from life imprisonment to penalty of death, in circumstances.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Related witness---Statement of---Reliance---Scope---Testimony of a witness, which was trustworthy and inspiring confidence could not be discarded on the ground of his close relation with the deceased---Close relative, if proved to be the natural witness of the occurrence, could not be termed as interested witness---Mere relationship of witnesses with the deceased would not detract from their veracity, as they had absolutely no motive of their own to involve the accused falsely by letting off the real culprits.

Saeed Akhtar and others v. The State 2000 SCMR 383 and Amal Sherin and another v. The State through A.G. PLD 2004 SC 371 rel.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Recovery of crime empties from the crime spot---Reliance---Scope---Record showed that 16 crime empties were recovered from the crime spot, which had not been sent to the Forensic Science Laboratory---Said pieces of evidence, corroborative in nature, would not advance the case of defence because after the occurrence the accused went into hiding thereby making the recovery of crime weapon difficult---In the present case, the ocular account furnished by the eye-witnesses being trustworthy and confidence inspiring was believable, therefore, in such eventuality there would be hardly any need of any corroboratory pieces of evidence which were taken into consideration as a matter of caution---Revision petition was allowed and sentence of convict was enhanced from life imprisonment to penalty of death, in circumstances.

Amal Sherin and another v. The State through A.G. N.W.F.P. PLD 2004 SC 371 and Mst. Sughara Begum and another v. Qaisar Pervez and others 2015 SCMR 1142 rel.

Shabbir Hussain Gigyani for Appellant.

Arshad Ahmad, A.A.G. for the State.

Noman ul Haq for Respondents.

2020 P Cr. L J 454

[Peshawar (Abbottabad Bench)]

Before Ijaz Anwar and Shakeel Ahmad, JJ

WAJID KHAN and others---Petitioners

Versus

The STATE and others---Respondents

Writ Petition No. 11-A of 2018, decided on 22nd October, 2019.

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

----S. 154---Registration of FIR---First Information Report under S. 154, Cr.P.C. can be registered by an informant about any occurrence and necessarily he may not be an aggrieved person.

(b) Administration of justice---

----Technicality---Scope---Where law required an act to be done in a particular manner it has to be done in that manner alone and such dictate of law could not be termed as technicality.

Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 rel.

(c) Interpretation of statutes---

----"Procedural" law and "special" law---Preference---Where there is conflict of procedural law on same subject, special law has to be applied.

Tanveer Hussain v. Divisional Superintendent, Pakistan Railways and 2 others PLD 2006 SC 249; PLD 2019 Isl. 1; 2019 PCr.LJ 504; PLD 2019 Sindh 209 and PLD 2019 Lah. 429 rel.

(d) Khyber Pakhtunkhwa Mineral Sector Governance Act, 2016 (I of 2017)---

----Ss. 54 & 83---Criminal Procedure Code (V of 1898), S. 154---Registration of FIR---Locus standi---Petitioners were aggrieved of registration of criminal cases against them by unauthorized persons---Validity---Provision of S. 83 of Khyber Pakhtunkhwa Mineral Sector Governance Act, 2016 being a special law authorized only licensing authority or person authorized by it in such behalf to report violation but from record no authorization from licensing authority was found--- Registration of FIR by an unauthorized person could not be considered as a legal FIR; provisions of S. 154, Cr.P.C. could be read with S. 83 of Khyber Pakhtunkhwa Mineral Sector Governance Act, 2016---Word 'informant' mentioned in S. 154, Cr.P.C. was to be considered as substituted with words 'licensing authority of the person authorized by it in this behalf' (Khyber Pakhtunkhwa Mineral Sector Governance Act, 2016) for purpose of registration of FIR---High Court quashed FIRs registered against petitioners as they were registered in violation of special law---Constitutional petition was allowed in circumstances.

Syed Mushahid Shah and others v. Federal Investigation Agency and others 2017 SCMR 1218 rel.

Taimoor Afzal Khan for Petitioners.

Sardar Muhammad Asif, Assistant Advocate General along with Mohsin Ali Khan, Deputy Director, Mineral Development, Hazara Division, Abbottabad for Respondents.

2020 P Cr. L J 471

[Peshawar (D.I. Khan Bench)]

Before Syed Muhammad Attique Shah and Shakeel Ahmad, JJ

FAISAL KHAN---Petitioner

Versus

The STATE and another---Respondents

W.P. No. 862-D of 2018 with C.M. No. 988-D of 2018, decided on 27th March, 2019.

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

----Ss. 5 & 23---Criminal Procedure Code (V of 1898), S. 561-A---Indulging in business of hundi/hawala---Constitutional petition for quashment of FIR---Adequate remedy---Petitioner contended that impugned FIR was illegal and against the provision of S. 23 of the Foreign Exchange Regulation Act, 1947, therefore the same was liable to be quashed---Validity---After registration of a criminal case, the Investigating Agency had a statutory duty and obligation to investigate a cognizable offence and without exceptional circumstances quashing of FIR during investigation would amount to throttling the investigation process which was not permissible under the law---If such process was scrutinized through constitutional jurisdiction, that would amount to interfere in the investigation of a criminal case---In the present case, a proper FIR had been registered against the petitioner regarding a cognizable offence, therefore, he could not be allowed, at such a stage, to avoid ordinary course of investigation and trial before court---High Court declined to interfere with the investigation of the case and that too, when the petitioner had adequate remedies under the law---Constitutional petition, being bereft of merit was dismissed.

Dr. Ghulam Mustafa v. The State and others 2008 SCMR 76 and Haji Sardar Khalid Salim v. Muhammad Ashraf 2006 SCMR 1192 rel.

Noor Gul Khan Marwat for Petitioner.

Hashmat-ur-Rehman, Assistant Attorney-General along with Circle Officer, FIA for Respondents.

2020 P Cr. L J 493

[Peshawar]

Before Ikramullah Khan and Ms. Musarrat Hilali, JJ

YAR SHAH---Appellant

Versus

The STATE through Advocate-General, Khyber Pakhtunkhwa---Respondent

Criminal Appeal No. 292-P of 2018, decided on 20th June, 2019.

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

----S. 9(c)--- Criminal Procedure Code (V of 1898), S. 340(2)---Possession of narcotics---Right of accused to give evidence on oath---Appreciation of evidence---Benefit of doubt---Mode of arrest---Ownership of vehicle---Registration of FIR after preliminary inquiry---Delay in sending samples of recovered contraband to Forensic Science Laboratory---Effect---Allegation against accused persons was that huge quantity of narcotics was recovered from the vehicle being occupied by them---Accused persons had recorded their statements on oath under S. 340(2), Cr.P.C. and had forwarded a different story in respect of their arrest and lodging of FIR against them by the Anti-Narcotics Force officials---Mobile data collected by the prosecution revealed that the accused persons were present at district 'P' at the time of their arrest---Vehicle from which contraband was recovered, was alleged to be in the ownership of a tout of Anti-Narcotic Force but the documents produced by him were found to be fake---Neither any case was registered against the said person nor was he shown to be fugitive of law although serious allegations were levelled by the accused persons that the vehicle was still in use of said person---Prosecution had failed to prove the recovery of contraband from the vehicle at the place and time shown by them in the FIR, as no recovery memo. was available in that respect---Search proceedings were allegedly conducted in the police station---Identification memo revealed that FIR number was mentioned in the same handwriting and other contents of the said memo suggested that all the memos were prepared after registration of the case meaning thereby that the case was registered after preliminary inquiry---Contraband allegedly recovered from the vehicle of accused persons was sent to the Forensic Science Laboratory with a considerable delay---Card of arrest did not reveal the time of arrest of accused while it bore the FIR number---Capital punishment could not be given on shaky kind of evidence---Case was full of doubts as far as the arrest of the accused, recovery of narcotics and even the possession over the vehicle of the accused persons was concerned---Appeals were allowed and the impugned judgments of conviction were set aside, in circumstances.

(b) Criminal trial---

----Duty of prosecution---Benefit of doubt---Scope---Prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, benefit of the same must go to the accused.

(c) Criminal trial---

----Benefit of doubt---Every benefit of doubt goes to accused regardless of the fact whether he has taken such plea or not.

Noor Alam Khan and Malik Amjad Inayat for Appellant.

Tariq Khan Kakar for the State.

2020 P Cr. L J 612

[Peshawar]

Before Qaiser Rashid Khan and Abdul Shakoor, JJ

QADEEM SHAH---Appellant

Versus

The STATE and another---Respondents

Cr. A. No. 606-P of 2015 with Cr. M. No. 608-P of 2019, decided on 5th September, 2019.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Prompt FIR---Absconding accused---Complainant lodged FIR against accused for committing qatl-i-amd of his father---Five empties of .30 bore were retrieved from the place of occurrence---Case being that of a single accused, there was no necessity for prosecution to send crime empties to Forensic Science Laboratory for report---Accused, after commission of offense, opted to abscond and remained fugitive from law for over three years---Without any plausible explanation---Prosecution was able to prove its case against accused through promptly lodged FIR, confidence inspiring ocular testimony, single accused motive, recovery of crime empties from spot, supportive medical evidence coupled with his over three years long abscondance---High Court maintained conviction and sentence awarded by Trial Court---Appeal was dismissed in circumstances.

Muhammad Khan and another v. The State 1999 SCMR 1220; Salim Khan and another v. The State 1998 PCr.LJ 990; Saeedullah v. Shah Nazar and another 2001 PCr.LJ 1740; Noor Alam v. The State 2003 PCr.LJ 2003; The State through Advocate-General, N.W.F.P, Peshawar v. Tawab and another 2002 PCr.LJ 377; Muhammad Khalid Khan v. Abdullah and others 2008 SCMR 158; Muhammad Sadiq v. The State 2017 SCMR 144 and Lal Khan v. The State 2006 SCMR 1846 ref.

Muhammad Sadiq v. The State 2003 SCMR 736; Mukhtiar v. The State 2003 SCMR 1479; Muhammad Ehsan v. The State 2006 SCMR 1857; Maqbool Khan v. The State 2008 SCMR 161; Farooq Khan v. The State 2008 SCMR 917; Faisal Mehmood and another v. The State and another 2010 SCMR 1025; Anwar Shamim v. The State 2010 SCMR 1791 and Takdir Samsuddin Sheikh v. State of Gujarat and another 2012 SCMR 1869 rel.

Altaf Khan for Appellant.

Mujahid Ali Khan, AAG for the State.

Muhammad Naeem Khan for the Complainant.

2020 P Cr. L J 653

[Peshawar]

Before Ahmad Ali, J

MUHAMMAD UMAIR---Petitioner

Versus

MAAZULLAH and another---Respondents

Criminal Miscellaneous Bail Application No. 3510-P of 2019, decided on 26th December, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497(2)--- Penal Code (XLV of 1860), S. 337-B--- Khyber Pakhtunkhwa Child Protection and Welfare Act (XIII of 2010), Preamble, Ss. 2(b), 50 & 53---Jurh, exposure to seduction abetting escape of child, child at risk---Bail, grant of---Further inquiry---Report was lodged after delay of about 3 days, without any plausible explanation---Medical report available on record suggested that no sexual act was committed with the victim---Except the solitary statement of complainant, no other incriminating evidence was available on the record to prima facie connect the accused with the commission of the crime---Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010 was specially introduced/enacted and promulgated with particular purpose to provide for care, protection, maintenance, welfare, training, education, rehabilitation and reintegration of 'child at risk' in Khyber Pakhtunkwa---Keeping the Preamble of the Act in juxtaposition with the definition "child at risk" as contemplated under S. 2(1)(e) of the Act coupled with the facts and circumstances of the case it could not be ascertained as to whether the alleged victim fell under the definition of "child at risk"---No sample for DNA test had been obtained either from the accused or victim---Investigation was complete and accused was no more required for the very purpose---Accused was a minor and his case called for further inquiry under S. 497, Cr.P.C.---Bail did not mean acquittal of accused but only change of custody from Government agencies to the sureties, who on furnishing bond took responsibility to produce the accused whenever required to be produced---Observations recorded in bail were tentative assessment and were not intended to influence the mind of the Trial Court, which was free to appraise the evidence strictly in accordance with law and merits of the case---Accused was admitted to bail, in circumstances.

Fazle Maula for Petitioner.

Syed Sikandar Hayat Shah, AAG for the State.

Syed Ajmal Hussain for the Complainant.

2020 P Cr. L J 705

[Peshawar (D.I. Khan Bench)]

Before Syed Muhammad Attique Shah, J

MUHAMMAD USMAN---Petitioner

Versus

The STATE and another---Respondents

Criminal M.B. No. 350-D of 2019, decided on 18th December, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 419---Prevention of Electronic Crimes Act (XL of 2016), Ss. 3/2/24---Punishment for cheating by impersonation---Bail, grant of---Objectionable pictures, which were uploaded through cell phone on whatsapp, were recovered from the possession of accused, which stigmatized the honour of not only complainant but her whole family---Accused had also committed the offence of blackmailing by intentionally and publically exhibiting, displaying and transmitting the nude photographs for the purpose of some illegitimate demands---Bail in offences punishable with less than ten years of imprisonment was ordinarily granted as a rule, however, in appropriate cases, the court might justifiably depart from the rule to deny the favour---Allegation against accused was not only supported by evidence but also his own statement---Discretionary jurisdiction in favour of accused could not be extended---Petition for bail being devoid of merits was dismissed, in circumstances.

Muhammad Yousaf Khan and Muhammad Naveed Mehsood for Petitioner.

Shah Fahd Ansari for Respondent No.2.

2020 P Cr. L J 729

[Peshawar]

Before Rooh-ul-Amin Khan and Ahmad Ali, JJ

ADIL KHAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 445-P of 2017, decided on 8th October, 2019.

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

----Ss. 302 & 34---Criminal Procedure Code (V of 1898), S. 164---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Unseen occurrence---Retracted confession--- Delay in recording confessional statement---Effect---Accused was alleged to have murdered the son of complainant---Nobody was initially charged by the complainant for the murder but later on accused and another were charged---Complainant had not disclosed his source of information for charging the accused---Witness to whom the co-accused had allegedly sold the mobile phone of deceased was not examined during the trial---Mobile phone of deceased produced in the court was not in sealed condition---Confession of accused persons, which was otherwise exculpatory in nature, was retracted during the trial---Confession was recorded with a delay of four days after arrest with no plausible explanation and such delayed confession could not be made basis for recording conviction on a capital charge---Longer the custody of accused, weaker the evidentiary value of confession---Conclusions drawn by trial court were not borne out of the evidence, therefore, the conviction was not sustainable---Criminal appeal was allowed.

NLR 2015 SCJ 121 ref.

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

----S. 164--- Confession--- Retracted confession--- Corroboration---Scope---Retracted confession was to be corroborated by some other independent evidence for recording conviction.

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

----S. 164---Confession---Retracted confession---Scope---Where accused confesses his guilt but pleads not guilty during trial, then prosecution is bound to prove guilt beyond any shadow of doubt.

2017 SCMR 713 rel.

AIR 2003 SC 3601; (2003) 8 SCC 180; 2017 SCMR 986; 2017 SCMR 898; 2012 SCMR 580 and 2016 SCMR 274 ref.

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

----S. 164---Confession---Delay in recording confessional statement---Effect---Confession recorded with a delay of four days after arrest, with no plausible explanation, cannot be made basis for recording conviction on a capital charge---Longer the custody of accused, weaker the evidentiary value of confession.

Said Rasool v. Sajid and 3 others 2012 PCr.LJ 1699 ref.

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

----S. 164---Confession---Identity of accused---Scope---Magistrate while recording confessional statement of accused had not affirmed the identity of accused---Questionnaire and certificate did not contain anything regarding the identity of accused like CNIC, identification marks or description of physical appearance---No identification parade was conducted in the presence of witnesses in order to confirm that the person making confession was actually the one who was roped in the case or anyone else---Confession, in circumstances was, held to have lost its evidentiary value and legal efficacy.

2017 PCr.LJ Note 86, p.85 ref.

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

----S. 164---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd and common intention---Confession, recording of---Procedure---Scope---Specific procedure for recording confession has been provided in S. 164, Cr.P.C. i.e. as soon as the accused is produced for recording his confessional statement, his handcuffs should be removed; Police officers should be turned out from the courtroom; accused should thereafter be informed that he is before a Magistrate and whether he makes any statement or not he would not be handed over back to the police which had produced him before the Court but would be remanded to judicial lock-up; accused should be given sufficient time to ponder over the matter; accused should be warned that he is not bound to make any statement but if he did so, it could be used against him as evidence---Once an accused, in a murder case, is entrusted to the custody of Magistrate, he is required to clear his courtroom from all the police officials/officers in uniform or in plain clothes and accused should be provided a chair and dice while disclosing that he is in safe and secure hands of the Magistrate---Magistrate is also required to infuse courage and confidence in the accused and provide assurance that in case he does not make a confession, he would not be handed over back to police---Simply filling the printed pro forma and dictating such an important matter to typist is not a faithful discharge of obligation under the law.

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

----S. 164--- Confession--- "Judicial confession"--- "Extra-judicial confession"---Distinction and Scope---Confessions may be divided into two classes, i.e. judicial and extra-judicial---Judicial confession is that which is made before Magistrate or Court in the course of judicial proceedings---Extra-judicial confessions is that which is made by the party elsewhere than before a Magistrate or Court---Extra-judicial confessions are generally those made by a party to or before a private individual which includes even a judicial officer in his private capacity or a Magistrate who is not especially empowered to record confessions under S. 164, Cr.P.C. or a Magistrate so empowered but receiving the confession at a stage when S. 164, Cr.P.C. does not apply---Confession made by an accused is irrelevant in a criminal proceedings if the confession appears to the Court to have been caused by any inducement, threat or promise, (i) having regard to the charge against the accused person, (ii) proceeding from a person in authority, and (iii) sufficient, in the opinion of the Court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

(h) Administration of justice---

----When a statute or rule directs that a particular act must be performed and shall be construed in a particular way then acting contrary to that is impliedly prohibited.

(i) Criminal trial---

----Benefit of doubt---Scope---Slightest doubt in the prosecution case is sufficient to grant acquittal to an accused.

Hussain Ali and Barrister Amir Khan Chamkani for Appellant.

Mujahid Ali Khan, AAG for the State.

Syed Abdul Fayaz for the Complainant.

2020 P Cr. L J 784

[Peshawar]

Before Muhammad Naeem Anwar, J

HABIB HASSAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 831-P of 2019, decided on 1st November, 2019.

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

----Ss. 3, 4 & 5---Frontier Crimes Regulation (III of 1901), Regln. 11 [since repealed]---Causing explosion likely to endanger life or property---Attempt to cause explosion---Making or possessing explosives under suspicious circumstances---Criminal reference to Council of Elders---Appointment of accused persons as Members of the Council of Elders---Maxim: Nemo judex in causa sua---Applicability---Accused was alleged to have caused explosion resulting in injury to several persons---Assistant Political Agent, on the opinion of Council of Elders, convicted the accused---Three co-accused persons, who were earlier arrested in the same case, were later on appointed as Members of Council of Elders and had given a verdict against the accused---Nothing was available on record to connect the accused with the commission of offence---Eye-witnesses of the occurrence were not examined in order to determine as to whether anyone was in fact injured or not---Members of the Council of Elders were made Judges not only against the accused but in fact they had become Judges for themselves which was against the basic principle of natural justice and Maxim: Nemo judex in causa sua that no person could judge a case in which he had an interest---Prosecution had not been able to prove its case against the accused beyond reasonable doubt---Appeal was allowed, resultantly, the conviction and sentences were set aside.

Government of N.W.F.P. v. Hasan Ahmad Haroon 2003 SCMR 104 and In Suo Motu Case No. 4 of 2010-P of 2012 PLD 2012 SC 553 rel.

(b) Maxim---

----Nemo judex in causa sua---Scope---No person can judge a case in which he has an interest.

Government of N.W.F.P. v. Hasan Ahmad Haroon 2003 SCMR 104 and In Suo Motu Case No. 4 of 2010-P of 2012 PLD 2012 SC 553 rel.

Sanaullah Khan for Appellant.

Atif Ali Khan, AAG for the State.

2020 P Cr. L J 819

[Peshawar]

Before Ikramullah Khan and Ahmad Ali, JJ

ALLAUDIN---Appellant

Versus

STATE through Prosecutor-General NAB, Islamabad and another---Respondents

Eh. Cr. A. No. 9-P of 2017, decided on 15th October, 2019.

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

----S. 9---Criminal Procedure Code (V of 1898), S. 225---Corruption and corrupt practices---Appreciation of evidence---Defective charge---Failure to specify proper provision of law---Accused was convicted and sentenced by Accountability Court without specifying as to under which provision of law he was sentenced---Validity---Neither investigating officer recommended exact provision/clause of S. 9 of National Accountability Ordinance, 1999 nor reference under S. 18(g) of National Accountability Ordinance, 1999 engendered such provision---Accountability Court while framing charge also shoved off to frame and had not charged accused with exact clause of S. 9 of National Accountability Ordinance, 1999---Reference was filed under Ss. 18(g) & 24 of National Accountability Ordinance, 1999 on recommendation of Investigating Officer---Accountability Court framed charge without citation of relevant clause under which charges were to be proved--- Prosecution was unaware as to which clause of S. 9 of National Accountability Ordinance, 1999 was applicable if at all committed by accused---Accountability Court also committed an error by convicting accused found guilty of offence under S. 9 of National Accountability Ordinance, 1999---Neither prosecution nor Accountability Court took care to prosecute and convict accused under exact clause of S. 9 of National Accountability Ordinance, 1999---High Court set aside judgment passed by Accountability Court as charge against accused was not properly framed and accused was misled by charge---Case was remanded.

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

----S. 222---Framing of charge---Object, purpose and scope---Purpose of charge is to tell accused as precisely and concisely nature of offence for which he is charged---Rational for laying down detailed procedure for framing charge is that accused should know nature of accusation so that he may give a proper reply and is not misled by vagueness in said accusation---Spectrum of charge should be that all eventualities and exigencies till conclusion of trial can be made with caution that no prejudice is caused to accused.

Dur Muhammad alias Duri and others v. The State 1994 MLD 1493; S.A.K. Rehmani v. The State 2005 SCMR 364; Dilsher v. The State PLD 2012 Sindh 307; Sarwar Shakir v. The State 1992 MLD 1253 and Zeshan and another v. Muhammad Farooq and others 2016 YLR Note 2 rel.

Farmanullah Khattak and Umer Farooq for Appellant.

Sohail Khan Jadoon, ADPG for the State.

2020 P Cr. L J 868

[Peshawar (Mingora Bench)]

Before Muhammad Ghazanfar Khan and Syed Arshad Ali, JJ

TAJAY alias TAJBAR and another---Appellants

Versus

Mst. HASINA BIBI and others---Respondents

Criminal Appeal No. 252-M of 2015 and Criminal Revision No. 56-M of 2015, decided on 13th November, 2018.

