PCRLJ 2021 Judgments

2021 P Cr. L J 78

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

MUHAMMAD ABIDEEN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 106 of 2019, decided on 24th June, 2019.

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

----Ss. 561-A & 265-K---Prevention of Corruption Act (II of 1947), Ss. 5 & 5-A---Penal Code (XLV of 1860), S. 409---Inherent powers of High Court---Criminal misconduct, criminal breach of trust by public servant or by banker, merchant or agent---Power of Court to acquit accused at any stage---Delay in conclusion of trial---Scope---Accused assailed the dismissal of his application under S. 265-K, Cr.P.C.---Trial Court in the impugned order had stated that it could not be said that the delay had occurred due to any fault on the part of prosecution---Delay was rarely considered a valid ground for acquittal in such like cases---Section 5-A of Prevention of Corruption Act, 1947, mandated that no officer below the rank of Inspector shall investigate any offence punishable under any of the sections of P.P.C. mentioned in S. 3, P.P.C. or any offence punishable under S. 5 of the Prevention of Corruption Act, 1947 without an order of Magistrate Ist Class or make any arrest thereof without a warrant---Investigating Officer/Sub Inspector had submitted an application before the Special Judge Anti-Corruption and the permission for investigation was granted on the same day---Any irregularity or illegality committed during investigation did not vitiate the trial---Petition under S. 561-A, Cr.P.C., being not maintainable, was dismissed.

2000 MLD 1456 ref.

(b) Criminal trial---

----Defective investigation--- Scope--- Any irregularity or illegality committed during investigation does not vitiate the trial.

1998 PCr.LJ 114 rel.

Amjad Hussain for Petitioner.

Javed Akhter, Deputy Attorney General for the State.

Syed Dildar Hussain D.D. FIA.

2021 P Cr. L J 647

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, C.J. and Ali Baig, J

SHEHERYAR HUSSAIN and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 23, 25, 26 and Criminal Revisions Nos. 24, 19 of 2018, decided on 27th August, 2020.

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

----Ss. 302(b), 324 & 34---Arms Ordinance (XX of 1965), S. 13---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, possessing unlicensed weapon---Appreciation of evidence---Lodger of FIR was not examined---Effect---Accused were charged for committing murder of the son of the complainant and injuring a witness---Motive behind the incident was a dispute erupted on the issue of turn of irrigation water between the accused party and the deceased party---Contention was that the FIR lodger having not been examined, therefore whole of the prosecution case remained unproved---Record showed that the FIR lodger died during trial and FIR was got exhibited by the Police Officer in the Trial Court---First Information Report was a document like any other document and if maker of FIR had resiled from FIR, the convictions were awarded/maintained in appeal when the case of prosecution was proved from the other evidence---Appeal against conviction was dismissed, in circumstances.

1983 NLR 27 rel.

(b) Criminal trial---

----Site plan/inquest report---Scope---Site plan/inquest report was not substantive piece of evidence, any discrepancy therein would not affect the outcome of the case

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

----S. 161---Statement of witness recorded by police---Delay in recording the statements of witnesses by police---Scope---If names of eye-witnesses are mentioned in the FIR and their statements are late recorded, it could be termed as an inefficiency on the part of prosecuting agency and complainant cannot be penalized for any act/omission of the Investigating Officer whether intentional or un-intentional.

(d) Criminal trial---

----Witness---Statement---Minor contradictions/flaws---Scope---Minor flaws which were natural as every person had different capabilities of perception of an event---Photographic picture of the occurrence could not be expected from a witness.

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

----Ss. 302(b), 324& 34---Arms Ordinance (XX of 1965), S. 13---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, possessing unlicensed weapon---Appreciation of evidence---Appeal against acquittal of one co-accused---Accused were charged for committing murder of the son of the complainant and injuring a witness---Statements of eye-witnesses were quite natural and in line with each other---One witness was injured in the occurrence by one of the accused and his presence had not been challenged by the defence---Post-mortem report was also in line with the prosecution evidence---Acquitted co-accused/respondent had effected a compromise with the injured---Deceased lost his life because of firing of three accused including the acquitted accused---Circumstances established that the findings of the Trial Court while acquitting said accused from the murder charge were artificial, arbitrary and complete misreading of prosecution evidence which caused gross miscarriage of justice---Appeal filed by the State/complainant against acquittal of the co-accused was accepted and he was convicted under S. 302(b), P.P.C. for murder of deceased in furtherance of common intention and awarded him life imprisonment, in circumstances---Appeals against conviction were dismissed, in circumstances.

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

----Ss. 302(b), 324 & 34---Arms Ordinance (XX of 1965), S. 13---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, possessing unlicensed weapon---Appreciation of evidence---Appeal against acquittal of one co-accused---Recovery of weapon of offence from the accused---Reliance---Scope---Accused were charged for committing murder of the son of the complainant, and injuring a witness---Record showed that the weapons of offence i.e. .30 bore pistols recovered from the accused persons were sent to Forensic Science Laboratory and a positive report had been received therefrom---Name of co-accused was mentioned in the FIR with a specific role of causing firearm injury to witness---Eye-witnesses had specifically charged him for commission of the offence and sharing common intention with the other two co-accused---7 MM rifle had also been recovered from his possession which was not sent for expert opinion as no crime empty was recovered from the place of occurrence---Non recovery of crime empty had been well explained by the Investigating Officer of the case who stated that in surrounding, there was a cattle shed and clay, hence the empties could not be recovered; he had mentioned said fact in the daily diary---Non-sending of a crime weapon to an expert in peculiar circumstances of the case would not advance the case of defence in any manner---Circumstances established that the findings of the Trial Court while acquitting him from the murder charge were artificial, arbitrary and complete misreading of prosecution evidence which caused gross miscarriage of justice---Appeals filed by the state/complainant against acquittal of the co-accused were accepted and he was convicted under S. 302(b), P.P.C., for murder of deceased in furtherance of common intention and was awarded life imprisonment, in circumstances---Appeals against conviction were dismissed, in circumstances.

Jehanzeb Khan for Appellants.

Deputy Advocate General for the State.

Asadullah Khan for the Complainant.

2021 P Cr. L J 759

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

MOHAMMAD NAWAB and another---Petitioners

Versus

The STATE---Respondent

Criminal Miscellaneous No. 27 of 2020, decided on 12th March, 2020.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd and common intention---Bail, refusal of---Scope---Accused persons were directly nominated in the FIR with specific role of effective firing on the deceased---Eye-witnesses had witnessed the occurrence and the offence under S. 302, P.P.C. fell within the ambit of prohibitory clause of S. 497, Cr.P.C.---Case of discharged accused was distinguishable from the case of accused persons---Accused persons were not entitled for concession of bail on merits, therefore, they could not be admitted to bail on the principle of consistency---Petition for grant of bail was dismissed, in circumstances.

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

----S. 497---Bail---Rule of consistency---Scope---Rule of consistency is not absolute and inflexible---It can be applied when a person is entitled to bail on merits---When a person is not entitled to bail on merits, he cannot claim it solely on the principle of consistency, as it has a limited scope---Facts of each case are the deciding factor for the grant or refusal of bail.

Raja Shakeel Ahmed, Shamsuddin and Umar Hussain for Petitioners.

Deputy Advocate General for the Respondent/State.

Shabbir Hussain, Shahidullah and Wazir Kamran for the Complainant.

2021 P Cr. L J 1235

[Gilgit-Balitistan Chief Court]

Before Ali Baig, J

FAIZAN REHMAT---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Nos. 47 and 48 of 2020, decided on 13th April, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 489-F, 420, 506 & 34---Dishonestly issuing a cheque, cheating and dishonestly inducing delivery of property, criminal intimidation, common intention---Conditional bail---Production of bank guarantee---Estoppel---Scope---Accused assailed bail granting order to the extent of condition of bank guarantee to be submitted by him---Record transpired that the Magistrate had passed the bail order with the consent of parties as the counsel for the accused had stated that the accused was ready to furnish bank guarantee if bail was granted---Accused could not resile from his earlier statement---Accused was estopped by his conduct and admission to challenge the impugned order---Petitions were dismissed.

Muhammad Kamran for Petitioner.

Deputy Advocate-General for the State.

Yasir Sherazi for the Complainant.

2021 P Cr. L J 51

[High Court (AJ&K)]

Before Muhammad Sheraz Kiani, J

DANIAL USMANI and 2 others---Petitioners

Versus

STATION HOUSE OFFICER, POLICE STATION GHARI DUPATTA, DISTRICT MUZAFFARABAD, AZAD JAMMU AND KASHMIR and others---Respondents

Writ Petition No. 987-A of 2020, decided on 10th August, 2020.

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

----S. 561-A---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Petition for quashment of FIR---Scope---Inherent powers of High Court---Prosecution case was that the complainant was present in his land for the purpose of construction of shops, in the meantime accused and co-accused persons, having sticks in their hands, launched a murderous attack upon the complainant---Complainant and others were got seriously injured---Contention of accused was that the FIR was lodged with extraordinary promptness and the distance of 10 kilometers towards the police station could not have been covered within 30 minutes, as shown in the FIR---Validity---High Court observed that firstly it was a question of fact and secondly it was not impossible to cover a distance of 10 kilometers within 30 minutes---Bare reading of the FIR prima facie constituted a cognizable offence--- Accused persons had the alternate remedy to put their version before the Investigating Officer and then before the Trial Court---Innocence or guilt of an accused could not be determined by High Court while invoking extraordinary jurisdiction under S. 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, or even under the powers conferred on High Court under S. 561-A, Cr.P.C.--- Constitutional petition, having no force, was dismissed.

PLD 2007 SC 539; 1994 SCMR 2142; 2012 PCr.LJ 630 and PLD 2010 Kar. 204 ref.

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

----S. 561-A---Inherent powers of High Court---Quashing of FIR, eventualities detailed.

FIR can be quashed only in the following eventualities;

(i) if it has been registered without lawful authority and there is any jurisdictional defect;

(ii) if from perusal of contents of FIR, no cognizable offence is constituted or made out;

(iii) if the civil liability has been converted into a criminal liability and to be enforced through criminal machinery;

(iv) if on the face of it, even remotely, there seems no connection of the alleged accused with the offence and there is no probability of the conviction of the accused and the criminal proceedings would be an abuse of process of the law or court;

(v) if there is a patent violation of any provision of law or gross misuse of powers of an authority; and

(vi) if regarding the same incident, instead of recording the counter version in the record of same FIR, a second one is registered mostly due to mala fide reasons for ulterior motive and the culprit and victim are put in the same box.

PLD 2018 SC 595 ref.

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

----S. 561-A---Inherent powers of High Court---Quashing of FIR---Scope---Power under S. 561-A, Cr.P.C., is required to be exercised in exceptional cases with utmost care only in the interest of justice, particularly where no other procedure or remedy is available---Such powers cannot be used to obstruct or divert the ordinary course of criminal procedure in a casual or cursory manner.

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

----S. 561-A---Inherent powers of High Court---Quashing of FIR---Scope---Investigation is not ordinarily hampered where there is no illegality on the face of record.

Shan Mohammad v. Mohammad Younis and 4 others 2014 SCR 183 and 2014 SCR 809 ref.

2021 P Cr. L J 398

[High Court (AJ&K)]

Before Raja Sajjad Ahmad Khan, J

SAQIB HUSSAIN and another---Petitioners

Versus

STATION HOUSE OFFICER, POLICE STATION, DHIRKOT and 2 others---Respondents

Miscellaneous Criminal Petition No. 132 of 2019, decided on 9th July, 2020.

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

----Ss. 561-A & 155---Azad Jammu and Kashmir Prohibition (Enforcement of Hadd) Act, 1995, Ss.3, 4, 16 & 22---Inherent powers of High Court---Quashing of FIR---Scope---Owning or possessing intoxicant---Cognizance of certain offences---Issue of search warrant---Quashing of FIR---Scope---Accused persons sought quashing of FIR wherein it was alleged that they were arrested from a room of rest house and one bottle of alcohol was recovered from the same room---Offences under Ss. 3, 4, 8 & 11 of the Azad Jammu and Kashmir Prohibition (Enforcement of Hadd) Act, 1995 were not cognizable, if committed at a private place---Police had violated the mandatory provisions of S. 155, Cr.P.C., and was not competent to take cognizance of non-cognizable offence---Charge and the trial of accused persons was without jurisdiction---Petition for quashing of FIR and proceedings against the accused persons were quashed and they were acquitted of the charge.

2005 YLR 3193, 2018 YLR 2532, 2011 PCr.LJ 1153, 2006 PCr.LJ 263, 2009 SCMR 141 and PLD 1988 Lah. 574 ref.

Mussarrat Shah v. The State PLD 1990 Pesh. 158; Mst. Iqbal Bibi v. The State 1995 PCr.LJ 1472 and Hussain Javeri v. The State 1983 PCr.LJ 102 rel.

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

----Ss. 561-A & 249-A---Inherent powers of High Court---Power of Magistrate to acquit accused at any stage---Quashing of FIR---Scope---High Court has wide powers, which can be exercised in proper cases without waiting for the Trial Court to pass an order under S. 249-A, Cr.P.C., if the facts of the case so warrant to prevent abuse of the process of any court or otherwise to secure the ends of justice. Hussain Javeri v. The State 1983 PCr.LJ 102 and Mohammad Aslam (Amir Aslam) and others v. District Police Officer, Rawalpindi 2009 SCMR 141 rel.

Sardar Bilal Shakeel for Petitioners.

2021 P Cr. L J 18

[Islamabad]

Before Mohsin Akhtar Kayani and Fiaz Ahmad Anjum Jandran, JJ

NAJEEB ULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 4 of 2016, decided on 9th July, 2020.

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

----S. 9(c)--- Narcotic substance, recovery of---Appreciation of evidence---Administration of justice---Juvenile offender---Sentence, quantum of---Scope---Charas weighing 1100 grams was recovered from accused who was juvenile at the time of offence---High Court observed that if offence was committed at the verge of juvenility, it had far reaching consequences upon future of an offender---Every sentence had a purpose though the way in which it was to be accomplished could vary or differ---Case of a repeater or habitual offender where probability of reformation was little and case of first time novice offender, where he/she had regret wrongdoing, such two cases could not be measured on same yardsticks and the latter case deserved a lenient view---High Court reduced sentence of accused to one already undergone as he was first offender and of the age less than eighteen years at the time of occurrence---Appeal was dismissed in circumstances.

2015 YLR 1786; 2011 SCMR 820; 2018 MLD 1257 and 2008 PCr.LJ 1268 ref.

PLD 2017 Sindh 592; Niaz-ud-Din v. The State 2007 SCMR 206; 2012 YLR 1630; 2010 YLR 3240; 2010 YLR 2170 and Mst. Jamila v. The State 2019 PCr.LJ 1176 rel.

Muhammad Aslam Chishti for Appellant.

Muhammad Sohail Khurshid, State Counsel with M. Azam, I.O. Police Station Koral, Islamabad for Respondent.

2021 P Cr. L J 145

[Islamabad]

Before Ghulam Azam Qambrani, J

GULRAIZ---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No. 4 of 2020, decided on 21st April, 2020.

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

----S. 489-F---Qanun-e-Shahadat (10 of 1984), Arts. 75, 76 & 162---Criminal Procedure Code (V of 1898), S. 439---Dishonestly issuing a cheque---Proof of documents by primary evidence---Cases in which secondary evidence relating to documents may be given---No new trial for improper admission or rejection of evidence---High Court's power of revision---Non-production of original cheque and original dishonour slip---Effect---Allegation against accused was that he had issued a cheque which was dishonored---Prosecution had mainly relied on photocopies of cheque and dishonour slip---Said documents were improperly received in evidence without production of their originals and the conditions pre-requisite for permitting secondary evidence were wanting---Mere consent or omission to object to the reception of inadmissible evidence did not make the evidence legal and valid because departure from the said rule had substantial effect on the decision of the courts below, which, if excluded, might have resulted in varying the decision---High Court observed that since appraisal of evidence at the revisional stage was improper and unjustified, therefore, case was remanded to the Trial Court for decision afresh.

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

----S. 489-F---Criminal Procedure Code (V of 1898), Ss. 241-A& 439---Dishonestly issuing a cheque---High Court's power of revision---Supply of statements and documents to the accused---Scope---Allegation against accused was that he and complainant entered into a sale transaction of a plot; complainant paid the whole amount of consideration but the accused failed to transfer the subject plot and on demand of amount, the accused issued a cheque, which on presentation was dishonoured---Document showing sale transaction was relied upon as prosecution evidence but it was not part of prosecution record nor was it supplied to the accused as required under S. 241-A, Cr.P.C.---Trial Court had erred while exhibiting the document abruptly produced by complainant in his cross-examination---Neither such document could be tendered in evidence nor could it be used against the accused in evidence which was excluded by the High Court from evidence---High Court observed that since appraisal of evidence at the revisional stage was improper and unjustified, therefore, case was remanded to the Trial Court for decision afresh.

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

----Arts. 76, 72, 73 & 162---Cases in which secondary evidence relating to documents may be given---Proof of contents of documents---Primary evidence---No new trial for improper admission or rejection of evidence---Scope---Documents produced in evidence by the prosecution unless admitted in writing before the trial court by the accused within the meaning of Art. 76(c) of Qanun-e-Shahadat, 1984 would not dispense with the requirement of the formal proof of the documents by primary evidence as provided by Arts. 72 & 73 of the Qanun-e-Shahadat, 1984---Secondary evidence can be admitted only on one or more conditions laid down in Art. 76 of the Qanun-e-Shahadat, 1984, having been satisfied by the party tendering such evidence---Secondary evidence cannot be admitted without accounting for the non-production of original document---Reception of secondary evidence without objection, by the party against whom it is tendered or required to be used in evidence, cannot ordinarily be objected at any subsequent stage but this rule is subject to the provisions of Art. 162 of Qanun-e-Shahadat, 1984.

Tahir Mehmood Abbasi and Shakeel Abbas for Petitioner.

Abdul Rauf Chaudhry for Respondent No. 1.

Zohaib Hassan Gondal, State counsel and Hafiz Malik Mazhar Javed, State Counsel along with Khalid Mehmood, Assistant Sub-Inspector for the State.

2021 P Cr. L J 308

[Islamabad]

Before Ghulam Azam Qambrani, J

ZAHID KARIM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 170 of 2010, decided on 6th July, 2020.

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

----Ss. 409, 420 & 477-A---Criminal breach of trust by public servant or by banker, merchant or agent, cheating or dishonestly inducing delivery of property, falsification of accounts---Appreciation of evidence---Benefit of doubt---Accused was charged for committing fraud, forgery and with mala fide intention had enhanced the amount upon 104 bank cheques with his own handwriting after getting the signatures of the Senior Officers, got them encashed and in that manner, he embezzled an amount of Rs.10,82,278 and also issued receipts of membership fees and pocketed the amount of Rs.23,985---Record showed that the prosecution produced witnesses in support of the charge, but none of them had directly implicated the accused in the commission of alleged offence, except the allegation made by the complainant in the report on the basis whereof case was registered---Record transpired that during investigation, the accused made disclosure about the commission of offence and led the police to his house and got recovered an amount of Rs.45,000 to be the same amount embezzled by him---However, no disclosure memo was prepared nor produced in evidence, therefore, said portions of statements made by the witnesses could not be taken into consideration---Prosecution witness had admitted that departmental inquiries were conducted, but admittedly, the inquiry reports/audit reports were not placed before the trial court, even the Inquiry Officer was given-up by the prosecution---Record further revealed that the charge framed by the Trial Court against the accused to the effect that he had been drawing additional amounts thereon by 30.6.2006 or before, was a defective charge and contrary to the contents of report---Specific period for commission of offence had not been put to the accused while recording his statement under S. 342, Cr.P.C.---Admittedly, the accused was handed over the charge of Cashier on 9.12.2006, after assuming charge of the post of Cashier by the accused, the cheque books, ledgers, TDRs and keys of safe were also handed over to him---Accused could not be held responsible for incidents prior to 9.12.2006---Record showed that there was allegation of tampering on 104 cheques, out of which 52 cheques had been issued and enchased before 09.12.2006---Though the report of handwriting expert had been placed on record but the same had not been put to the accused while recording the statement under S. 342, Cr.P.C.---Prosecution produced the original 104 cheques, which were allegedly tampered by the accused, however, the original vouchers and the relevant record had not been tendered in evidence before the trial court for knowing the actual facts and for proving the allegation levelled against the accused---Said aspect of the case casted serious doubts on the veracity of the prosecution story; without production of original vouchers in evidence, same could not be proved against the accused---Circumstances established that charge against the accused had not been proved beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 342---Examination of accused---Scope---Without putting any piece of evidence to the accused and obtaining any explanation of the same from him, that piece of evidence could not be taken into consideration for awarding him conviction.