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

----Ss. 302 & 34---Pakistan Arms Ordinance (XX of 1965), S. 13---Qatl-i-amd, common intention, possessing illicit weapon---Appreciation of evidence---Accused were charged for committing murder of mother of the complainant---Motive behind the occurrence was stated to be a dispute over property---Prosecution case was based on the ocular evidence of three witnesses including complainant, her sister and a witness---Ocular account was supported by medical evidence---All the three witnesses were consistent and unanimous, however, the complainant in FIR had stated that all the accused were travelling with them in the same vehicle and when they alighted from the vehicle the incident took place---Witness, in her court statement, did not say about the company of the accused in the vehicle---All the witnesses during cross-examinations had stated that the co-accused/appellant put the pistol on the head of the deceased and fired at her, however, said statement was not given in the examination-in-chief---Even otherwise, conviction of the appellants was not solely based on the statement of complainant, she was supported by her sister and there was yet another independent witness to the occurrence---Occurrence having taken place at a public place/passage and the said independent witness had given justification for his presence at the spot, therefore, he could not be termed as chance witness in strict sense---Said witness although, in his cross-examination had admitted that he had a property dispute with acquitted accused and absconding accused but that dispute related to a period eight years before the occurrence which was settled, therefore, said witness had no interest to falsely implicate the present appellants, thus, his testimony was confidence inspiring and supported the statement of complainant and her sister---Time of occurrence was given as 12 O'clock in the FIR and the FIR was registered at 13:00 hours---According to the medical report the deceased was examined at 04:00 p.m. and the time between death and examination was given as less than six hours---Time of occurrence, hence could not be doubted---Medical Report supported the prosecution case---Circumstances established that the prosecution had proved its case against the accused---Appeal was dismissed accordingly.

2017 MLD 883; 2017 PCr.LJ 235; 2017 PCr.LJ 779; 2017 SCMR 344; 2017 SCMR 160; Mir Muhammad and 3 others v. The State 1972 PCr.LJ 1108; Saeedullah Khan v. The State 1986 SCMR 1027; Mst. Roheeda v. Khan Bahader and another 1992 SCMR 1036; Zarif Khan v. The State PLD 1994 Pesh. 176; Mir Muhammad v. The State 1995 SCMR 614; Moazam Shah v. Mohsan Shah and another PLD 2001 SC 458; Farmanullah v. Qadeem Khan and another 2001 SCMR 1474; Ijaz alias Billa and 3 others v. The State 2002 SCMR 294; Muhammad Tufail v. The State PLD 2002 SC 786; Abdul Majeed v. The State 2008 SCMR 1228; Ali Khan and another v. The State 2010 PCr.LJ 11 and Muhammad Ilyas and others v. The State 2011 SCMR 460 ref.

Roshan v. The State PLD 1977 SC 557; Mushtaq alias Shaman v. The State PLD 1995 SC 46; Farmanullah v. Qadeem Khan 2001 SCMR 1474; Muhammad Ahmad and another v. The State and another 1997 SCMR 89 and Iftikhar Ali v. The State 1998 PCr.LJ 2022 rel.

(b) Criminal trial---

----Witness---Statement of witness---Improvement---Scope---If evidence gave impression that the witness had made dishonest improvement in his/her statement in order to implicate the accused then his/her evidence was to be discarded---If, however, the witness had omitted some part of her/his earlier testimony, which was recorded in the FIR or in the court statement then the same might not be fatal to the prosecution case.

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

----Ss. 302 & 34---Pakistan Arms Ordinance (XX of 1965), S. 13---Qatl-i-amd, common intention, possessing illicit weapon---Appreciation of evidence---Medical evidence---Accused were charged for committing murder of mother of the complainant---Evidence of all the three eye-witnesses was that co-appellant put pistol on the head of the deceased and fired, however, the Lady Medical Officer in her report could not refer to any blackening or charring marks on the body of the deceased---Said objection was not worth consideration because it was quite possible that in cases where the pistol was stressed tightly against the skin of the body then the gases of the explosion and the flame, smoke and particles of gunpowder would all follow the track of the bullet in the body and would not necessarily cause charring marks or blackening on the body of victim.

Mir Muhammad and 3 others v. The State 1972 PCr.LJ 1108 rel.

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

----Ss. 302 & 34---Pakistan Arms Ordinance (XX of 1965), S. 13---Qatl-i-amd, common intention, possessing illicit weapon---Appreciation of evidence---Recovery of crime weapon on the pointation of accused---Reliance---Scope---Accused were charged for committing murder of mother of the complainant---Record showed that four firearm empties of .30-bore were recovered from the spot---On the pointation of co-accused/appellant one .30-bore pistol along with two cartridges was recovered from Baitak of accused---Both of the recovered items were sent to the Forensic Expert, and report revealed that only one crime empty was fired from .30-bore pistol which was recovered from the appellant, whereas three empties did not match with the said pistol, which gave the inference to the fact that both the accused fired at the deceased.

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

----Ss. 302 & 34---Pakistan Arms Ordinance (XX of 1965), S. 13---Qatl-i-amd, common intention, possessing illicit weapon---Appreciation of evidence---Non-recovery of household articles from the spot---Effect---In the present case, defence had objected that no household articles were recovered from the spot---Such discrepancy reflected on the working and lethargy of the Investigation Officer which would obviously not cause any harm to the prosecution case when it was otherwise established through ocular evidence.

Abdul Majeed v. The State 2008 SCMR 1228 rel.

Sajjad Anwar for Appellants (in Criminal Appeal No. 252-M of 2015).

Rafiq Ahmad, Assistant Advocate-General for the State (in Criminal Appeal No. 252-M of 2015 and Criminal Revision No. 56-M of 2015).

Sardar Zulfiqar for the Complainant (in Criminal Appeal No.252-M of 2015).

Sardar Zulfiqar for Petitioner (in Criminal Revision No.56-M of 2015).

Sajjad Anwar for Respondents/convicts (in Criminal Revision No. 56-M of 2015).

Date of hearing: 23rd October, 2018.

CONSOLIDATED JUDGMENT

SYED ARSHAD ALI, J.---Through this single judgment, we propose to decide this Criminal Appeal bearing No. 252-M/2015 as well as the connected Criminal Revision bearing No. 56-M/2015, as both these matters emanate from one and the same judgment dated 11.11.2015 rendered by the learned Additional Sessions Judge/Izafi Zilla Qazi, Matta Swat, in case FIR No. 270 dated 31.7.2014 under sections 302, 34, P.P.C. read with section 13, A.O. registered at Police Station Chuprial, Tehsil Matta District Swat, whereby the appellants Taj Muhammad and Tajay alias Tajbar were convicted under section 302(b), P.P.C. and sentenced to life imprisonment along with payment of compensation of Rs.200,000/- (two lacs) payable to the legal heirs of the deceased under section 544-A, Cr.P.C., or in default thereof, they were ordered to undergo further 6 months S.I. The said compensation shall be recovered as arrears of land revenue. The accused/appellant Taj Muhammad was further convicted under section 13, A.O and sentenced to one year simple imprisonment along with fine of Rs. 2,000/-, or in default thereof, he shall further undergo one month's S.I. However, both the accused/appellants were extended the benefit of section 382-B, Cr.P.C.

1. The complainant Mst. Husina Bibi, PW-6 on 31.7.2014 at 13:00 hours reported the matter to Said Ahmad Khan, ASHO PS Chuprial, PW-5 when she was accompanying the dead body of her mother wherein she charged the present accused/appellants Taj bar Khan and Taj Muhammad Khan for the murder of her mother Mst. Sakina, whereas acquitted accused Aqalmand and absconding accused Sher Baz Khan were given the role of catching-hold of the deceased. The occurrence in addition to the complainant was witnessed by Maiz Rahman son of Sher Zaman, PW-8, Mst. Shafiqa and Mst. Sahira, PW-7 sisters of the complainant. The motive was disclosed to be a dispute over property.

2. Investigation in the case was entrusted to Wazir Muhammad Khan, CIO PS Chuprial, PW-9, who inspected the spot along with other police officials on 31.7.2014. He has prepared site plan Ex.PW-9/1 on the pointation of the eye-witness/complainant Mst. Husina Bibi. He has taken into possession 4 empties of .30 bore in presence of witnesses from the spot vide recovery memo Ex.PW-­2/2. Likewise, he has also taken into possession blood stained earth from the spot in presence of witnesses vide recovery memo Ex.PW-2/1 and recorded statements of the witnesses under section 161, Cr.P.C. The Investigation Officer has prepared list of legal heirs of the deceased Ex.PW-9/2. In the present case, the ASHO during search of residential house of the accused Tajbar has recovered a rifle, in which respect, this PW has prepared a site plan Ex.PW-9/3 on the pointation of ASHO concerned and other witnesses of the said recovery of memo. He has also recorded statements of the witnesses under section 161, Cr.P.C. He has prepared correction memo Ex.PW-9/4 in respect of correction of the name of accused. He has taken into possession blood stained Qameez and Shalwar of the deceased in presence of witnesses vide recovery memo Ex.PW-1/1 being handed over to him by one Hazrat Shah on 02.8.2014. On 03.8.2014, he has sent the blood stained clothes of the deceased to the FSL vide application Ex.PW-9/5. During interrogation, the accused have confessed their guilt before the Investigation Officer, therefore, on their pointation necessary additions were made in the already prepared site plan Ex.PW-9/1. In this regard, in presence of witnesses pointation memo Ex.PW-4/1 has already been prepared. During investigation, on pointation of accused Taj Muhammad in presence of witnesses, the Investigation Officer had recovered a .30 bore pistol along with 2 cartridges from Baitak of the accused, which was stated to be the said pistol upon which a firing was made upon deceased Mst. Sakina, in respect of the recovery of the pistol along with 2 cartridges (Ex. P-1), pointaiton memo Ex.PW-4/2 was prepared. Upon recovery of pistol from accused Taj Muhammad Khan addition memo Ex.PW-9/6 in respect of section 13, A.O. was issued by the Investigation Officer. He has also prepared sketch memo Ex.PW-9/7 in presence of witnesses in respect of the said weapon of offence. He has produced the accused before the Court for custody vide application Ex.PW-9/10. On 05.8.2014 vide application Ex.PW-9/8 the accused were produced before the Court for recording of their confessional statements but the accused refused to record their confessions, therefore, they were sent to judicial lock up. On 06.8.2014 vide application Ex.PW-9/9 the recovered pistol along with 4 empty shells were sent to FSL. Since the accused Aqalzada and Sherbaz were avoiding their lawful arrest, therefore, the Investigation Officer vide application Ex.PW-9/11 had obtained warrants against them under section 204, Cr.P.C. and handed over the same to DFC Irfanullah for compliance. He has recorded statement of the DFC concerned under section 164, Cr.P.C. after compliance of the warrants and vide application Ex.PW-9/12 had obtained proclamations under section 87, Cr.P.C. from the Court. Vide application Ex.PW-9/13 the eye-witnesses Shafiqa Bibi, Maiz Rahman and Sahira Bibi were produced before the Court for recording of their statements under section 164, Cr.P.C. and after recording of their statements the same were placed on record. Upon receipt of the FSL report in respect of blood stained clothes of the deceased, the same was placed on record as Ex.PW-9/14 along with report of FSL with regard to weapon of offence i.e. .30 bore pistol Ex.PW-9/15. He has also issued card of arrest memo Ex.PW-9/16 of the accused Aqalzada and vide application Ex.PW-9/17 the said accused Aqalzada was produced in the Court for obtaining custody. Likewise, the said accused Aqalzada was also produced before the Court for further custody vide application Ex.PW-9/18. Upon completion of the investigation, complete challan was forwarded to the SHO concerned for onward submission.

3. During the course of trial, the prosecution has examined as many as 11 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 Zilla Qazi Matta, Swat convicted and sentenced the accused/appellants Tajay alias Taj bar and Taj Muhammad Khan vide the judgment impugned herein, whereas the co-accused Mal Zada was acquitted of the charges by extending him the benefit of doubt, hence these connected matters.

5. The learned counsel appearing on behalf of the appellants has argued that all the prosecution witnesses were interested, therefore, their testimony was wrongly believed by the trial Court in respect of guilt of the accused/appellants. He has further argued that the complainant while appearing in the Court had made dishonest improvements in her statement, therefore, she was an untruthful witness, hence, reliance on her statement was illegal for awarding life imprisonment to both the accused/appellants. He has also referred to the contradictions in the ocular testimony and the medical evidence because all the witnesses had stated that accused Taj Muhammad had put the pistol on the head of the deceased and then fired at her, whereas the medical evidence does not show that there were any charring marks on the head of the deceased. He went on arguing that although the complainant had stated that they were bringing household articles but no such household articles were recovered from the spot and lastly he referred to the main contradiction in the statement of the complainant by stating that in her FIR she had stated that the accused were accompanying them in the vehicle/ Suzuki carrying them to the place of occurrence, whereas in her Court statement she did not say about company of the accused and the deceased in the vehicle. He has placed reliance on "2017 MLD 883, 2017 PCr.LJ 235, 2017 PCr.LJ 779, 2017 SCMR 344 and 2017 SCMR 160". Conversely, the learned counsel for the complainant and learned A.A.G appearing on behalf of State while rebutting the arguments of learned counsel for the appellants have stated that in presence of the motive it is not expected from the complainant to substitute the accused-appellants who are her cousins for actual culprits. They have further stated that it was a daylight occurrence, duly witnessed by an independent eye-witness Maiz Rahman. Lastly, they have argued that the prosecution version is supported by medical evidence, recovery of empties from the spot and a pistol on the pointation of the appellant, therefore, the accused/appellants were rightly convicted by the trial Court. They have placed reliance on the case law cited as "Mir Muhammad and 3 others v. The State (1972 PCr.LJ 1108), Saeedullah Khan v. The State (1986 SCMR 1027), Mst. Roheeda v. Khan Bahader and another (1992 SCMR 1036), Zarif Khan v. The State (PLD 1994 Peshawar 176), Mir Muhammad v. The State (1995 SCMR 614), Moazam Shah v. Mohsan Shah and another (PLD 2001 Supreme Court 458), Farmanullah v. Qadeem Khan and another (2001 SCMR 1474), Ijaz alias Billa and 3 others v. The State (2002 SCMR 294), Muhammad Tufail v. The State (PLD 2002 Supreme Court 786), Abdul Majeed v. The State (2008 SCMR 1228), Ali Khan and another v. The State (2010 PCr.LJ 11 Quetta) and Muhammad Ilyas and others v. The State (2011 SCMR 460).

6. Arguments of the learned counsel were heard at length and record of the case was perused with their valuable assistance.

7. The close perusal of record would unfold that the complainant Mst. Husina, PW-6 along with other witness while accompanying the dead body of her mother in a vehicle met Said Ahmad Khan, ASHO, PW­5 at 13:00 hours on 31.07.2014 wherein she reported that she along with her mother Mst. Sakina had gone to Rodingar. On return when reached at kacha road Asharay, accused Tajbar Khan, Taj Muhammad Khan (present appellants), Aqalmand (acquitted accused) and Sher Baz (absconding accused) who were also in the vehicle and when they alighted from the vehicle the accused Taj Muhammad Khan, made firing on her mother, due to which her mother was hit at the head and died. Similarly, Tajbar Khan also made firing at her mother from which she received firearm injury and died, however, the accused Aqalmand and absconding accused Sher Baz caught-hold of her mother. The occurrence was stated to be witnessed by Maiz Rahman, PW-8, Mst. Shafiqa and Mst. Sahira, PW-7.Motive behind the occurrence was stated to be a dispute over property.

8. Lady doctor Sufia Khan, PW-3 on 31.07.2014 at 04:00 p.m. examined the dead body of Mst. Sakina and found the following injuries on her dead body:-

"On examination eyes and mouth closed. Lying straight single wound of entry of about 2-3 cm in size on the right eye, lateral side with underlying bone exposed.

A single wound of exit of about 4 cm in size with underlying bone and brain tissue exposed on the right temporal bone. Bony edges everted outwards.

Another single small wound of entry of about 1 cm in size is present on the right breast. In the middle with single wound of exit of about 1 cm is present on the back with edges everted outwards.

Internal post mortem done, brain damaged. All chest + abdominal organs are normal in size, and texture.

Nature of injury:- firearm

Cause of death: Hemorrhage to brain + lungs, shock.

The duration between the death of the deceased and examination was provided as less than six (6) hours in the said Ex.PW­3/1.

1. The record further discloses that edifice of the entire prosecution case is based on the ocular evidence of Husina Bibi, the complainant, PW-6, Sahira her sister, PW-7 and Maiz Rahman, PW-8. Regarding the mode and manner of occurrence, that at the place of occurrence the accused Aqalzada and Sher Baz had caught-hold of the deceased and both the appellants had fired at her and as result of their fire shots the deceased sustained injuries, who died on the spot, all the three (3) witnesses are consistent and unanimous, however, the complainant Husina Bibi in her First Information Report had stated that all the accused were travelling with them in the same vehicle and when they alighted from the vehicle the incident took place. Whereas in the Court statement she did not say about the company of the accused in the vehicle. Furthermore, during cross-examinations all the witnesses have stated that the accused/appellant No. 2 Taj Muhammad put the pistol on the head of the deceased and fired at her, however, this statement was not given in the examinations-in-chief. The question arises as to whether this variation would discard testimony of all three (3) witnesses. In order to appreciate the aforesaid variation, we can draw wisdom from the law laid down by the august Supreme Court of Pakistan in "Roshan v. The State PLD 1977 Supreme Court 557" wherein the following principles have been laid for appreciating the testimony of witnesses where there are certain variations in their statements:-

"To my mind the primary consideration in appraising the evidence given by witness is to determine firstly why has he offered to testify? Has he seen the occurrence? If so has the witness a motive to implicate a person who was not among the culprits or to exaggerate the part played by any of them? If a witness satisfies these two tests then the Court should watch the general demeanor of the witness in order to fudge the quality of his perception and his faculty to recall the past incidents. A witness may make contradictory statements on some of the details of the incident in respect of which he is deposing in Court. The variation may be due to mere lapse of memory or the confusion caused in his mind by a relentless cross-examination. Very often a witness gives an incorrect statement because he must answer every question regardless of the fact whether he answers to it or not. It is not uncommon that the cross-exam words in the mouth of witnesses and the presiding officer is not vigilant enough to check it. It is also common experience that, without any particular intent, even educated people exaggerate when describing an event. Some witnesses may be prone to it more than others. Mere contradictions therefore do not lead to the result that whatever the witness has said on the salient features of the case and which conforms to the other evidence on the record is to be thrown overboard". (Emphasis supplied).

The aforesaid law laid down by the august Supreme Court of Pakistan was re-affirmed in "Mushtaq alias Shaman v. The State (PLD 1995 Supreme Court 46) and Farmanullah v. Qadeem Khan (2001 SCMR 1474). Therefore, the evidence of a witness more particularly a related witness has to be seen with care and caution. If it gives impression that the witness has made dishonest improvement in his/her statement only in order to implicate the accused then his/her evidence is to be discarded. However, if the witness has omitted some part of her/his earlier testimony, which were recorded in the FIR or in the Court statement then the same may not fatal to the prosecution case, however, there can be no uniform standard of evaluation of the evidence of every witness. It depends on the ability, age and demeanor of a witness to reach at a conclusion that the said omissions were deliberate else it cast doubt on his/her presence on the spot.

1. The complainant Husina Bibi as evident from the record her age in the Court statement is given as 25 years, however, it also discerns from record and the statement of Said Ahmad Khan, ASHO, PW-5 that at the time of registration of FIR her age was 16/17 years. Similarly her sister Sahira who is another eye-witness to the occurrence is admittedly at the time of recording of her statement was 17/18 years of age. It is also evident from record that the father of complainant had earlier died and they had a property dispute with their cousins, the present appellants. Keeping in view her age and illiteracy non-mentioning of the fact that the accused were also travelling with them in the vehicle carrying them would not render her untruthful witness as there is a probability that she could not explain the minute details in her Court statement.

2. Even otherwise, conviction of the appellants was not solely based on the statement of complainant, she is supported by her sister Sahira (PW-7) and there is yet another independent witness to the occurrence i.e. Maiz Rahman, PW-8. Since the occurrence has taken place in a public place/passage and the said Maiz Rahman has given justification for his presence at the spot, therefore, he cannot be termed as chance witness in strict sense. Regarding the presence of a witness at public passage the august Supreme Court of Pakistan in case of "Muhammad Ahmad and another v. The State and another reported as 1997 SCMR 89" formed the following view:-

"Passerby not always a chance witness. Presence of a passerby at the place of occurrence taking place at a public thoroughfare or at a place frequented by the public generally cannot be rejected by describing him as a mere chance witness unless he fails to satisfactory explain his presence at or near the spot at the relevant time or his testimony suffers from any inherent weakness or contradiction."

The aforesaid law laid down by the august Supreme Court of Pakistan was also follow in case of "Iftikhar Ali v. The State reported as 1998 PCr.LJ 2022", wherein it was held by the Hon'ble High Court:-

"Passerby is not a chance witness if the crime is committed on a public thoroughfare or at a place frequented by the public generally."

Although, in his cross-examination he has admitted that he had a property dispute with acquitted accused Aqalzada and absconding accused Sher Baz but that dispute relates to a period 8 years before the occurrence which was settled, therefore, this witness has no interest to falsely implicate the present appellants, thus, his testimony is confidence inspiring and support the statement of complainant and her sister.

1. The FIR has been promptly lodged and the time of occurrence is also corroborated by the medical evidence. In the FIR the time of occurrence was given as 12 O'clock and the FIR was registered at 13:00 hours, whereas according to the medical report the deceased was examined at 04:00 p.m. and the time between death and examination was given as less than 6 hours. Therefore, there is no doubt in the time of occurrence, hence medical report supports the prosecution case.

2. As far as the objection of the learned counsel for the appellants that it is in the evidence of all the three (3) eye-witnesses that appellant Taj Muhammad put pistol on the head of the deceased and fired at her, however, the lady doctor in her report could not refer to any blackening or charring marks on the body of the deceased. This objection is not worth consideration because it is quite possible that in cases where the pistol is stressed tightly against the skin of the body, then the gases of the explosion and the flame, smoke and particles of gunpowder will all follow the track of the bullet in the body and will not necessarily cause charring marks or blackening on the body of victim. In Mir Muhammad's case 1972 PCr.LJ 1108, the Hon'ble High Court while relying on the accepted treaties, "the Identification of Firearms and Forensic Ballistics" by Major Sir Gerald Burrard (in 1956 Edition) has elaborately discussed this aspect of the case as follow:-

"However, Mr. Abdul Hafiz Memon, the learned Assistant Advocate-General, contended that no blackening or burning was discovered on the wound of the deceased Noor Ahmad. We would not go as far as that, but would say that the medical evidence is silent on this point. But this omission does not prove that the fatal gunshot was not fired at contact or close range to the body. According to Modi's Medical Jurisprudence and Toxicology (13th Edn, page 224), the blackening and burning may be absent if the weapon is pressed tightly against the skin of the body, as the gases of the explosion and the flame, smoke and particles of gunpowder will all follow the track of the bullet in the body. In the present case, it would appear that the shot-gun, when fired, was pressed tightly against the body of Noor Ahmad."

Therefore, the said objection of the learned counsel for the appellants is misconceived.

1. The prosecution case also lends support from recovery of 4 firearm empties of .30 bore which were recovered from the spot vide recovery memo Ex.PW-2/2 and on pointation of the accused/appellant Taj Muhammad from his Baitak a .30 bore pistol along with 2 cartridges Ex.P-1 was recovered vide recovery memo Ex.PW-4/2 on 09.8.2014. Both of the recovered items were sent to the Forensic Expert, which he received on 07.08.2014 and according to his report Ex.PW-9/15 only one crime empty marked as Cl was fired from 30 pistol which was recovered from appellant Taj Muhammad whereas 3 empties did not match with the said pistol, which gives inference to the fact that both the accused fired at the deceased.

2020 P Cr. L J 895

[Peshawar (Abbottabad Bench)]

Before Ijaz Anwar and Shakeel Ahmad, JJ

HASHIM---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 203-A of 2018, decided on 10th October, 2019.

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

----Ss. 376 & 342---Rape and wrongful confinement---Appreciation of evidence---Benefit of doubt---Absence of marks of violence---Old healed tear of hymen---Non-availability of DNA report---Delayed FIR---Scope---Accused was alleged to have raped the complainant in the shop allegedly owned by co-accused---Medical evidence showed no marks of violence or injury on any part of the body of victim---Medical officer had admitted that old healed tear of hymen, as was found on the person of victim, meant that the first sexual contact had taken place more than two weeks back---Victim was examined after seven days of the occurrence---Swabs taken from posterior fornix and cervix were returned with the observation that possibility of semen detection after three days was very rare but it was known phenomena that semen remained active and alive upto 17 days at the best---Eye-witness had nowhere stated that he had seen the accused committing zina with the victim---First Information Report was lodged with a delay of six days and the explanation forwarded by complainant was that after the occurrence she had gone along with her mother to her father in another district and after returning back the matter was reported to the police---Complainant, in order to support her stance, had neither produced her mother nor her father and the explanation was too common to be given weight---Appeal was allowed and the accused was acquitted of the charge, in circumstances.

Mst. Sherman v. The State 2002 PCr.LJ 831 ref.

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

----Ss. 109, 376 & 342---Abetment, rape and wrongful confinement---Appreciation of evidence---Benefit of doubt---Pointation towards place of incident---Acquittal of principal accused---Scope---Accused was alleged to have raped the complainant in the shop allegedly owned by co-accused--- Nothing was recovered or discovered or nothing new was added on the pointation of co-accused, therefore, pointation of co-accused towards the shop did not carry weight---No evidence was available to show that the shop in question belonged to co-accused---Eye-witness had not stated that the co-accused had closed the door of the shop and had facilitated the crime---Prosecution had failed to prove the charge against the principal accused, therefore, conviction and sentence under S. 109, P.P.C. was not sustainable---Appeal was allowed and the co-accused was acquitted of the charge, in circumstances.

(c) Criminal trial---

----Witness---Question by party to his own witness---Hostile witness---Scope---Statement of a hostile witness cannot be discarded altogether and has to be considered like the evidence of any other witness, but with a caution.

Zahid Khan v. Gul Sher and another 1972 SCMR 597 and Muhammad Sadiq v. Muhammad Sarwar 1979 SCMR 214 ref.

(d) Criminal trial---

----Benefit of doubt---Scope---Conviction must be based on evidence beyond any shadow of doubt because the damage resulting from erroneous sentence is irreversible and it is better to acquit a guilty person than to punish an innocent one.

Mishkatul Msabili (Eng. Translation by Fazl-ur-Karim) Vol. II, p. 544 Law Publishing Company, Lahore rel.

(e) Criminal trial---

----Age, determination of---Scope---Determination of age by a medical officer is always probable determination and one cannot say with certainty about the age of the person examined by the medical officer.

Abdul Saboor Khan for Appellant.

Sardar Muhammad Asif, Assistant A.G. for the State.

Sardar Basharat for the Complainant.

2020 P Cr. L J 952

[Peshawar]

Before Qaisar Rashid Khan and Ahmad Ali, JJ

NASAR SHAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 1016-P of 2019, decided on 23rd October, 2019.

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

----Ss. 148, 149, 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S. 367---Rioting, armed with deadly weapon, common object, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism---Appreciation of evidence---Language and contents of judgment---Scope---Prosecution case mainly hinged upon Ss. 148 & 149, P.P.C. on the score that the accused being the members of unlawful assembly in prosecution of the common object of that assembly, being armed with firearms, rioted the police party and as a result thereof two police personnel got injured which established aggression of the accused party and therefore Ss. 148 & 149, P.P.C. were added---Firing at the police party, as per prosecution episode, was made by five number of persons of whom the accused was arrested on the spot---Trial Court had left Ss. 148 & 149, P.P.C. unattended but found that accused could only be awarded sentence under Ss. 324/34, 353/34, P.P.C. and Ss. 7(c), 7(h) of Anti-Terrorism Act, 1997 when Ss. 148 & 149, P.P.C. were proved---Trial Court although had specifically mentioned that the prosecution had proved its charges against the accused except S. 302, P.P.C. which meant that Ss. 148 & 149, P.P.C. were also proved but no finding with regard to Ss. 148 & 149, P.P.C. were given---Mandate of subsections (2) and (3) of S. 367, Cr.P.C. required that where the court found the accused guilty of one or more offences, then separate sentence must be explicitly awarded at the time of recording conviction---Accused person could not be presumed or implied to be convicted under Ss. 148 & 149, P.P.C.---High Court, without going into the merits of the case, remanded the case to the trial court for re-writing the judgment---Appeal was allowed.

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

----Ss. 367 & 537---Language and contents of judgment---Finding or sentence when reversible by reason of error or omission in charge or other proceedings---Specific sentence to be passed---Scope---Law provides for passing of specific sentence for a distinct offence and if it is not awarded, it cannot be construed that same was impliedly awarded as it is violative of the mandatory provisions of subsections (2) and (3) of S. 367, Cr.P.C., which cannot be cured under the provisions of S. 537, Cr.P.C.

Irfan and another v. Muhammad Yousaf and another 2016 SCMR 1190; Farrukh Sayyar and 2 others v. Chairman, NAB, Islamabad and others 2004 SCMR 1 and Sahab Khan and 4 others v. The State and others 1997 SCMR 871 ref.

Muhammad Saleem Mardan for Appellant.

2020 P Cr. L J 1001

[Peshawar]

Before Ahmad Ali, J

ADNAN KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal M. B.C.A. No. 2748-P of 2018, decided on 2nd December, 2019.

Criminal Procedure Code (V of 1898)---

----Ss. 497(5) & 345---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Pre-arrest bail of the accused was confirmed on the basis of compromise---Nothing was mentioned about any condition in the impugned order which called for the cancellation of bail---Besides, compromise deed revealed that no time limit for the fulfillment of promise was fixed, therefore, it could not be held that the accused had renegaded his promise---Nothing was there to suggest the misuse of the concession of bail or tampering with the evidence and investigation process---Stipulation of the cancellation of bail in the compromise deed at bail before arrest stage and the consent of parties could not override the law---Provisions of S. 497(5), Cr.P.C., could not be made subservient to the consent of complainant--- Prerogative of the Court to cancel the bail could not be shifted to complainant on the basis of mutual agreement between the parties---Grant of bail on the basis of condition could not be sustained as principles for the grant of bail and cancellation thereof were altogether different---No reasonable ground existed for the cancellation of bail granted to the accused---Application for cancellation of bail was dismissed, in circumstances.

Azhar Yousaf Khan for Petitioner.

Moeen ud Din Humayun, AAG for the State.

Noman ul Haq Kakakhel for Respondent No.2.

2020 P Cr. L J 1067

[Peshawar]

Before Lal Jan Khattak and Ahmad Ali, JJ

FAZL-E-HAQ---Petitioner

Versus

SUPERINTENDENT CENTRAL PRISON MARDAN and 2 others---Respondents

W.P. No. 5617-P of 2019, decided on 21st November, 2019.

Criminal Procedure Code (V of 1898)---

----S. 35---Penal Code (XLV of 1860), S. 65---Constitution of Pakistan, Art. 199---Sentence in case of conviction of several offences at one trial---Maximum term of punishment---Limit to imprisonment for non-payment of fine, when imprisonment and fine awardable---Concurrent running of sentences---Scope---Petitioner, after serving his substantive sentence, prayed for concurrent running of sentence awarded to him in default of payment of fine with the substantive sentence---Validity---Sentence of default in imprisonment in lieu of default in payment of fine was a separate and distinct punishment and was in addition to the main sentence or substantive sentence---Court had no power to direct that sentence in default of payment of fine would run concurrently with substantive sentences or even when sentences of fine were awarded for more than one offences---Section 65, P.P.C. only governed the question of sentence in lieu of default in payment of fine and S. 35, Cr.P.C. dealt with the substantive punishments---Section 65, P.P.C. referred to 1/4th of the term of "sentence" and not of "sentences"---Trial Court had fully complied with the governing provision and shown leniency in awarding the default sentence, which could not be reduced by High Court while exercising jurisdiction under Art. 199 of the Constitution---Constitutional petition, being meritless, was dismissed in limine.

Mian Khan v. Government of the Punjab and others 2005 PCr.LJ 627 and PLD 2008 Lah. 497 ref.

Shabir Hussain Gigyani for Petitioner.

2020 P Cr. L J 1094

[Peshawar]

Before Lal Jan Khattak and Musarrat Hilali, JJ

ABDUL GHANI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 809 of 2017, decided on 19th September, 2019.

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

----Ss. 265-K & 161---Power of court to acquit accused at any stage---Examination of witnesses by police--- Accomplice--- Accomplice is unworthy of credit---Scope---Prosecution case was that the main accused, since acquitted, disclosed to Investigating Officer that in presence of the appellant another co-accused had sought his help to get the consignment cleared for export wherein the contraband was being smuggled---Statement of main accused recorded under S. 161, Cr.P.C. was not admissible in evidence---No other material was available on case file which could show the appellant's nexus with the smuggling bid---No probability of the appellant being convicted existed---High Court observed that further proceedings in the case would be nothing but a futile exercise which had to be curbed under S. 265-K, Cr.P.C.---Appeal was allowed and the appellant was acquitted of the charge.

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

----S. 265-K---Power of court to acquit accused at any stage---Scope---Language of S. 265-K, Cr.P.C. envisages that nothing in Chapter XXII-A, Cr.P.C. shall prevent a court from acquitting an accused at any stage of the case, if, after hearing the prosecution and the accused and for reasons to be recorded, it considers that there is no probability of the accused being convicted of the charge.

Noor Alam Khan for Appellant.

Tariq Kakar, Special Prosecutor for ANF.

2020 P Cr. L J 1155

[Peshawar]

Before Musarrat Hilali and Ahmad Ali, JJ

ATTIQ UR RAHMAN---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION UNIVERSITY CAMPUS, PESHAWAR and 4 others---Respondents

Writ Petition No. 3450-P of 2015 with C.M. No. 378-P of 2018, decided on 5th December, 2019.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 154 & 156---Ex-officio Justice of Peace---Powers of---Investigation into cognizable case---Scope---Object of S. 22-A, Cr.P.C.---Petitioner assailed order of Ex-officio Justice of Peace whereby his application for registration of FIR was dismissed---Petitioner had alleged that respondent along with three others had tried to abduct him and his wife but due to the intervention of people on the spot they set them free---Record revealed that upon the complaint of petitioner, the local police had lodged report on the same day---Permission of the concerned Magistrate under S. 156(3), Cr.P.C. was sought for conducting proper inquiry to substantiate the allegations of petitioner---Petitioner's complaint was dismissed after inquiry by the local police---Proceedings in due course of law were already taken up in the matter in issue and when the Magistrate had taken cognizance thereof and had proceeded with it in due course of law, filing of a subsequent petition under S. 22-A, Cr.P.C. was just to hamper the process of law as well as the enquiry proceedings--- Provisions of S. 22-A, Cr.P.C. were not meant for providing shortcut to the interested parties but were to be invoked when police functionaries were avoiding to perform legal duties---Ex-officio Justice of Peace had validly passed the impugned order as such it needed no interference---Constitutional petition was dismissed.

2016 PCr.LJ 1733 ref.

Malik Nasrum Minallah for Petitioner.

Syed Qaiser Ali Shah, AAG for the State.

Syed Abdul Fayaz for Police Officials.

2020 P Cr. L J 1212

[Peshawar]

Before Waqar Ahmad Seth, C.J. and Ijaz Anwar, J

MUSHTAQ AHMED---Petitioner

Versus

The STATE through Deputy Attorney General, Khyber Pakhtunkhwa, Peshawar and 2 others---Respondents

W.P. No. 2243-P of 2015, decided on 11th March, 2020.

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

----Ss. 9(c) & 26---Delinquent officers, proceedings against--- Petitioner was complainant who registered FIR in a case where 68 kilograms of heroin was recovered from accused---Accused was acquitted by Trial Court and authorities were directed to initiate departmental proceedings against the petitioner---Validity---Benefit of doubt was extended to accused by certain personal observations of Trial Court which was beyond the authority of Trial Court---Fact that accused was heroin addict prevailed upon Trial Court who observed that it was unimaginable that he could be trusted through whom transportation of such items could be carried out---Observations of Trial Court to the extent of issuance of direction for initiation of departmental proceedings against petitioner was uncalled for and was not maintainable---Though there were strong grounds for acquittal of accused but recovery and arrest could not be termed as hit by provision of S. 26 of Control of Narcotic Substances Act, 1997---High Court set aside the observations and order rendered by Trial Court against petitioner--- Constitutional petition was allowed accordingly.

Muhammad Majeed for Petitioner.

Qazi Babar Irshad, A.A.G. for the Federation.

Muhammad Tariq Kakar for Respondent-ANF.

2020 P Cr. L J 1263

[Peshawar]

Before Waqar Ahmad Seth, C.J. and Abdul Shakoor, J

AMAN-UL-HAQ---Petitioner

Versus

STATE through Advocate General, Khyber Pakhtunkhwa and 8 others---Respondents

W.P. No. 4626-P of 2018, decided on 18th June, 2019.

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

----S. 36---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6---Report of result of test or analysis by Government Analyst---Scope---Section 36(1) of the Control of Narcotic Substances Act, 1997 read with R. 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, mandates that report must be in the prescribed Form and a complete mechanism is to be adopted by Chemical Examiner upon receipt of samples and a report is to be submitted by him referring to the necessary protocols, and mentioning the tests applied, in quadruplicate in "the prescribed form" and if the report prepared by him is not prepared in the same manner then it may not qualify to be called a report in the context of S. 36 of the Control of Narcotic Substances Act, 1997, so as to be treated as a conclusive proof of recovery of narcotic substances from an accused person.

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

----Ss. 35 & 36---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 3 & 6---Qualification of Government Analyst---Report of result of test or analysis by Government Analyst---Scope---Transmission in safe custody of the narcotics to Testing Laboratory and compliance of the Act/Rules are mandatory in nature in respect of selection of Government Analysts and their results/analysis as per S. 36(1), Control of Narcotic Substances Act, 1997 and R. 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001 qua the results/analysis in the manner i.e. (i) all the tests and analysis of the alleged drug (ii) the result of each test(s) carried out along with the consolidated result and ( iii) the name of all the protocols applied, to carry out those tests---Provisions of the Act are to be complied with in letter and spirit, without fail and in case of failure, disciplinary action purportedly is to be taken in accordance with law---Government Analyst while giving the details of tests/analysis, the results for each test and the test protocols applied in the report, must remember that under S. 36 of the Act, the report of the Government Analyst, whilst being admissible in evidence without formal proof, is rebuttable and can be questioned, but the court is free to examine and assess whether it meets the requirements of the report under the Act and the Rules, even if the report is not rebutted by the accused---Concept of testing under the Act, the establishment of the testing laboratories, test and analysis and the report of the Government Analyst are premised on the assumption that the Government Analyst possesses the prescribed qualification provided under S. 35 of the Act read with R. 3 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, and any deviation therefrom would affect the interest of public at large, not sustainable in the eye of law.

2018 SCMR 2039 and Ikramullah and others v. The State 2015 SCMR 1002 rel.

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

----Ss. 35 & 36---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 3 & 6---Qualification of Government Analyst---Report of result of test or analysis by Government Analyst---Scope---Narcotic samples in each and every case are to be sent to such person, defined under S. 35, Control of Narcotic Substances Act, 1997 read with R. 3 of the Control of Narcotic Substances (Government Analysts) Rules, 2001---Emphasis that report of the Government Analyst must carry out the information required in the R. 6, Control of Narcotic Substances (Government Analysts) Rules, 2001 is to ensure that conviction under the Control of Narcotic Substances Act, 1997 is based on reliable and credible report---Court can apply purposive interpretation of the statue to bridge the gap between the law and the safe administration of criminal justice system based on prudence, caution, circumspection and judiciousness---Aim of interpretation is to realize the purpose of the law and the purpose that text serves---Law is, thus, a tool designed to realize the social goal---Law is intended to ensure that social life of the community, on the one hand, and human rights, equality and justice on the other hand.

(d) Interpretation of statutes---

----Object of interpretation---Scope---Aim of interpretation is to realize the purpose of the law and the purpose that the text serves---Law is, thus, a tool designed to realize the social goal---Law is intended to ensure that social life of the community, on the one hand, and human rights, equality and justice on the other hand.

Noor Alam Khan for Petitioner.

Manzoor Khan Khalil and Wilayat Khan, AAG for Respondents.

2020 P Cr. L J 1322

[Peshawar]

Before Rooh-ul-Amin Khan and Ishtiaq Ibrahim, JJ

MOMIN KHAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 459-P of 2017, decided on 30th October, 2019.

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

----Ss. 302, 324, 337-F(iii) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mutalahimah, common intention---Appreciation of evidence---Benefit of doubt---Chance witnesses---Non-availability of justification for their presence at the place of occurrence---Un-natural conduct of eye-witness---Scope---Prosecution case was that the accused party made firing upon the complainant party, due to which three persons sustained injuries---Complainant/injured succumbed to the injuries---Previous blood feud between the parties had been alleged as motive behind the occurrence---Ocular account of the incident had been furnished by one eye-witness---Record showed that in examination-in-chief, the eye-witness had narrated the same story as set forth by the deceased then injured in his initial report---Eye-witness, in cross-examination had deposed that he and witness (abandoned) accompanied the deceased, then injured, to the hospital where the police in their presence recorded his statement---Said witness further deposed that other witness did not accompany them to the hospital, rather he himself reached the hospital---Contrary to the statement of eye-witness, other witness deposed that he accompanied the deceased, then injured, to the hospital, who reported to police in injured condition in presence of the Medical Officer and he verified his report---Testimony of witness excluded the presence of eye-witness at the time of shifting the deceased, then injured, to the hospital and at the time of report allegedly made by the deceased then injured---Perusal of initial report revealed that it did not bear the signature or thumb impression of alleged eye-witness---No explanation, much less, plausible had been furnished by eye-witness as to why eye-witness or abandoned witness did not sign/thumb impressed the report of the deceased then injured as verifier---Similarly, the author of murasila had also not furnished any explanation to the effect that when he recorded the report of the deceased then injured where said witnesses were shown as eye-witnesses then why the report was not verified through them---Contradicting the report, eye-witness deposed that after 10/15 minutes the deceased then injured was referred to other hospital, however, neither he nor abandoned witness accompanied the deceased then injured to other hospital despite the fact that the injured was the nephew of the said witnesses---Said part of statement of eye-witness was squarely against the natural conduct of an uncle---Eye-witness along with abandoned witness though accompanied the deceased then injured to the hospital but what prompted him immediately to leave his nephew on mercy of other relatives and did not accompany him to other hospital---Said witness further deposed that enmity of the accused was not only confined to the deceased then injured, rather it was also with them---Site plan showed that though the eye-witness and abandoned witness had been shown present at a distance of 8 to 14 paces from the accused, but no one from them had received a single firearm injury despite that they were under the indiscriminate firing of four accused armed with lethal weapons, and were at their mercy---Prosecution did not claim that the purported eye-witnesses took shelter during the firing---Escape of the witnesses or letting them off by the accused so as to stand witnesses against them was beyond the comprehension of a prudent mind---Said witnesses had been shown in the site plan near wall of a Hujra, but no bullet marks or spent bullet had been noticed by the Investigating Officer on the wall of the said Hujra behind them---Circumstances established that purported eye-witness was not eye-witness of the occurrence--- Said eye -witness had failed to establish his presence at the spot at the time of occurrence through cogent and reliable evidence, therefore, his testimony was disbelieved---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324, 337-F(iii) & 34---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mutalahimah, common intention---Appreciation of evidence---Benefit of doubt---Withholding material evidence---Effect---Prosecution case was that the accused along with his co-accused duly armed with firearms made firing upon the complainant party, due to which three persons sustained injuries---Complainant/injured succumbed to injuries---Injured witness was an independent witness being not related to either party, therefore, his testimony could play a decisive role in the case---Non-production of said witness amounted to withholding the best available evidence, as such an adverse inference within the meaning of Art. 129(g) of Qanun-e-Shahadat, 1984 would be drawn against the prosecution that had he been produced he would not have supported the prosecution case---Appeal against conviction was allowed, in circumstances.

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

----Art. 46---Dying declaration---Scope---Dying declaration was a statement of a deceased person as to cause of his death when he was at the point of death---No doubt, sanctity was attached to a dying declaration because a dying man was not expected to tell lies, but being weak kind of evidence, it required close scrutiny and corroboration from circumstantial evidence.

Mst. Zahida Bibi v. The State PLD 2006 SC 255 rel.

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

----Ss. 302(b), 324, 337-F(iii) & 34---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mutalahimah, common intention---Appreciation of evidence---Dying declaration, reliance on---Scope---Prosecution case was that the accused along with his co-accused duly armed with firearms made firing upon the complainant party, due to which three persons sustained injuries---Complainant/injured succumbed to injuries---No doubt, author of murasila and Medical Officer in his Medico Legal Report had mentioned that the deceased, then injured, was conscious and well oriented in time and space, but the firearms entry wounds on the person of the deceased, then injured, reflected otherwise which made the statements of the Medical Officer and author of murasila doubtful---Autopsy report of the deceased then injured, showed that he had sustained firearm entry wound on right side of forehead measuring above lateral boarder of eyebrow with corresponding exit on right side face below eye from nose---Deceased, then injured, had also sustained firearm entry wound on right side front of his abdomen with corresponding exit on back of his abdomen---Capability and ability of the deceased, then injured, to make statement/talk was beyond the comprehension of a prudent mind in view of the said injuries on most vital parts---Circumstances clearly suggested that the initial report had not been recorded on the statement of the deceased, then injured, rather it was a manipulated document which did not find corroboration from any direct or circumstantial evidence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324, 337-F(iii) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mutalahimah, common intention---Appreciation of evidence---Recovery of crime empties---Reliance---Scope---Prosecution case was that the accused along with his co-accused duly armed with firearms made firing upon the complainant party, due to which three persons sustained injuries---Later on, complainant/injured succumbed to injuries---Record showed that no crime empty had been shown to have been recovered from the place of the accused---No crime weapon had been shown recovered either from direct or indirect possession of the accused---Three crime empties were allegedly recovered from the spot---Said crime empties had not been sent to the Forensic Science Laboratory, so as to ascertain the number of accused---Such recovery was of no avail to the prosecution---Appeal against conviction was allowed, in circumstances.