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

----Ss. 409, 420 & 477-A---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Criminal breach of trust by public servant or by banker, merchant or agent, cheating or dishonestly inducing delivery of property, falsification of accounts---Appreciation of evidence---Benefit of doubt---Withholding material evidence---Scope---Accused was charged for committing fraud, forgery and with mala fide intention had enhanced the amount upon 104 bank cheques with his own handwriting after getting the signatures of the Senior Officers, got them encashed and in that manner, he embezzled an amount of Rs.10,82,278 and also issued receipts of membership fees and pocketed the amount of Rs.23,985---Investigating Officer had also recorded the statement of the Inquiry Officer, who conducted the inquiry against the accused and others---Said Inquiry Officer was the person who could have strengthened the case of prosecution being an important witness, evidence of said witness carried more weight than the statement of any other official witness, but the evidence of that witness was withheld by the prosecution without any plausible reason or justification---Evidence of said witness was the best piece of evidence, which the prosecution could have relied upon for proving the case against the accused, but for the reasons best known to the prosecution, his evidence was withheld and he was not examined---Once the statement of any witness was recorded, his examination before the court was necessary---Evidently, the case was registered against the accused on the finding of said Inquiry Officer---Non-examination of the said witness by the prosecution created a presumption under Art. 129(g) of Qanun-e-Shahadat, 1984 that, had the said witness examined in the court, his evidence would have been unfavourable to the prosecution---Although, the prosecution was not bound to produce each and every witness, but if the prosecution failed to produce such witness who was the central figure and all the story revolved around him, then the prosecution story would become doubtful---Circumstances established that charge against the accused had not been proved beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Hunar Shah alias Anar Shah and another v. Khan Zad Gul and another 2014 YLR 1180 rel.

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

----S. 342---Scope of S. 342, Cr.P.C.---Section 342, Cr.P.C. was based on the principle involved in the maxim audi alteram partem meaning thereby that no one should be condemned unheard---Person, who was charged with any penal liability, should be made aware of all the facts and circumstances existing against him, in order to enable him to give explanation in respect of those charges and evidence produced against him---Departure from such procedure could be fatal to prosecution as a very important step in the trial would, thus, be bypassed making the entire trial completely vitiated---Accused should be heard not merely on what was prima facie proved against him but also on every circumstances appearing in evidence against him---Statement under S. 342, Cr.P.C. was either to be believed in its entirety or not at all.

S.A.K. Rehmani v. The State 2005 SCMR 364; Shabbir Ahmad v. The State PLD 1995 SC 343; Abdur Rehman alias Boota and another v. The State and another 2011 SCMR 34; Wajahat Ahmed and others v. The State and others 2016 SCMR 2073; Muhammad Asghar v. The State PLD 2008 SC 513; Waqar Ahmed v. Shaukat Ali and others 2006 SCMR 1139; Ali Ahmad and another v. The State and others PLD 2020 SC 201; Haji Nawaz v. The State 2020 SCMR 687; Qaddan and others v. The State 2017 SCMR 148 and Imtiaz alias Taj v. The State and others 2018 SCMR 344 rel.

Ch. M. Junaid Akhtar for Appellant.

Ch. Abdul Jabbar, Assistant Attorney General along with M. Nadeem Mughal, Sub-Inspector for the State.

2021 P Cr. L J 382

[Islamabad]

Before Ghulam Azam Qambrani, J

Brig. (Retd.) KAMAL RASOOL---Appellant

Versus

JAMES ROLLINS, NIGERIAN NATIONAL and 3 others---Respondents

Criminal Appeal No. 131 of 2016, decided on 16th September, 2020.

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

----Ss. 419, 420, 468, 471 & 109---Cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Accused were charged that they cheated and deprived the complainant of Rs. 31,428,000---Perusal of the record showed that on the basis of the recovery items, the accused persons facing trial could not be connected with the commission of the alleged offences---All the documents and items which were sent for Forensic Report were not connecting the present accused with the charges---Other documents with regard to transfer of property by the complainant were only proof of sale of the property by the complainant but even those documents were not sufficient to connect the accused with the offences levelled against them---Prosecution failed to prove any payment to the accused by the complainant---Investigation conducted by FIA was of poor quality and on the basis of their investigation, the accused persons could not be connected with the commission of the alleged offences against them---Receipts produced by witness and the audio cassettes showed signatures of "E" whereas the audio cassettes could not be relied upon until and unless the voice of the accused had gone through the forensic test---No direct or indirect evidence was available on record to connect the accused persons with the commission of the alleged offences levelled against them---Accused were not nominated in the FIR---Nothing incriminating material was available on record against the present accused---All the recoveries were either made through the complainant or from a Flat---Whole prosecution evidence was based on hearsay or mere improvement in the original stance taken by the complainant in the FIR---Record further showed that the co-accused had himself joined the FIA, SIU along with Ambassador of his country and the accused was firstly taken into custody by the police but thereafter, he was let go after initial investigation, which showed that he was not involved in the commission of the alleged offence---Circumstances established that the prosecution had failed to prove its case beyond reasonable shadow of doubt---Appeal against acquittal was dismissed accordingly.

Muhammad Karim v. The State 2009 SCMR 230; Muhammad Imran v. The State 2020 SCMR 857; Ghulam Akbar and another v. The State 2008 SCMR 1064 and Sanaullah v. The State through Prosecutor General 2015 PCr.LJ 382 rel.

(b) Criminal trial---

----Burden of proof---Scope---Prosecution was to prove its case beyond doubt and that burden could not shift from prosecution even if the accused person took up any particular plea and failed in it.

(c) Appeal against acquittal---

----Double presumption of innocence--- Interference--- Scope of interference in appeal against acquittal was most narrow and limited---In case of acquittal the presumption of innocence was significantly added to the cardinal rule of criminal jurisprudence that an accused would be presumed to be innocent until proved guilty in other words, the presumption of innocence was doubled.

(d) Appeal against acquittal---

----Interference---Scope---Acquittal judgment shouldnot be interjected until the findings were perverse, arbitrary, foolish, artificial, speculative and ridiculous---Court of appeal should not interfere simply for the reason that on re-appraisal of the evidence a different conclusion could possibly be arrived at---Factual conclusions should not be upset, except when same are palpably perverse, suffering from serious and material factual infirmities.

Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 and Inayatullah Butt v. Muhammad Javed and 2 others PLD 2003 SC 562 rel.

Nazar Hussain Shah, A.A.G. for the State.

2021 P Cr. L J 417

[Islamabad]

Before Mohsin Akhtar Kayani and Fiaz Ahmad Anjum Jandran, JJ

GHULAM MUSTAFA and another---Petitioners

Versus

The STATE and 2 others---Respondents

Criminal Revisions Nos. 34 and 35 of 2020, decided on 5th November, 2020.

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

----Ss. 94, 537 & 540---Anti-Terrorism Act (XXVII of 1997), S, 7---Penal Code (XLV of 1860), Ss. 324, 427 & 34---Attempt to commit qatl-i-amd, common intention, act of terrorism---Summoning of witnesses and documents---Scope---Petitioners contended that weapon of offence i.e. 9 MM pistol was used in both the cases along with other criminal cases by same set of accused who were accused in those cases, however, during the course of trial prosecution intended to connect the accused with particular piece of evidence i.e. the manufacturer of said weapon of offence which was machine gun factory, as to whether the weapon of offence was purchased by respondent and the same was registered with the licensing authority, therefore, said witnesses were necessary for the just decision of the case---Application for summoning of said witnesses as court witnesses along with relevant record of another case FIR was dismissed---Validity---No concept existed under the law to use the deposition of one set of witnesses of a criminal case in another criminal case without calling those witnesses nor there was any concept under the law that certified copies of statement of witnesses could be placed on record of any other case---If the evidence of one witness was adopted from one case into the file of other case without appearance of witness, without examination and cross examination of the witness, it would amount to serious defect and may cause prejudice to the case of defence, and also amounted to illegality---Trial, in such circumstances, would stand vitiated and even no protection under S. 537, Cr.P.C. could be extended to a trial, where such methods were adopted by the Trial Courts, when accused was facing more than one trial---Respondents contended that the petitioners had not objected to the submission of evidence recorded in one case in the other cases against the accused person and as such they were not to be permitted to object at that stage---Consent if given by the parties in any case in that manner was also illegal and was alien to the procedure provided under the law, hence, the statement of one case could not be used in another case without calling a witness in the court and same could not be given protection on the ground that it was against the principles of natural justice---Court, in such circumstances, truly believed that application under S. 540, Cr.P.C., for summoning of material witnesses was required to be allowed, otherwise prosecution might suffer irreparable loss and they would be deprived of opportunity to prove their case---In the present case, all the witnesses who had been referred by the petitioners in their applications were likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution; in that backdrop, the provision of S. 265-F, Cr.P.C., though provisional in nature, but it manifested a positive intent in advancing the cause of justice, especially when the said material evidence was left out by negligence of Investigating Officer or of the prosecutor---Impugned orders passed by Anti-Terrorism Court being contrary to settled principles of law were set aside and both the criminal revisions were allowed in the interest of justice.

Ghulam Hussain v. The State 1996 PCr.LJ 514; Noor Elahi v. The State PLD 1966 SC 708; Ch. Muhammad Aslam v. The State 2010 PCr.LJ 1778; Malik Aman v. Haji Muhammad Tufail PLD 1976 Lah. 1446; Mahboob v. The State and 3 others 1989 PCr.LJ 2050 and Ansar Mehmood v. Abdul Khaliq and another 2011 SCMR 713 rel.

(b) Criminal trial---

----Evidence---Recording of---Scope---Cases had to be conducted by prescribed Criminal or Civil Procedure---Principle of natural justice also demanded that evidence should have been recorded separately and thereafter the court had to apply its mind independently in context of evidence brought on record in each and every case and same should be disposed of.

Muhammad Younas v. The Crown PLD 1953 Lah. 321 and The State v. Qalandar Khan PLD 1971 Pesh. 119 rel.

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

----S. 540---Summoning of material witnesses---Scope---Principle of summoning of material witnesses is only meant for just decision of the case and not to fill the lacuna---Even otherwise, the witness might also be called where defective investigation was reflected from record and those witnesses who were not arrayed in the calendar of witnesses who were essential for the just decision of case could be summoned as material witnesses---Even those persons might also be allowed to give evidence, who were acquainted with the facts of the case, however, the court might refuse to summon any witness, if the Court was of the opinion that such witness was being called for the purpose of vexation or delay or defeating the ends of justice.

Muhammad Saleem v. Muhammad Azan 2011 SCMR 474; Muhammad Awais v. The State and others PLD 2016 Lah. 533; Mst. Bibi Khatoon v. Gul Dad Khan 2006 YLR 584; The State v. Muhammad Yaqoob and others 2001 SCMR 308 and Nawabzada Shah Zain Bugti and others v. The State PLD 2013 SC 160 rel.

Hafiz Malik Mazhar Javed for Petitioners.

M. Sohail Khursheed, State counsel.

Mudassar Hussain Malik, Syed Zulfiqar Abbas Naqvi and Syed Hamid Ali Bukhari for Respondents.

Muhammad Rafiq, Inspector and Noor Elahi, ASI, P.S. Industrial Area, Islamabad.

Darya Khan, S.I. P.S. Aabpara, Islamabad.

2021 P Cr. L J 513

[Islamabad]

Before Athar Minallah, C.J.

KABIR---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 230 of 2020, decided on 24th March, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Bail, grant of---Pandemic situation---Safety concerns of prisoners---Accused persons were confined in jail and there was extraordinary situation arisen due to COVID-19---Effect---Policy was framed by Federal Government and there were intolerable living conditions in over-crowed Central Prison, (Rawalpindi)---There was gravity of risk posed by Novel COVID-19, to safety concerns of prisons and their right to life---High Court directed Chief Commissioner and Inspector General of Police of Capital Territory to constitute a joint committee to scrutinize each case and release in each would be subject to satisfaction of that Committee---High Court admitted all those accused persons to bail who were alleged to have been involved in offences falling under non-prohibitory clause of S. 497, Cr.P.C.---Petition allowed accordingly.

Niaz Ullah Niazi, Advocate General, ICT, Islamabad.

Syed Muhammad Tayyab, Deputy Attorney General.

Rabi Bin Tariq, State counsel.

Waseem Ahmed Qureshi, Special Prosecutor ANF.

Hamza Shafqaat, Deputy Commissioner, ICT, Islamabad.

Waqar Uddin Syyid, Deputy Inspector General, ICT Police, Islamabad.

Azhar Shah, DSP Legal, ICT Police, Islamabad.

2021 P Cr. L J 631

[Islamabad]

Before Mohsin Akhtar Kayani and Fiaz Ahmad Anjum Jandran, JJ

MUHAMMAD NAFEES and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 114 and 124 of 2020, decided on 25th November, 2020.

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

----Ss. 9(c) & 15---Possession of narcotics---Aiding, abetment or association in narcotic offences---Appreciation of evidence---Safe custody---Contradiction in evidence---Scope---Accused persons were alleged to have been found in possession of charas---Sample-bearer stated that he received three samples on 16-05-2018 from the Moharrir, deposited them in the Forensic Laboratory on the same day whereas report of Forensic Laboratory showed the date of receipt of parcels as 17-05-2018---Prosecution throughout the trial did not question the said entry rather relied upon the report to substantiate that the recovered substance was charas---Prosecution had failed to establish the unbroken chain of transmission of sealed sample parcels to the office of Forensic Laboratory---Appeals against conviction were allowed, in circumstances.

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

----S. 9---Possession of narcotics---Safe custody---Scope---Proving unbroken chain of safe transmission of the sample parcels is necessary for conviction in narcotic cases because the recovery is not just a corroboratory piece of evidence rather constitutes the charge having punishment and if unbroken chain of safe custody has not been established, it would be considered grave and fatal for the prosecution case---Prosecution has to prove safe custody from the point of recovery till its submission by way of samples to the Laboratory.

The State through Regional Director ANF v. Imam Bakhsh 2018 SCMR 2039; Abdul Ghani and others v. The State 2019 SCMR 608 and Criminal Appeal No.202/2019, vide judgment dated 17.10.2019 ref.

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

----S.9---Possession of narcotics---Safe custody---Duty of prosecution---Scope---Role of prosecution requires great responsibility and prosecution has to prove its case beyond doubt on every important aspect---Preservation of separated samples from recovered drug and its safe transmission to the Malkhana and onward deposit in the office of Chemical Examiner for report without any flaw is most important phenomena in the narcotic cases---Said requirement is so mandatory that the Supreme Court in such cases has used the word "must" instead of "may" or "shall".

The State through Regional Director ANF v. Imam Bakhsh 2018 SCMR 2039; Abdul Ghani and others v. The State 2019 SCMR 608 and Criminal Appeal No.202/2019, vide judgment dated 17.10.2019 ref.

Irfan Hussain for Appellant (in Criminal Appeal No. 114 of 2020).

Shan Zeb Khan for Appellant (in Criminal Appeal No. 124 of 2020).

Dr. Waseem Ahmed Qureshi, Special Prosecutor ANF along with M. Sheraz, Inspector for the State.

2021 P Cr. L J 669

[Islamabad]

Before Ghulam Azam Qambrani, J

ANWAAR-UL-HAQ---Appellant

Versus

The JUDICIAL MAGISTRATE, P.S. RAMNA, ISLAMABAD and 3 others---Respondents

Criminal Appeal No. 182 of 2017, decided on 8th September, 2020.

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

----Ss. 489-F, 406 & 34---Dishonestly issuing a cheque, criminal breach of trust and common intention---Appreciation of evidence--- Appeal against acquittal---Benefit of doubt---Accused obtained five vehicles on rent from complainant but did not pay rent, thereafter accused issued a cheque amounting to Rs. 26,00,000/- in favour of complainant which was dishonoured due to insufficient funds, however accused neither paid rent nor returned two vehicles---Perusal of the record revealed that the complainant in his statement deposed that the accused had misappropriated his vehicle and attributed the allegation with regard to misappropriation of parts of other vehicle to the co-accused---During the physical remand neither the vehicle nor any parts of vehicle were recovered from possession of the accused---Record further revealed that the complainant deposed that after one year and eight months the police informed him that his vehicle had been recovered and he had taken the same on superdari from the concerned Area Magistrate---Nothing was on record to show as to from where the police got recovered the said vehicle and no recovery memo regarding recovery of the said vehicle was available on record, which made the prosecution case highly doubtful---Record further transpired that vehicle was obtained by accused whereas, co-accused was only a guarantor, as such, the obligation for the payment of rent of the said vehicle was upon accused and not on the co-accused---Prosecution also failed to establish any specific amount of rent due towards the accused---Principal ingredient of the offence being dishonest misappropriation or conversion might not ordinarily be a matter of direct proof---Entrustment of property and failure in the breach of an obligation to account for the property entrusted, if proved, might in the light of other circumstances, justifiably led to an inference of dishonest misappropriation or conversion---Ingredients of the offence under S. 406, P.P.C., in circumstances, was not made out against the accused---Allegedly an Iqrarnama was executed between accused and complainant but complainant neither mentioned the said document in his application for registration of the FIR nor produced before the Investigation Officer---No marginal witnesses of the said Iqrarnama was produced by the prosecution to prove its contents---Prosecution failed to prove the liability of accused with regard to payment of Rs. 26,00,000/- to the complainant mentioned in the cheque---Record transpired that no material was available on record against the accused---Trial Court, after proper appraisal of evidence available on record, had concluded that the prosecution had failed to prove its case against all the accused, as such, acquitted them---Appeal against acquittal was dismissed, in circumstances.

Rafiq Haji Usman v. Chairman, NAB and another 2015 SCMR 1575; Mst. Maryam Bibi and others v. Muhammad Rafique Anwar and others 2012 SCMR 1384 and Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others PLD 2011 SC 241 rel.

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

----S. 489-F---Dishonestly issuing a cheque---Fulfilment of obligation---Scope---Mere issuance of a cheque and its being dishonoured by itself was not an offence, unless and until dishonesty on the part of a payer was proved.

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

----S. 406---Criminal breach of trust---Scope---Mere non-payment of rent of vehicle did not constitute the offence of criminal breach of trust---Two things are essential to constitute offence under S.406, P.P.C.---In the first place there must be a trust of dominion with property or with dominion over it; secondly, the accused misappropriated it or converted it to his own use or used it or disposed of the same.