Jalal-ud-Din Akbar-e-Azam Gara for Appellant.

Mujahid Ali Khan, AAG for the State.

Sareer Ahmad for the Complainant.

2020 P Cr. L J 1361

[Peshawar (Bannu Bench)]

Before Musarrat Hilali and Sahibzada Asadullah, JJ

RAFAQAT ULLAH alias PAKA---Appellant

Versus

UMAR FAYAZ (DECEASED) through brother Muhammad Riaz and another---Respondents

Criminal Appeal No. 323-B of 2019 with Murder Reference No. 87-B of 2019, decided on 25th February, 2020.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Benefit of doubt---Chance witness---No justification for presence of witness at the place of occurrence---Un-natural conduct of the eye-witness---Effect---Prosecution case was that the complainant in injured condition reported that accused, duly armed with firearm made firing at him, as a result of which, he sustained injuries---Later on, the injured complainant succumbed to the injuries---Ocular account of the incident had been furnished by the brother of the complainant, who had introduced himself as an eye-witness---Said witness stated that accused came and started firing at his brother---After receiving the fire shot, the deceased then injured, fell to the ground and the accused decamped from the spot---Eye-witness further stated that he asked the nearby people to arrange a vehicle for transportation of the injured to the hospital---Meanwhile his uncle also reached to the spot, who took the injured in a pickup to the hospital accompanied by other co-villagers and that he was asked to stay at the spot---High Court observed that if it was presumed that the complainant was well oriented in time and space then despite mentioning other people as witnesses of the occurrence the complainant would have straightaway named his brother as the eye-witness but he was not named so---If alleged eye-witness was present there, he would have been named in the report by the complainant and he would have signed the FIR as a rider---When the complainant received firearm injuries, then why eye-witness being present on the spot did not accompany his injured brother to the hospital to save his life---Presence of eye-witness became further doubtful as one of the marginal witnesses stated that he along with the Investigating Officer reached to the spot at 10.35 a.m. and that no one from the locality including the eye-witness was present there---Marginal witness stated that after arrival at the spot the Investigating Officer informed the eye-witness to reach to the spot and accordingly he did---Prosecution, in circumstances, could not prove presence of the eye-witness on the spot but it was after the incident that eye-witness attracted from the village on getting information regarding the incident---Circumstances established that the witness was not present on the spot---If the eye-witness was present on the spot then why he remained there despite the fact that his brother after receipt of the fire shots had not then died---Prime purpose with a brother present on the spot would be nothing but to rush to the hospital and to save the life of his brother---Said witness had shown an unnatural conduct and the way he behaved could not impress the court to stamp him as a truthful witness, rather he could be termed as interested and a chance witness with the sole purpose to implicate the accused for commission of the offence---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

(b) Criminal trial---

----Witness---Chance witness---Statement of chance witness---Scope---Chance witness, in legal parlance, is one who claimed that he was present on the crime spot at the relevant time---Albeit, his presence there was a sheer chance as in the ordinary course of business, he was not supposed to be present on the spot, but should have been present at the place where he resided, carried on business and run day to day life affairs---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---Testimony of chance witness could be 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) Criminal trial---

----Witness---Interested witness---Statement of interested witness---Scope---Court would in the case of an interested witness look for some circumstance that gave sufficient support to his statement so as to create that degree of probability, which could be made the basis of conviction---Statement of interested witness ordinarily needed corroboration.

Muhammad Ahmed and another v. The State 1997 SCMR 89 rel.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd---Appreciation of evidence---Dying declaration---Infirmities---Scope---Prosecution case was that the complainant in injured condition reported that accused, duly armed with firearm, made firing at him, as a result of which, he sustained injuries---Later on, the injured complainant succumbed to the injuries---Record showed that soon after arrival of the injured to the hospital, his report was taken down by official witness/HC---Scribe stated that the injured was received conscious and his report was taken down, but his stance could not be accepted as correct as he did not observe the legal formalities---Despite that the report was made in the emergency room of hospital, why the scribe did not feel the need to call for the Doctor and to ask for a certificate as to whether the injured was oriented in time and space and to ascertain his capability to talk---Said witness stated that at the time of report the doctor was not present and that it was after the report that the injured was sent to the doctor along with injury sheet for his Medico-legal examination---Said attitude of the scribe could not be ignored and that fact had created dents in the prosecution case and it had put a question mark to the capability of the deceased then injured but able to talk---Medical Officer, who examined the complainant and prepared his Medico-Legal Report, stated that the injured was conscious and capable to talk and that he had given those observations in the Medico-Legal Report of the injured---Record was silent as to where from Medical Officer had confirmed that the injured was conscious, oriented in time and space, when there was nothing on record that either his pulse was noted or blood pressure was checked---Said witness was thoroughly cross-examined who stated that soon after bringing the injured before him he observed the injured in severe shock and without wasting time the patient was referred for onward management to a surgeon---Witness had admitted that the patient was in the state of severe shock, then how it was held that he was conscious---No certificate was given by the doctor regarding the condition of the injured and even the report of the injured was not taken down in his presence---Wilful attempt existed on part of the prosecution and the doctor to make the case a success--- Court could not exclude the possibility that the deceased was unable to talk and that no report was made by him---Circumstances established that the prosecution had failed to prove its case against the accused--- Appeal against conviction was allowed, in circumstances.

Khyber Khan v. Shahid Zaman and another 2019 PCr.LJ 979 rel.

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

----Art. 46---Dying declaration---Evidentiary value---Principles---No doubt, dying declaration is an important piece of evidence and that sanctity is attached to the dying declaration, because a dying man is not expected to tell lie, however, it is equally true that it is always considered as weak type of evidence being un-tested by cross-examination, therefore, it puts the courts on guard and great care is demanded to ascertain that; whether the maker had the physical capacity to make the dying declaration; whether the maker had opportunity to identify the assailant/assailants; whether there was a chance of mis-identification on the part of dying man in identifying and naming the attacker/attackers; whether it was free from prompting from any outside quarter and the witness who heard the deceased making his statement, heard him correctly and whether that evidence could be relied upon.

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

----Art. 46---Dying declaration---Scope---Court always insisted upon strong, independent and reliable corroboratory evidence for sake of safe dispensation of justice and relying blindly and without proper scrutiny on dying declaration, would be dangerous approach on the part of the court of law.

Tahir Khan v. The State 2011 SCMR 646; Mst. Ghulam Zohra and another v. Malik Muhammad Sadiq and another 1997 SCMR 449; Raza Khan v. Razeem 2018 PCr.LJ Note 66 and Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 rel.

(g) Criminal trial---

----Absconsion--- Principle--- Mere absconsion of accused was not conclusive proof of guilt of accused person---Absconsion was only a suspicious circumstance against accused that he was found guilty of the offence---Suspicion could not take the place of proof---Evidentiary value of absconsion, therefore, depended on the facts of each case---Abscondence alone could not be made the basis for conviction on a capital charge when the other evidence of the prosecution was doubtful---Absconsion was a corroborative piece of evidence and in cases where direct evidence failed, corroborative piece of evidence was of no avail.

Liaqat Hussain and others v. Falak Sher and others 2003 SCMR 611; Muhammad Sadiq v. State 2017 SCMR 144; Muhammad Salim v. Muhammad Azam and another 2011 SCMR 474 and Rohtas Khan v. State 2010 SCMR 566 rel.

Anwar-ul-Haq for Appellant.

Shahid Hameed Qureshi, Additional A.G. for the State.

Abdul Jabbar Khan Khattak for Respondents.

2020 P Cr. L J 1416

[Peshawar (Abbottabad Bench)]

Before Shakeel Ahmad and Ahmad Ali, JJ

Malik WAJID and 2 others---Petitioners

Versus

The STATE and 2 others---Respondents

W.P. No. 995-A of 2019, decided on 11th March, 2020.

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

----Ss. 365-B & 34---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of FIR---Runaway marriage---Scope---Petitioners sought quashing of FIR registered against them for an offence under Ss. 365-B & 34, P.P.C.---Complainant had alleged that her daughter was abducted by the petitioner with the help of others---Daughter of complainant appeared before the court and stated that she being sui juris had contracted marriage with the petitioner with her free will and that nobody had abducted her---Complainant stated that her daughter had contracted nikah, therefore, she had effected compromise and did not want to proceed further in the FIR lodged by her---Constitutional petition was accepted and the FIR was quashed.

Section 251 of Mahomedan Law by Mulla rel.

Hafiz Abdul Waheed v. Mrs. Asma Jhangir and another PLD 2004 SC 219 and Hafiz Abdul Waheed's case PLD 1997 Lah. 301 rel.

(b) Islamic law---

----"Adult"---Meaning---Scope---Adult means a person who, being a male, has attained the age of eighteen years or, being a female is of the age of sixteen years or has attained puberty.

(c) Islamic law---

----Nikah---Scope---Consent of an adult virgin for her nikah validates the marriage and such consent may be given by a girl by remaining silent.

(d) Islamic Law---

----Nikah---Scope---Marriage of a woman is subject to her personal consent.

Page 233 of the book "Tuhfatul Ahawazi" rel.

Shad Muhammad Khan for Petitioner.

Sardar Muhammad Asif, A.A.G. for the State.

Muhammad Shafique Awan for the Complainant along with Complainant in person.

2020 P Cr. L J 1467

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J

SHAMSHER ALI---Petitioner

Versus

JAMSHID and 2 others---Respondents

W.P. No. 543-M of 2017 with Interim Relief (N), decided on 21st February, 2020.

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

----Ss. 3, 7 & Preamble---Co-owner---Forcible dispossession---"Qabza group"---Scope---Petitioner filed complaint against respondents for dispossessing him forcibly from land in question---Trial Court dismissed the complaint on the ground that respondents did not have any antecedents of being "Qabza group" and did not fall within the purview of Illegal Dispossession Act, 2005---Validity---Employing of words 'Qabza Group' in Preamble of Illegal Dispossession Act, 2005, could not be given a super imposing operation over S. 3 of Illegal Dispossession Act, 2005--- Neither co-owner could claim immunity from provisions of Illegal Dispossession Act, 2005, nor any co-owner could be given a license to dispossess another by force---Trial Court failed to exercise jurisdiction vested in it, according to law---Judgment passed by Trial Court suffered from jurisdictional defect---High Court directed Trial Court to proceed in the matter according to law by allowing parties to produce their evidence---Constitutional petition was allowed accordingly. [pp. 1470, 1472] A & C

Bashir Ahmad v. Additional Sessions Judge, Faisalabad and 4 others PLD 2010 SC 661; Mst. Gulshan Bibi and others v. Muhammad Sadiq and others PLD 2016 SC 769; 2012 YLR 2004 and 2016 PCr.LJ 929 rel.

(b) Interpretation of statutes---

----Preamble---Scope---Preamble of a statute may be read in aid of interpretation, where clarity is lacking in provisions of the statute but where such provisions are clear, unambiguous and free from any doubt, effect has to be given to literal meaning of the statute. [p. 1470] B

Twelfth edition of Maxwell on the Interpretation of Statutes, by P. St. J. Langan; Attorney General v. H.R.H. Prince Ernest Augustus of Hanover [1957] A.C. 436; 'Understanding Statutes' by S.M. Zafar and Mumtaz Hussain v. Dr. Nasir Khan and others 2010 SCMR 1254 rel.

Rashid Ali Khan for Petitioner.

Aurangzeb for Respondents Nos. 1 and 2.

2020 P Cr. L J 1524

[Peshawar (Mingora Bench)]

Before Syed Arshad Ali and Waqar Ahmad, JJ

FAZAL MAULA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 284-M of 2019, decided on 8th October, 2019.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Contradictory statements---Scope---Accused was alleged to have been found in possession of 4000 grams of charas---Witnesses had contradicted each other regarding the mode of stopping the vehicle; the part of vehicle from which the narcotic was recovered; the possession of case property and the person who had sealed the parcels---Complainant stated that he had first sealed the parcels then prepared the recovery memo and thereafter drafted murasila meaning thereby that FIR was not chalked out at that time, thus, the entry of FIR number on the parcels at the spot led to the conclusion that recovery was not made in the mode and manner as alleged by the prosecution---Conviction could neither be approved nor upheld on the basis of shaky evidence---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)---Possession of narcotics---Transmission of samples to Forensic Laboratory---Retention of samples by the sample-bearer for one night---Effect---Sample-bearer stated in cross-examination that he received the parcel in the evening and delivered the same on the next day---Duty of sample-bearer was to safely deliver the samples in the laboratory and he was not authorized to retain the samples in his possession before his departure to the Forensic Laboratory---Prosecution had not explained for which purpose the samples were handed over to the sample - bearer to retain them for one night---Chain of safe custody of the samples was broken and safe transmission thereof to the laboratory had become doubtful---Such report of Forensic Laboratory could not be relied upon against the accused--- Appeal against conviction was allowed, in circumstances.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 rel.

Noor Alam for Appellant.

Haq Nawaz, Assistant A.G. for the State.

2020 P Cr. L J 1543

[Peshawar (D.I. Khan Bench)]

Before Abdul Shakoor and Sahibzada Asadullah, JJ

AHMAD SULTAN---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 89-D of 2019, decided on 17th February, 2020.

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

----Ss. 302 & 392---Criminal Procedure Code (V of 1898), S. 417---Qatl-i-amd and robbery---Appreciation of evidence---Appeal against acquittal---Delayed FIR---Unseen occurrence---Scope---Accused was alleged to have murdered the brother of complainant---Inordinate delay in lodging the report against unknown accused by the complainant, who was not an eye-witness of the occurrence, could be attributed to consultations and calculatedly preparing the crime report---Person who had informed the complainant about the occurrence was not produced before the court---Chain of events was broken from the very beginning, which went to the roots of the case---Testimony of complainant was not corroborated by any independent evidence---Biometric verification of the SIM (Subscriber Identification Module), belonging to deceased and allegedly recovered from the possession of accused, was not produced---Trial court had dealt with each and every aspect of the case and the findings it rendered were based on proper appreciation of evidence, which being unexceptional could not be interfered with---Appeal against acquittal was dismissed, in circumstances.

Ranji Suriya and another v. The State of Maharashtra AIR 1983 SC 810; Allahyar v. The State 1990 SCMR 1134; Mahmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Imran Hussain v. Amir Arshad and 2 others 1997 SCMR 438 and Muhammad Rafique v. The State 2014 SCMR-1698 ref.

Mst. Asia Bibi v. The State and others PLD 2019 SC 64; Muhammad Khan and another v. The State 1999 SCMR 1220 and Irfan Ali v. The State 2015 SCMR 840 rel.

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

----Ss. 302 & 392---Qatl-i-amd and robbery---Recovery of weapon---Sending of empties along with weapon---Scope---Accused was alleged to have murdered the brother of complainant---Empties recovered from the spot were sent along with the weapon to the Forensic Laboratory---Report of Forensic Laboratory was in positive but the same could not be taken into consideration being not procured in accordance with law---Prosecution had to ensure safe dispatch of the crime empties and weapon to the Forensic Laboratory, which was not done---Appeal against acquittal was dismissed, in circumstances.

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

----S. 302---Qatl-i-amd---Recovery of empties---Scope---Law requires that empties recovered from the spot should be sent to the Forensic Laboratory without any delay, failing which such evidence does not remain free from doubt and cannot be used against the accused.

Ghulam Akbar and another v. The State 2008 SCMR 1064 ref.

(d) Criminal trial---

----Recovery of weapon---Corroborative evidence---Scope---Recovery of weapon is a corroborative piece of evidence and in case where direct evidence fails, corroborative piece of evidence is of no avail.

Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 ref.

(e) Criminal trial---

----Medical evidence--- Corroborative evidence--- Scope--- Medical evidence does not identify the assailants, rather it is a corroborative piece of evidence.

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

----S. 417--- Appeal against acquittal--- Interference--- Compelling reason---Scope---Order of acquittal cannot be interfered with because the presumption of innocence of the accused is further strengthened by acquittal---Golden thread which runs through the web of administration of justice in criminal cases is, that, if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted---Paramount consideration of the court is to ensure that miscarriage of justice is prevented---Miscarriage of justice which may arise from acquittal of the guilty is no less than conviction of an innocent---Where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence in a case where the accused has been acquitted with the purpose of ascertaining as to whether the accused committed the offence or not---Principle to be followed by court while considering the appeal against judgment of acquittal is, to interfere only when there are compelling and substantial reasons for doing so---Where impugned judgment is clearly unreasonable, it is a compelling reason for interference.

Muhammad Yousaf Khan for Appellant.

Nemo (being in motion) for Respondents.

2020 P Cr. L J 1594

[Peshawar]

Before Lal Jan Khattak and Ahmad Ali, JJ

IKRAM SHAH---Petitioner

Versus

CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU and 5 others ---Respondents

W.P. No. 1792 of 2018, decided on 11th February, 2020.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a) (iv) & 10 (a)--- Constitution of Pakistan, Art. 199---Constitutional petition---Forfeiture of property---Petitioner was convicted and sentenced by Trial Court for imprisonment, fine and forfeiture of properties beyond his known sources of income---National Accountability Bureau (NAB) initiated proceedings to take over the possession of forfeited assets---Plea raised by petitioner was that after deposit of fine the assets could not be forfeited---Validity---According to judgment passed against petitioner, his or his dependents' properties were found to beyond the means of petitioner and those were ordered to be forfeited to the appropriate government---Both the sentences i.e. forfeiture of properties and deposit of fine were independent sentences and one sentence had no relation with the other---Though petitioner had deposited amount of fine that too after almost decade of finality of judgment but the sentence as to forfeiture / confiscation of properties mentioned in the judgment were upheld by Supreme Court and the same was yet to be implemented---National Accountability Bureau had rightly launched proceedings regarding confiscating of properties in question---Constitutional petition was dismissed in circumstances.

Abdus Sattar Khan for Petitioner.

Hashmat Jahangir, ADPG for Respondents Nos. 1 to 3.

2020 P Cr. L J 1618

[Peshawar]

Before Waqar Ahmad Seth, C.J. and Ijaz Anwar, J

MUSHTAQ AHMAD---Petitioner

Versus

The STATE through Deputy Attorney General, Khyber Pakhtunkhwa, Peshawar and another---Respondents

W.P. No. 1985-P of 2015, decided on 11th March, 2020.

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

----S. 26---Penal Code (XLV of 1860), S. 194---Constitutional petition for quashing of proceedings---Vexatious entries---False evidence---Petitioner was investigation officer of case where he recovered narcotics from accused but the accused was acquitted by Trial Court---After acquitting accused, the Trial Court initiated proceedings against petitioner for making vexatious entries and giving false evidence during trial---Validity---Import of S. 26 of Control of Narcotic Substances Act, 1997, was that it could be invoked only where it appeared that seizure and arrest was vexatious and unnecessary---Such provision of law could only be applied when it was established on record through cogent evidence that narcotic had been foisted upon accused who was falsely implicated in the case---Accused was acquitted mainly by giving benefit of doubt and on account of some contradictions---High Court declined to concur with opinion of Trial Court as there was no basis for forming the same---High Court expunged the observations against petitioner made by Trial Court in the judgment passed in narcotics case and criminal proceedings were set aside---Constitutional petition was allowed, in circumstances.

Abdul Hafeez v. Mahmood Ahmad alias Mooda and another 2016 PCr.LJ 275; Shafi Muhammad Bhangwar and 3 others v. The State PLD 2012 Sindh 527; Saif Ul Hussain alias Faisal Hussan and 2 others v. The State 2013 MLD 1431 and Muhammad Iqbal Nawaz v. The State 2019 MLD 954 rel.

Muhammad Mujeed for Petitioner.

Qazi Babar Irshad, A.A.G. for the Federation.

Muhammad Tariq Kakar for the Respondent/ANF.

2020 P Cr. L J 1621

[Peshawar]

Before Ikramullah Khan and Wiqar Ahmad, JJ

ZAHID HAMEED---Appellant

Versus

SIRAJ SHAH and another---Respondents

Criminal Appeal No. 220-P, Criminal Revisions Nos. 42-P and 83-P of 2016, decided on 12th September, 2019.

Penal Code (XLV of 1860)---

----Ss. 302(b), (c) & 84---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Qatl-i-amd, act of a person of unsound mind---Appreciation of evidence---Accused a person of unsound mind---Onus to prove---Sentence, quantum of---Mitigating circumstance---Accused was convicted by Trial Court for committing Qatl-i-amd and was sentenced to imprisonment for life---Plea raised by accused was that he was of unsound mind when offence was committed---Validity---Record of medical treatment of accused coupled with certificate produced on record established the only fact that accused had been suffering from chronic "Schizophrenia"---Medical record did not establish the fact that accused had been suffering from phenomena of unsoundness of mind at the time of commission of offence---Burden of proof that lay on accused for acquiring benefit of S. 84, P.P.C. could not be discharged by him---Accused was found to have committed offence in a well thought out manner and with a definite motive and intention at the time when he had not been suffering from a delusional state of mind---Fact that accused had been suffering from mental disease generally was taken into account by Trial Court and considered it as a mitigating circumstance in fixing the sentence of accused---Accused was not awarded normal penalty of death and his sentence was chosen to be life imprisonment by Trial Court due to the only reason that accused had been suffering from mental illness generally---High Court declined to treat the case of accused one under S. 302(c), P.P.C. and maintained conviction and sentence awarded to accused by Trial Court---Appeal was dismissed in circumstances.

F.C. Redlich and Daniel X. Freedman in "The theory and Practice of Psychiatry" (1966 Edition); Smt. Rita Roy v. Sitesh Chandra AIR 1982 (Calcutta) 138; Mst. Safia Bano v. Home Department Government of Punjab and others PLD 2017 SC 18 and Iftikhar Ahmad v. The State 2005 SCMR 272 ref.

Jala-ud-Din Akbar Azam Khan (Gara) for Appellant (in Criminal Appeal No. 220-P of 2016).

Astaghfirullah for Respondent No. 1/Complainant (in Criminal Appeal No. 220-P of 2016).

Rab Nawaz Khan, A.A.G. for the State (in Criminal Appeal No.220-P of 2016 and Criminal Revision No. 42-P of 2016).

Astaghfirullah for Petitioner (in Criminal Revision No. 42-P of 2016).

Jala-ud-Din Akbar Azam Khan (Gara) for Accused/Respondent (in Criminal Revision No. 42-P of 2016).

Rab Nawaz Khan, A.A.G. for the State (in Criminal Revision No. 83-P of 2016).

Jala-ud-Din Akbar Azam Khan (Gara) for Accused/Respondent (in Criminal Revision No. 83-P of 2016).

2020 P Cr. L J 1664

[Peshawar]

Before Waqar Ahmad Seth, C.J. and Ahmad Ali, J

RAHEEM JAN alias KAKI---Petitioner

Versus

The STATE---Respondent

Writ Petition No. 5936-P of 2019, decided on 3rd January, 2020.

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

----S. 497---Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), Ss. 6, 9(d), 28, 30, 2(c), 33 & 22---Possession of narcotic substance, power of entry search, seizure and arrest without warrant, power to stop and search conveyance, authorized officer, disposal of articles seized and person arrested, establishment of Special Courts---Bail, grant of---Scope---Allegation against the accused was that 4017 grams of charas was recovered from his house---Power of entry, search, seizure and arrest without warrant was vested in the 'authorised officer'---Record was silent with regard to any authorization by the Regional Police Officer to the complainant to perform duties as an authorised officer under the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019---Accused could not be detained behind the bars when the status of complainant himself was dubious---Section 33 of Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019, provided that any person arrested or articles seized under the Act had to be produced within twenty four hours of the arrest or seizure before the Special Court and only a Special Court was conferred with the jurisdiction to take any measures for the disposal of seized articles and person arrested---No notification as to the establishment of the Special Court was issued by the Provincial Government nor judges were appointed there-for---Trial court had to determine whether a Court of Session could pass an order regarding the articles seized and persons arrested or not---Such legal infirmity entitled the accused to concession of bail---Petition for grant of bail was allowed, in circumstances.

1996 SCMR 1845 ref.

(b) Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019)---

----Ss. 28, 30 & 2(c)---Power of entry, search, seizure and arrest without warrant, power to stop and search conveyance, authorized officer---Scope---Power of entry, search, seizure and arrest without warrant is vested in the 'authorised officer'---Authorised officer as defined S. 2(c) is either the officer of the Directorate General not below the rank of Sub-Inspector, authorized by the Director or a Police Officer not below the rank of Sub-Inspector authorized by the Regional Police Officer--- Not every Sub-Inspector or high ranked officer of the police department can act as an 'authorised officer' but only the officer authorized by the Regional Police Officer can stop and search any conveyance or person and make seizure therefrom.

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

----S. 497---Bail---Facts of the case---Scope---Facts of the case need not be mentioned at bail stage.

Muhammad Shakeel v. The State PLD 2014 SC 458 ref.

(d) Administration of justice---

----When law provides an act to be done in a specific manner then it should be done accordingly.

Noor Alam Khan for Petitioner.

Rab Nawaz Khan, A.A.G. for the State.

2020 P Cr. L J 42

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

FAYYAZ AHMED---Appellant

Versus

RAFAQAT ALI and others---Respondents

Criminal Acquittal Appeal No. 103 of 2019, decided on 28th June, 2019.

Penal Code (XLV of 1860)---

----Ss. 376 & 380---Criminal Procedure Code (V of 1898), S. 417---Appeal against acquittal---Appreciation of evidence---Rape and theft---Proof---Registration of FIR---Unexplained delay---Complainant was aggrieved of judgment passed by Trial Court whereby accused persons were acquitted of charges of raping his daughter and committing theft at his place of residence---Validity---Case of prosecution was doubtful as complainant reported matter to police with delay without explanation and FIR was lodged on an order of Justice of Peace passed 16 days after occurrence---Time of occurrence was also not mentioned---Statements of prosecution witnesses were not consistent or solid evidence and false implication of accused could not be ruled out---Neither trouser (shalwar) of victim was given to prosecution nor any money was recovered from accused persons---Order of acquittal could not be interfered with because acquittal recorded by a court of competent jurisdiction carried double presumption of innocence and very strong reasons were required to discharge such presumption---Case of prosecution was neither solid nor consistent against accused persons of charge---High Court declined to interfere in judgment passed by Trial Court as order of acquittal passed by Trial Court was neither arbitrary nor contrary to evidence on record---Appeal was dismissed in circumstances.

Mehmood Ahmed v. The State 1995 SCMR 127 rel.

Ali Ahmed Lehri for Appellant.

2020 P Cr. L J 124

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

ADAM KHAN---Appellant

Versus

ABDUL KHALIQ and another---Respondents

Criminal Acquittal Appeal No. 248 of 2016, decided on 24th July, 2019.

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

----Ss. 302, 324, 97 & 100---Qatl-i-amd, attempt to commit qatl-i-amd---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Right of private defence of the body extending to cause death---Scope---Prosecution case was that a quarrel had taken place between deceased and injured, due to which, exchange of firing was made between both of them and one person died---Record showed that the prosecution in order to establish the charge had produced the evidence of twelve witnesses, but the statements of all the witnesses were based upon hearsay evidence and the prosecution had failed to produce any single direct or circumstantial evidence in support of charge---Admittedly, the law was set on motion on the basis of fard-e-bayan of the complainant/Police Officer, who appeared in the Trial Court, but the fact remained that he had not witnessed the crime directly---Statement of complainant, therefore, was not helpful to the case of prosecution---Record transpired that on the day of occurrence, the deceased entered the jewelry shop of accused/respondent, took out pistol and handed over an empty bag to accused/respondent for putting gold ornaments therein, accused/respondent made resistance and during exchange of firing both the deceased and the accused/respondent received bullet injuries on their persons---Licensed pistol was recovered from the accused/respondent, while an unlicensed pistol was recovered from the possession of the deceased---Recovery of unlicensed pistol from the possession of the deceased depicted of his malice intention for committing decoity---Circumstances suggested that accused/respondent had used the right of his self-defence as envisaged under provisions of Ss. 97 & 100, P.P.C.---Nothing incriminating had come on record that the accused/respondent in any manner had misused the right of self-defence---Entry of deceased in armed condition in jewelry shop of the accused/respondent was certainly not for any good reason but for illicit purposes---Accused/respondent could not be convicted for such charges when all the facts and circumstances clearly suggested that the deceased entered into the shop for dacoity---Trial Court had rightly recorded the acquittal order in favour of accused/respondent---Order of acquittal passed by the Trial Court was neither arbitrary, capricious, fanciful nor contrary to the evidence on record warranting interference by High Court---Appeal was dismissed, in circumstances.

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

----S. 100---Self-defence of property and person, right of---Scope---Law had given right to the occupant of any property to expel the intruder or trespasser---If the intruder or trespasser had made his entry for illicit purpose then the right of self-defence of property and person was further fortified even to the extent of causing death of intruder or trespasser if he did not retreat after having been told or alarmed to retreat---Right of self defence was recognized by law, but it was to be exercised if circumstances so warrant---Every citizen was entitled to resist attack and defend himself and his property when he or his property faced the danger and State machinery was not readily available---Citizen was entitled to protect himself and his property, in circumstances---Legally the right of self-defence would arise where danger to person or property was imminent and would remain available as long as such danger exists.

Mazhar Iqbal v. The State 2017 SCMR 2036 rel.

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

----S. 417--- Appeal against acquittal--- Presumption--- Double presumption of innocence is attached to the order of acquittal and interference is unwarranted unless the acquittal is arbitrary, capricious, fanciful or against the record.

Rafiullah Barech for Appellant.

Habibullah Gul, Additional Prosecutor General for the State.

2020 P Cr. L J 192

[Balochistan (Sibi Bench)]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

MUHAMMAD RAHEEM---Appellant

Versus

The STATE and another---Respondents

ATA Criminal Appeal No.(s) 108 of 2019, decided on 30th August, 2019.

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

----S. 21-L---Constitution of Pakistan, Arts. 9, 10 & 10-A---Punishment for an absconder---Security of person---Safeguards as to arrest and detention---Right to fair trial---Conviction under S. 21-L, Anti-Terrorism Act, 1997---Procedure---Section 19(10) of Anti-Terrorism Act, 1997 stipulated and made it mandatory for the Special Court to conduct an inquiry in respect of deliberate absence of the accused---Trial Court, after declaring the accused as proclaimed offender, had proceeded with the matter in his absence---No charge under S. 21-L of Anti-Terrorism Act, 1997 was framed against the accused---Trial Court had not formulated the point for wilful absconsion of the accused in the main judgment nor the prosecution had produced any evidence in that respect---Complainant was aware of that the accused did not reside in the concerned district---Accused could not be said to have hindered the course of justice in terms of S. 21-L of Anti-Terrorism Act, 1997---Accused was not convicted according to law because pre-requisites of fair trial were not provided to him and the procedure adopted by Trial Court was in violation of Arts. 9, 10 & 10-A of the Constitution---Case was remanded

Mir Ikhlaq Ahmed v. The State 2008 SCMR 951 rel.

(b) Constitution of Pakistan---

----Art. 189---Decision of Supreme Court binding on other courts---Scope---Judicial dignity demands that every judgment delivered by the Supreme Court deserves the highest respect, while any deviation thereof will amount in violation of Art. 189 of the Constitution.

Muhammad Sadiqu Khokhar for Appellant.

Sudher Ahmed, Deputy Prosecutor-General for the State.

2020 P Cr. L J 264

[Balochistan]

Before Abdul Hameed Baloch, J

GHULAM MUHAMMAD and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 263 and 266 of 2019, decided on 20th August, 2019.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6---Possession of narcotics---Report of Government Analyst---Appreciation of evidence---Benefit of doubt---Complainant lodged FIR alleging therein that he along with other Levies Personnel made a blockade meanwhile a motorcycle boarded by the accused persons was intercepted and three packets of charas from right side and two packets from left side of the motorcycle were recovered---Failure to mention full protocols of tests applied---Effect---Non-production of person who delivered sample to the Government Analyst---Effect---Safe transmission/Safe custody---Scope---Report of Government Analyst was not in accordance with R. 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, which was mandatory in nature---Report in question had no evidentiary value---Investigating Officer had stated that the samples of the contraband were sent to the Government Analyst through process-server but the said process-server was not produced before the Trial Court to prove the safe transmission of contraband from the custody of the Levies to the Government Analyst, which act on the part of the prosecution created serious doubts in the whole prosecution's case---Appeals were allowed, in circumstances.

State v. Imam Bakhsh 2018 SCMR 2039 and Razia Sultana v. State 2019 SCMR 1300 rel.

Ishaque Alizai for Appellant (in Criminal Appeal No. 263 of 2019).

Jamal Khan Lashari and Abdul Aziz Sumalani for Appellant (in Criminal Appeal No. 266 of 2019).

Abdul Latif Kakar, Additional Prosecutor General for the State (in both cases).

2020 P Cr. L J 338

[Balochistan]

Before Rozi Khan Barrech, J

AMAN UD DIN---Applicant

Versus

MUHAMMAD KHAN and others---Respondents

Criminal Bail Cancellation Application No. 462 of 2019, decided on 24th September, 2019.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 324, 337-F(ii), 147, 148 & 149---Attempt to commit qatl-i-amd, badi'ah, rioting, armed with deadly weapon, common object---Cancellation of bail, application for---Accused did not intend to commit qatl-i-amd---Completion of investigation---Scope---Allegation against accused persons was that they forcibly tried to take their uncle with them and started firing---Complainant, his brother and other people intervened and main accused opened fire with pistol and caused bullet injuries on the right foot ankle of the complainant while the other accused persons beaten him with fists and kicks---Accused though had been charged directly in the FIR but he had only been charged for firing one shot at the victim and specific role had been attributed to the main accused---Accused had not repeated the fire when the victim was completely at his mercy---Prima facie there appeared to be no intention on the part of the accused to cause death of the victim---Injuries were not caused on the vital parts of the body---Question of applicability of S. 324, P.P.C. or that of S. 337-F(ii), P.P.C. had to be determined after examination of complainant and prosecution witnesses---Investigation had been completed---No recovery, whatsoever had been effected and challan of the case had already been submitted before the Trial Court---Incarceration of accused would serve no useful purpose especially when there was no allegation of mis-use of concession of bail granted to the accused persons---Discretion exercised by the trial court in granting post arrest bail to the accused persons was not arbitrary or against the settled principles of law, hence, did not require interference by High Court---Application for cancellation of bail was dismissed.

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

----S. 497(5)---Cancellation of bail---Principles---Bail can only be cancelled if bail granting order appears to be perverse and gross illegality has been committed---Principles governing the grant of bail and the cancellation of bail substantially stand on different footings---Courts have always been slow to cancel bail, already granted as the liberty of a person cannot be curtailed on flimsy grounds---Interference with an order of bail is required to be made when the same lacks reasons or is perfunctory in nature---Once bail has been granted, the prosecution was to make out a strong case for cancellation of bail not by making allegation alone but by giving substantive proof of such allegation---Order for cancellation of bail is a harsh order because it interferes with the liberty of an individual, hence it must not be resorted to lightly and power to take back in custody is to be exercised with due care and circumspection.

2009 SCMR 786; 2004 SCMR 1160; 2005 SCMR 1539; 1994 SCMR 1064 and 2004 SCMR 231 ref.

Khushal Khan Kasi for Appellant.

Saeed Ahmed Kakar and Wajahat Khan Ghaznavi, State counsel for PG.

2020 P Cr. L J 402

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

Messrs CITY MARKETING SERVICE and 2 others---Petitioners

Versus

The STATE---Respondent

Criminal Miscellaneous Quashment No. 54 of 2019, decided on 21st October, 2019.

Drugs Act (XXXI of 1976)---

----Ss. 23, 32 & 34---Criminal Procedure Code (V of 1898), S. 561-A---Quashing of criminal proceedings---Sale of spurious and substandard drug---Offences by companies---Liability of distributor---No possibility of conviction---Scope---Drug Inspector recovered substandard drug from a medical store, who produced purchase bill issued by manufacturer/Agents---Sale invoice revealed that the substandard drug was sold to the petitioners by the manufacturer---Admittedly, the substandard drug was manufactured by a private limited company, which was a person in its own rights within the meaning of Ss. 23, 32 & 34 of Drugs Act, 1976---No prosecution was launched against the company who had manufactured the seized drug---Petitioners, in the absence of company, its directors, agents, employers and warrantors, could not be prosecuted as the liability of the manufacturer of the drug and his agent for distribution thereof was co-extensive under S. 32(3) of Drugs Act, 1976---Petitioners were not manufacturers of the seized drug nor were the agents or warrantors of the manufacturer for distribution thereof; they could not be held liable for contravention of S. 23 of Drugs Act, 1976---Trial Court had failed to appreciate that there was no possibility of conviction even if the remaining prosecution witnesses were also examined---Proceedings pending against the petitioners before the Drug Court were quashed and they were acquitted of the charge.

Fazal Elahi v. State 1985 PCr.LJ 268 ref.

Superintendent of Police, Federal Investigation Authority v. Akhtar Hussain Bhutta PLD 1978 SC 193 rel.

Abdul Zahir Kakar for Petitioners.

Attaullah Langove, Assistant Attorney General-III along with Ms. Amber Noreen, Drug Inspector for the State.

2020 P Cr. L J 442

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

FAZAL KHAN and 2 others---Petitioners

Versus

ADDITIONAL SESSIONS JUDGE/MODEL CRIMINAL TRIAL COURT, BARKHAN AT RAKHNI and another---Respondents

Criminal Miscellaneous Quashment No. 257 of 2019, decided on 22nd October, 2019.

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

----Ss. 193, 194 & 195---Criminal Procedure Code (V of 1898), Ss. 195 & 561-A---Offences against public justice, giving or fabricating false evidence---Quashing of proceedings---Petitioners assailed order of Trial Court whereby while acquitting the accused persons, directed the Magistrate under S. 195, Cr.P.C. to initiate proceedings against the prosecution witnesses for giving false evidence and commission of offence under Ss. 193, 194 & 195, P.P.C.---Principle falsus in uno, falsus in omnibus had gradually encouraged and emboldened witnesses appearing in trials of criminal cases to indulge in falsehood and lies and making it more and more difficult for the courts to discover truth and dispense justice---Said principle was not to be applied to criminal cases in Pakistan as it was formed as a result of taking into account extraneous and practical considerations, rather than legal and jurisprudential, and the said view was not in accord with the Islamic provisions on the subject besides militating against the criminal law, according to which deposing falsely in a court and commission of perjury entailed serious penal consequences---Trial Court had rightly directed for initiating proceedings under S. 195, Cr.P.C.---Petition for quashing the proceedings before Magistrate was dismissed.

PLD 2019 SC 527 fol.

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

----S. 561-A---Inherent powers of High Court---Alternate remedy---Scope---Provisions of S. 561-A, Cr.P.C. cannot be used to override the express provision of law---Inherent jurisdiction of the court under S. 561-A, Cr.P.C. is additional---When other remedy is available with the aggrieved person, the question to invoke the inherent power of High Court under S. 561-A, Cr.P.C. does not arise.

Khalid Iftikhar v. The State PLD 1997 SC 275 ref.

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

----S. 561-A--- Inherent powers of High Court--- Quashing of proceedings--- Abuse of process of court---Scope---Powers under S. 561-A, Cr.P.C. can be exercised to prevent abuse of the process of any court or to secure the ends of justice---Such powers cannot be exercised mechanically or in every case where there is an allegation of false implication or of the evidence being false---Exercise of such powers cannot further the ends of justice, if an exercise is undertaken at pre-trial stage to determine whether the prosecution evidence, likely to come on record, is true or false.

Khalid Iftikhar v. The State PLD 1997 SC 275 ref.

Asif Ali Zardari's case 1994 SCMR 798 rel.

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

----S. 561-A---Inherent powers of High Court---Quashing of proceedings---Scope---Quashing of proceedings at an early stage gives an impression of stifling of criminal prosecutions, by exercise of an extraordinary power which is given for the dispensation of complete justice, in the forms provided by law.

Khalid Iftikhar v. The State PLD 1997 SC 275 ref.

Raja Haq Nawaz v. Muhammad Afzal and others PLD 1967 SC 354 rel.

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

----S. 561-A---Inherent powers of High Court---Quashing of criminal proceedings---Scope---Determination of the guilt or innocence of an accused depends on totality of facts and circumstances revealed during the trial and when such a stage had not reached, application of quashing of proceedings was liable to be rejected.

Khalid Iftikhar v. The State PLD 1997 SC 275 ref.

Gian Chand v. State 1968 SCMR 380 rel.

Shoaib Ahmed Mengal, Advocate (absent) for Petitioners.

2020 P Cr. L J 486

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

ZAFAR IQBAL---Appellant

Versus

The JUDGE ACCOUNTABILITY COURT-I, BALOCHISTAN, QUETTA and another---Respondents

Criminal Ehtesab Appeal No. 21 of 2019, decided on 12th September, 2019.

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

----S. 31-A---Abscondance to avoid service of warrants---Failure to frame the charge for such absconsion---Effect---Appellant assailed his conviction which was recorded in his absence---Publication was made in newspaper of the Province other than the one wherein the appellant resided---Record was silent in respect of the circulation of newspaper in other Province or on national level---No report was available on record to establish the execution of warrants upon the appellant---No conviction could be recorded without framing a charge and no charge could bring the guilt at home against the accused without leading the evidence with opportunity of cross-examination to the defence---Impugned order of conviction was silent about framing the charge under S. 31-A, National Accountability Ordinance, 1999 and recording of any evidence in respect of wilful absconsion of the appellant---Appeal was accepted and the conviction and sentence awarded to the appellant was set aside, in circumstances.

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

----S. 31-A---Constitution of Pakistan, Arts. 9, 10 & 10-A---Abscondance to avoid service of warrants---Security of person, safeguards as to arrest and detention, right to fair trial---Offence under S. 31-A, National Accountability Ordinance, 1997 is a distinct offence, which provides for punishment of willful absconsion to an accused who is/was going to be charged for offending any of the provisions of the Ordinance---Where neither any charge is framed nor any evidence is produced by the prosecution to substantiate the charge of wilful absconsion, the conviction recorded by the court may accumulate into the success of the prosecution, but will certainly amount to offend the principles of natural justice relating to fair trial of an accused and will also accumulate to a complete failure of due process of law for dispensation of justice.

Abdul Majeed v. The Accountability Judge-I, Quetta 2012 PCr.LJ 1647 and Arbab Khan's case 2010 SCMR 755 rel.

Tariq Mehmood Butt and Sohail Ahmed Rajput for Appellant.

Mumtaz Yousaf, DPO NAB and Jaffar Raza, Special Prosecutor NAB for the State.

2020 P Cr. L J 503

[Balochistan]

Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ

JALAT KHAN alias JALO---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 353 and Murder Reference No. 9 of 2016, decided on 28th August, 2019.

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

----S. 302---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Withholding of material witness---Related witness---Un-natural conduct of eye-witnesses---Scope---Prosecution case was that the accused made firing upon the brother and cousin of complainant, resultantly, brother of complainant received bullet injuries, who died on the spot while his cousin survived---All the three eye-witnesses produced in support of charge were closely related to the deceased---Said witnesses, who were cousins and brother of the deceased, instead of shifting the deceased to the hospital kept waiting for complainant, which appeared to be unnatural---Said witnesses did not accompany the dead body to the hospital---If they were present at the spot at the time of alleged occurrence, they must have taken the deceased either to the hospital or to Levies Station, which was not done---Complainant was not eye-witness of the alleged occurrence but the FIR was lodged by him---If it was presumed that eye-witnesses were present at the place of occurrence, then they would have lodged the report promptly, but they did not do so---Such conduct of eye-witnesses showed that they were not present at the place of occurrence and failed to justify their presence at the place of occurrence---No resistance or hue and cry for help was made by the said witnesses, despite the fact that the alleged occurrence took place near the house of person---Mode and manner of the occurrence, advanced by the prosecution witnesses, was not appealable to the prudent mind---Accused/appellant has no motive to fire at the deceased---Alleged eye-witnesses escaped unhurt and did not even receive a scratch in the incident, despite being empty handed and were totally at the mercy of the appellant---Accused/appellant selected to kill the brother of the complainant with whom they had no direct motive---Inference, in circumstances, could be that the incident did not take place in the way and manner, as it was alleged---Complainant did not mention the names of the said witnesses in his report and did not state a single word in his report as well as in his statement that they were present at the time of alleged occurrence---According to the eye-witnesses the accused/appellant made firing near the houses---No impartial evidence had come from the neighbourhood to corroborate the prosecution case, which, of course, could be available due to gunshots---Non-production of two persons, one who informed the complainant about the incident and the other who took the deceased to the hospital were not produced as witnesses which made the prosecution case doubtful under Art. 129(g) of Qanun-e-Shahadat, 1984---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Pathan v. The State 2015 SCMR 315 rel.