(d) Appeal against acquittal---

----Interference---Scope---Interference would be warranted, if the reasoning of the Trial Court in acquitting an accused was perverse, artificial or ridiculous---Court, in an exceptional case could interfere by setting aside the acquittal of an accused.

Muhammad Zaman v. The State and others 2014 SCMR 749; Muhammad Rafique v. Muhabbat Khan and others 2008 SCMR 715; Jehangir v. Amin Ullah and others 2010 SCMR 491; Mst. Askar Jan and others v. Muhammad Daud and others 2010 SCMR 1604; Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 and Sanaullah v. The State through Prosecutor General 2015 PCr.LJ 382 rel.

(e) Appeal against acquittal---

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

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

Talat Mehmood Zaidi for Appellant.

Zahid Ayub Rathore for Respondents Nos. 3 and 4.

Zohaib Hassan Gondal, State Counsel with Shahbaz, Sub-Inspector and Ashfaq Warriach, Assistant Sub-Inspector for the State.

2021 P Cr. L J 761

[Islamabad]

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

AFTAB HUSSAIN and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 55 of 2016, decided on 4th May, 2020.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), S. 22---Qatl-i-amd---Benefit of doubt---Identification parade---Sketch of accused---Chance witness, evidence of---Three accused persons were arrested on the basis of identification parade who faced trial---Trial Court acquitted one accused and convicted two persons---Prosecution witness who was a relative of complainant, distance between crime scene and his business office was about twenty kilometers---Purpose of visit of such prosecution witness was vague and he did not give sufficient details to substantiate his claim---Prosecution witness also failed to explain as to how one accused was already known to him---Sketches of accused persons and their photographs were available in police file and were produced in Court during evidence---No explanation was available as to how and when photographs of accused persons were taken and made part of police file---Similarity existed between sketches and photographs regarding posture, expressions and details which were alike and the same had raised doubts in the mind of reasonable prudent person regarding the sketches having been genuinely drawn by an expert without having had access to the photos---Similarities were so obvious to the naked eye of a person of ordinary prudence that it raised doubts regarding the probity of investigations---High Court set aside conviction and sentence awarded to accused persons by Trial Court and they were acquitted of the charge---Appeal was allowed in circumstances.

Binyamin alias Khari and others v. The State 2007 SCMR 778; Babar Ali v. Bashir Ahmad and another 2007 SCMR 184; Sheraz Tufail v. The State 2007 SCMR 518; Muhammad Ashraf v. The State 1998 SCMR 80; Gulzar Shah v. The State 2002 SCMR 1168; Manzoor Ahmed v. Fazal Ahmed and 3 others 2013 SCMR 1403; Muhammad Nawaz v. Muhammad Nawaz alias Naji and 4 others 1997 SCMR 1521; Farhat Azeem v. Waheed Rasul and others PLD 2000 SC 18; Bashir Ahmed v. Zulfiqar Ahmed and another PLD 1992 SC 463; Lazar v. The State 2008 YLR 2710; Shahid v. The State 2008 SCMR 1599; Ahmad Subhan alias Bana and another v. The State 1994 SCMR 1176; Muhammad Abid v. The State and another PLD 2018 SC 813; Zafar Abbas v. The State 2010 SCMR 939; Criminal Miscellaneous Application No. 183 of 2019 in Criminal Appeal No. 259 of 2018 PLD 2019 SC 488; Mst. Sugra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 and Mst. Anar Begum v. Akhtar Hussain alias Kaka and 2 others 2017 SCMR 1719 ref.

(b) Administration of justice---

----Criminal justice system---Reasons for not serving its purpose---Whether due to corruption, complacency or sheer incompetence and lack of professionalism, the criminal justice system is not serving its purpose rather it is perpetuating miscarriages of justice and has become a source of grave injustice---High Court observed that present abysmal state of criminal justice system has not happened in a day but is a reflection of apathy, neglect and mis-governance of the past seven decades--- No organ of the State can absolve itself for being responsible---If urgent steps are not taken then posterity will never forgive those who are today in a position to remedy the wrongs that perpetuate miscarriages of justice.

Mehtab Ahmed v. The State and others 2015 YLR 1132 rel.

Ch. Afrasiab Khan for Appellants.

Raja Ikram Amin Minhas and Aamir Zar Bhatti for the Complainant.

M. Bilal Mughal, State Counsel.

2021 P Cr. L J 824

[Islamabad]

Before Athar Minallah, C.J. and Aamer Farooq, J

SUBAH SADIQ MALIK and others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and others---Respondents

W.Ps. Nos. 1053-Q, 1067-Q and 1085-Q of 2020, decided on 19th January, 2021.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(vi) [as amended by National Accountability (Second Amendment) Ordinance (XXVII of 2019)] & 36---Criminal Procedure Code (V of 1898), S. 265-K---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of proceedings---Amendment, lapse of---Effect---No illegal benefit gained---Petitioners were ex-officials of National Accountability Bureau (NAB) who were accused of misusing their authority to extend benefit to an accused in a reference prepared by them---Trial Court declined to extend benefit of amended law to accused persons and their application for acquittal was dismissed---Validity---Matter of inquiry was concluded expeditiously which was within the mandate of National Accountability Bureau, which envisaged expeditious conclusion of inquiry as well as investigation--- Amendment was made in National Accountability Ordinance by virtue of which an explanation was added to S. 9(a)(vi) of National Accountability Ordinance, 1999---Amendment Ordinance lapsed but its effect and consequence of lapse were not considered by Trial Court---Charges against petitioners were silent vis-a-vis S. 36 of National Accountability Ordinance, 1999---High Court set aside order in question and remanded the matter to Trial Court for decision afresh on application of acquittal filed by petitioners--- Constitutional petition was allowed accordingly.

Dr. Ghulam Mustafa v. The State 2008 SCMR 76; Muhammad Mansha v. Station House Officer, Police City Chiniot District Jhang and others PLD 2006 SC 598; The State v. Tariq Nouman and another PLD 2013 Bal. 138; Sikandar A. Kareem v. The State 2011 MLD 313; Muhammad Khalid Mukhtar v. The State PLD 1997 SC 275; Pakcom Limited and others v. Federation of Pakistan PLD 2011 SC 44; The State v. Sultan Ahmed and others PLD 2007 SC 48; Member (taxes) Board of Revenue Punjab v. Qaiser Abbas and others 2019 SCMR 446; Shahida Bibi and others v. Habib Bank Limited and others PLD 2016 SC 995; Air League of PIAC Employees through President v. Federation of Pakistan 2011 SCMR 1254; Malik Din v. Chairman, NAB 2019 SCMR 372; The State v. Anwar Saif Ullah Khan PLD 2016 SC 276; Suo Motu Case No.18 of 2010 2014 SCMR 585; Mansur-ul-Haq v. Government of Pakistan PLD 2008 SC 166; Fazal Ullah Siddiqui v. The State 2006 SCMR 1334; The State and others v. M. Idrees Ghauri and others 2008 SCMR 1118; Muhammad Siddiqul Farooq v. The State 2010 SCMR 198; Syed Zahir Shah and others v. National Accountability Bureau and others 2010 SCMR 713 and Muhammad Bilal Sheikh v. National Accountability Bureau through its Chairman, Islamabad and another 2020 PCr.LJ 671 ref.

Muhammad Amjad Iqbal Qureshi, Ch. Khurshid Anwar Bhinder and Muhammad Arshad Tabrez for Petitioners.

Jahanzeb Khan Bharwana, Additional Prosecutor General, NAB, Sardar Muzaffar Khan Abbasi, Deputy Prosecutor General, NAB, Syed Jalal Hussain, Special Prosecutor General, NAB and Mian Nadeem Ahmad Shahid, Additional Director, IO, NAB for Respondents.

2021 P Cr. L J 882

[Islamabad]

Before Lubna Saleem Pervez, J

ABDUL RAHEEM and 2 others---Petitioners

Versus

The STATE and another---Respondents

W.P. No. 2493-Q of 2020, decided on 2nd November, 2020.

Penal Code (XLV of 1860)---

----Ss. 408 & 34---Criminal Procedure Code (V of 1898), Ss. 561-A & 249-A--- Quashing of proceedings---Inherent jurisdiction of High Court---Alternate and efficacious remedy---Petitioner was facing trial on the allegation of criminal breach of trust and sought quashing of proceedings---Validity---Held, though High Court had inherent discretionary power under S. 561-A, Cr.P.C. but at the same time had no powers to step into jurisdiction of Trial Court and indulge in fact finding activities, which was exclusive domain of Trial Court---Inherent powers under S. 561-A, Cr.P.C., could not be used as a device to short cut proceedings before Trial Court, as jurisdiction under S. 561-A, Cr.P.C. was exercised only in such cases where there were no disputed facts and there was glaring illegality of action against a person and which did not require any elaboration and detailed inquiry---Inherent power of High Court under S. 561-A, Cr.P.C. could be invoked in exceptional cases to prevent abuse of process of law and Court---Alternate remedy under S. 249-A, Cr.P.C. was available to petitioner before Trial Court, who had ample power to acquit accused on the basis of report of investigating officer filed under S. 173, Cr.P.C.--- Constitutional petition was dismissed in circumstances.

Director General Anti-Corruption v. Muhammad Akram PLD 2013 SC 401; Muhammad Shoaib v. SHO Police Station New Multan and another 2005 PCr.LJ 1681 and Sajid Javed v. SHO PS Sabzi Mandi 2016 PCr.LJ 693 rel.

Ch. Shaukat Mehmood Malik for Petitioners.

Anwar Zeb Yousafzai for Complainant/Respondent No. 2.

Ms. Bushra Tariq Raja, State Counsel.

Ishaq, S.I.

2021 P Cr. L J 904

[Islamabad]

Before Fiaz Ahmad Anjum Jandran, J

NOOR MUHAMMAD---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE (GBV COURT), ISLAMABAD WEST and 3 others---Respondents

Writ Petition No. 2292 of 2020, decided on 3rd September, 2020.

(a) General Clauses Act (X of 1897)---

----S. 24-A---"Speaking order"---Principle---Orders/judgments which are sketchy, slipshod and devoid of reasons cannot be described as a speaking or judicial orders within the legal parlance.

Muhammad Ibrahim Khan v. Secretary Ministry of Labour and others 1984 SCMR 1014; Gouranga Mohan Sikdar v. The Controller of Import and Export PLD 1966 SC 357; Nazim Paly Sock Ltd v. Collector of Customs 2005 YLR 1019 and Malik Zaheer Nawaz and 6 others v. Pakistan Industrial Leasing Corporation Limited 2002 CLC 739 rel.

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

----Ss. 377 & 377-B---Criminal Procedure Code (V of 1898), S. 227---Constitution of Pakistan, Art. 10-A---Sodomy and Gender Base Violation---Amendment of charge--- Complainant was aggrieved of framing of charge under S. 377, P.P.C. instead of 377-B P.P.C.---Lower Appellate Court declined to interfere in the charge framed by Trial Court---Validity---Trial Court was competent under S. 227, Cr.P.C. to alter or add to any charge at any time before judgment was pronounced---Only pre-requisite was that the same should have been done prior to announcement of judgment and subject to condition that every such alteration or addition would be read and explained to accused---Orders passed by both the Courts below did not qualify the status of speaking orders for want of reasoning and material made basis to arrive at conclusion---Trial Court was to discuss material placed before it to be sufficient for addition / deletion of charge--- Orders passed by two Courts below were also hit by principles of natural justice and fair trial envisaged in Art. 10-A of the Constitution---High Court set aside orders passed by two Courts below and remanded the matter to Trial Court for decision afresh on application filed by complainant---Constitutional petition was allowed accordingly.

Muhammad Jameel Azeem v. Ghulam Shabbir and others 2011 SCMR 1145 rel.

Ch. Qaiser Nazir Sipra for Petitioner.

Khadija Ali, State Counsel.

Khalid Mehmood for Respondent No.3.

Muhammad Nawaz, SI with police record.

2021 P Cr. L J 923

[Islamabad]

Before Mohsin Akhtar Kayani, J

WALAYAT HUSSAIN and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 198 of 2018 and Criminal Revision No. 31 of 2020, decided on 29th August, 2020.

Penal Code (XLV of 1860)---

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Accused were charged for committing murder of brother, sister and sister-in-law of the complainant by firing whereas mother of complainant sustained injuries---Ocular account of the incident had been furnished by five eye-witnesses, who corroborated each other and remained consistent on the point of attribution of specific role to each accused---In the present case, the entire judgment seemed to be self-contradictory whereby the trial court had not appreciated the evidence on the touchstone of Qanun-e-Shahadat, 1984, especially when accused persons had come up with their specific pleas in terms of S. 340(2), Cr.P.C.---Principal accused, in his statement, acknowledged his presence in the incident and appeared as defence witness in the trial---Trial Court, in circumstances, was duly bound to apply the principle of sifting the grain from chaff to fix the responsibility of an accused following the rule of independent corroboration---Evidence of the witnesses could not be brushed aside and ruled out of consideration against all accused for mere reason that one or more accused in the case were found not guilty---Similarly, Trial Court had not set up the case in the impugned judgment while considering and appreciating the law regarding the award of punishment in cases where situation was not clear---Reasons referred by the Trial Court for declaring that parties did not come up with complete picture and truth was not justifiable from record---Even the evidence, ocular account and Forensic Science Laboratory Report were not evaluated vis-à-vis the medical evidence, which clarified the entire picture---Impugned judgment looked a confusing judgment where motive had been disbelieved, especially when there was no motive brought on record by the prosecution---Circumstances suggested that the Trial Court had wrongly awarded the sentence in terms of S. 302(c), P.P.C., without application of legal principles---Despite the fact that ocular account vis-a-vis the medical evidence spoke otherwise, therefore, impugned judgment of Trial Court was not in accordance with law---Appeal against conviction was allowed in the manner that the sentence awarded to the accused was contrary to legal principles---Impugned judgment was set-aside and the matter was remanded to the Trial Court to give rehearing to the parties concerned and rewrite the judgment in accordance of law.

Muhammad Zafar v. Rustam Ali 2017 SCMR 1639; Shera Masih v. The State PLD 2002 SC 643; Gul Hassan Khan v. Government of Pakistan and another PLD 1980 Pesh. 1; Abdul Zahir and another v. The State 2000 SCMR 406; Muhammad Saleem v. The State PLD 2003 SC 512; Talib Hussain v. The State 1981 SCMR 174; Haji Shaukat Ali v. The State 2001 YLR 3198; Saeed Shah and others v. The State and others 2005 MLD 389; Tariq Mehmood v. State 2012 YLR 1366; Khan Muhammad v. The State 2003 PCr.LJ 1619; Walayat v. The State 1998 PCr.LJ 111; Nasir Khan v. The State 2003 YLR 727; Iftikhar-ul-Hassan v. Israr Bashir PLD 2007 SC 111; Ali Muhammad v. Ali Muhammad PLD 1996 SC 274; Zahid Rehman v. State PLD 2015 SC 77; Nadar Wali v. Sumaya Gul 2020 SCMR 414; Naseer Khan v. Said Qadeem 2020 SCMR 293; Talal Ahmed Chaudhry v. State 2019 SCMR 542; Shakeel Ahmad Siddiqui v. Muhammad Nauman Siddiqui 2018 SCMR 511; Muhammad Ajmal v. State 2018 SCMR 141; State v. Haji Nabi Bux PLD 2018 SC 837 and Tahir Javed alias Tara v. State 2017 SCMR 1946 rel.

Jam Khursheed Ahmed for Appellants (in Criminal Appeal No. 198 of 2018).

Hasnain Haider, State counsel, Ms. Qurratul Ain Ayesha and M. Ishaq Khan, S.I./I.O. for Respondents (in Criminal Appeal No. 198 of 2018).

Ms. Qurratul Ain Ayesha for Petitioner (in Criminal Revision No.31 of 2020).

Hasnain Haider, State counsel, Jam Khursheed Ahmed and M. Ishaq Khan, S.I./I.O. for Respondents (in Criminal Revision No.31 of 2020).

2021 P Cr. L J 953

[Islamabad]

Before Aamer Farooq and Tariq Mehmood Jahangiri, JJ

MUHAMMAD ASHRAF MALIK and others---Petitioners

Versus

JUDGE ACCOUNTABILITY COURT NO. III, ISLAMABAD and 3 others---Respondents

W.Ps. Nos. 1770, 1772 and 1773 of 2021, decided on 19th May, 2020.

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

----Ss. 87 & 88---Attachment of property---Court, jurisdiction of---Scope---Court issuing proclamation under S. 87, Cr.P.C., may at any time order attachment under S. 88, Cr.P.C., of any property movable or immovable or both belonging to proclaimed offender.

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

----S. 88(6A)---Objection to attachment---Locus standi---Any person who has any claim or objection made to attachment with respect to any property which has been attached and owned by proclaimed offender, has right under S. 88(6A), Cr.P.C. to challenge such attachment.

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

----S. 88(6-A)---Words "claim" and "objection"---Scope---Preconditions of objection/claim---Procedure by Court---Grounds on the basis of which attachment can be challenged is that claimant or objector has interest in such property and that such interest is not liable to attachment under S. 88(6-A), Cr.P.C.---Claim or objection is to be inquired into and/or may be allowed or disallowed in whole or in part---Words used in S. 88(6-A), Cr.P.C. are 'claim' with respect to attached properties or 'objection' made to attachment---As such the same is wide enough to cover any factual challenge to the attachment or even legal attack on the same.

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

----S. 9(a)---Criminal Procedure Code (V of 1898), S. 88 (6-A)---High Court (Lahore) Rules and Orders, Volume III, Chapter- 15---Constitution of Pakistan, Art. 199---Constitutional petition---Claim/objection---Determination---Limitation---Alternate and adequate remedy---Petitioners claimed to have interest in properties attached which interest was not liable to attachment against properties---Petitioners contended that they did not file any objection as attachment was not in their knowledge and objection had become barred by limitation---Validity---Alternate, adequate and efficacious remedy was available to petitioners under which they could challenge attachment not only on the basis of interest they had, if any, in properties in question but also on legal grounds---Court can hold inquiry under S. 88(6-A), Cr.P.C. into claim of objector---Limitation provided for assailing attachment is six months from the date of attachment---Record was not clear from the petition as to when attachment was made and whether remedy of petitioners had become barred by limitation---Attachment order was passed on 1-10-2020 but when attachment was made was not borne out from available record---Limitation was to start from the date of attachment and such question remained grey---Petitioners had alternate and adequate remedy, they could challenge attachment by way of that remedy provided under S. 88(6-A), Cr.P.C.---Trial Court while deciding applications/objections to attachment would also advert to question of limitation---Fact that alternate and adequate remedy had become barred by limitation was no ground for assailing order of attachment by way of petitions under Art. 199 of the Constitution---High Court directed Trial Court to decide question of limitation as well in accordance with mandate of law, if petitioner would assail attachment of properties in accordance with process provided under S. 88(6-A), Cr.P.C.---High Court declined to interfere in the matter as petition was not maintainable---Constitutional petition was dismissed accordingly.

Gnu Shukul and others v. Emperor AIR 1930 Patna 347(1); B.K. Shaikh v. The State and others 1985 SCMR 1291 and Naila Tranum Jamshed v. Haji Muhammad Abbas and 4-others 2001 SCMR 383 ref.