(b) Criminal trial---

----Witness--- Related witness--- Evidence of related witnesses---Reliance---Scope---Evidence of related witness could not be discarded on the ground of their being related to the victim---When testimony of the related witnesses got no corroboration from attending circumstances of the case or the conduct shown by them at the time of occurrence or just thereafter which could not be expected from a prudent person, then the evidence furnished by related witnesses could be discarded.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Eye-witnesses were related witnesses and showed unnatural conduct---Delay of about two and half hours in lodging of FIR---Effect---No plausible explanation was given for delay which created doubt on the credibility of the eye-witnesses.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay in recording the statement of witnesses under S. 161, Cr.P.C.---Effect---Record showed that the occurrence took place on 22.1.2016 at 4.00 p.m. while witnesses claimed to have seen the occurrence but their statements were recorded under S. 161, Cr.P.C. with delay of one day and statement of third witness was recorded at night on the day of occurrence at his residence without any plausible explanation ---Such delay would reduce the value of their statements.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Medical and ocular evidence---Contradiction---Effect---Prosecution case was that accused made firing upon the borther and cousin of complainant, resultantly, brother of complainant received bullet injuries, who died on the spot while his cousin survived---In the present case, medical certificate was contradictory with ocular evidence---Medical Officer produced the medical certificate of the deceased according to which the weapon used was "hard and blunt", however it was also mentioned that there was "arm injuries", which created reasonable doubt in prosecution case---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence---Delay in dispatch of recovered weapon---Effect---Prosecution case was that the accused made firing upon the brother and cousin of complainant, resultantly, brother of complainant received bullet injuries, who died on the spot while his cousin survived---Record showed that weapon of offence (rifle) was recovered from the house of a stranger on the disclosure of accused, which was hidden beneath the pile of bed-sheets---Neither the said house belonged to the accused/appellant nor the owner of said house was relative of the accused, it was not understandable as to how accused kept the rifle in that house, which created reasonable doubt in the prosecution case---Allegedly the occurrence took place on 21.01.2016 and the accused appellant was arrested on the next day---Alleged recovery was effected on the pointation of accused/appellant on 2.2.2016 after 11 days of his arrest---Alleged three empties were taken into possession by the prosecution on the day of occurrence---Record showed that recovered rifle and empties were sent to Forensic Expert together on 29.07.2016 and it was received by Forensic Science Laboratory on 12.8.2016 after eight months---Statement of recovery witness was recorded by the Trial Court on 2.5.2016 and empties and rifle were produced before the Trial Court---Said facts showed that the bullet empties and rifle were sent to Forensic Expert after eight months from the recovery as well as after recording statement of recovery witness and production of allegedly recovered bullet empties and rifle before the court---Sending of crime weapon (rifle) and bullet empties together with delay of eight months to Forensic Expert created reasonable doubt in the prosecution case---Report of Forensic Expert was inconsequential, in circumstances---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Sajjan Solangi v. The State 2019 SCMR 872; Nazir Ahmed v. The State 2016 SCMR 1628; Ali Sher and others v. The State 2008 SCMR 707; Israr Ali v. The State 2007 SCMR 525 and Muhammad Ashraf v. The State 2019 SCMR 652 rel.

(g) Criminal trial---

----Benefit of doubt---Principle---One circumstance, which created reasonable dent in the veracity of the prosecution version, could be taken into consideration for extending benefit of doubt by the accused, not as a matter of grace rather as a matter of right.

Tariq Pervaiz v. The State 1995 SCMR 1345 and Riaz Masih v. State 1995 SCMR 1730 rel.

Faizullah Kakar for Appellant.

Naseebullah Kasi for the Complainant.

Ameer Hamza Mengal, DPG along with Abdul Karim Malghani, State Counsel for the State.

2020 P Cr. L J 533

[Balochistan]

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

AKHTAR MUHAMMAD alias GHANI and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 63, 196 of 2015 and Criminal Revision Petition No. 11 of 2015, decided on 30th October, 2019.

(a) Criminal trial---

----Circumstantial evidence---Principle---Chain of evidence must exist as not to leave any reasonable ground for conclusion consistent with innocence of accused---Evidence must be such to show that within all human probability, act must have been done by accused.

Sheikh Muhammad Amjad v. State PLD 2003 SC 704 rel.

(b) Criminal trial---

----Judicial confession--- Retracted--- Scope--- Retracted judicial confession can be made basis for awarding conviction and sentence but to be on safer side, if case is merely based on circumstantial evidence, then judicial confession must be corroborated with some impeachable, independent corroborative evidence, particularly in a case where accused was held responsible for capital charge.

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

----S. 164---Judicial confession---Principles---Un-explained delay in recording confession, torture upon maker during course of investigation (even on the first day as stated by accused and not disputed), omission to mention factum of removal of handcuffs, failure by Magistrate to mention grant of time prior to making confessional statement cast serious doubt on voluntariness of confession.

Naqeebullah's case PLD 1978 SC 21; Khalid Javed and another v. The State 2003 SCMR 1419; Shoukat Saeed v. The State PLD 1978 Quetta 1 and Patoo and another v. The State 2012 MLD 1358 rel.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay in sending crime empties to Forensic Science Laboratory---Complainant lodged FIR against accused persons for committing qatl-i-amd of his sister---Conviction and sentence was based on judicial confession---Co-accused was convicted and sentenced for giving false information---Sending of crime weapon and bullet empties together with delay of one year and nine months to forensic expert created reasonable doubts in case of prosecution---Forensic Expert report in such regard was inconsequential to the case of prosecution---Prosecution failed to establish culpability of accused through reliable, trustworthy and confidence inspiring evidence---So many circumstances were not required for extending benefit of doubt in favour of accused rather one circumstance which created reasonable dent in veracity of version of prosecution could be taken into consideration for the purpose not as a matter of grace rather as a matter of right---High Court set aside conviction and sentence awarded to accused persons by Trial Court and acquitted them of charge as benefit of doubt was to be extended in favour of accused---Appeal was allowed accordingly.

Mehmood Ahmed v. The State 1995 SCMR 127; Zia-ur-Rehman v. The State 2000 SCMR 528 and Hashim Qasim and another v. The State 2017 SCMR 986 ref.

Ali Sher and others v. The State 2008 SCMR 707; Tariq Pervaiz v. The State 1995 SCMR 1345 and Riaz Masih v. The State 1995 SCMR 1730 rel.

Nemo for Appellant (in Criminal Appeal No. 63 of 2015).

Abdul Wali Khan Nasar for the Complainant (in Criminal Appeals Nos. 63, 196 of 2015).

Habibullah Gul, Additional Prosecutor General for the State (in Criminal Appeals Nos. 63, 196 of 2015 and Criminal Revision Petition No. 11 of 2015).

Muhammad Shabbir Rajput for Appellant (in Criminal Appeal No. 196 of 2015) and Respondents Nos. 1 and 2 (in Criminal Revision Petition No. 11 of 2015).

Abdul Wali Khan Nasar for Petitioner (in Criminal Revision Petition No.11 of 2015).

2020 P Cr. L J 594

[Balochistan]

Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ

Syed ABID GILLANI and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 385 of 2017, decided on 14th November, 2019.

Drugs Act (XXXI of 1976)---

----Ss. 18(1), 27(1)(a), 31(7) & 34---Selling spurious or unregistered drug by company---Appreciation of evidence---Unregistered allopathic medicine---Drug Inspector, jurisdiction of---Accused persons were medicine producers who were convicted and sentenced by Trial Court on distributing unregistered medicine containing allopathic products---Plea raised by accused persons was that Drug Inspector inspected samples beyond her territorial jurisdiction and that product was homeopathic and did not fall under Drugs Act, 1976---Validity---Drug Inspector inspected medical store of accused persons and did not travel beyond her local limits for which no prior permission was required within meaning of S. 18(1) of Drugs Act, 1976---Exercise of jurisdiction and powers by Drug Inspector were not void and without jurisdiction--- Accused persons did not produce any documentary evidence to prove that the drug of which sample was taken by Drug Inspector was registered one---Prosecution successfully discharged burden of proof of manufacturing and sale of unregistered drug by the firm in question and its employees/proprietors by producing documentary evidence including report of Government Analyst---Case was referred to Provincial Quality Control Board, show cause was also served on the accused---Accused persons, in reply to the notice, did not raise any objection as to validity of report on ground of absence of protocols---On the contrary, accused persons did not deny recovery and stated that it was a registered drug and took a stand in statements under S. 342, Cr.P.C. that 'drugs recovered were herbal in nature and did not require registration till 2012'---High Court declined to interfere in conviction and sentence passed by Trial Court---Appeal was dismissed in circumstances.

Ahsan Rafiq Rana for Appellants.

Saeed Ahmed Kakar and Wajhat Khan Ghaznavi, State Counsel for the Prosecutor-General for the State.

2020 P Cr. L J 637

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

OBAIDULLAH and others---Appellants

Versus

The STATE and others---Respondents

Criminal Jail Appeals Nos. 52, 54, Criminal Revision No. 44, Criminal Acquittal Appeal No. 337 and Murder Reference No. 5 of 2018, decided on 21st October, 2019.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd---Power to record statements and confessions---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Circumstantial evidence---Recovery of weapon---Retracted confession---Scope---Accused persons were alleged to have murdered the deceased---Held; no direct evidence of the crime in question was available and the prosecution case was structured upon circumstantial pieces of evidence i.e. disclosures of accused persons along with recovery of crime weapon, corroborated by positive report of Forensic Science Laboratory and judicial confession of accused persons recorded by Judicial Magistrate under S. 164, Cr.P.C.---Testimony of Judicial Magistrate revealed that confessional statements of accused persons were voluntary and true and the procedural defect, if any, in recording the statements stood removed by the question put by the Magistrate to the accused to the effect that they were not bound to make any statement and if a confessional statement was made by them, the same could be used against them as evidence---Accused did not directly or indirectly take the plea before the Trial Court at any stage that the confessions were involuntary---Accused, though, had retracted their confessions, but the same could be relied upon, because the events disclosed by them for the purpose of commission of crime in their confessional statements including the manner adopted by them was fully corroborated by prosecution evidence available on record---Motive for killing the deceased indicated that their confessions were voluntary and true and the same could not be discarded for the sole reason of having been recorded after six/seven days in view of the facts and circumstances of the case---Crime weapon was recovered in pursuance of the disclosures made by the accused persons and the pistol along with the empties secured from the place of occurrence were sent for the report of Ballistic Expert---Report of Ballistic Expert showed that the crime empties were fired from the same pistol---Circumstances highlighted excluded every hypothesis of the innocence of accused persons and thus the Trial Court had rightly relied upon circumstantial evidence---No space existed to entertain any hypothesis of innocence, guilty verdict called for no interference---High Court, while attending to the sentence of death passed against one of the accused, observed that though all the other formalities required by the law vis-a-vis recording confessional statements under S. 164, Cr.P.C. were duly complied with, yet the same were recorded after a delay of six/seven days---Such delay was an irregularity not vitiating the confessional statement itself but put the court to caution---Offence in question was seemingly committed by the accused under the influence of absconding co-accused on account of his liasion with her---Alteration of death penalty into imprisonment for life was a conscionable wage, in circumstances---Penalty of death awarded to the accused was altered into imprisonment for life.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 417---Qanun-e-Shahadat (10 of 1984), Art. 39---Qatl-i-amd---Appeal against acquittal---Confession by accused while in custody of police not to be proved against him---Appreciation of evidence---Extra-judicial confession---Exculpatory confession---Scope---Accused along with others was alleged to have murdered the deceased---No evidence was available against the accused except his extra-judicial confession recorded during police custody, which was also exculpatory in nature, therefore, the Trial Court had rightly acquitted him of the charge---Appeal against acquittal, being without merit, was dismissed.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Circumstantial evidence--- Scope--- Every circumstance, in cases based on circumstantial evidence, was to be linked with each other and it should form such a continuous chain that its one end touches the dead body and the other to the neck of the accused, but if the chain link is missing then its benefit must go to the accused.

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

----S. 164---Power to record statements and confession---Retracted confession---Corroborative evidence--- Scope---Retracted confession either judicial or extra-judicial if found to be truthful and confidence inspiring and also qualifies the test of voluntariness, can be used for conviction without looking for any other sort of corroboration---Though it is not prudent to base conviction in a criminal case only on the strength of retracted confession without independent corroboration and necessary particulars and the court is under obligation to inquire into all the material points and surrounding circumstances to satisfy itself regarding the voluntariness of confession but it is not an inflexible rule that the retracted confession cannot be made the basis of conviction without independent corroboration rather the rule of corroboration is rule of abundant caution which is insisted only to exclude any possibility of doubt qua the guilt of a person---Retracted confession can be legally taken into consideration against the maker if the confession is found to be true and voluntary and can also be used as a sole evidence for conviction without any corroboration, if the court is satisfied about its voluntary character and truthfulness.

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

----Arts. 38, 39 & 40---Confession to police officer not to be proved---Confession by accused while in police custody---Information received from accused to be proved---Scope---Confession made by accused person, while he is in police custody, is not admissible, however, if something related to the case is recovered or any fact is discovered in consequence of information conveyed by accused person, then the information so received would be admissible in evidence within the purview of Art. 40 of the Qanun-e-Shahadat, 1984 because then the presumption would be towards its truthfulness but if nothing in consequence of the disclosure is recovered or discovered then the information so received by itself would not be admissible.

Muhammad Khair Mengal and Muhammad Khalid Khan Kakar for Appellants.

Jameel Ahmed Babai for the Complainant.

Abdul Mateen, Deputy Prosecutor-General for the State.

2020 P Cr. L J 688

[Balochistan]

Before Abdul Hameed Baloch, J

MUHAMMAD RAFIQUE---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 94 of 2016, decided on 23rd September, 2019.

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

----Ss. 302(b), 279, 337-G & 427---Qatl-i-amd, rash driving or riding on a public way, hurt by rash and negligent driving, mischief causing damage to the amount of fifty rupees---Appreciation of evidence---Benefit of doubt---Prosecution case was that a coach and a tanker vehicle had met with an accident, due to which seven passengers of the coach died on the spot and eleven were injured---Allegedly, appellant was driving the coach/bus and due to his rash and negligent driving, coach/bus collided with oil tanker resultantly, seven passengers were died on the spot and eleven sustained injuries---Record transpired that there was only one eye-witness, who stated that he was driving oil tanker when incident had taken place---Prosecution recorded the statement of said witness under S. 161, Cr.P.C. where he stated that oil tanker had been driven by his senior while in the Trial Court stated that he himself was driving oil tanker at the time of incident---Said witness made dishonest improvement in his statement---Statement of eye-witness was recorded by Investigating Officer on the spot at 5/6 p.m. while Investigating Officer remained at the place of occurrence till about 06:00 p.m.---Record transpired that FIR was lodged at 10:45 p.m. (night) which meant that investigation had been conducted prior to registration of FIR which was not permissible under the law---Record transpired that collided bus had not been examined by the vehicle inspector nor statement of analyst was recorded in that regard to ascertain whether incident had taken place by over-speeding or mechanical fault---Prosecution was bound to prove over-speeding or that the driver was guilty of driving rashly and negligently, but no such evidence was available on the record---Mere driving vehicle on high speed did not constitute offence---No evidence was available on record to show that at what speed the driver was driving the bus---Although, appellant in his statement under S. 342, Cr.P.C. admitted that he was driving the vehicle, but denied rashly or negligently---Statement of accused/appellant under S. 342, Cr.P.C., could be taken in toto not in peace meal---Prosecution must prove his case with cogent, confidence inspiring evidence that the appellant was driving negligently, which was lacking---Appeal was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

2019 PCr.LJ Note 55 and 2018 PCr.LJ Note 37 ref.

Iftikhar Hussain and others v. The State 2004 SCMR 1185 and Khair Muhammad Shah v. The State 2018 PCr.LJ 914 rel.

(b) Criminal trial---

----Witness---Improvement made by witness in his statement---Effect---If a witness made dishonest improvement his statement could not be believed.

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

(c) Criminal trial---

----Benefit of doubt---Principle---If there was any room for doubt, benefit would go to accused.

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

Abdul Basit and Habib-ur-Rehman for Applicant.

Habibullah Gul, Additional P.-G. for the State.

2020 P Cr. L J 711

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

SHAFI MUHAMMAD---Petitioner

Versus

SESSIONS JUDGE, LASBELA AT HUB and 3 others---Respondents

Constitutional Petition No. 765 of 2019, decided on 12th September, 2019.

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

----S. 265-F(6) & (7)---Defense evidence, adducing of---Power of court---Scope---Trial Court has to receive defense evidence if so opted to adduce---Word 'shall' cannot be termed as discretion of Trial Court---Trial Court can only refuse application for production of documents as evidence when it considers that application is for purpose of vexation or delay or defeating ends of justice.

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

----S. 265-F(6) & (7)---Constitution of Pakistan, Art. 10-A---Defense evidence---Production of documents---Accused was aggrieved of dismissal of his application for producing additional documentary evidence by Trial Court and Lower Appellate Court---Validity---Authenticity of document in question was to be decided after recording statement of defense witness---Order for refusal was illegal and without lawful authority and Trial Court committed illegality while refusing to receive defense evidence of accused---Trial Court also failed to provide fair trial to accused as guaranteed under Art. 10-A of the Constitution---High Court set aside orders passed by Trial Court and Lower Appellate Court as a serious illegality was committed by courts below---Constitutional petition was allowed in circumstances.

Muhammad Ibrahim Lehri for Petitioner.

Muhammad Younas, APG for the State.

2020 P Cr. L J 763

[Balochistan]

Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ

NAHIDA JABEEN---Appellant

Versus

AGHA MUHAMMAD and 6 others---Respondents

Criminal Acquittal Appeal No. 1 of 2019, decided on 26th September, 2019.

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

----Ss. 302(b), 337-E, 337-F(iii), 337-L(ii), 147, 148, 149 & 34---Qatl-i-amd, ghayar-jaifah, causing mutalahima, causing hurt, rioting, rioting armed with deadly weapon, unlawful assembly, common intention---Appreciation of evidence---Appeal against acquittal---Delay of about two hours in lodging the FIR---Effect---Prosecution case was that the accused party while armed with rod and sticks assaulted on complainant party, due to which, complainant and her daughter and son sustained injuries while her husband died---First Information Report was lodged with delay of two hours---Facts remained that the area in which the occurrence took place was a remote area and it was also a B-area and it came within the jurisdiction of the Levies officials---Tehsildar was incharge of the Levies Thana---Levies official waited for Tehsildar and when Tehsildar came to the Thana, he lodged the report, therefore some delay had occurred in registration of the FIR and same was not fatal to the prosecution---Even otherwise the time of twenty minutes were spent during the occurrence and all the family members of the complainant were injured, who firstly went to Levies check post and thereafter to Levies Thana and kept waiting for Tehsildar to lodge the FIR, as such the FIR was deemed to have been lodged promptly as there was no possibility of cooking of false story within an hour and a half.

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

----S. 154---First Information Report---Delay in lodging FIR---Effect---If evidence inspired confidence, the delay in registration of case became a secondary factor and did not materially affect the veracity of prosecution.

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

----Ss. 302(b), 337-E, 337-F(iii), 337-L(ii), 147, 148, 149 & 34---Qatl-i-amd, ghayar-jaifah, causing mutalahima, causing hurt, rioting, rioting armed with deadly weapon, unlawful assembly, common intention---Appreciation of evidence---Appeal against acquittal---Ocular account consisted of the statement of complainant, her son and one injured daughter---Complainant was wife of the deceased and other eye-witnesses were son and daughter of the deceased---Presence of said witnesses at the place of occurrence along with the deceased appeared to be quite natural---Said witnesses also received injuries, which also established their presence at the place of occurrence---Injuries on the person of the injured witnesses and subsequent death of the deceased also indicated to the fact that the presence of such witnesses and deceased was natural one---Statements of the prosecution witnesses of ocular account reflected that they remained unanimous qua the date, time, mode and manner of occurrence---Occurrence took place during day light, hence there was no chance of mistaken identity or false implication, while the parties were well known to each other---All the three witnesses deposed about the scene of occurrence in line and their statements despite lengthy cross-examination were not shaken by the defence on material counts---Statements of said witnesses were corroborated with the evidence produced by Medical Officer and during course of examination, no contradiction was pointed out by the defence between the ocular account and medical evidence---According to the crime report and statement of the eye-witnesses as well as medical evidence, there was sufficient incriminating evidence available on record to connect the accused with the occurrence---Admittedly, no specific role to each of the accused/respondents was attributed by the witnesses who categorically stated that the accused being armed with sticks and iron rods, attacked upon them and deceased and they received injuries---Deceased received eight injuries on his person---Complainant and the other eye-witnesses also received injuries and there were also two other accused (absconding) at the scene of occurrence, as such conduct of the accused persons showed their common intention and pre-plan just to gather at the place of occurrence and to commit the offence---Circumstances established that the prosecution had proved its case against the respondents/accused beyond shadow of doubt, therefore, their acquittal had led to grave miscarriage of justice and while acquitting the accused/respondents the Trial Court had ignored the material evidence on record i.e. statements of injured eye-witnesses, medical and other material available on record---Prosecution produced confidence inspiring evidence to prove the guilt of the respondents/accused, as such the conclusion drawn by the Trial Court was perverse, arbitrary and based on misreading of the evidence on record calling for interference by the court---Evidence on record did not show as to who caused the fatal injuries---Accused, in circumstances, deserved imposition of lesser penalty; resultantly, appeal against acquittal was allowed and respondents/accused were convicted and sentenced for life, in circumstances.

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 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 and Ali Imran v. The State PLD 2006 SC 87 rel.

(d) Criminal trial---

----Related witness---Statement of related witness---Reliance---Scope---Mere close relationship of the witnesses with deceased could not be a reason to discard their testimony if otherwise the same was trust worthy, confidence inspiring and appealing to reason and corroborated by independent circumstances.

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

----Ss. 302(b), 337-E, 337-F(iii), 337-L(2), 147, 148, 149 & 34---Qatl-i-amd, ghayar-jaifah, causing mutalahima, causing hurt, rioting, rioting armed with deadly weapon, unlawful assembly, common intention---Appreciation of evidence---Non-recovery of incriminating articles---Effect---Prosecution case was that the accused party while armed with rod and sticks assaulted on complainant party, due to which, complainant and her daughter and son sustained injuries while her husband died---In the present case, no incriminating articles were recovered from the accused but the fact itself was not sufficient to prove otherwise as the accused persons were shown armed with sticks and iron rods not only in the crime report but also disclosed by all the three eye-witnesses---Failure to recover weapon of offence during the investigation for any reason by itself would not be sufficient to suggest that the accused were not armed---Recovery of incriminating material was not necessary to record conviction if ocular account was convincing and worthy of credit finding support from medical evidence.

(f) Criminal trial---

----Motive---Scope---Existence or non-existence of motive and its proving or non-proving by the prosecution was not fatal to the prosecution case---If the case was proved from ocular and medical evidence then the conviction could be passed.

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

----Ss. 302(b), 337-E, 337-F(iii), 337-L(2), 147, 148, 149 & 34---Qatl-i-amd, ghayar-jaifah, causing mutalahima, causing hurt, rioting, rioting armed with deadly weapon, unlawful assembly, common intention---Appreciation of evidence---Non-recovery of blood stained earth---Scope---Non-taking of the blood-stained earth from the place of occurrence was of no avail to the defence.

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

----S. 417--- Appeal against acquittal--- Double presumption of innocence---Scope---Once acquittal had been recorded, presumption of innocence would become double in favour of accused---Such presumption would not be available if the findings rendered by the Trial Court were artificial and did not meet the principles of evaluation of material available on record.