2021 P Cr. L J 1050

[Islamabad]

Before Lubna Saleem Pervez, J

MUHAMMAD TOURAIB---Petitioner

Versus

MUHAMMAD TAIMOOR KHAN and another---Respondents

Criminal Miscellaneous No. 1051-BC of 2020, decided on 4th January, 2021.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 324, 148 & 149---Juvenile Justice System Act (XXII of 2018), S. 6---Attempt to commit qatl-i-amd, rioting, common object---Release of a juvenile on pre-arrest bail---Cancellation of bail---Scope--Complainant sought cancellation of pre-arrest bail granted to accused---Allegation against accused was that he and others had beaten the injured persons and stabbed them with khanjer---Accused persons and injured persons were juveniles---Reasons for allowing pre-arrest bail application as mentioned in the impugned order were that the accused did not repeat the act for causing hurt to the injured, which was on non-vital part, therefore, there was no intention of causing qatl-i-amd; that common object was a question of further inquiry; that the punishment for offences under Ss. 337-F(iii) & 337-N(2), P.P.C., did not fall under prohibitory clause of S. 497, Cr.P.C. and that the accused was not a hardened criminal---Held; S. 6(4) of Juvenile Justice System Act, 2018, provided for refusal to allow bail to a juvenile, who was above the age of 16 years, arrested for commission of heinous offence but on the condition that Juvenile Court was satisfied on the basis of reasonable ground to believe that said juvenile was involved in that heinous crime---Nature of intention and attempt which resulted in the occurrence of offence would be collected from the probe into facts and circumstances of the case by the Trial Court---Additional Sessions Judge had acted according to the mandate of Juvenile Justice System Act, 2018 and his order did not require interference---Application was dismissed.

Sarwar Sultan v. The State PLD 1994 SC 133; Sami Ullah and another v. Laiq Zada and another 2020 SCMR 1115; Hidayat Ullah v. The State PLD 1949 Lah. 21; Muhammad Arshad v. Muhammad Rafiq PLD 2009 SC 427; Arshad Iqbal v. Naeem Khan PLD 2004 Pesh. 11; Naeem Khan v. The State PLD 2004 Pesh. 70; Fawad Khan v. Jamshed Khan 2018 PCr.LJ 498 and Adam Ali v. The State 2019 MLD 1749 ref.

Afsar Zamin v. The State PLD 2002 Kar. 18 rel.

(b) Juvenile Justice System Act (XXII of 2018)---

----S. 6---Release of a juvenile on bail---Scope---Perusal of S. 6(1) of Juvenile Justice System Act, 2018, reveals that it is a non-obstante provision mandated with the obligation for release of a juvenile accused on bail with or without surety, if not already released under S. 496, Cr.P.C. and if it appeared on the basis of reasonable grounds that his release will expose him to danger and association with other criminals, in that condition his custody should be handed over to a suitable person or juvenile rehabilitation center under supervision of Probation Officer---Language of S. 6(1) of Juvenile Justice System Act, 2018, imposes a mandatory restriction with force that under no circumstances the juvenile shall be kept in the custody of police or in jail---Section 6(1), subsection (2) of Juvenile Justice System Act, 2018, also binds the Court to issue direction to the police to trace the guardian of such juvenile and hand over the custody of the juvenile to him/her---Section 6(3) of Juvenile Justice System Act, 2018, refers to commission of a major or a minor offence under the Juvenile Justice System Act, 2018, by the juvenile, which provides that in case of minor/major offence committed by juvenile he shall be treated as being accused of commission of a bailable offence.

(c) Juvenile Justice System Act (XXII of 2018)---

----Preamble & S. 3--- Beneficial legislation--- Scope--- Legal assistance---Juvenile Justice System Act, 2018 is a beneficial legislation which provides for the protection of juvenile involved in criminal matters, safeguard his rights and takes all necessary measures which are in the best interest of the juvenile.

Afsar Zamin v. The State PLD 2002 Kar. 18 rel.

(d) Interpretation of statutes---

----Beneficial legislation---Scope---Beneficial legislation is promulgated to provide benefit to a class of individuals and, therefore, is to be interpreted in such a manner that the purpose of the statute should be achieved.

Qaiser Imam Ch. for Petitioner.

Shah-e-Mulk Yousafzai for the Complainant.

Usama Rauf, State Counsel and Rai Imran, S.I. for the State.

2021 P Cr. L J 1096

[Islamabad]

Before Tariq Mehmood Jahangiri, J

MUHAMMAD HAYAT---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 10-B of 2021, decided on 20th January, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497(2)--- Penal Code (XLV of 1860), Ss. 302, 324, 337-A(i), (ii), 337-F(i), (v), (vi), 148 & 149---Qatl-i-amd, attempt to Qatl-i-amd, Shajjah-i-Khafifah, Shajjah-i-Mudihah, Ghayr-Jaifah Damihah, Ghayr-Jaifah Hashimah, Ghayr-Jaifah Munaqqilah and rioting armed with deadly weapons---Bail, grant of---Cross version---Aggressor party---Determination---Principle of consistency---Injured accused---Case of further inquiry---Two out of five co-accused persons nominated in FIR were released on bail after arrest---Accused also got serious injuries and as per medical report one injury was lacerated wound skin to bone deep on vertex parietal region and kind of weapon used was blunt---Seven persons from complainant party were injured, Danddas and iron rods were recovered from accused belonging to complainant party--- Five accused from complainant party were released on bail after arrest---Effect---Cause of death mentioned in postmortem report was severe head injury due to assault which caused severe damage to vital organ (brain) of the body but there was no allegation that accused had caused any head injury---Fatal injury was not attributed to accused---Question of aggression was still to be determined and Churri recovered at the instance of accused from kitchen of his house was not blood stained---Case of accused required further inquiry---Bail was allowed in circumstances.

Sohaib Mehmood Butt v. Iftikhar-ul-Haq 1996 SCMR 1845 and Mehmood Akhtar and another v. Haji Nazir Ahmad and 4 others 1995 SCMR 310 rel.

Qazi Rehan Shabbir for Petitioner/accused.

Zaheer Virk and Sardar Muhammad Khizar for the Complainant.

2021 P Cr. L J 1128

[Islamabad]

Before Ghulam Azam Qambrani, J

MUHAMMAD USMAN HAIDER---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 216 and Criminal Revision No. 73 of 2019, decided on 31st December, 2020.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Accused was charged for committing murder of the son of complainant by firing---Perusal of the Murasilarevealed that the complainant received a telephonic call at 11:00 p.m. from the accused that deceased met with an accident---Informer's phone number was not mentioned therein even the place of occurrence was not stated by the informer, then how the complainant reached at the spot---No report with regard to telephonic call was brought on record---No evidence regarding the person, who shifted the deceased from place of occurrence to hospital, was found and said fact was shrouded in mystery---Circumstances established that the prosecution failed to prove the charge against the accused through reliable and confidence inspiring evidence---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Last seen evidence---Scope---Accused was charged for committing murder of the son of complainant by firing---Record showed that there was no eye-witness of the alleged occurrence, however, at a subsequent stage, two witnesses, who allegedly were workers at the shop of the deceased and accused, surfaced on the scene and deposed that on the night of occurrence they had seen the accused along with the deceased in the same vehicle---Presence of said witnesses at the workplace at the time of departure of accused and deceased also required consideration---Said fact also raised questions that if both the said witnesses were the employees of the deceased, then why they went for condolence after lapse of five days---During cross-examination, one witness had stated that he participated in Janaza prayer where he also met the accused, but even then, the witnesses did not disclose the fact to the complainant and kept mum for a long time, therefore, their statements required corroboration---Investigating Officer, during cross-examination, admitted that he did not collect any evidence regarding the employment of said witnesses at the alleged workplace---Investigating Officer further deposed that the witnesses did not tell him any reason of delay in recording their statements and not informing the complainant about the fact of last seen evidence---Circumstances established that the prosecution failed to prove the charge against the accused through reliable and confidence inspiring evidence---Appeal against conviction was allowed, in circumstances.

Akbar Ali v. The State 2007 SCMR 486; Muhammad Asif v. The State 2017 SCMR 486 and Abdul Khaliq v. The State 1996 SCMR 1553 rel.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of one month in recording the statement of witness---Scope---Accused was charged for committing murder of the son of complainant by firing---Witnesses of last seen evidence, during cross-examination, stated that their statement under S. 161, Cr.P.C. was recorded on 27.11.2017, however, when their statements were confronted, same were found to be recorded on 27.12.2017---Statement of one witness revealed that date had been clearly mentioned, while in the statement of other witness, same was not visible, meaning thereby that their statements were recorded after a delay of one month---Unexplained delay in recording the statements of witnesses was fatalto the prosecution case and testimony of such witnesses could not be safely relied upon---Circumstances established that the prosecution failed to prove the charge against the accused through reliable and confidence inspiring evidence---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Weapon of offence recovered at the instance of accused---Reliance---Scope---Accused was charged for committing murder of the son of complainant by firing---Report of Forensic Science Laboratory showed that the crime weapon pistol allegedly got recovered at the instance of the accused was matched with the crime empties recovered from inside the car---Such recovery being a corroborative piece of evidence was insufficient to convict the accused with the commission of the alleged offence in the absence of any other substantive piece of evidence because the corroborative and ocular testimony were to be read together and not in isolation---Accused led the police to his workplace, where at the 4th floor, on the roof of bathroom, the accused took out pistol 30-bore and produced it to the Investigation Officer---On the other hand, Investigation Officer, in his statement before the court, had deposed that on 04.12.2017 he also took parcel of empties and pistol from Muharrir and handed over to a constable for onward transmission to Laboratory---Said statement of Investigating Officer was contradictory to the statement of recovery witness and made the recovery of crime weapon highly doubtful---Alleged place of recovery i.e. bathroom was not found locked and it was admitted by Investigating Officer that the said bathroom was accessible to the public---Circumstances established that the prosecution failed to prove the charge against the accused through reliable and confidence inspiring evidence---Appeal against conviction was allowed, in circumstances.

Zeeshan alias Shani v. The State 2012 SCMR 428; Noor Muhammad v. The State and another 2010 SCMR 97; Muhammad Boota and another v. The State and another 1984 SCMR 560 and Muhammad Asif v. The State 2017 SCMR 486 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Extra-Judicial confession---Scope---Accused was charged for committing murder of the son of complainant by firing---Allegedly, the accused made extra-judicial confession before a witness---Statement of said witness did not disclose the details of time, place and manner of the extra-judicial confession with regard to commission of offence by the accused---Extra-judicial confession did not find corroboration from any independent source that as to how and where deceased was murdered, was not pointed out by the accused---In the absence of any corroboratory evidence, it was not safe to rely on the evidence of extra-judicial confession---Circumstances established that the prosecution failed to prove the charge against the accused through reliable and confidence inspiring evidence---Appeal against conviction was allowed, in circumstances.

PLD 2019 SC 64 rel.

(f) Criminal trial---

----Extra-judicial confession---Scope---Extra-judicial confession was a weak type of evidence.

(g) Criminal trial---

----Confession before police---Scope---Confession before the police is not admissible in evidence.

(h) Criminal trial---

----Recovery of weapon of offence---Scope---If ocular account was disbelieved then the recovery of incriminating article in the nature of weapon of offence would not by itself prove the prosecution case.

Muhammad Amin v. The State and another 2019 SCMR 2057 rel.

(i) Criminal trial---

----Circumstantial evidence---Scope---Different pieces of evidence had to make one chain, an unbroken one where one end of it touched the dead body and the other the neck of the accused, whereas, in case of any missing link in the chain, the whole chain is broken and no conviction could be recorded in crimes entailing capital punishment.

(j) Criminal trial---

----Burden of proof---Scope---In criminal cases, the burden to prove the guilt of the accused rested heavily upon the prosecution, which had to prove its case beyond any shadow of doubt. [p.

Muhammad Karim v. The State 2009 SCMR 230; Nadeem Ramzan v. The State 2018 SCMR 149; S. Mahmood Aslam Shah v. The State PLD 1987 SC 250; State v. Rab Nawaz and another PLD 1974 SC 87 and Wajeeh-Ul-Hassan v. The State 2019 SCMR 1994 rel.

(k) Criminal trial---

----Evidence---Presumption---No one was to be considered as an accused merely on the basis of presumption in the absence of any other solid and legally admissible piece of evidence.

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

Raja Ghaneem Aabir Khan and Muhammad Ilyas Khan for Appellant.

Raja Muhammad Farooq for the Complainant.

Zohaib Hassan Gondal, State Counsel along with Saqib Mehmood, Assistant Sub-Inspector for the State.

2021 P Cr. L J 1188

[Islamabad]

Before Lubna Saleem Pervez, J

Mst. HIRA IMTIAZ and another---Petitioners

Versus

The STATE and 2 others---Respondents

Writ Petition No. 2382 of 2020, decided on 25th January, 2021.

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

----S. 365-B---Criminal Procedure Code (V of 1898), S. 561-A---Kidnapping, abducting or inducing woman to compel for marriage---Quashing of FIR---Scope---Petitioners sought quashing of FIR registered against them under S. 365-B, P.P.C. on the ground that they had contracted marriage and were living as husband and wife---Petitioner herself had approached the Court of Judicial Magistrate through a complaint under S. 200, Cr.P.C. wherein she had categorically stated that she was sui juris and aged about 17 years; that she had contracted marriage with free will and that no one had abducted her---Every Muslim of sound mind, who had attained puberty, could enter into contract of marriage and if the marriage was contracted without his/her consent, it would be void---Complainant at the time of registration of FIR was in the knowledge of solemnization of marriage of petitioners---First Information Report was not only based on concealment of fact but was lodged with deliberate transcribing of incorrect facts and mala fide intention---No offence was committed by the petitioners as alleged in the FIR and there was no probability of conviction of the petitioners even if prosecution evidence was recorded---Constitutional petition was allowed and the FIR was quashed, in circumstances.

Rizwana Bibi v. The State and another 2012 SCMR 94 and Muhammadan Law by D.F. Mulla's rel.

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

----S. 561-A---Inherent powers of High Court---Quashing of FIR---Scope---Where no offence is made out and the complaint is found to be falsely made and to continue with the trial appeared to be abuse of the process of court and reflects no probability of conviction of the alleged accused, then the FIR is liable to be quashed by the High Court by exercising inherent powers under S. 561-A, Cr.P.C.

Raja Haq Nawaz v. Muhammad Afzal and others 1968 SCMR 1256; Muhammad Nawaz v. SHO, Police Station, Sabzi Mandi, Islamabad and others 2017 PCr.LJ 133; Abdul Ghani v. Kandero and another 1977 PCr.LJ 135 and Mahmood ul Hasan v. Imtiaz Khan and another PLD 1963 (W.P) Lahore 481 ref.

Ms. Saira Khalid Rajpoot for Petitioners.

Syed Jahanzeb Javed, Ms. Bushra Tariq Raja, State counsel and M. Saleem, ASI for Respondents.

2021 P Cr. L J 1209

[Islamabad]

Before Tariq Mehmood Jahangiri, J

MUHAMMAD ATTIQ and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 207-B of 2021, decided on 31st March, 2021.

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

----S. 497---Penal Code (XLV of 1860), S. 376(2)---Rape---Bail, grant of---Further inquiry---Allegation against the accused persons was that they forcibly raped the complainant---Complainant had neither called police on 15 nor informed husband of the victim---Complainant had also not reported the matter to police, whereas distance between the place of occurrence and police station was eleven kilometres---Complainant, on the next day of the occurrence went to police station for reporting the matter---Complainant did not furnish any explanation as to why the incident was reported to police with an inordinate delay---Accused were arrested and sent to judicial lock up after completion of investigation---Medical report showed that there was no sign of struggle and resistance---Specimens were taken for semen analysis and DNA detection but there was no report of DNA as well as semen analysis on record---Investigating Officer had informed that no statements of the neighbourhood or residents of the apartments had been recorded regarding the commission of offence---Police had not recovered any blood or semen stained on bed sheet etc.---No evidence was collected from the place of occurrence showing resistance by the complainant or use of force by accused---No marks of violence were present on the body of victim---Medical Officer did not observe any tenderness, swelling, abrasion, bruises etc.---Investigation in the case had been completed---Accused were previously non-convicts and no more required for the purpose of investigation---Nothing incriminating had been recovered from them---Accused were behind the bars for the last more than five months but their trial had not seen any fruitful progress as yet---Tentative assessment of record showed that accused had made out a case of further inquiry as envisaged under S. 497(2), Cr.P.C.---Bail petition was accepted, in circumstances.

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

----S. 497--- Bail--- Heinous nature of offence--- Scope---Mere heinousness of the offence is not sufficient to take away discretion of the court to grant bail, which is never refused as a punishment and there is no legal or moral compulsion to keep a person in jail---Ultimate conviction and incarceration of a guilty person could repair the wrong caused by mistaken relief of bail but no satisfactory reparation could be offered to the accused for his unjustified incarceration if he is acquitted ultimately.

Yasir Aziz Malik for Petitioners/accused.

Muhammad Azeem Khan for the Complainant.

Zamurd Khan Khattak, State Counsel.

Khalid Javed S.I.

2021 P Cr. L J 1265

[Islamabad]

Before Fiaz Ahmad Anjum Jandran, J

OMER WAQAS QURESHI and another---Petitioners

Versus

ADDITIONAL SESSIONS JUDGE, ISLAMABAD-EAST and 2 others---Respondents

Writ Petition No. 2470 of 2020, heard on 19th October, 2020.

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

----S. 22-A(6)---Justice of Peace---Power of summoning of police report---Scope---Once the police report had been called for, the same could not ordinarily be brushed aside---Ex-Officio Justice of Peace, while holding contrary to the police report, was supposed to furnish tangible reasons for not relying upon the solicited police report.

Mureed Hussain v. Additional Sessions Judge/Justice of Peace Jampur and 3 others 2014 PCr.LJ 1146; Muhammad Asif v. Sanobir Khan and 3 others 2017 PCr.LJ Note 9 and Nisar Ahmed Bhatti v. Additional Sessions Judge and others 2016 YLR Note 146 rel.

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

----Ss. 22-A(6) & 561-A---Respondent moved application before the Justice of Peace for the registration of criminal case against the petitioners as they committed fraud in transferring the plot left by the deceased father of petitioner---Justice of Peace after requisitioning report from the police disposed of the petition---Record showed that the Ex-officio Justice of Peace before passing the impugned order requisitioned the police report wherein it was reported that one petitioner had since surrendered allotment; that no cognizable offence was made out; that allotment in the name of said petitioner had been with the consent of all the legal heirs and that the said petitioner had not alienated the subject plot to anyone else rather on the objection of one of the respondents surrendered the allotment---Ex-officio Justice of Peace, though, mentioned the receipt of report in its order but failed to render any observation regarding the same---Order impugned also did not contain any reasons for discarding the same---Admittedly the allotment in the name of the said one petitioner stood revoked and that no cognizable offence had been committed, therefore, in such eventuality when the very allotment in the name of the said petitioner stood revoked, the police report appeared to be just and could not be brushed aside---Impugned order in the backdrop of the facts, besides the law on the subject, was not legally sustainable---Constitutional petition was allowed by setting aside the impugned order and the application filed by the respondent for registration of FIR was dismissed.

PLD 2007 SC 539; 2016 PCr.LJ 172; 2011 YLR 2141; 2019 YLR 228; PLD 2009 Kar. 14; 2010 PCr.LJ 585; 2015 MLD 463; 2008 PCr.LJ 1358 and 2012 PCr.LJ 981 ref.

Sohail Akbar Chaudhry for Petitioners.

Syed Shahbaz Shah, State Counsel with Qasim Zia, SI with Police Record for the State.

Ghulam Fareed Chaudhry, Shahzeb Nawaz Khan and Dawood Iqbal for Respondent No. 3.

2021 P Cr. L J 1294

[Islamabad]

Before Aamer Farooq and Tariq Mehmood Jahangiri, JJ

ZEENAT ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 325 of 2019, decided on 3rd May, 2021.

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

----S. 9(c)---Possession of 1382 grams of charas---Appreciation of evidence---Benefit of doubt---Contradictions in complaint and FIR---Scope---Accused was charged that 1382 grams of charas was recovered from the possession of accused---Record showed that in FIR, date and time of occurrence was mentioned as at 12.45 p.m. and date of report was mentioned as 28.01.2018 at 01:05 p.m. but in the complaint the complainant/Investigating Officer had mentioned the time of occurrence as 12.15 p.m.---No explanation had been given regarding the contradictions in complaint and FIR---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001,R. 4(2)---Possession of 1382 grams of charas---Appreciation of evidence---Benefit of doubt---Delay in sending the substance for analysis---Scope---Accused was charged that 1382 grams of charas was recovered from the possession of accused---Record showed that the contraband was sent for chemical examination after unexplained delay of 9 days---Though, as per R. 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001, that exercise was required to be completed within 72 hours of the recovery and for that purpose, there was no plausible explanation from the prosecution side as to why such inordinate delay was caused in completion of that exercise by the Investigating Officer---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Aslam v. The State 2011 SCMR 820 rel.

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

----S. 9(c)---Possession of 1382 grams of charas---Appreciation of evidence---Benefit of doubt---Complainant as Investigating Officer---Effect---Accused was charged that 1382 grams of charas was recovered from the possession of accused---In the present case, the complainant had himself conducted the investigation of the case, however, the person who was complainant of the case in order to keep all fairness of thing could not investigate the same case, which must be investigated by an independent officer but not by the complainant himself---Investigation by complainant while functioning as Investigating Officer is a biased investigation---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

State through Advocate General, Sindh v. Bashir and others PLD 1997 SC 408 and Ashiq alias Kaloo v. The State 1989 PCr.LJ 601 rel.

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

----S. 9(c)---Possession of 1382 grams of charas---Appreciation of evidence---Benefit of doubt---Accused was charged that 1382 grams of charas was recovered from the possession of accused---Head Constable/witness was subordinate of the complainant---No third party/independent person from or while going towards the place of incident was picked up to act as mashir of arrest and recovery, thus, it was a case of insufficient evidence---Constable/eye-witness, who took the written complaint/Istighasa from the place of occurrence to police station for registration of FIR and brought back the FIR after its registration, had not been produced as a witness during the trial---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Altaf v. The State 1996 PCr.LJ 440; Qaloo v. The State 1996 PCr.LJ 496; Muhammad Khalid v. The State 1998 PCr.LJ 808; Nazeer Ahmed v. The State PLD 2009 Kar. 191 and Minhaj Khan v. The State 2019 SCMR 326 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---If there was a single circumstance, which created reasonable doubt in a prudent mind about the guilt of the accused, the accused would be entitled to the benefit not as a matter of grace and concession but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Aslam v. The State 2011 SCMR 820 rel.

Ajmal Khan Khattak for Appellant.

2021 P Cr. L J 1380

[Islamabad]

Before Tariq Mehmood Jahangiri, J

MUHAMMAD JAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 295-B of 2021, decided on 7th April, 2021.

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

----S. 497---Penal Code (XLV of 1860), Ss. 392 & 411---Robbery, dishonestly receiving stolen property---Bail, grant of---Rule of consistency---Contradictory statements---Completion of investigation---Scope---Allegation against accused was that he along with three others snatched a certain amount of sum from the employees of a bus service on gunpoint and also took away their car---No recovery was effected from the accused---All the co-accused persons including those placed at a higher rung had been released on bail, hence the accused was entitled for grant of bail on the principle of consistency---Statements of prosecution witnesses regarding the mode and manner of occurrence were contradictory---Investigation had been completed---Fair and speedy trial was one of the fundamental rights of the accused, no moral and 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.

Ghulab Khan v. Chairman NAB 2020 SCMR 285 ref.

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

----S. 497---Bail---Involvement of accused in other criminal cases---Scope---Further inquiry---Mere involvement in other cases does not disentitle the accused from the relief of bail if he otherwise succeeds in bringing his case within the meaning of further inquiry.

Moundar and others v. The State PLD 1990 SC 934; Babar Hussain v. State 2020 SCMR 871 and Muhammad Rafique v. State 1997 SCMR 412 ref.

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

----S. 497---Bail---Scope---Liberty of a person is a precious right guaranteed in the Constitution, hence in cases where there is slight tilt towards grant of bail, the same needs to be preferred over letting one to confine in jail for an indefinite period in the name of trial when conclusion thereof can competently impose due punishment for such released person.

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

----S. 497---Bail---Scope---Bail is not to be withheld as a punishment---No legal or moral compulsion exists to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds exist to disclose their complicity---Ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of bail after arrest granted to him, but no satisfactory reparations can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run.

Manzoor and 4 others v. The State PLD 1972 SC 81 ref.

Ms. Ume Ruqiaya and Usman Nasir for Petitioner/Accused.

Zamurd Khan Khattak, State counsel.

2021 P Cr. L J 1434

[Islamabad]

Before Lubna Saleem Pervez, J

Syed NAJAM UL HASSAN SHAH---Petitioner

Versus

DEPUTY INSPECTOR GENERAL (OPERATIONS)ISLAMABAD and 5 others---Respondents

Writ Petition No. 2603-Q of 2020, decided on 31st December, 2020.

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

----S. 415---Cheating---Pre-condition---Deceiving and taking over delivery of property belonging to one person through dishonest inducement, which causes loss to the person deceived is the foremost factor to constitute act of cheating.

Muhammad Nawaz v. SHO, Police Station Sabzi Mandi, Islamabad and others 2017 PCr.LJ 133 rel.

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

----S. 420---Criminal Procedure Code (V of 1898), S. 561-A---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of FIR---Contractual dispute---Pendency of civil suit---Inherent powers of High Court---Accused/petitioner was alleged to have committed cheating and he sought quashing of FIR on the ground that matter was of civil nature---Validity---Transaction between parties vide an agreement lacked ingredients of cheating, dishonest inducement and deception to hold accused/petitioner responsible for commission of offence under S. 420, P.P.C.---Complainant/respondent failed to produce any evidence to substantiate his stance that transaction of sale of property between parties vide the agreement was a result of cheating and dishonest inducement---Controversy between parties was of civil nature for which parties had already field cross civil suits against each other---Criminal proceedings against accused/petitioner were abuse of process of Court and reflected no probability of his conviction and FIR was liable to be quashed by exercising inherent powers under S. 561-A, Cr.P.C.---High Court quashed the criminal case against accused/petitioner---Constitutional petition was allowed in circumstances.

Farooq Nadim and 4 others v. SH0 Police Station and 2 others 2006 YLR 1198; Basshir Dawood and 2 others v. Tanvir Ahmed and another 2000 PCr.LJ 1230; Muhammad Nawaz v. SHO, Police Station Sabzi Mandi, Islamabad and others 2017 PCr.LJ 133; Raja Haq Nawaz v. Muhammad Afzal and others 1968 SCMR 1256; Abdul Ghani v. Kandero and another 1977 PCr.LJ 135 and Mahmood ul Hasan v. Imtiaz Khan and another PLD 1963 (WP) Lahore 481 rel.

Raja Rizwan Abbasi and Malik Mushtaq Ahmad for Petitioner.

Majid Ahmed Abbasi, Ch. Saleem Raza and Ms. Bushra Tariq Raja, State counsel and Irshad Ahmed, SI for Respondents.

2021 P Cr. L J 1520

[Islamabad]

Before Athar Minallah, C.J.and Babar Sattar, J

ANTI-NARCOTICS FORCE (ANF), REGIONAL DIRECTORATE (NORTH) RAWALPINDI

through Regional Director/Force Commander---Appellant

Versus

MUHAMMAD WASEEM and 2 others---Respondents

Criminal Appeal No. 8 of 2021, decided on 25th February, 2021.

Criminal Procedure Code (V of 1898)---

----S. 540---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Recovery of narcotics---Summoning of Chemical Analysis Expert as witness---Dismissal of prosecution application for summoning of Chemical Expert---Scope---Admittedly, the report must contain three ingredients i.e. the test applied, the protocols applied to carry out those test and lastly, the result thereof---If the report contained the said three ingredients then any ambiguity could be resolved by exercising the power vested in a court under the proviso to S. 510, Cr.P.C.---Report, in the present case, referred to the protocols applied and the result of the test---Said report did not mention the nature of the test applied, but a plain reading of the report, unambiguously showed that it was implicit therein that the test was conducted---Trial Court was not precluded from summoning the Government Analyst along with the existing record to tender evidence for removing the ambiguity and to give clarification---What the Government Analyst was barred from doing was to conduct a fresh test or to alter or change the report---Record could not be tampered with nor any addition could be made thereto---Section 540 of the Cr.P.C was an independent and distinct provision which empowered a Trial Court to summon a witness provided the legislative intent expressly mentioned therein was fulfilled, i.e. if it appeared to the court that summoning of the evidence was essential to the just decision of the case---Said provision was distinct from and in addition to the power contained in the proviso to S. 510 of the Cr.P.C.---Trial Court, therefore, in the present case, was empowered to consider the application and passed an order, even if one of the ingredients had been omitted from being recorded in the report---Appeal was allowed with direction to the Trial Court to decide the application afresh after affording an opportunity of hearing to the parties.

Qaiser Javed Khan v. The State through Prosecutor General Punjab, Lahore and another PLD 2020 SC 57 ref.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039; Taimoor Khan and another v. The State and another 2016 SCMR 621; Asmat Ali v. The State 2020 SCMR 1000; Mushtaq Ahmad v. The State and another 2020 SCMR 474; Murad Ameer Shah v. Samar Pervaiz and 3 others 2017 PCr.LJ 1319; Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95; Muhammad Murad Abro v. The State 2004 SCMR 966; Muhammad Saleem v. Muhammad Azan and another 2011 SCMR 474; Nawabzada Shah Zain Bugti and others v. The State PLD 2013 SC 160; Painda Gul and another v. The State and another 1987 SCMR 886; Dildar v. The State PLD 2001 SC 384; Sh. Muhammad Amjad v. The State PLD 2003 SC 704; Abdul Salam v. The State 2000 SCMR 102 and Shahbaz Masih v. The State 2007 SCMR 1631 rel.

Rana Zulfiqar and Ali Tahir, SSP (ANF) for Appellant.

Muhammad Fahad Shabbir, Muhammad Wasim, M. Asad Khan and Syeda Malia Nasir for Respondents.

2021 P Cr. L J 1558

[Islamabad]

Before Aamer Farooq, J

FAISAL RAFIQUE---Petitioner

Versus

SAEED MUMTAZ DURRANI and 2 others---Respondents

Writ Petition No. 270 of 2021, decided on 28th January, 2021.

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

----S. 540---Summoning of material witness---Principle---Such jurisdiction of Court has been split into two parts; the Court may summon any witness whose evidence is essential to just decision of the matter or recall and re-examine any person already examined if his evidence appears to be essential to the just decision of the case.

Muhammad Safdar alias Bhooma v. The State and another 2020 PCr.LJ 1113 rel.

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

----S. 540---Qanun-e-Shahadat (10 of 1984), Arts. 132 & 133---Penal Code (XLV of 1860), Ss. 324, 337-F(iv) & 452---Further cross examination---Re-summoning of prosecution witness--- On complaint of petitioner case under offences of attempt to Qatl-i-amd, Ghayr-Jaifah Mudihah and house-tresspass, was registered against respondent/ accused---Lower Appellate Court in exercise of revisional jurisdiction re-summoned two prosecution witnesses for further cross examination by respondent/accused---Validity---Purpose of S. 540 Cr.P.C. was to provide jurisdiction to Court to summon a witness or recall a witness for re-examination only for just adjudication of the matter---Recalling of witness for further cross examination was not provided in S. 540, Cr.P.C.---Examination, cross-examination and re-examination of witness was also provided under Arts. 132 & 133 of Qanun-e-Shahadat, 1984---Calling a witness again for cross examination was not permissible under law---High Court set aside order passed by Lower Appellate Court as same was not within the purport of law--- Constitutional petition was allowed, in circumstances.

Muhammad Safdar alias Bhooma v. The State and another 2020 PCr.LJ 1113; Muhammad Munir v. The State through Advocate-General AJ&K Muzaffarabad 2015 PCr.LJ 1464 and Najam ul Hassan v. The State 2002 MLD 477 ref.

Ghulam Sarwar v. The State 2010 MLD 1775; Abdul Razzaq Abid v. Special Judge (Central) FIA Lahore and another 2002 YLR 3; Zaheer Abbas v. The State 2008 YLR 1225; Riaz and others v. The State 1991 PCr.LJ 877 and Muhammad Azam v. The State 1988 PCr.LJ 1464 rel.

Adil Aziz Qazi for Petitioner.

2021 P Cr. L J 1609

[Islamabad]

Before Aamer Farooq and Ghulam Azam Qambrani, JJ

MUHAMMAD BILAL SHEIKH and others---Petitioners

Versus

ACCOUNTABILITY COURT NO. 1, ISLAMABAD and 7 others---Respondents

Writ Petitions Nos. 77 and 87 of 2020 and Criminal Appeal No. 360 of 2019, decided on 20th January, 2021.

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

----Ss. 12 & 23--- "Freezing" and "transfer of properties"---Distinction---Caution, imposing on transfer of assets---Principle---When it comes to known assets of any accused person, NAB conveniently avoids passing of orders under S. 12 of National Accountability Ordinance, 1999, and simply relies upon S. 23 of National Accountability Ordinance, 1999, and intimates relevant authorities to mark 'caution' on the same, such practice by National Accountability Bureau (NAB) is in violation of statutory provisions and should be avoided---Whenever NAB desires that property should be frozen, it should specifically, through Chairman NAB, pass such order and get it validated from concerned Accountability Court.

Following are the principles for imposing caution and order for transfer of assets, a) Sections 12 and 23 of the Ordinance have different scope and operations;

b) An order under section 12 ibid can only be passed by Chairman, National Accountability Bureau, which remains valid for fifteen days only unless confirmed by the Accountability Court;

c) Any person, having grievance against an order for freezing of the property, can make an application before Accountability Court (section 13 of the Ordinance);

d) Section 23 of the Ordinance comes to life by operation of law and no specific order is required either by any court or NAB;

e) It is appropriate for Chairman, NAB to issue letter for freezing of assets whether movable or immovable which are known, whereas with respect to unknown assets whether movable or immovable, section 23 ibid operates whenever an inquiry/ investigation is initiated against any person;

f) Section 23 ibid is a complete code and no specific order is required for its operation and if any person violates the said provision, he can be prosecuted and punished as prescribed under the law;

g) Where order under section 12 ibid is passed, the movable or immovable property is frozen and nothing comes in or goes out;

h) Effect of Section 23 ibid is that transfer and creation of charge on the property of any person facing investigation or inquiry is void. If the property is a bank account, it remains operational, as deposits can be made and money can be withdrawn for personal use.

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

----S. 23---Constitution of Pakistan, Art. 199---Constitutional petition---Caution, imposition of---Blocking of Bank account--- Petitioners were facing inquiry and investigation and National Accountability Bureau (NAB) blocked their bank accounts by issuing Caution letters to bank authorities---Validity---Blocking bank account of any accused person tantamount to depriving him from his legitimate means to live---Such was not spirit of law that a person facing investigation, or inquiry would be unable to withdraw from his Bank account for day to day affairs and such position could continue for years due to delay by investigating agency---Transfer and/or creation of charge was only barred under S. 23 of National Accountability Ordinance, 1999---As investigating agency was not concluding investigation expeditiously and trial was not decided within statutory limitation provided under National Accountability Ordinance, 1999, therefore, such was correct approach towards S. 23 of National Accountability Ordinance, 1999---Letters written to Banks of accused persons were under S. 23 and not S. 12 of National Accountability Ordinance, 1999---High Court permitted petitioners to withdraw sums required by them---High Court further directed petitioners to tender affidavit with each withdrawal that funds were for personal use only---High Court directed banks to keep the affidavits in their record and if petitioners were found in violation of mandate provided in S. 23 of National Accountability Ordinance, 1999, law would take its own course---Constitutional petition was allowed in circumstances.

Shuja Khan Baluch v. Capital Development Authority, Islamabad through Chairman and others PLD 2011 Isl. 25; Chaudhry Muhammad Akram Warriach and another v. Chairman, National Accountability Bureau, Islamabad and others 2010 YLR 2766; Zaki Ullah v. National Accountability Bureau 2017 PCr.LJ 1292; Haji Ghousuddin v. The State through NAB Authorities, Quetta PLD 2012 Bal. 104; PLD 2014 SC 241; Mst. Bilqis Bano and another v. Pakistan Defence Officers Housing Authority through Administrator and 4-others 2019 PCr.LJ 962 and China International Water and Electric Corporation through Authorized Representative and others v. Federation of Pakistan through Secretary, Ministry of Interior and others 2019 YLR 989 rel.

(c) Criminal trial---

----Prosecution---Property rights---Scope---Where State has responsibility to prosecute and procure punishment of a guilty person it also has equal responsibility that citizen is not denied from exercising or enjoying rights over his/her property, as enshrined in the Constitution.

Mirza Mahmood Ahmad, Ahmad Bashir, Saad Ullah Tahir, Aziz-ur-Rehman Farooqi and Masood Anwar for Petitioners and for Respondent (in Criminal Appeal No. 360 of 2019).

Barrister Rizwan Ahmad, Special Prosecutor, NAB for Appellant (in Criminal Appeal No. 360 of 2019) and for Respondents (in W.Ps. Nos.77 and 87 of 2020).

Irshad Ahmad for Respondent No. 7 (in W.P. No.77 of 2020).

2021 P Cr. L J 1648

[Islamabad]

Before Ghulam Azam Qambrani, J

MISBAH MUSARRAT JAURA---Petitioner

Versus

The STATE and 2 others---Respondents

Writ Petition No. 2377 of 2020, decided on 22nd September, 2020.

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

----S. 182---False information with intent to cause public servant to use his lawful power to the injury of another person---Petition for quashing of proceedings---Failure to issue show cause notice---Effect---Petitioner sought setting aside of proceedings initiated under S. 182 of P.P.C.---SHO had not issued any show cause notice to the petitioner to appear and explain her position and in the proceedings under S. 182, P.P.C. issuance of show cause notice was mandatory requirement of law non-fulfillment of which deprived the petitioner of opportunity of hearing---Acquittal of accused person from the charge did not mean that the information given by petitioner was false---Report prepared and submitted by the SHO revealed that the same was not based upon any evidence rather the same was prepared just on the basis of speculations and surmises---Constitutional petition was accepted and the proceedings under S. 182, P,P,C, were quashed.

Muhammad Murad v. The State 1983 PCr.LJ 1097 ref.

Muhammad Juman v. The State 2005 YLR 1785 rel.

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

----S. 182---False information with intent to cause public servant to use his lawful power to the injury of another person---Scope---When an information is lodged with bona fide belief and knowledge of it being true, it cannot be termed as false, if the same is not proved in accordance with the legal or procedural standard of proof---Such a complaint or information can be said to be not proved, but not false so to attract the penal provisions of S. 182, P.P.C.

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

----S. 182---False information with intent to cause public servant to use his lawful power to the injury of another person---Scope---Person who lays information to police is entitled to have his case judicially determined before he is called upon to answer the charge of giving false information.

(d) Administration of justice---

----No one should be condemned unheard and opportunity of hearing is vested right of a party before passing any adverse order against that party.

Khurram Mehmood Qureshi for Petitioner.