Sohail Ahmed Rajpoot for Appellant.

Mukesh Nath Kohli and Jalila Haider for Respondents Nos. 1 to 4.

2020 P Cr. L J 810

[Balochistan (Sibi Bench)]

Before Rozi Khan Barrech, J

NISAR AHMED alias CHALOO---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. (s) 09 of 2019, decided on 9th October, 2019.

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

----S. 377---Unnatural offence---Appreciation of evidence---Ocular and medical evidence--- Corroboration--- Accused was charged for committing sodomy with the nephew of complainant---Complainant reiterated the contents of FIR and narrated the entire story in line with fard-e-bayan---Evidence of the said witness was subjected to lengthy cross-examination, but nothing beneficial had come out on record in favour of the accused---Victim had narrated the whole story with regard to the occurrence---Statement of the victim was in line with his earlier statement---Said witness was cross-examined at sufficient length but nothing fruitful had come out on record in favour of the defence---Both the complainant and victim remained consistence and firm in their deposition---Said witnesses accurately uttered the date, time and manner in which the accused committed sodomy with the victim---Ocular testimony produced by the prosecution was direct in nature and the same remained unshaken, consistent, confidence inspiring on all material counts---Medical evidence reflected that victim had been sexually assaulted---Medical evidence had remained unshaken and unchallenged---Medical certificate of accused showed that he was potent and able for sexual intercourse---Both the ocular and medical evidence were in line with each other---Admittedly, the victim was a minor, but nothing on record showing that he was tutored by his elder---Statement of the victim had fully been corroborated by the circumstantial witnesses and medical evidence---Accused had failed to point out any misreading and non-reading of evidence and major contradictions in the statements of witnesses or any material illegality or irregularity in the impugned judgment warranting interference---Appeal being devoid of merits was dismissed.

Muhammad Shah v. State 1991 MLD 1944 rel.

(b) Criminal trial---

----Witness--- Related witness--- Statement of related witness---Reliance---Scope---Related witness is as much competent witness, as any other, provided he is not inimical towards accused and has no motive to implicate the accused in a false case.

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

----S. 377---Unnatural offence---Appreciation of evidence---Solitary statement of victim---Scope---In case of sodomy or zina, the solitary statement of victim is sufficient to convict the accused if, it is confidence inspiring.

Fayyaz alias Fayyazi and another v. The State 2006 SCMR 1042 and Mushtaq Ahmed and another v. The State 2007 SCMR 473 rel.

Inayatullah Marghzani for Appellant.

Abdul Mateen, Deputy Prosecutor General ("DPG") for the State.

2020 P Cr. L J 843

[Balochistan]

Before Rozi Khan Barrech, J

BILAL---Petitioner

Versus

ABDUL KARIM and 6 others---Respondents

Criminal Revision No. 10 of 2018, decided on 6th December, 2019.

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

----S. 9---Right of appeal and revision, non-availability of---Scope---Provisions of Illegal Dispossession Act, 2005 reveal that it contained no provision to provide a right of appeal or revision to an aggrieved person against interim or final orders passed in cases filed under Illegal Dispossession Act, 2005--- Absence of provisions to such effect never meant denial of right of appeal to an aggrieved person under Illegal Dispossession Act, 2005---Provisions of S. 9 of Illegal Dispossession Act, 2005 is clear enough to extend provisions of Criminal Procedure Code, 1898 to proceedings held under Illegal Dispossession Act, 2005 which is comprehensive enough to deal with the issue.

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

----Ss. 3, 4 & 9---Criminal Procedure Code (V of 1898), S. 417(2)---Appeal against acquittal---Appreciation of evidence---Illegal dispossession---Criteria---Complainant was owner of property and claimed that he was dispossessed by accused persons while he was residing abroad---Complaint filed against accused persons was dismissed by Trial Court---Validity---Provisions of Illegal Dispossession Act, 2005 being a special law were only applicable firstly in cases wherein person complained against was found to be not having title thereto, secondly that he had taken possession by use of force, thirdly that he had taken over property without due course of law and fourthly that such person or persons belonged to group of land grabbers---Application/Complaint under Illegal Dispossession Act, 2005 could only be entertained if there was prima facie material against nominated accused--- Civil nature dispute in no way could be allowed to be converted into criminal offence---Complainant was unable to place accused persons in criteria laid down by provisions of Illegal Dispossession Act, 2005---High Court declined to interfere in judgment passed by Trial Court as no case for illegal dispossession was made out on the basis of available material and no illegality or irregularity was pointed out--- Revision was dismissed, in circumstances.

Habibullah v. Abdul Manan 2012 SCMR 1533; Aliya Hussain v. Syed Ziauddin PLD 2008 Quetta 27 and PLD 2010 SC 661 ref.

Ghulam Mohiuddin Sasoli for Petitioner.

Sahibdad Mirwani for Respondents Nos. 1 to 6.

Wajahat Khan Ghaznavi, State counsel for Prosecutor General.

2020 P Cr. L J 923

[Balochistan (Sibi Bench)]

Before Rozi Khan Barrech, J

MUHAMMAD SIDDIQUE alias QURBAN ALI---Petitioner

Versus

The STATE through Prosecutor General, Balochistan---Respondent

Criminal Revision Petition No. (s) 28 of 2019, decided on 10th October, 2019.

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

----Ss. 392 & 34--- Robbery, common intention--- Appreciation of evidence---Confidence inspiring evidence---Scope---Prosecution case was that complainant along with his relative was going towards his house on a motorbike when the accused along with another duly armed with lethal weapon snatched the motorbike on gun point and fled away from the spot---Complainant reported the matter to the police, upon which he and police party chased the accused persons and overpowered one of them along with stolen motorbike and unlicensed weapon---First Information Report was lodged without any delay and the accused was duly nominated---Complainant and his relative had recorded their statements on oath wherein they had fully involved the accused as one of the culprits who was apprehended on the spot---Snatched motorbike and pistol were recovered from the accused in the presence of eye-witnesses---Complainant party prima facie had no motive or reason to falsely involve the petitioner who was neither resident of the area of complainant nor the accused had pleaded any direct enmity against the complainant party---High Court held that judgment of conviction recorded by Trial Court and subsequently upheld by the appellate court was well reasoned and proper, hence did not warrant any interference by the High Court--- Revision petition was dismissed.

(b) Criminal trial---

----Evidence--- Ocular evidence--- Corroboration--- Scope--- Ocular account must sustain beyond shadow of doubt, which for abundant caution must have corroboration to eliminate chance of doubt---Where ocular account fails the corroborative pieces of evidence become immaterial as they alone cannot sustain conviction.

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

(c) Criminal trial---

----Evidence---Ocular evidence---Duty of prosecution---Scope--- Ocular account brings the prosecution under a heavy duty to safely establish presence of the witness on the spot---Mere presence of witness at the spot is not sufficient to believe whatever the witness says but his evidence being natural, direct and confidence inspiring are sine qua non.

Abid Ali and 2 others v. The State 2011 SCMR 208 rel.

Ahsan Rafiq Rana for Petitioner.

Abdul Mateen, DPG for the State.

2020 P Cr. L J 960

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

ABDUL QAYYUM and another---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and 2 others---Respondents

Constitutional Petition No. 1135 of 2019, decided on 18th November, 2019.

(a) Balochistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Preventive detention---Satisfaction of Government---Objective satisfaction---Scope---Petitioner assailed order of his detention under S. 3(1) of Balochistan Maintenance of Public Order Ordinance, 1960---Petitioner was detained for being a potential threat to the public safety and for provoking the general masses against the State---Validity---Government had to be satisfied, in order to arrest and detain a person under section 3(1) of Balochistan Maintenance of Public Order Ordinance, 1960, that the activities of such person were prejudicial to public safety and maintenance of public order---No sufficient cause was available to justify the preventive detention of the petitioner---Satisfaction of government had to be objective in nature and not subjective or of such nature as to allow the authorities to act on whims and caprices without there being any material before them in support of the grounds for preventive detention---Grounds mentioned by the authorities for preventive detention of petitioner were general in nature which were not substantiated by any material---Orders passed by authorities was declared to be null, void and of no legal effects.

(b) Constitution of Pakistan---

----Arts. 4, 9 & 199--- Right of individuals to be dealt with in accordance with law---Security of person---Judicial review---Scope---Any action by the Government or any of its functionary depriving or restricting the liberty of a citizen without sufficient cause is not envisaged by the Constitution---Any such action taken by the Government or any of its functionary will not be immune from scrutiny of High Court in exercise of its powers under Art. 199 of the Constitution.

(c) Balochistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Constitution of Pakistan, Art. 199---Preventive detention---Judicial review---Scope---High Court, in exercise of powers of judicial review under Art. 199 of the Constitution, can examine the validity of the detention order passed under S. 3(1) of Balochistan Maintenance of Public Order Ordinance, 1960.

Barkhurdar Khan, Wali Khan Mandokhail and Habibullah Nasar for Petitioners.

Abdul Latif Kakar, Additional Advocate General along with Muhammad Muzamil, Deputy Secretary, Home and Tribal Affairs Department for Respondents.

2020 P Cr. L J 1017

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

ZAMAN KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. (s) 57 of 2019, decided on 24th June, 2019.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Dishonest improvements by witnesses---Contradictions in statements of witnesses---Unnatural conduct of witnesses---Effect---Witnesses, close relatives of deceased---Effect---No justification was available for presence of witness at the place of occurrence---Scope---Complainant had stated that accused along with the absconding co-accused persons made indiscriminate firing and murdered two persons---Complainant dishonestly improved his version regarding the roles played by accused persons and seat of injuries---Complainant was working in his fields along with deceased at the distance of 5/10 paces---Witness dishonestly improved his version by giving specific role to accused persons and contradicted the statement of complainant and stated that at the time of occurrence the complainant was at the distance of about 100 paces from the deceased persons---Another witness also dishonestly improved his version by ascribing specific role to accused persons and had stated that the accused persons had also launched attack upon the complainant, while the entire statements of complainant and other witness were silent in such behalf---Yet another witness being the witness of site inspection memo and recovery witness, contradicted the statements of all the three eye-witnesses and stated that at the time of occurrence the complainant along with eye-witnesses and the deceased were ploughing in the lands through tractor and the tyre signs of tractor were also apparent---None of the three witnesses had justified their presence at the place of occurrence at the relevant time---Investigating officer had collected 49-empties of Kalashnikov from the place of occurrence, but only three bullets hit both the deceased persons---Witnesses were close relatives of the deceased persons and belonged to same tribe---Conduct of the witnesses by not making resistance or rescuing the deceased or escaping the accused party created reasonable doubt with regard to their presence at the place of occurrence or witnessing the crime---False implication of the appellant by witnesses could not be ruled out of consideration---Appeal against conviction was accepted and impugned judgment was set aside, in circumstances.

Muhammad Asif v. The State 2017 SCMR 486 rel.

Muhammad Farooq v. State 2006 SCMR 1707 and Dohlu v. State 2002 PCr.LJ 690 ref.

(b) Criminal trial---

---Medical evidence---Medical evidence is only a supporting piece of evidence and the same cannot be the substitute of direct evidence.

(c) Criminal trial---

----Wrongful conviction---Effect---Wrongful conviction results into injustice, the first tragedy is to the innocent person; the second is to the victim of the offence and society, because the real offender is not brought to justice---Wrong conviction undermines the credibility of the legal system---Whenever witnesses are mistaken, it is rare because they lie or misrepresent the facts.

(d) Criminal trial---

----Benefit of doubt---Accused cannot be deprived of benefit of doubt, merely because there is only one circumstance, which creates doubts in the prosecution story.

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Shams-ur-Rehman Rind for Appellant.

Muhammad Younas Mengal, Additional P.G. for the State.

2020 P Cr. L J 1039

[Balochistan]

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

MOHIBULLAH and another---Appellants

Versus

Criminal Appeal No. 302 of 2018 and Criminal Revision Petition No.5 of 2019, decided on 18th December, 2019.

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

----Ss. 302(b), 337-A(iii), 337-F(ii) & 34---Qatl-i-amd, shajjah-i-hashimah, ghayr-jaifah, badi'ah, common intention---Appreciation of evidence---Injured witness---Scope---Accused, along with co-accused persons, was alleged to have injured the witness and murdered another---Eye-witness had fully supported the case of prosecution---Eye-witness was not related to the complainant and was resident of the same vicinity, therefore, he was a natural and independent eye-witness---Injured eye-witness had also supported the prosecution case and since he had sustained injuries, therefore, his presence on the spot was established---Mode and manner of occurrence narrated by the prosecution witnesses, whereby the absconding co-accused had inflicted dagger blows on the deceased and the accused had attacked the injured eye-witness, clearly showed that the accused persons duly armed with weapons had come to the spot in a pre-planned manner and as such shared common intention---Prosecution had established its case beyond any shadow of doubt---Judgment and conviction recorded by Trial Court was maintained and appeal was dismissed.

Abdul Rauf and others v. Mehdi Hassan and others 2006 SCMR 1106; Muhammad Waris v. The State 2008 SCMR 784; Muhammad Riaz alias Riasti and another v. The State 1987 SCMR 177; Gheba and others v. The Crown PLD 1949 Lah. 453 and Muhammad Akbar and 2 others v. The State PLD 1991 SC 923 rel.

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

----S. 302(b)---Criminal Procedure Code (XLV of 1860), S. 154---Qatl-i-amd---Information in cognizable cases---Non-mentioning of the name of eye-witness in FIR---Effect---Accused, charged for committing qatl-i-amd and causing injuries, objected that since name of the eye-witness was not mentioned in the FIR, therefore, his presence on the spot could not be believed---Held; such omission did not render the entire prosecution case doubtful for the reason that the complainant had conceded that he was not an eye-witness of the occurrence, therefore, he had only set the prosecution case in motion.

Muhammad Mushtaq v. The State PLD 2001 SC 107 and Muhammad Basharat v. The State 2003 SCMR 554 rel.

Abdul Wali Khan Nasar for Appellant (in Criminal Appeal No. 302 of 2018).

Syed Ayaz Zahoor, Mrs. Robina Shaheen and Amanullah Khan Kakar for the Complainant (in Criminal Appeal No. 302 of 2018).

Abdul Mateen, Deputy Prosecutor-General for the State (in Criminal Appeal No. 302 of 2018 and Criminal Revision Petition No. 5 of 2019).

Syed Ayaz Zahoor, Mrs. Robina Shaheen and Amanullah Khan Kakar for Petitioner (in Criminal Revision Petition No. 5 of 2019).

Abdul Wali Khan Nasar for Respondent (in Criminal Revision Petition No. 5 of 2019).

2020 P Cr. L J 1104

[Balochistan]

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

ALI MUHAMMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 208 of 2019, decided on 3rd January, 2020.

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

----Ss. 302(b) & 149---Qatl-i-amd, unlawful assembly---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of eye-witnesses---Effect---Accused was charged that he and co-accused committed murder of brother of the complainant and also injured his cousin by firing---Prosecution mainstay was on the testimony of three witnesses including complainant---Two witnesses were closely related to each other as well as the deceased---Complainant had stated that he was present at his tube-well and his brother/deceased and cousin were loading stones and chips, when the accused persons came to the spot and started firing upon his brother and cousin---Complainant had stated during cross-examination that the distance between the place of occurrence and his tube-well was two kilometers, that firing had stopped when he reached the spot---Complainant was not eye-witness of the occurrence---Eye-witness/injured deposed that at 3.30 p.m., he and deceased were loading stones and chips, and the accused persons came there and attacked upon deceased with sticks and in the meanwhile the acquitted accused made firing and he received injuries and went unconscious---Other eye-witness had given the role of firing to accused---Complainant had given a role to all the accused persons of firing---Injured attributed the role of firing to acquitted co-accused but eye-witness assigned the role of firing to the accused---Injured and eye-witness did not state that all the accused made firing---Material contradictions in the statements of all the witnesses were found, which showed that either both the cited witnesses were not present at the time and place of occurrence or they had falsely deposed against the appellant in order to suppress some real facts from the court for the reasons best known to them---Name of the said eye-witness was not mentioned in the report nor did injured witness stated with regard to the presence of said witness at the place of occurrence---Statements of both the eye-witnesses were also recorded under S. 161, Cr.P.C. on the next date--- Story narrated by the said witnesses seemed to be fabricated and manoeuvred subsequently just to support the injured witness---Co-accused was acquitted by the Trial Court and no appeal against his acquittal had been filed by the complainant---After acquittal of co-accused to whom similar role as that of the accused was attributed and who was given benefit of doubt, the conviction of the accused on the same set of evidence was altogether unjustified in law--- No evidence was found to connect the accused with the murder in issue---Circumstances established that the case was replete with doubts, which was sufficient to tilt the scale of justice in favour of the accused--- Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 149---Qatl-i-amd, unlawful assembly---Appreciation of evidence---Benefit of doubt---Delay of about three hours in lodging the FIR---Effect---Accused was charged that he and co-accused committed murder of brother of the complainant and also injured his cousin by firing---Alleged occurrence took place but the FIR was lodged at 3.30 p.m. with delay of about three hours without any plausible explanation---Such delay was fatal to the prosecution case.

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

----Ss. 302(b) & 149---Qatl-i-amd, unlawful assembly---Appreciation of evidence---Benefit of doubt---Ocular and medical evidence---Contradictions in---Effect---Accused was charged that he and co-accused committed murder of brother of the complainant and also injured his cousin by firing---Prosecution had alleged that injured witness received fire arm injuries on his person which established his presence at the venue of occurrence---Medical Officer did not observe any firearm injuries on the person of said witness---Prudent mind would not accept that a person who received injuries would go to the doctor for treatment after lapse of seven days---Alleged occurrence took place on 05.09.2017 and Medical Officer had stated that he examined the injured on the next date---No explanation on behalf of the prosecution had been furnished as to whether when allegedly the deceased received injuries by means of firearm he was shifted to any hospital on the same date or else---No medical or other documentary evidence available on record to show that the deceased was examined on the same day---Medical evidence also contradicted the ocular evidence---Medical Officer only mentioned in his medical certificate about gunshot injuries but on the other hand the eye-witnesses had deposed in their statements that the deceased was beaten with sticks at first---Said contradiction casted reasonable doubt in the prosecution case---Appeal against conviction was allowed, in circumstances.

(d) Criminal trial---

----Witness---Presence at the place of occurrence---Benefit of doubt---Single doubt as to the presence of claimed witness at the crime scene would be sufficient to discard his testimony as a whole.

Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 rel.

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

----Ss. 302(b) & 149---Qatl-i-amd, unlawful assembly---Appreciation of evidence---Benefit of doubt---Recovery of weapon and crime empties---Reliance---Scope---Accused was charged that he and co-accused committed murder of brother of the complainant and also injured his cousin by firing---Investigating Officer had secured three crime empties of Kalashnikov at the time of his first visit of the place of occurrence---Alleged Kalashnikov was recovered from the accused after 19 days, how could that be possible that the accused kept the said Kalashnikov for 19 days with him---Recovery of weapon of offence from the accused was inconsequential, in circumstances.

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

----Ss. 302(b) & 149---Qatl-i-amd, unlawful assembly---Appreciation of evidence---Benefit of doubt---Delay in sending the weapon and crime empties to the Forensic Science Laboratory at belated stage---Effect---Accused was charged that he and co-accused committed murder of brother of the complainant and also injured his cousin by firing---Empties recovered from the place of occurrence and the alleged Kalashnikov were sent together to Firearm Expert---Dispatch of the crime empties and alleged Kalashnikov Firearm Expert together after the arrest of the accused/appellant with the delay of 24 days of its recovery rendered the same legally unacceptable.

Nazeer Ahmed v. The State 2016 SCMR 1628 rel.

(g) Criminal trial---

----Benefit of doubt---Principle---Prosecution had to stand on his own legs to prove the charge against the accused---Benefit of doubt, even slightest, would favour the accused.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Shah Muhammad Jatoi for Appellant.

Habibullah Gul, Additional Prosecutor-General ("APG") for the State.

2020 P Cr. L J 1236

[Balochistan (Sibi Bench)]

Before Muhammad Hashim Khan Kakar and Abdul Hameed Baloch, JJ

MUHAMMAD BAKHSH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. (s) 47 of 2017, decided on 11th October, 2019.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused was charged for committing murder of his wife and son of the complainant---Motive behind the occurrence was stated to be illicit relations of deceased persons---Ocular account of the occurrence had been furnished by three witnesses including complainant--- Complainant during cross-examination stated that all the witnesses were sitting at bed along with his deceased son while firing was made from distance of 7/8 feet and none other sustained injuries---Investigating Officer had stated that he prepared site plan on pointation of complainant---Site plan did not disclose presence of the witnesses---Although the site plan was not substantive piece of evidence but it could not be overlooked---Omission to indicate position of witnesses at the time of occurrence in site plan, reflected on the possibility of witnesses not being present at the time of occurrence---Statements of prosecution witnesses were unnatural as their conduct was not above board---Conduct of the ocular witnesses, father and nephew, did not appeal the prudent mind, as to how the accused spared the ocular witnesses to give statement against them---Complainant being real father of the deceased did not take his son to the hospital rather left him at the place of occurrence and rushed to the police station for lodging of FIR---Such conduct of father of deceased did not appeal to the prudent mind---Allegedly, complainant along with his nephew were present when the incident occurred, but the said nephew of complainant was not produced before the Trial Court despite the fact that he was not related to the complainant and deceased formally, rather he was independent witness---Ocular testimonies of the prosecution witnesses were full of discrepancies and contradictory to each other---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Abdul Sattar v. State 2008 PCr.LJ 869; 2017 SCMR 2002; Muhammad Arif v. State 2019 PCr.LJ 337 and Qamar-uz-Zaman v. Haji Allah Bakhsh 2012 SCMR 1281 rel.

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

----Arts. 38 & 39---Disclosure by accused in police custody---Scope---Such disclosure is not admissible.

Hayatullah v. State 2018 SCMR 2092 rel.

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

----Art. 129(g)--- Withholding material witness--- Presumption---Material witness withheld without any reason---Presumption would go against the prosecution.

Lal Khan v. State 2006 SCMR 1846 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Principle----One tainted piece of evidence could not corroborate other tainted piece of evidence---Conviction and sentence could not be sustained on the basis of such like evidence.

(e) Criminal trial---

----Benefit of doubt---Principle---Benefit of slightest doubt would go to accused as matter of right.

Tariq Pervaiz v. State 1995 SCMR 1345 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Interested witness---Scope---In the present case, witnesses were related to the deceased---On the basis of interested witnesses, the conviction in capital charge could not be sustainable, which required independent corroboration which was lacking in the case of prosecution---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Zahoor Ilahi v. State 1997 SCMR 385 rel.

Ahsan Rafiq Rana for Appellant.

Jamil Akhtar Gajjani, Additional Prosecutor General for the State.

2020 P Cr. L J 1255

[Balochistan (Sibi Bench)]

Before Abdul Hameed Baloch, J

ALI AHMED---Petitioner

Versus

The STATE---Respondent

Criminal Revision Petition No. (s) 35 of 2019, decided on 6th November, 2019.