Hammad Saeed Dar, State Counsel along with Suleman Shah, Sub-Inspector and Javaid Iqbal Sub-Inspector for the State.

2021 P Cr. L J 1738

[Islamabad]

Before Mohsin Akhtar Kayani and Babar Sattar, JJ

ALI TRUST PAKISTAN through President---Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD through Chairman and 7 others---Respondents

Writ Petition No. 3218 of 2019, decided on 19th July, 2021.

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

----Ss. 12 & 23---Caution, issuance of---Restriction on third-party purchase---Authority of National Accountability Bureau (NAB)---Scope---Capital Development Authority (CDA) allowed conversion of plots allocated to run clinics into plots for general commercial use on request of the predecessor in interest of the respondents from whom petitioner purchased the property---National Accountability Bureau (NAB) authorized an inquiry against conversion of plots reserved for clinic into plots for general commercial use---Capital Development Authority (CDA) vide its letter conveyed to the petitioner that transfer letter would be issued after receipt of clearance from NAB---Validity---If NAB was aware of the property and yet refused to exercise its powers under S. 12 to pass an order for freezing such property and instead chose to issue a communication to other public authority (CDA) to place a caution on such property in order to encumber it or prevent its transfer under S. 23 of the National Accountability Ordinance, 1999 (NAB Ordinance), such action was tantamount to a fraud on the statute---When law required a thing to be done in a certain manner, it must be done in such manner or not at all---Issuance of caution by NAB for purposes of S. 23 had no legal basis and the decision of public authority (i.e. CDA) to refuse to exercise its authority/statutory powers/discretion in view of such caution would amount to nonfeasance---Said letter (by CDA for refusing transfer) was illegal to the extent that grant of permission had been rendered contingent on clearance from NAB---National Accountability Bureau (NAB) had no authority to grant any clearance/place property under caution for purposes of S. 23---Capital Development Authority (CDA) ought not have declined to transfer the Property on the instruction of NAB by citing the restriction under S. 23---High Court observed that the petitioner had remedy to file an application before the Accountability Court under S. 23(b) for grant of permission for transfer of the property---Prayer of the petitioner as to validity of the conversion of the property to commercial status was premature as nothing had been placed on record to establish the revocation of prior status---Constitutional petition was allowed; impugned letter issued by CDA was set aside; and petitioner was directed to approach the Accountability Court to seek its permission for transfer of property.

Shuja Khan Baloch v. Capital Development Authority, Islamabad through Chairman and 3 others PLD 2011 Isl. 25; Federation of Pakistan v. Shaukat Ali Mian PLD 1999 SC 1026 and Muhammad Bilal Sheikh v. Accountability Court No.1, Islamabad and others Writ Petition No. 77 of 2020 ref.

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

----S. 23---Third-party purchaser, right of---Right of State, superiority of---Section 23 was a declaratory provision that determined the priority to be accorded by law to the rights of the state vis-à-vis the rights of a third-party purchaser in relation to a property or asset sold by an accused being proceeded against under provisions of the NAB Ordinance---Such third party's right created during the inquiry or investigation would not be superior to rights of the State to confiscate a property if accused be found guilty---Object of S. 23 of Ordinance, 1999 was to prevent a property/asset acquired through corruption from changing form/hands in such manner that it become untraceable/ unrecoverable and thereby defeating the object of the Ordinance, 1999, to recover state money/misappropriated assets.

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

----S. 18---Constitution of Pakistan, Arts. 10-A & 23---Fair trial---Expeditious procedure---Section 18 of the NAB Ordinance provided for the life cycle of a matter that NAB would take cognizance of---Clause (f) of S. 18 made the intentions of legislature obvious that an inquiry or investigation under the NAB Ordinance would not lumber along for years without end and consequently tied up valuable property rights of citizens guaranteed under Art. 23 of the Constitution.

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

----S. 23---Transfer of Property Act (IV of 1882), S. 53---Companies Act (XIX of 2017), S. 391---Third-party purchase---Status of asset, preservation of---Fraudulent transfer eradication of---Scope---Section 23 of National Accountability Ordinance, 1999 merely sought to undo the effect of transfer of property when such transfer had been affected to defeat the purposes of Ordinance, 1999---In such sense, it was not a unique provision but was similar to S. 53 of Transfer of Property Act, 1882 or S. 391 of Companies Act, 2017, which also sought to preserve the status of assets when transferred to third-parties with a fraudulent purpose.

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

----S. 23---Constitution of Pakistan, Arts. 23 & 24---Right to acquire/hold/dispose of property---Ultra vires---Interpretation of statutes---Constitutionality, test of---Section 23 of the National Accountability Bureau Ordinance, 1999 was not in conflict with Arts. 23 & 24 of the Constitution per se---Manner in which National Accountability Bureau (NAB) would exercise its authority under the National Accountability Ordinance, 1999 to encumber the rights of a citizen to acquire or dispose of a property could fall foul of Art. 23 of the Constitution---Section 23 of Ordinance, 1999 could not be read as such to vest in Chairman NAB the unstructured/ unsupervised power to encumber the property rights of citizens, guaranteed by the Constitution, for an indefinite period.

Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607; Federation of Pakistan v. Shaukat Ali Mian PLD 1999 SC 1026 and Development Authority v. Ms. Imrana Tiwana 2015 SCMR 1739 rel.

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

----Ss. 12 & 23---National Accountability Bureau (NAB), judicial supervision on actions of---Procedural requirements, abuse of---Caution, issuance of---Scope---Any decision of National Accountability Bureau (NAB) not to exercise its authority under S. 12 of National Accountability Ordinance, 1999 and instead issue a caution for purposes of S. 23, which provided for no judicial oversight, could only be treated as a surreptitious device meant to defeat the procedural requirements of S. 12 and the judicial supervision of its actions that comes along.

Barrister Ehsaan Ali Qazi for Petitioner.

Hafiz Arfat Ahmed Chaudhry for Respondent No. 1.

Barrister Rizwan Ahmed, SPP, NAB and Ms. Ammarah Mehmood for Respondents Nos. 4 to 8.

Kaleem Abbas, Deputy Director/I.O, NAB.

2021 P Cr. L J 1798

[Islamabad]

Before Ghulam Azam Qambrani, J

SARA YOUNAS---Petitioner

Versus

STATION HOUSE OFFICER and others---Respondents

Writ Petition No. 749 of 2021, decided on 23rd February, 2021.

(a) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), Ss. 22-A & 22-B---Constitutional petition---Maintainability---Power of Ex-officio Justice of Peace---Addition or deletion of legal provisions in FIR---Scope---Petitioner, for insertion of different sections of Penal Code in the FIR, filed application before the Ex-officio Justice of Peace, which was dismissed vide impugned order---Validity---Addition or deletion of any section of law in the FIR fell within the exclusive domain of Investigation Agency and the District Prosecutor---Trial Court was not bound by the report submitted under S. 173, Cr.P.C.---Court had to frame charge under S. 265-D, Cr.P.C., after perusing the police report, complaint and other material provided by the prosecution---Charge once framed did not become rigid or irrevocable; it could be altered or changed under S. 227, Cr.P.C., if the circumstances of the case so warranted---Petitioner could approach the high-ups of the police hierarchy for change of investigation in case, she was not satisfied---Petitioner had a remedy of filing private complaint against the accused persons, but the constitutional petition was not maintainable---Alternate remedy, in the present case, was more convenient, beneficial and was likely to set the controversy at naught---Jurisdiction of High Court under Art. 199 of the Constitution could not be exercised, in circumstances---Constitutional petition was dismissed.

Muhammad Jameel Azeem v. Ghulam Shabbir and others 2011 SCMR 1145; Muhammad Abbasi v. Station House Officer Bhara Kahu and 7 others PLD 2010 SC 969 Abdul Hamid Khan Ackakzai v. Election Commissioner 1989 CLC 1833 and Abdul Razzaq & Co. v. Assistant Collector of Customs 1986 CLC 2559 ref.

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

----Ss. 22-A & 22-B---Constitution of Pakistan, Art. 199---Constitutional jurisdiction---Power of Ex-officio Justice of Peace---Addition or deletion of legal provisions in FIR---Scope---Where the charge is properly framed by the trial court but after taking evidence, it is found that the same is groundless, the Court is not prevented from striking out such charge---Once the court comes to a conclusion that any addition or alteration in its opinion is likely to cause prejudice then the trial court is competently empowered to amend the charge on the strength of evidence at any stage of trial---Addition or deletion of any section of law in the FIR falls within the exclusive domain of the Investigating Agency and the District Prosecutor---Court at the time of framing of charge can look into the facts of the case to determine whether they had rightly deleted or inserted any section in the FIR---Deletion or addition cannot be challenged through constitutional petition or a petition under Ss. 22-A & 22-B, Cr.P.C., as the Ex-officio Justice of Peace has no jurisdiction to interfere in the investigation.

Muhammad Sharif v. District Police Officer and 2 others PLD 2015 Lah. 84 and Farman Ullah and 5 others v. The State through Additional Advocate General, Peshawar and 4 others 2016 PCr.LJ 1096 ref.

2021 P Cr. L J 1813

[Islamabad]

Before Aamir Farooq and Tariq Mehmood Jahangiri, JJ

Mst. RUKHSANA BANGASH---Petitioner

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU (NAB) and 4 others---Respondents

Writ Petition No. 2994 of 2020, decided on 20th January, 2021.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(b) & 19---Constitution of Pakistan, Art. 199---Constitutional petition---Pre-arrest bail, grant of---Call up notice---Necessary ingredients---Petitioner assailed call up notice issued by National Accountability Bureau (NAB) and also sought protection of bail---Validity---Decision to call someone in an inquiry or investigation by NAB was an executive decision---Petitioner was being called either as witness or accused and she was entitled to know reasons/details for which she was called---National Accountability Bureau had no intention to arrest petitioner at the moment and had no objection to confirming her bail---High Court directed NAB that if and when any action to arrest petitioner would be proposed by NAB, it should take into account the observations made by High Court in earlier case---High Court declared that call up notices were issued in violation of law and were set aside---High Court provided the required details of information for call up notice to be issued by the NAB---Bail was confirmed, in circumstances.

Following are the required details of information is provided by the High Court:-

(i) If notice is issued to a person, who is a suspect in inquiry or investigation, the nature of allegations against him

(ii) The name and identity of complainant; if NAB has initiated inquiry/investigation, then it should be stated so in notice.

(iii) Documents, if any, sought from person called as suspect or witness.

(iv) If person is called as a witness, it should be so stated in call up notice.

(v) If custodian of any material document or record is called for examination of same, the call up notice should state so and the details of documents and record.

(vi) Date, time and place, where person called, is to appear.

(vii) Any other relevant information.

Dr. Arsalan Iftikhar v. Malik Riaz Hussain and others PLD 2012 SC 903 ref.

Ghulam Hussain Baloch and another v. Chairman, National Accountability Bureau, Islamabad and 2-others PLD 2007 Kar. 469; Messrs Memon Motors Pvt. Ltd. through General Manager v. National Accountability Bureau through Chairman and 2 others 2014 PCr.LJ 1378; Ghulam Qadir Mari v. Chairman, National Accountability Bureau, and others (Writ Petition No.282 of 2020) and Amjad Mustafa Malik v. Director General, National Accountability Bureau and 4 others (Writ Petition No.769 of 2019) rel.

Farooq H. Naek, Advocate Supreme Court and Aqeel Akhtar, for Petitioner along with Petitioner in person.

2021 P Cr. L J 1850

[Islamabad]

Before Mohsin Akhtar Kayani, J

KHALID MEHMOOD BHATTI and another---Petitioners

Versus

MUHAMMAD SULEYMAN KHAN and 4 others---Respondents

Criminal Miscellaneous No. 1015 of 2020 and Criminal Original No. 22 of 2021, decided on 24th March, 2021.

Criminal Procedure Code (V of 1898)---

----S. 145---Procedure where dispute concerning land is likely to cause breach of peace---Scope---Petitioners assailed order passed by Sessions Judge whereby revision petition filed by respondent against the order of Magistrate was accepted and the order passed in favour of petitioners was set aside---Respondent on the other hand had sought initiation of contempt of court proceedings against the petitioners for non-compliance of High Court's order passed in the criminal miscellaneous application---Petitioners being partners on one side were locked in property dispute with respondent---Respondent entered into agreement with the petitioners for land access and thereafter through addendum agreement for a development project---Proceedings before civil court as well as before revenue authorities were pending, however, respondent had taken a categorical stance that he was owner in possession of certain part of the land and he was developing the same after making payment to the petitioners---Petitioners had acknowledged the execution of land access agreement as well as addendum agreement but had sought cancellation of those agreements on the ground that the respondent had backed out from his commitment---Register Girdawri showed that the respondent was in possession of the land as claimed by him---Revisional Court had come to the conclusion that physical possession of the disputed land was not settled on the basis of available record, therefore, the order of Revisional Court had to be considered as a remand order whereby nothing was conclusive---Remand order was within four corners of law and no illegality was committed by the Revisional Court---Applications filed by both parties were dismissed, in circumstances.

Abdullah Jan v. State 2019 SCMR 1079 and Shakeel Ahmed Siddiqui v. Muhammad Nauman Siddiqui 2018 SCMR 511 ref.

Muhammad Ramzan Ch. for Petitioners.

Abuzar Salman Khan Niazi and Wasim Abid for Respondent No.1.

Sadaqat Ali Jahangir, State Counsel.

2021 P Cr. L J 24

[Sindh]

Before Mohammed Karim Khan Agha and Zulfiqar Ali Sangi, JJ

SHOUKAT HUSSAIN JOKHIO and others---Petitioners

Versus

The STATE and 2 others---Respondents

Constitutional Petitions Nos. D-6026, D-3837, D-4286, D-4414, D-4732, D-5056, D-6107, D-6823, D-7160, D-7287 of 2018 and D-8155 of 2019, decided on 24th August, 2020.

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

----S. 9--- Constitution of Pakistan, Art. 199--- Colonization of Government Lands (Sindh) Act (V of 1912), S. 24-A---Corruption and corrupt practices---Resumption of land to Provincial Government---Bail, grant of---Hardship case---Scope---Prosecution case was that the land was allotted to Municipal Corporation in the year 1960 on two conditions, i.e. shifting of wool washing tanneries and payment of malkhano; that the land was not properly leased out nor the malkhano was paid; that the land was resumed by the Provincial Government in the year 1993, therefore, employees of Municipal Corporation were not entitled to lease out the land---Accused persons seeking post-arrest bail had been in jail for over 2 years; no witness had been lead in the case so far; there were 56 witnesses on the calendar of witnesses and 15 accused with each separate counsel meaning thereby that each of 56 prosecution witnesses would be subject to 15 separate cross-examinations, which would take a considerable amount of time and the trial was unlikely to conclude in the near future---Petitions for grant of post-arrest bail were allowed.

Tallat Ishaq v. National Accountability Bureau PLD 2019 SC 112 distinguished.

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

----S. 9--- Constitution of Pakistan, Art. 199--- Colonization of Government Lands (Sindh) Act (V of 1912), S. 24-A---Corruption and corrupt practices---Resumption of land to Provincial Government---Pre-arrest bail, refusal of---Scope---Prosecution case was that the land was allotted to Municipal Corporation in the year 1960 on two conditions, i.e. shifting of wool washing tanneries and payment of malkhano; that the land was not properly leased out nor the malkhano was paid; that the land was resumed by the Provincial Government in the year 1993, therefore, employees of Municipal Corporation were not entitled to lease out the land---Perusal of S. 24-A of Colonization of Government Lands Act, 2012 revealed that it was fully applicable in the present case since the amount of malkhano was not paid and the land was not utilized according to the condition mentioned in the allotment letter---No mala fide was pointed out on the part of National Accountability Bureau (NAB) officials---Pre-arrest bail was an extraordinary relief and was only available in cases where there was mala fide on the part of complainant or the investigating agency---Petitions for grant of pre-arrest bail were dismissed, in circumstances.

Aamir Bashir and another v. The State and others 2017 SCMR 2060; Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427; Khalil Ahmed Soomro v. The State PLD 2017 SC 730; Lal Muhammad Kalhoro and others v. The State 2007 SCMR 843; Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488; Haider Ali Raujani v. The State SBLR 2017 Sindh 1005; Shahid Imran v. The State and others 2011 SCMR 1614; The State and others v. M. Idrees Ghauri and others 2008 SCMR 1118; The State v. Anwar Saifullah Khan PLD 2016 SC 276; Shafique Ahmed v. The State and others 2017 PCr.LJ Note 254, p.272; Muneer Ahmed Shaikh and another v. Director General NAB Karachi and others 2019 SCMR 1738; Muhammad Saeed Mehdi v. The State and 2 others 2002 SCMR 282; Zaigham Ashraf v. The State and others 2016 SCMR 18; Anwar Saifullah Khan v. The State and 3 others 2001 SCMR 1040; Saeed Ahmed v. The State 1996 SCMR 1132 and PLD 2012 SC 217 ref.

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

----S. 497---Bail---Tentative assessment---Scope---Elaborate sifting of evidence while deciding bail petitions cannot be made but only tentative assessment is required.

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

----S. 498---Pre-arrest bail---Scope---Conditions for grant of pre-arrest bail, detailed.

Following are the conditions for grant of pre-arrest bail:

a) Grant of bail before arrest is an extra-ordinary relief to be granted only in extra-ordinary situations to protect innocent person against victimization through abuse of law for ulterior motives;

b) Pre-arrest bail is not to be used as a substitute or as an alternative for post-arrest bail;

c) Bail before arrest cannot be granted unless the person seeking it satisfies the conditions specified in subsection (2) of section 497, Cr.P.C., i.e. unless he establishes the existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against him and that there were, in fact, sufficient grounds warranting further enquiry into his guilt;

d) In addition thereto (as in (c) above), he must also establish that his arrest was being sought for ulterior motive, particularly on the part of the police; to cause irreparable humiliation to him and to disgrace and dishonour him;

e) Such a petitioner should further establish that he had not done or suffered any act which would disentitle him to a discretionary relief in equity e.g. he had no past criminal record or that he had not been a fugitive of law; and finally that

f) In the absence of a reasonable and a justifiable cause, a person desiring his admission to bail before arrest must in the first instance approach the Court of first instance i.e. the Court of Session before petitioning the High Court for the purpose.

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

Mohsin Qadir Shahwani for Petitioner (in Constitutional Petition No. D-6026 of 2018).

Shahzeb Akhtar for Petitioner (in Constitutional Petition

No. D-3837 of 2018).

S. Mehmood Alam Rizvi and Zakir Leghari for Petitioner (in Constitutional Petition No. D-4286 of 2018).

Shahzeb Akhtar for Petitioner (in Constitutional Petition

No. D-4414 of 2018).

Shoukat Hayat for Petitioner (in Constitutional Petition

No. D-4732 of 2018).

Aamir Raza Naqvi for Petitioner (in Constitutional Petition

No. D-5056 of 2018).

Habib Ahmed for Petitioner (in Constitutional Petition

No. D-6107 of 2018).

Muhammad Furqan Qureshi for Petitioner (in Constitutional Petition No. D-6823 of 2018).

Zeeshan Ali Memon for Petitioner (in Constitutional Petition No. D-7160 of 2018).

Mohammad Ahmed Pirzada for Petitioner (in Constitutional Petition No. D-7287 of 2018).

Faiz Mehmood Khan Durrani and Ms. Samia Faiz Durrani for Petitioners (in Constitutional Petition No. D-8155 of 2019).

Zahid Hussain Baladi, Special Prosecutor, NAB for the State (in Constitutional Petitions Nos. D-6026, D-3837, D-4286, D-4414, D-4732, D-5056, D-6107, D-6823, D-7160, D-7287 of 2018 and D-8155 of 2019).

2021 P Cr. L J 64

[Sindh]

Before Abdul Maalik Gaddi, J

MUHAMMAD ADIL SIDDIQUI---Applicant

Versus

MUHAMMAD FAROOQ MEHMOOD and another---Respondents

Criminal Misc. Application No. 405 of 2019, decided on 24th October, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 380/448/34---Theft in dwelling house, etc, punishment for house trespass---Bail, cancellation of---Scope---Strong and exceptional grounds were required for the cancellation of bail granted by Court of competent jurisdiction---Accused was not to be deprived of the benefit of bail whenever reasonable doubt arose about his participation in the crime or about the truth/probability of prosecution case---Personal liberty granted to accused by the court of competent jurisdiction, through grant of bail, should not be snatched away from him unless it became absolutely necessary to do so under the law---First Information Report was lodged after the delay of more than one month for which no satisfactory explanation had been finished, as such on that ground of false implication of the accused with due deliberation could not be ruled out---Case had been challaned and accused was no more required for further investigation---Offences in question did not fall within the prohibitory clause of S. 497, Cr.P.C.---No exceptional ground existed to cancel the bail---Application for cancellation of bail was dismissed accordingly.

Javed Ahmed Chhatari and Saima Shaheen Abbasi for Applicant.

Arshad Hussain Lodhi for Respondent No. 1.

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

2021 P Cr. L J 81

[Sindh]

Before Mohammed Karim Khan Agha and Abdul Mobeen Lakho, JJ

TASSADUQ HUSSAIN SHAH---Applicant

Versus

The STATE and another---Respondents

Criminal Jail Appeal No. 400 of 2017 and Criminal Revision Application No. 72 of 2013, decided on 11th February, 2020.

(a) Criminal trial---

----Judicial confession--- Retraction--- Effect--- Retracted judicial confession can be legally admissible and used against its maker in certain circumstances.

Muhammad Amin v. The State PLD 2006 SC 219 fol.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 40---Qatl-i-amd---Appreciation of evidence---Disclosure by accused---Proof---Retracted judicial confession---Un-broken chain of evidence---Accused was widow of deceased and on her disclosure made during investigation, dead body was recovered---Accused made confessional statement before Judicial Magistrate---Accused retracted her confessional statement during trial but she was convicted by Trial Court---Confessional statement of accused was free from all taints and was made voluntarily without duress or inducement---Such statement of accused was truthful and fully fitted in with prosecution case which was recorded in accordance with law with all relevant safeguards complied with by Judicial Magistrate---Prosecution had based its case on circumstantial evidence whereby different pieces of evidence made an unbroken chain where one end of the chain touched the dead body and the other neck of accused---High Court declined to interfere in conviction and sentence awarded to accused by Trial Court---Appeal was dismissed in circumstances.

Ghulam Mohy-ud-Din alias Haji Babu and others v. The State 2014 SCMR 1034; Ali Bux and others v. The State 2018 SCMR 354; Zahoor Ahmed v. The State 2017 SCMR 1662; Hamid Mahmood and another v. The State 2013 SCMR 1314; Nazir Shehzad and another v. The State 2009 SCMR 1440; Zakir Khan and others v. The State 1995 SCMR 1793; The State v. Manzoor Ahmed in Cr. Appeals Nos. 1 and 2 of 1965 PLD 1966 SC 664; Muhammad Sharif v. The State 2011 SCMR 1046; Muhammad Amin v. The State PLD 2006 SC 219 and Atta-ur-Rehman and another v. The State 2018 SCMR 372 ref.

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

Nasrullah Korai for Appellant (in Criminal Jail Appeal No. 400 of 2017).

Muhammad Iqbal Awan, Deputy Prosecutor General, Sindh for the State (in Criminal Jail Appeal No. 400 of 2017).

Imtiaz Hussain Gondal for Applicant (in Criminal Revision Application No. 72 of 2013).

Muhammad Iqbal Awan, Deputy Prosecutor General, Sindh for Respondent No. 1 (in Criminal Revision Application No. 72 of 2013).

Nasrullah Korai for Respondent No. 2 (in Criminal Revision Application No. 72 of 2013).

2021 P Cr. L J 99

[Sindh]

Before Muhammad Iqbal Kalhoro and Shamsuddin Abbasi, JJ

MASOOD ALAM NIAZI and others---Appellants

Versus

The STATE through Chairman NAB---Respondent

Criminal Accountability Appeals Nos. 56, 57 and Constitutional Petitions Nos. D-7425, D-7277 of 2018, decided on 7th August, 2019.

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

----Ss. 9(a)(v) & 9(vi)---Misuse of authority and misappropriation---Appreciation of evidence---Benefit of doubt---Procedural irregularity---Accused persons allegedly misappropriated government funds through misuse of authority on account of labour charges and Trial Court convicted and sentenced them to imprisonment---Validity---None of witnesses implicated accused persons with allegations of misappropriation or embezzlement of amount---All payments were made through cheques to handling agents towards labour charges for loading and unloading and such position was admitted in evidence---Investigating Officer, during investigation, recorded statements of handling agents/transporters but none of them were examined during trial---No case of misappropriation was made out against accused persons as even no money trail was sorted out and no evidence of whatsoever nature was brought on record to show that accused persons were beneficiaries---Question of payment of labour charges by Utility Stores Corporation to handling agents did not constitute an offence by means of corruption and corrupt practices or misuse of authority but was a mere procedural irregularity---Prosecution failed to discharge its onus of proving guilt of accused persons beyond shadow of reasonable doubt---High Court set aside conviction and sentence awarded to accused persons and acquitted them of charge---Petitions for suspension of sentence were dismissed as they had become infructuous---Appeal was allowed, in circumstances.

The State v. Anwar Saif Ullah Khan PLD 2016 SC 276 rel.

Maj. {Retd.} Tariq Javed Afridi v. The State PLD 2002 Lah. 233; Dr. Farooq Sattar v. The State and others PLD 2002 Lah. 95; Tariq Pervez v. The State 1995 SCMR 1345; Muhammad Asghar alias Nannah v. The State 2010 SCMR 1706; Messrs Friends Technical Engineering Association v. Barrister Syed Iftikhar Ali Gillani 2018 CLC 54; Mst. Ummatullah v. Province of Sindh and 6 others PLD 2010 Kar. 236; Doulat Ali and another v. The State and another 2010 PCr.LJ 1311 and Sikandar Ali and others v The State Criminal Appeals Nos.153, 154, 155, 156, 157 and 158 of 2008 ref.

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

----Ss. 9(a)(v) & 14(c)---Misuse of authority---Presumption of guilt---Onus to prove---Scope---Presumption contained in S. 14(c) of National Accountability Ordinance, 1999, provides that initial burden of proof rests on prosecution---Burden to prove all ingredients of charge lies on prosecution and it never shifts on accused who can stand on plea of innocence assigned to him under law till it is dislodged---Unless presumption of innocence imputed to accused is crowed out by force of suspicious circumstances, accused cannot be called upon to prove that charge was false or he was innocent---Prosecution therefore, is never absolved from proving charge beyond reasonable doubt and burden shifts to accused only when prosecution succeeds in establishing presumption of guilt.

Mansur-ul-Haque v. Government of Pakistan PLD 2008 SC 166; M. Anwar Saifullah Khan v. State PLD 2002 Lah. 458; Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Pir Mazharul-Haq v. The State PLD 2005 SC 63 and Rehmat v. State PLD 1977 SC 515 rel.

Amer Raza Naqvi and Muhammad Rehman Ghous for Appellants (in Criminal Accountability Appeal No. 56 of 2018).

Muhammad Muneer Ahmed for Appellant (in Criminal Accountability Appeal No. 57 of 2018).

Muhammad Muneer Ahmed for Petitioner (in Constitutional Petition No. D-7425 of 2018).

Amer Raza Naqvi and Muhammad Rehman Ghous for Petitioner (in Constitutional Petition No. D-7277 of 2018).

Khalid Mahmood Awan, Special Prosecutor NAB and Irfan Ahmed Memon, DAG for Respondent (in Criminal Accountability Appeals Nos. 56, 57 and Constitutional Petitions Nos. D-7425 and D-7277 of 2018).

2021 P Cr. L J 119

[Sindh]

Before Abdul Mobeen Lakho, J

SALEEM KHALID---Appellant

Versus

The STATE---Respondent

Criminal Bail Application No. 421 of 2020, decided on 9th April, 2020.

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

----S. 497---Prevention of Electronic Crimes Act (XL of 2016), Ss. 20, 21 & 24---Offences against dignity of natural person, offences against modesty of a natural person and minor, cyber stalking---Bail, refusal of---Recovery of incriminating material on pointation of accused---Scope---Accused was alleged to have shared obscene videos of his ex-wife within and outside her family---FIA officials had proceeded to the house of accused and got recovered on pointation, the incriminating paraphernalia which was seized in presence of witnesses under a seizure memo.---Accused person's admission of making videos gave weight to the allegations that by making videos and photographs he forced the complainant to indulge into obscene activities with his friends which he recorded and that the accused later on used her explicit images and videos to control, blackmail and force her to perform other sexual activities---Sections 20, 21 & 24 of Prevention of Electronic Crimes Act, 2016 did not fall within the prohibitory clause of S. 497, Cr.P.C. but in such like cases where dignity and modesty of a person was at stake, the discretion for grant of bail had to be exercised cautiously---Prosecution had sufficient material against the accused to connect him with the commission of alleged offence---Petition for grant of bail was dismissed.

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

----S. 497--- Bail--- Tentative assessment--- Scope--- Only tentative assessment of record is permitted and deeper appreciation of evidence/material is not permitted at bail stage.

Adnan Ali for Appellant.

Ms. Sabra Qaiser for the Complainant.

Ch. Waseem Akhtar, A.A.G. for the State.

2021 P Cr. L J 150

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Zulfiqar Ali Sangi, JJ

HIMAT ALI and others---Appellants

Versus

The STATE---Respondent

Criminal A.T.A. Appeal No. D-50, Criminal Appeal No. D-55 and Criminal Jail Appeal No. D-56 of 2016, decided on 28th October, 2019.

(a) Criminal trial---

----Witness---Minor discrepancies---Effect---Minor discrepancies always come on record due to lapse of considerable time between incident and recording of evidence.

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

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 25---Qanun-e-Shahadat (10 of 1984), Art. 22---Abduction for ransom and possession of illegal firearm---Appreciation of evidence---Identification parade, non-holding of---Effect---Police encounter---Accused persons were arrested for kidnapping for ransom and abductee was recovered from their custody after police encounter---Non-holding of identification test was no ground to discard testimony of eye-witness and abductee who remained in custody of accused for considerable period and identification of accused in court at time of evidence was sufficient---Identification parade was not a requirement of law but only one of methods to test veracity of eyewitness who had an opportunity to see accused and claimed to identify him---All witnesses including abductee fully supported case of prosecution against accused persons---Recovery of abductee from custody of accused persons; their encounter with police and receiving of injuries during encounter by one accused and death of other accused; recoveries of unlicensed weapons from accused persons including empties which were sent to Forensic Science Laboratory and report of Chemical Examiner regarding blood stained clothes of deceased accused and blood stained mud; collection of Call Data Record (CDR) of mobile of accused so also abductee; and recovery of mobile phone and SIM which were used for demand of ransom had proved case of prosecution---Evidence of star witness (abductee) was trustworthy, inspired confidence which could not be discarded on flimsy grounds or on technical ones---High Court declined to interfere in conviction and sentence awarded to accused persons by Trial Court--- Appeal was dismissed in circumstances.

Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274; Mohammad Hayat and 3 others v. The State 2018 PCr.LJ Note 61; Riaz v. The State 2018 YLR 2059; Abdul Jabbar and others v. The State 2017 PCr. LJ 160; Muhammad Dawood and 8 others v. The State 2015 PCr.LJ 316; Muhammad Saleem v. The State 2014 YLR 794; Bashir Ahmed v. The State 2015 MLD 313; Aamir Ali and 2 others v. The State 2017 PCr.LJ 1451; Muhammad Rasool v. The State 2015 PCr.LJ 391 and Ghulam Hussain Soomro v. The State PLD 2007 SC 71 distinguished.

Dr. Javed Akhtar v. The State PLD 2017 SC 249; Muhammad Akbar v. The State 1998 SCMR 2538; The State v. Haider Zaidi and 2 others 2001 SCMR 1919; The State through Advocate General Sindh Karachi v. Farman Hussain and others PLD 1995 SC 1; The State v. Nazeer Ahmed and others 1999 SCMR 610; The State v. Haider Zaidi and 2 others 2001 SCMR 1919; Hakim Khan v. The State 2013 SCMR 777 and Sajan and another v. The State 2015 PCr.LJ 953 rel.

Imam Bux Baloch for Appellant (in Criminal A.T.A. Appeal No. D-50 of 2016).

Saifullah Dasti for Appellant (in Criminal Appeal No. D-55 of 2016).

Muhammad Jameel Ahmed for Appellant (in Criminal Jail Appeal No. D-56 of 2016).

Ms. Safa Hisbani, Assistant Prosecutor General, Sindh for the State.

2021 P Cr. L J 190

[Sindh]

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

RASOOL BUX PHULPOTO---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Cabinet Division and 3 others---Respondents

Constitutional Petition No. D-1268 of 2014, decided on 22nd June, 2020.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 16-A(a) & 31-B---Constitution of Pakistan, Art. 199---Constitutional petition---Transfer of case---Removal of name from reference---Accountability Court, power of---Petitioner was accused facing trial and his grievance was that after transfer of case to Accountability Court, NAB authorities removed his name from the list of accused persons but on the direction of Accountability Court his name was included as accused---Validity---Original transferred case was the Reference whereas after further investigation a Supplementary Reference was filed in which National Accountability Bureau (NAB) could not have exonerated a person who was accused in original Reference, in the manner that it did---If NAB intended to exonerate an accused, it could have resorted to the provisions of S. 31-B of National Accountability Ordinance, 1999, which had specifically provided for the procedure to be followed in case NAB wanted to withdraw a prosecution--- If petitioner was of the view that charge against him was groundless or that there was no possibility of a conviction he could have invoked S. 265-K, Cr.P.C.---Accountability Court could not have directed NAB to include name of petitioner as accused in Reference---NAB could not have exonerated petitioner through Supplementary Reference---Petition was dismissed in circumstances.

Maqbool Ahmed Sheikh v. The State 2014 YLR 2644 and Anti-Corruption Establishment, Punjab v. National Accountability Bureau 2016 SCMR 92 rel.

Ms. Ismat Mehdi for Petitioner.

2021 P Cr. L J 198

[Sindh (Hyderabad Bench)]

Before Amjad Ali Sahito, J

ABDUL HAMEED---Applicant

Versus

IIND CIVIL JUDGE AND JUDICIAL MAGISTRATE BADIN and 3 others---Respondents

Criminal Miscellaneous Application No. S-237 of 2019, decided on 24th October, 2019.

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

----S. 173---Constitution of Pakistan, Art. 10-A---Report of police officer---Duty of Magistrate---Right to fair trial---Right of parties to be heard---Scope---Deceased, while on a motorcycle, was hit by a car being driven by the accused as a result of which he died---Police investigated the matter and submitted report under S. 173, Cr.P.C. for offences under Ss. 320 & 279, P.P.C. but the Magistrate took cognizance of offences under Ss. 302, 201 & 120-B, P.P.C.---Validity---High Court observed that no power was vested with any Court including the High Court to direct the SHO either not to submit or submit a report in a particular manner i.e. against only such person as the Court desired or only with respect to such offence(s) as the Court wished---Magistrate had passed the order without providing opportunity of hearing to the parties, which was a violation of Art. 10-A of the Constitution---Magistrate, no doubt, was not bound by the report submitted by police under S. 173, Cr.P.C. but he could only agree or disagree with the conclusions arrived at by the Investigating Officer---Impugned order was set aside and the Magistrate was directed to pass an order afresh after hearing the parties--- Application was allowed.

Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31 rel.

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

----S. 173---Report of police officer---Duty of Magistrate---Scope---Section 173, Cr.P.C., provides that after completion of investigation, the incharge of police station shall submit report through Public Prosecutor before the Magistrate empowered to take cognizance of the offence on it and if he finds that there is sufficient evidence against the accused then he has power to take the cognizance of the offence---If, the Magistrate is of the view that the proper investigation has not been conducted and requires further investigation then he can direct the officer incharge of the police station to make further investigation.

Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31 rel.

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

----S. 173---Report of police officer---Duty of Magistrate---Scope---Magistrate for the purpose of examination of report under S. 173, Cr.P.C. exercises two kinds of powers, one as judicial and the other as administrative---While functioning on administrative side he discharges his duties as a persona designata and not as a Court, and while discharging his duties as a persona designata although he is required to examine the material placed before him, but is not bound to explain each and every aspect of the case and give reasons for acceptance or rejection---Magistrate has to either agree or disagree but not otherwise.

Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31 rel.

Muhammad Hashim Laghari for Applicant.

Ms. Safa Hisbani, Assistant Prosecutor General, Sindh.

2021 P Cr. L J 242

[Sindh (Hyderabad Bench)]

Before Adnan-ul-Karim Memon, J

KHALID HUSSAIN and 6 others---Applicants

Versus

ASIF IQBAL and 2 others---Respondents

Criminal Miscellaneous Application No. S-766 of 2018, decided on 12th March, 2019.

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

----Ss. 190 & 173---Cognizance of offences by Magistrate---Report of police officer---Scope---Accused persons assailed order passed by Magistrate whereby he, besides taking cognizance of offences mentioned in the FIR, took cognizance of offence under S. 365-A, P.P.C., as well---Validity---Magistrate had not considered whether the ingredients of S. 365-A, P.P.C., were made out or not---Magistrate, in a case which was based on a police report, could not add or subtract sections of P.P.C. at the time of taking cognizance---Impugned order was set aside to the extent of addition of S. 365-A, P.P.C.---Application was disposed of accordingly.

Muhammad Ajmal and others v. The State and others 2018 SCMR 141 rel.

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

----S. 190---Cognizance of offences by Magistrate---Scope---Judicial Magistrate has been conferred with wide powers to take cognizance of an offence not only when he receives information about the commission of offence from a third person but also where he has knowledge or even suspicion that the offence has been committed.

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

----S. 190--- Cognizance of offences by Magistrate--- Scope--- No embargo is placed on the powers of the Magistrate to entertain a private complaint and when on receiving complaint the Magistrate applies his mind for the purpose of proceeding under S. 200, Cr.P.C. and the succeeding sections in the Cr.P.C., the Magistrate is said to have taken cognizance of the offence within the meaning of S. 190, Cr.P.C. that the Magistrate can even take cognizance of the offence on information received by a third party and thus, there are no fetter or embargo on the powers of the Magistrate when he thinks it proper to include more sections on the basis of private complaint lodged for conducting the trial of the accused and it is open to the Magistrate to take cognizance of the offence under S. 190(1)(c), Cr.P.C. on the ground that after having due regard to the final report under S. 173, Cr.P.C. and the police records placed before him if he has reason to suspect that an offence has been committed, it is open to the Magistrate to take cognizance of the offence under S. 190(1)(c), Cr.P.C.