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

----Arts. 3 & 4---Owning or possessing intoxicants---Appreciation of evidence---Benefit of doubt---Safe custody---Non-production of sample-bearer---Contradictory statements of witnesses---Effect---Accused was alleged to have been found in possession of twenty liters of alcohol---Alcohol was received at the Forensic Laboratory with a delay of seven days and no explanation was available as to where the contraband was kept and in whose custody---Statement of the sample-bearer was not recorded---Complainant had stated that he had prepared the sample parcels while the recovery witness had stated that investigating officer had prepared the sample parcels---Revision petition was accepted and the accused was acquitted of the charge, in circumstances.

Razia Sultana v. State 2019 SCMR 1300 and Minhaj Khan v. The State 2019 SCMR 326 rel.

(b) Administration of Justice---

---Where the law provides for doing a thing in a particular manner it has to be done in that manner, otherwise not done at all.

Ali Hassan Khoso for Petitioner.

Abdul Mateen, Deputy Prosecutor General for the State.

2020 P Cr. L J 1291

[Balochistan]

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

M. KHALID AZIZ---Appellant

Versus

The STATE through Director General NAB, Balochistan---Respondent

Criminal Ehtasab Appeal No. 14 of 2015, decided on 6th January, 2020.

National Accountability Ordinance (XVIII of 1999)---

----S. 32---Limitation Act (IX of 1908), Ss. 5 & 29(2)---Appeal---Appreciation of evidence---Condonation of delay---Accused was convicted by Accountability Court vide judgment dated 13.7.2015 and he preferred appeal on 12.9.2015---Accused sought condonation of delay on the plea of his ailment---Validity---Specific period of limitation was provided under S. 32 of National Accountability Ordinance, 1999---In view of the provisions of S. 29(2) of Limitation Act, 1908, provision of S. 5 of Limitation Act, 1908 was not applicable---High Court declined to condone the delay caused in filing of appeal by accused--- Appeal was dismissed in circumstances.

Ali Muhammad and another v. Fazal Hussain and others 1983 SCMR 1239; Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286; City District Government Lahore through District Coordination Officer, Lahore v. Mian Muhammad Saeed Amin 2006 SCMR 676; Province of Punjab through Collector and others v. Muhammad Farooq and others PLD 2010 SC 582 and Muhammad Islam v. Inspector-General of Police Islamabad and others 2011 SCMR 8 rel.

Jawad Hassan Khan for Appellant.

Choudary Mumtaz Yousaf, Deputy Prosecutor General, NAB for the State.

2020 P Cr. L J 1350

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

JUMA GUL---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 48 and Murder Reference No. 7 of 2018, decided on 5th September, 2019.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Benefit of doubt---"Ocular" and "medical" evidence---Contradiction---Effect---Accused was charged for committing murder of brother of the complainant by firing---Material infirmities followed by contradictions existed in the statements of the prosecution witnesses---Record was silent in respect of information advanced to the police and in that regard all the witnesses narrated differently and were not supporting each other---Statement of three witnesses revealed that complainant was not present at the time of occurrence---Medico Legal Certificate transpired that the corpse was brought to hospital by his brother along with two persons in a private vehicle---If the deceased was taken by the Police Official in absence of any close relative to the hospital then the presence of close relative at the occurrence could not be believed---Eye-witnesses had deposed that appellant had fired on deceased from outside the boundary of the hut---Site plan showed that the occurrence had taken place inside the boundary wall and no hut outside the boundary wall was shown in the site plan---Even the presence of eye-witnesses had not been shown in the site plan---Site plan showed that the firing was made upon the deceased from the close distance while the Medical Officer in his cross-examination suggested that on making fire from close distance tattoo/burning mark appeared on the body---No burning mark was found on the wound of the deceased---Admittedly, there existed enmity between the parties---Eye-witnesses being brothers, mother and sisters of the deceased were interested witnesses and inimical to the appellant---Rule of prudence demanded that there must be independent corroboration of interested and inimical witnesses---Capital punishment on the basis of such statement was not safe---Record transpired that the blood-stained cloth was handed over to the Investigating Officer after two days of occurrence but as per Medico Legal Certificate, the deceased was brought to hospital by police on the day of occurrence---Question arose as to why the complainant handed over the blood-stained clothes of the deceased after two days of the occurrence to the Investigating Officer instead of the date of occurrence---Prosecution could not be absolved from the duty of proving the case on the basis of its own evidence---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

G.M. Niaz v. State 2018 SCMR 506; Barakat Ali v. Muhammad Asif 2007 SCMR 1812 and Muhammad Irshad v. State 1999 SCMR 1030 rel.

(b) Criminal trial---

----Witness---Credibility of---Scope---To disbelieve 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 could make the entire statement doubtful.

Jehan Bahadur v. The State 2013 YLR 2772 rel.

(c) Criminal trial---

----Site-plan---Evidentiary value---Although the site plan was not a substantive piece of evidence but non-mentioning the eye-witnesses in the site-plan could not be lightly ignored---Possibility of non-presence of the eye-witnesses at the time of occurrence could not be ruled out.

Muhkhtasir v. State 2017 PCr.LJ 1607 rel.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Recovery of crime weapon and empty---Reliance---Scope--- Accused was charged for committing murder of brother of the complainant by firing---Record showed that crime weapon and empty were recovered but the allegedly said articles were not sent to the Forensic Science Laboratory for examination---No explanation had been offered by the prosecution in that regard---Such recovery was inconsequential---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Sajjan Solangi v. State 2019 SCMR 872 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---If any doubt had arisen from the statements of the prosecution witnesses, its benefit would go to accused as matter of right and not as a grace.

Wajahat Ahmed v. State 2016 SCMR 2073 and Ayub Masih v. The State PLD 2002 SC 1048 rel.

Bangul Mari for Appellant.

Ali Ahmad and Yasir Hayat for the Complainant.

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

2020 P Cr. L J 1442

[Balochistan (Sibi Bench)]

Before Muhammad Hasham Khan Kakar and Rozi Khan Barrech, JJ

MUHAMMAD WALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. (s) 49 of 2019, decided on 31st October, 2019.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4---Possession of narcotics---Delayed FIR---Despatch of sample for analysis after seventy two hours of seizure---Non-production of sample-bearer---Effect---Accused was convicted for having been in possession of 10 kilograms of charas---Occurrence took place at 10:00 a.m. but the complainant lodged the report after an unexplained delay of six hours---Safe custody and transmission of charas could not be proved by the prosecution as report of Forensic Science Laboratory revealed that the sample parcel was received with a delay of about eleven days and the delay was not explained---Such exercise was required to be completed within 72 hours as per R. 4(2) of Control of Narcotic Substances (Government Analysts) Rules, 2001---Prosecution had failed to examine the 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 parcel of the samples of charas was lying for about eleven days---Prosecution could not prove prompt registration of FIR, safe custody and prompt transmission of representative samples to the Government Analyst---Prosecution had failed to prove its case against the accused, in circumstances---Appeal was allowed.

Muhammad Aslam v. The State 2011 SCMR 820; Shamsullah v. The State 2013 MLD 1527 and Mst. Razia Sultana and others v. The State 2019 SCMR 1300 ref.

Ali Hassan Bugti for Appellant.

Jamil Akhtar Gajani, Additional Prosecutor General for the State.

2020 P Cr. L J 1512

[Balochistan]

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

ABDUL GHAFOOR and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No. 20 of 2020, decided on 18th March, 2020.

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

S. 497---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Recovery of narcotic substance---Bail, refusal of---Driver of vehicle---Chars weighing 2 kilograms and heroin weighing 100 grams were recovered from beneath the driving seat of vehicle which was being driven by accused---Effect---Driver could not be absolved from the liability, if contraband was transported in the vehicle being driven by him---High Court declined to grant bail on merit lest it could cause prejudice to other side---On tentative assessment of record there existed prima facie case against accused---Bail was refused, in circumstances.

Haroon Khan v. The State 2017 PCr.LJ 438 rel.

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

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Recovery of narcotic substance---Bail, grant of---Passenger of vehicle---Case of further inquiry---Charas weighing 2 kilograms and heroin weighing 100 grams were recovered from beneath the driving seat of vehicle in which accused was sitting on front---Effect---When accused was arrested he was not driving the car nor any narcotics was recovered from his exclusive possession rather he was sitting on the front seat of the car---Case of accused was one of further inquiry---Bail was allowed, in circumstances.

Hussain Ullah v. The State 2019 SCMR 1651 rel.

Inayatullah Kasi for Applicants.

Yahya Baloch, APG for the State.

2020 P Cr. L J 1536

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

SHAHIDA YASMIN---Petitioner

Versus

The STATE---Respondent

Criminal Revision No. 10 of 2019, decided on 11th November, 2019.

Criminal Procedure Code (V of 1898)---

----S. 514---Forfeiture of surety bond---Death of surety---Scope---Petitioner sought a further reduction of forfeited surety amount even though the Trial Court had already reduced the same to 25%---Surety/husband of the petitioner had died prior to absconsion of accused, therefore S. 514(6), Cr.P.C. was applicable which provided that the surety, on death, would be discharged from all the liabilities in respect of the bond---Proceedings initiated by Trial Court were contrary to the mandatory provision of subsection (6) of S. 514, Cr.P.C., thus were of no legal effect--- Petition was disposed of accordingly.

Syed Muhammad Zahid for Petitioner.

Abdul Karim Malghani, State Counsel for the State.

2020 P Cr. L J 1562

[Balochistan]

Before Muhammad Kamran Khan Mulakhail, J

Bibi ZARGHOONA and another---Petitioners

Versus

The STATE---Respondent

Criminal Revision No. 76 of 2019, decided on 31st December, 2019.

Penal Code (XLV of 1860)---

----Ss. 302 & 34---Criminal Procedure Code (V of 1898), S. 345---Qatl-i-amd, common intention---Compromise---Payment of Diyat amount by State---Scope---Accused were charged for committing murder of their father---During the proceeding of the case, petitioners entered into compromise with the legal heirs of the deceased---Compromise was accepted and petitioners were directed to deposit the share of Diyat amount of the minor legal heirs---Petitioners moved an application before the trial court for issuing direction to the State to pay the Diyat amount on their behalf, which was dismissed---Validity---Petitioners had not challenged the payment of Diyat amount but had only prayed that since they could not pay the Diyat amount for lack of reasonable resources, the State be directed to pay the said amount---Scope---Diyat, Arsh and Daman Fund Rules, 2007 (Rules 2007), issued vide S.R.O. No.1110(I)/2007, dated 13th November, 2007, described that only vulnerable prisoners could be compensated, if they were languished in jail only for payment of Diyat amount---Said concession was earlier only available to the prisoners of 60 years of age, but subsequently Rules were amended and the minimum age limit was fixed at 40 years---Petitioners could not be compensated under the said rules as they were neither behind the bars or languished in jail nor they meet the criteria of minimum age limit of 40 years---In the present case, in the list of legal heirs some were of minor age, being below the age of 18 years, therefore, the right of Diyat could not be pardoned or waived of by their respective wali under the injunctions of Islam, however, the Trial Court could grant the permission for payment of Diyat amount in lieu of shares of minor legal heirs of the deceased in sixty instalments and further the petitioners were also admitted to bail subject to furnishing surety equivalent to the Diyat amount---High Court observed that petitioners' case though did not fall within the purview of Rules 2007, but it was admitted feature of the case that the Government was wali for the deceased on behalf of his/her legal heirs, without imposing any embargo of upper or lower age limit---Impediment of payment of Diyat on behalf of offenders to the legal heirs of the deceased subject to minimum age limit of 40 years, did not stand of any explicit reason, rather it seemed discriminative to the petitioners on the basis of their age as well as for the reason that they were not languishing in jail merely for payment of Diyat amount---Petitioner's case was distinguishable one, since they had been admitted to bail by the trial court by invoking provisions of S. 331 of P.P.C. and the reference to Rules 2007 could not be considered as sacrosanct piece of legislation---In view of equality of citizens guaranteed under Art. 25 of the Constitution, rather the Rules 2007 were an attempt to create a special class, and said class or category of the prisoners would only be entitled to get benefit of payment of Diyat after attaining the age of 40 years---In the present case both the petitioners were below the age of 40 years and in case of non-payment of Diyat amount through instalments, they would ultimately be incarcerated due to default in payment of Diyat amount, in that case both of them would be kept in jail till attaining the age of 40 years and then they would be entitled for the payment of Diyat through Bait-ul-Mal or any other medium allocated by the concerned government in that behalf---If the stated situation was accepted, then the petitioners would not be in position to get benefit of funds allocated by the Government for payment of Diyat, therefore, present case was a fit case to be referred to the Secretary, Home and Tribal Affairs, who shall further proceed and place the case before the appropriate committee of the Ministry of Human Rights for considering the case on sympathetic basis in view of observations by the High Court---High Court further observed that no inquiry had so far been conducted to ascertain that whether the petitioners had any other means in shape of moveable or immovable property to make the payment good, or otherwise---High Court remanded the case to the Trial Court to conduct inquiry with regard to financial situation of the petitioners through concerned Tehsildar---If the report suggested and finally concluded that the petitioners did not have enough means to make payment of Diyat good, the trial court shall forward the case to the Secretary Home and Tribal Affairs along with copy of the judgment with the direction for compliance---Home Secretary shall ensure that amount of Diyat in the present case was deposited in the Trial Court by the State for payment to the legal heirs, either from the 'Bait-ul-Maal' or from the fund allocated by the Federation to the Ministry of Human Rights, within three months of the receipt of that order, failing which the Trial Court shall take necessary steps for the recovery of the amount of Diyat by attachment/sale of movable or immovable property of the State in accordance with law---Revision petition was accepted accordingly.

Muhammad Asif Khilji for Petitioners.

Muhammad Yunus Mengal, APG, Tahir Iqbal Khattak, Assistant Attorney General, Muhammad Salam Jamali, A.A.G., Syed Haroon, Shah, Director, Pakistan Bait-ul-Mal Balochistan and Ms. Jehan Ara Tabasum, Deputy Director, Regional Office Quetta, Ministry of Human Rights for the State.

2020 P Cr. L J 1603

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

JUMA KHAN---Appellant

Versus

The STATE---Respondents

Criminal Appeal No. 224 and Criminal Revision No. 28 of 2018, decided on 27th May, 2019.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused were charged for committing murder of brother of the complainant---Two passers by also received bullet injuries by firing of accused persons---Motive for the occurrence was stated to be dispute over a motorcycle---Prosecution in order to establish the charge had produced eight witnesses, out of whom two being brothers of deceased were claiming to be the direct eye-witnesses of the occurrence, while two witnesses were passers by and were injured in the said incident---Complainant had stated that on the day of occurrence, he along with his brother/eye-witness proceeded towards bazar on motorcycle, while the deceased proceeded on his motorcycle and when they reached nearby the gate of Town Committee, the accused-appellant armed with Kalashnikov and the absconding accused armed with pistol started firing upon his brother, due to which he died at the spot---Eye-witness being the second brother of deceased and complainant was the second eyewitness of the occurrence, who narrated the same story with regard to their departure to bazar and facing murderous attack on his brother by the hands of accused-appellant and absconding accused---Both the said eye-witnesses had stated nothing about the position and direction of the accused persons from which firing was made---Even otherwise, nothing had come on record that the culprits had made firing only upon the deceased or they also made an attempt to take the lives of both the eye-witnesses---Statements of both the eye-witnesses were also silent to the effect that what strategy was adopted by the said witnesses in order to save themselves as well as to save their deceased brother---Presence of both the eye-witnesses was doubtful for the reasons that the complainant along with his brother/eyewitness including the deceased were on the target of the accused-appellant and absconding accused, who were armed with sophisticated weapons, but the deceased brother was hit and the complainant along with his another brother were let free---Said fact did not appeal to the logic that by killing a person in presence of his real brother, the culprits would not attempt to cause any injury/kill the prosecution witnesses leaving them for evidence to be hanged---Apparently, the conduct of eyewitnesses appeared to be unnatural, thus the presence of both the witnesses were doubtful---Injured witnesses were independent eyewitnesses of the occurrence, who received bullet injuries in the incident; their testimonies were credible and worth credence---Both the said witnesses in specific terms had stated before the court that they had neither seen the culprits making firing nor they were aware about the murder of any person in the said incident---Admittedly, both the said witnesses had stated nothing against the accused-appellant, thus their testimonies were not helpful to the case of prosecution---Prosecution had failed to prove its case through confidence inspiring evidence, in circumstances---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

Muhammad Farooq v. State 2006 SCMR 1707; Dohlu v. State 2002 PCr.LJ 690 and Muhammad Asif v. The State 2017 SCMR 486 rel.

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

----Art. 40---Disclosure of accused---Admissibility---If the facts narrated in the disclosure by accused were already known to the prosecution and no new fact was emerged pursuant to the said disclosure, even no incriminatory evidence or article was recovered pursuant to the said disclosure, such disclosure so recorded whilst in police custody would not be helpful to the case of prosecution.

(c) Criminal trial---

----Medical evidence---Scope---Medical report was only a corroboratory piece of evidence and the same could not be termed to be the substitute of direct evidence.

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

----Ss. 302 & 34--- Qatl-i-amd, common intention---Appreciation of evidence---Recovery of empties---Reliance---Scope---Recovery of crime weapon was not effected from the possession of the accused-appellant---Empties collected from the place of occurrence, thus could not be sent for matching to Forensic Science Laboratory.

(e) Criminal trial---

----Benefit of doubt---Principle---Accused could not be deprived of the benefit in case of doubt in the prosecution story.

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Kamran Murtaza and Adnan Ejaz for Appellants.

Abdul Mateen, D.P.G. for the State.

Sadiq Khan and Habibullah Khan Nasar for the Complainant.

2020 P Cr. L J 1633

[Balochistan]

Before Rozi Khan Barrech and Jamal Khan Mandokhail, JJ

BAHLOL KHAN KASI---Appellant

Versus

AZMATULLAH KASI and another---Respondents

Criminal Acquittal Appeal No. 82 of 2016, decided on 17th July, 2019.

(a) Criminal trial---

----Burden of proof---Scope---Burden of proof, would lie upon the prosecution and it had to prove the charge beyond reasonable doubt.

(b) Appeal against acquittal---

----Double presumption of innocence---Scope---Accused after acquittal would enjoy double presumption of innocence; the first before trial of case and second after his acquittal.

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

----Ss. 324, 504 & 506---Attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of peace, criminal intimidation---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Contradictions in the statements of witnesses---Scope---Accused was charged that he made firing upon the complainant party, due to which, brother, maternal cousin of complainant and another person sustained bullet injuries---Ocular testimony consisted of evidence of complainant, injured and cousin of the complainant---All those witnesses were closely related to each other---Said witnesses stated in their statements that the accused made firing upon brother and cousin of complainant and also on another person who received injuries---Other two witnesses stated that the accused and brother of complainant scuffled with each other, where-after firing started but both of them had failed to assign the role of firing to the accused---Said two witnesses were independent and impartial witnesses and not inimical to the other side---Statements of eye-witnesses were inconsistent, not firm and stable and there were many contradictions in their statements, hence their statements could not be believed---Statements of eye-witnesses were contradictory with the medical evidence---If the injured witness and the accused scuffled with each other and thereafter firing was made and brother of complainant received injuries then there should be blackening around the entrance wound of injured, but the medical certificate of the injured did not show any blackening on the entrance wound---Firing from such close distance might also result into exit wound but the same was also not found in medical certificate---Circumstances established that the evidence furnished by the prosecution was of interested witnesses and no independent corroboration was available on the record and there was contradiction in medical and ocular evidence---Prosecution, in circumstances, had failed to prove its case against the accused---Appeal against acquittal was dismissed, in circumstances.

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

----Ss. 324, 504 & 506---Attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of peace, criminal intimidation---Appreciation of evidence--- Appeal against acquittal---Benefit of doubt---Accused was charged that he made firing upon the complainant party, due to which, brother, maternal cousin of complainant and another person sustained bullet injuries---Accused also lodged FIR against the complainant, witnesses and others on the same date and time about the same occurrence---Accused, in the said FIR, being complainant alleged that witnesses of the present case received firearm injuries---In the said occurrence four persons received injuries and it was a case of free fight between the parties in the form of melee wherein the complainant and two others also received firearm injuries---Circumstances suggested that it would be rather paradoxical to infer that the injuries on the person of each of the participants could be determined or ascertained, thus it was extremely doubtful to believe the complainant's version against the accused and at least he was entitled to the benefit of doubt---Appeal against acquittal was dismissed, in circumstances.

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

----Ss. 324, 504 & 506---Criminal Procedure Code (V of 1898), S. 417(2-A)---Attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of peace, criminal intimidation---Appeal against acquittal filed by aggrieved person---Scope---Admittedly, complainant appeared before the Trial Court, who had not received any injury in the alleged incident---Report of the complainant was that his brother and others allegedly received injuries, which showed that all the victims were not minors rather they were having sense and were alive---Complainant, who was not an injured, could not file the appeal against acquittal and it was the injured alone, who was competent to file appeal being an aggrieved person---Injured persons being the aggrieved were neither insane nor minors, did not come forward to challenge the judgment impugned---Appeal by the complainant was incompetent, in circumstances.

Mir Gul's case 1999 PCr.LJ 1507 rel.

Appellant in person.

Respondent in person.

Ameer Hamza Mengal, DPG for the State.

2020 P Cr. L J 1688

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

HABIB-UR-REHMAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 170 of 2019, decided on 23rd July, 2019.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4(2)---Possession of narcotics---Appreciation of evidence---Recovery proceedings---Sample analysis, delay in---Effect---Accused was arrested while sitting in rear seat of Vehicle from which 10 sacks of raw Charas weighing 250 kilograms was allegedly recovered but driver had escaped---Recovery proceedings were not carried out at spot rather all proceedings were carried out in Levies station---Non-sealing of samples soon after its recovery at spot had created serious doubt in case of prosecution and no implicit reliance could be placed on chemical examiner's report hence case of prosecution was highly doubtful---Incharge of vehicle was always considered to be driver of vehicle and he was held responsible for recovery of any sort of article from said vehicle---Whatever articles lie in such vehicle would be under his (Driver's) control and possession and more knowledge and awareness would be attributed to incharge of vehicle---Mere presence of accused in vehicle neither established his ownership in respect of vehicle nor he could be held responsible for recovery of contraband from same---Prosecution failed to establish nexus of accused with such vehicle and since no nexus of accused with alleged vehicle had been established by prosecution, accused could not be held responsible for recovery of any contraband from such vehicle---Receipt of samples after 45 days vanished evidentiary value of Forensic Science Laboratory report---Otherwise investigating officer failed to tender any plausible explanation for delay in sending samples for analysis--- High Court set aside conviction and sentence awarded to accused by Trial Court as same had suffered from misreading and mis-appreciation of evidence and acquitted him of charge---Appeal was allowed in circumstances.

Khan Bacha v. The State PLD 2006 Kar. 698 and Kashif Amir v. The State PLD 2010 SC 1052 rel.

Rehmatullah Barech for Appellant.