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

----Ss. 190, 154 & 200---Cognizance of offences by Magistrate---Information in cognizable cases---Examination of complainant---Scope---When a Magistrate takes cognizance of an offence upon receiving a private complaint of facts which constitute such offence, a case is instituted in the Magistrate's court and such a case is instituted on a complaint---Again when a Magistrate takes cognizance of any offence upon a police report in writing of such fact made by any police officer it is a case instituted in the Magistrate's court on a police report (FIR)---Scheme underlying Cr.P.C. clearly reveals that anyone who wants to give information of an offence may either approach the Magistrate or the officer-in-charge of a police station---If the offence complained of is a non-cognizable one, the police officer can either direct the complainant to approach the Magistrate or he may obtain permission of the Magistrate and investigate the offence---Similarly, anyone can approach the Magistrate with a complaint and if the offence disclosed is a serious one, the Magistrate is competent to take cognizance of the offence and initiate proceedings; it is open to the Magistrate but not obligatory upon him to direct investigation by police---Two agencies have been set up for taking offences to the court.

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

----S. 190---Cognizance of offences by Magistrate---Scope---Magistrate in a complaint lodged under S. 190, Cr.P.C. has full authority and jurisdiction to conduct enquiry into the matter and if at any stage of enquiry, the Magistrate considers that additional sections of law are fit to be included he would not be precluded from adding them after which the process of cognizance would be taken by the Magistrate and then the matter would be committed for trial before the appropriate court.

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

----Ss. 173 & 190---Report of police officer---Cognizance of offences by Magistrate---Scope---Magisterial enquiry cannot be held in regard to the FIR which had been registered as it is investigating agency of the police which alone is legally entitled to conduct the investigation and, thereafter, submit report under S. 173, Cr.P.C. or charge sheet under S. 170, Cr.P.C., unless, of course, the complaint before the Magistrate is also lodged where the procedure prescribed for the complaint cases would be applicable---In a police case, however, after submission of the report, the matter goes to the Magistrate for forming an opinion as to whether it is fit case for taking cognizance and committing the matter for trial in a case which is lodged before the police by way of FIR and the Magistrate cannot exclude or include any section of P.P.C. into the charge sheet or take cognizance of the offence other than triable by him---If he is not satisfied with the investigation report, he can order for further investigation on that aspect of the case, which the prosecution has left or if he finds sufficient material to take direct cognizance of the matter.

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

----Ss. 190, 173, 221 & 227---Cognizance of offences by Magistrate---Report of police officer---Charge---Court may alter charge---Scope---Magistrate in a case which is based on a police report cannot add or subtract sections of P.P.C. at the time of taking cognizance as the same would be permissible by the trial court only at the time of framing of charge under S. 221 of Cr.P.C. or under S. 227 of Cr.P.C. as the case may be, which means that after submission of the charge-sheet it will be open for the prosecution to contend before the trial court at the stage of framing of charge to establish that on the given state of facts the appropriate sections of P.P.C., which according to prosecution should be framed, can be allowed to be framed

Muhammad Jamil Ahmed for Applicants.

Mazhar Ali Laghari for Respondent No.1.

Shahid Ahmed Shaikh, Deputy Prosecutor General Sindh for the State.

2021 P Cr. L J 272

[Sindh]

Before Nazar Akbar and Zulfiqar Ahmad Khan, JJ

ARSHAD through Central Prison---Appellant

Versus

The STATE---Respondent

Special Criminal A.T.J. Appeal No. 184 of 2019, decided on 7th December, 2020.

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

----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(i)(a)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possession of unlicensed weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that during patrolling duty, police party tried to intercept two suspicious persons on a motorcycle, they opened straight firing upon police, with intent to commit their murder and deter them from discharging their lawful duties and official functions---In retaliation, police party also made fire shots upon the culprits in their self defence, consequently, one culprit sustained bullet injury, fell down on the ground and died lateron, while police managed to apprehend the other culprit/present accused---Record showed that co-accused was killed by police firing, which were only two shots---One shot was fired by the complainant and other shot was fired by Police Constable from their SMGs allegedly in retaliation to the firing by the accused party---Circumstances suggested that it was, if at all, a one sided encounter in which neither the police party nor any other person sustained any firearm injury---Even no bullet mark was found on police, motorcycles or any wall of the vicinity or a passerby---Accused persons were apprehended by the police along with weapons on the spot and alleged encounter lasted for few minutes but none from the police party or anybody else from public sustained any scratch on their body was unbelievable---Culprits, who were having pistols and dared to open straight fire on police, suddenly stopped firing after two shots by each though they had more live bullets with them---Stark failure to bring evidence of cause of death of co-accused by police firing in retaliation led to irresistible believe that neither the accused was killed by the police firing in that incident nor he was on the motorcycle with the accused who had not sustained any injury in the encounter with police party---Record further transpired that it was not the case of police that they had reached at the place of incident on spy information as there was no allegation of any robbery committed by the accused---No criminal record of the accused as well as the deceased was found---In fact, it was not a case of doubt in the prosecution story, rather it was a case of no evidence and no incident, a complete back out---Appeal against conviction was allowed, in circumstances.

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

----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(i)(a)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possession of unlicensed weapon, act of terrorism---Appreciation of evidence---Recovery of weapon and crime empties--- Reliance--- Scope--- Prosecution case was that during patrolling duty, police party tried to intercept two suspicious persons on a motorcycle, they opened straight firing upon them with intent to commit their murder and deter them from discharging their lawful duties and official functions---Police party, in retaliation also made fire shots upon the culprits in their self-defence, consequently, one culprit sustained bullet injury, fell down on the ground and died lateron, while other was apprehended who was the present accused---Accused and deceased co-accused allegedly fired two shots each from their .30 bore pistol---Only two .30 bore pistols with four empties of 30 bore pistol and two empties of SMG were sent for examination, however, SMGs were not sent for examination---In such circumstances the report of Forensic Science Laboratory was of no consequence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(i)(a)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possession of unlicensed weapon, act of terrorism---Appreciation of evidence---Withholding material evidence---Scope---Prosecution case was that during patrolling duty, police party tried to intercept two suspicious persons on a motorcycle, they opened straight firing upon them with intent to commit their murder and deter them from discharging their lawful duties and official functions---Police party, in retaliation, also made fire shots upon the culprits in their self defence, consequently, one culprit sustained bullet injury, fell down on the ground and died lateron, while police managed to apprehend the other culprit/present accused---Prosecution gave up three policemen as witnesses, though at least two of them were very material eyewitnesses of the incident of encounter---Evidence of one witness was material as he had allegedly used his official SMG in encounter by firing one shot in retaliation---Evidence of other witness was also material as according to the FIR, he had taken the injured to the hospital in ambulance from the crime scene and the injured had died in the hospital---By dropping said witness, the prosecution failed to bring on record proof of firearm injury as cause of death of deceased---Role of that witness shown in the FIR was that he took away the injured to hospital but his evidence was withheld---Investigating Officer had not even named Medico-Legal Officer in the column of witnesses in challan nor he had produced medical certificate, if any, even if that was obtained by him---Alarmingly, the post-mortem report of deceased was not produced by the Investigating Officer in his evidence---Prosecution, out of four eye-witnesses of police encounter, gave up three of them though all were police personnel, which would only mean that there was no evidence of police encounter---Appeal against conviction was allowed, in circumstances.

Appellant in person (Produced in custody).

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

2021 P Cr. L J 285

[Sindh]

Before Nazar Akbar and Zulfiqar Ahmad Khan, JJ

ARSHAD---Appellant

Versus

The STATE---Respondent

Special Criminal A.T.J. Appeal No. 184 of 2019, decided on 15th December, 2020.

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

----Ss. 7 & 27---Penal Code (XLV of 1860), Ss. 324, 353 & 34---Sindh Arms Act (V of 2013), S. 23(i)(a)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possession of unlicensed weapon, act of terrorism--- Defective investigation--- Appreciation of evidence---Prosecution case was that during patrolling duty police party tried to intercept two suspicious persons on a motorcycle, they opened straight firing upon police with intent to commit their intentional murder and deterred them from discharging their lawful duties and official functions---In retaliation, police party also made fire shots upon the culprits in their self defence, consequently, one culprit sustained bullet injury, fell down on the ground and died lateron, while police managed to apprehend the other culprit/present accused---Prosecution case was that two Police Officials including two Investigating Officers were responsible for a defective investigation as well as failed to comply with the orders of the Trial Court and appellate court about disposal of case property, thus, liable to be penalized under S. 27 of the Anti-Terrorism Act, 1997---Scope---Record showed that both the Investigating Officers submitted that they had not seized SMGs used in the alleged encounter, nor sent any official weapon used in encounter for Forensic Science Laboratory---Investigating Officer had not complied with trial court's order about disposal of case property, order of court had not been complied with till date---All the said factors clearly indicated that at the time of killing the accused by firing, the accused was not committing any robbery since he was driving motorcycle of his brother (as today alleged by Investigating Officer) with cash Rs.25,500/- and his own two mobile phones---Prosecution had not even produced CRO of the deceased before trial court or that court, thus it could not be ruled out that it was cold-blooded killing from point blank range at the time when there was no information about any criminal record of the deceased with the police party---Both the Investigating Officers confirmed that the accused in that case had no criminal record and the manner of arrest had been contradicted even today---Accused was made to live in police custody on Eid days and also for two and half years in jail in a false case---All the said facts and evidence on record indicated that there had been not only a false case against the two accused in the FIRs, even otherwise no enquiry/investigation was properly conducted to finally get the conviction on merit---Police Officials were facing disciplinary proceedings which would have its own course till their final decision---Proceedings in terms of S. 27 of the Anti-Terrorism Act, 1997, were separate and independent, therefore, documents of disciplinary action against them had not examined---Case of defective inquiry and investigation against the Police Officials was fully established and all those Police Officials were delinquent in discharging of their duties, all such Police Officials were convicted under S. 27 of the Anti-Terrorism Act, 1997 and sentenced to undergo 6 (six) months' R.I and fine of Rs.50,000/- each and in case of default in payment of fine to undergo 3 (three) months' S.I.---Said Police Officials would be entitled to the benefit of S. 382-B, Cr.P.C.---Police Officials present in Court were remanded to jail custody to serve the above sentence.

Hussain Bux Baloch, Additional Prosecutor General along with P.I. Ibadat Ali Shah.

1. SIP Ghulam Shabbir Gopang, 2. SIP Bagh Ali Junejo, 3. ASI Najaf Ali, 4. H.C. Rana Tariq.

2021 P Cr. L J 325

[Sindh]

Before Abdul Mobeen Lakho, J

AYAZ AHMED SIDDIQUI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 330 of 2018, decided on 18th March, 2020.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---No justification for presence of witness at the spot--- Chance witness--- Scope--- Accused were charged for committing murder of the brother of the complainant by firing---Record showed that no independent corroboration to the ocular account furnished by the eye-witness produced by the prosecution was forthcoming---Presence of the eye-witness at the relevant time was not free from doubt because if he had been present at the spot at relevant time, then why did he not try to rescue the deceased especially when he had seen the accused escaping from the crime scene---Place of occurrence was an open ground in a populated area---Eye-witness, who admittedly was a scrap dealer on a Thela and a chance witness, had failed to explain and establish the reason for his presence at the time of occurrence---Peculiar features of the case was that when eyewitness had seen the occurrence, he ran away from the place of occurrence and did not inform anyone---Said eye-witness on the next day out of curiosity went to the place of incident and found the police party present there and volunteered information to the police party that he had seen the crime and could recognize the criminal if shown to him again---If said witness was ready to become a witness voluntarily then why he was not made a witness by the police at the first instance---Said witness being a scrap dealer had also not been able to prove his presence in an open ground---Eyewitness had admitted in his evidence that he had given no physical description of the accused person to police at the time of recording of 161 Cr.P.C. which was the most important aspect and evidence coming from an eye-witness---In the absence of all such facts, the prosecution had failed to establish the corroboration of the presence of witness in the area beyond reasonable doubt on the date of incident---Circumstances established that the present case was replete with number of circumstances which had created serious doubt about the prosecution story---Appeal against conviction was allowed, in circumstances.

Imtiaz Ali Taj v. The State 2018 SCMR 344; Muhammad Akram v. The State and others 2016 SCMR 2081; Javed Khan alias Bacha and another v. The State and another 2017 SCMR 524; Syed Zaki Kazmi v. The State 2018 PCr.LJ 976; Naimat Ali v. The State 2018 YLR 289; Mst. Anwar Begum v. Akhtar Hussain alias Kaka 2017 SCMR 1710; Gulfam and another v. The State 2017 SCMR 1189; Muhammad Ehsan v. The State 2006 SCMR 1857; Muhammad Zaman v. The State 2007 SCMR 813; Zulfiqar Ahmad v. The State 2011 SCMR 492; Dildar Hussain v. Muhammad Afzaal alias Chala and 3 others PLD 2004 SC 663 and Muhammad Hanif v. The State PLD 1993 SC 895 ref.

(b) Criminal trial---

----Witness---Chance witness---Scope---Testimony of chance witness ordinarily was not accepted unless justifiable reasons were shown to establish his presence at the crime scene at the relevant time---In normal course, the presumption under the law would operate about his absence from the crime spot---Testimony of chance witness might be relied upon, provided some convincing explanations appealing to prudent mind for his presence at the crime spot were put forth, when the occurrence took place otherwise his testimony would fall within the category of suspect evidence and could not be accepted without a pinch of salt.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 and Muhammad Javed v. The State 2016 SCMR 2021 rel.

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

----Ss. 302 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, common intention---Appreciation of evidence---Identification parade---Delay---Effect---Accused were charged for committing murder of the brother of the complainant by firing---Identification parade of the accused took place after about five and a half years of the occurrence---Eye-witness remembered the accused vividly and to identify him after such a long time was not humanly possible---Said fact was relevant because in the statement under S. 161, Cr.P.C. the said witness had not given specific description of the accused---Evidence of said witness in respect of identification also became doubtful as the Police Officer in his statement admitted that during the remand of the accused, the complainant and eye-witness had visited the police station and the identification parade took place after eye-witness had visited the police station---Eye-witness had not mentioned any features of the assailants either in the FIR or in his statement recorded under S. 161, Cr.P.C., therefore, there was no benchmark to test whether the accused to whom eye-witness had identified after over five years of the crime and to whom he had seen was in fact the actual culprit---Circumstances established that the present case was replete with number of circumstances which had created serious doubt about the prosecution story---Appeal against conviction was allowed, in circumstances.

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

----Art. 22---Test identification parade---Object---Main object of identification proceedings is to enable a witness to properly identify a person involved in a crime and to exclude the possibility of a witness simply confirming a faint recollection or impression, that is, of an old, young, tall, short, fat, thin, dark or fair suspect.

Ramzan v. Emperor AIR 1929 Sind 149; Alim v. State PLD 1967 SC 307; Lal Pasand v. State PLD 1981 SC 142 and Imran Ashraf v. State 2001 SCMR 424 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---If there is a single circumstance which creates doubt regarding the prosecution case, the same will be sufficient to give benefit of doubt to the accused.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Mehmood Alam Rizvi, Zakir Laghari, Sadaat Ali and Jazib Aftab for Appellant.

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

2021 P Cr. L J 341

[Sindh]

Before Fahim Ahmed Siddiqui, J

SAJID ALI---Applicant

Versus

VIIIth ADDITIONAL DISTRICT AND SESSIONS JUDGE, KARACHI EAST and 8 others---Respondents

Criminal Miscellaneous Application No. 332 of 2018, decided on 31st October, 2019.

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

----Ss. 22-A, 200 & 561-A---Inherent jurisdiction of High Court---Registration of criminal case---Direction, issuance of---Principle---Applicant filed application before Ex-Officio Justice of Peace for direction to register FIR, which application was dismissed---Validity---If offenders were known to complainant and evidence was available with him, then State assistance was least necessary for collection and preservation of evidence through investigating authorities---Directions for registration of FIR should only be given in a case where assistance of State machinery was required for collection and preservation of evidence---If Ex-Officio Justice of Peace had come to the conclusion that complainant had all relevant evidence with him and under his control then it was appropriate that no direction for registration of FIR should be issued---Complainant was at liberty to invoke jurisdiction of private complaint, as the same was more felicitous remedy in such cases---High Court declined to interfere in the order passed by Ex-Officio Justice of Peace and petitioner could file private complaint under S. 200, Cr.P.C.---Application was dismissed in circumstances.

Javed v. The State 2015 YLR 764; Khurram Waheed v. The State and 2 others PLD 2014 Lah. 639; Muhammad Ali v. Additional I.G. PLD 2014 SC 753; Muhammad Bashir v. SHO Okara Cantt PLD 2007 SC 539; Dr. Inayatullah Khilji and 9 others v. Additional District and Sessions Judge, Karachi East and 2 others 2007 PCr.LJ 909; Muhammad Aslam v. Justice of Peace/ADJ Burewala and another 2010 PCr.LJ 296; Umer Hayat v. Inspector General of Police 2015 PCr.LJ 1551; Syed Abdul Hameed v. Mian Izhar Ahmed and 2 others PLD 2019 Pesh. 154; Mir Muzaffar Azam v. SHO PS A-Section, Sukkur 2017 PCr.LJ Note 179 and Younus Abbas and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581 ref.

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

----S. 182---Criminal Procedure Code (V of 1898), S. 250---False complaint---Remedy---In case of false FIR, option of proceeding under S.182, P.P.C. is available but Court cannot invoke the same unless complaint/report is field by concerned Station House Officer, for which even no direction can be given---There is another option available under S. 250, Cr.P.C. to Courts that is awarding of compensation.

Yousuf Iqbal for Applicant.

Ms. Naila Tabassum for Respondents Nos. 3, 4, 7 to 9.

2021 P Cr. L J 394

[Sindh]

Before Adnan-ul-Karim Memon, J

WAKEEL KHAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 1489 of 2019, decided on 26th December, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 34 & 109---Qatl-e-amd, common intention and abetment---Bail, grant of---Further inquiry---No overt act---Allegation against accused was of abetment---Prima facie, prosecution had not collected incriminating material which could attract S. 109, P.P.C. against the accused---Mere saying that the accused had bad intention to get rid of deceased over the property dispute, did not lead at bail stage to the conclusion that accused was hatching any conspiracy in connivance with the main accused or he abetted the offence of murder of his own brother with co-accused---Accused was not present at the time of alleged incident, so he had played no role in causing death of the deceased and his involvement in the aforesaid crime on the basis of abetment was yet to be determined by the Trial Court---Accused was implicated on the basis of statement of co-accused which was not admissible in evidence under Art. 38 of Qanun-e Shahadat, 1984---Where evidence with regard to the allegation of abatement or instigation was 1acking the concession of bail could be extended in favour of accused---Bail was allowed to the accused, in circumstances.

Mushtaque Ahmed Jahangiri for Applicant.

Irshad Khan Yousufzai for the Complainant.

Zahoor Shah, DPG for the State.

2021 P Cr. L J 443

[Sindh]

Before Abdul Maalik Gaddi, J

NASIR MAHMOOD---Appellant

Versus

The STATE---Respondent

Criminal Bail Application No. 1305 of 2019, decided on 21st October, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)---Possession of narcotics---Bail, grant of---Further inquiry---Recovery of 2040 grams Charas---No private witnesses had been associated in spite of prior spy information received during patrolling of police party---Delay in sending the representative part for chemical examination required explanation, making a room for further probe---All the prosecution witnesses were police officials hence, there was no question of tampering with the evidence---Continuous detention of more than two months as well as minimum punishment could be considered while dealing with bail plea of the accused---Fact whether recovery of certain amount from the accused was his personal amount or proceeds from selling charas also required evidence at the time of trial---Accused had succeeded to bring his case within the purview of subsection (2) of S. 497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Syed Lal Hussain Shah for Appellant.

Ali Haider Saleem, D.P.G. along with SI/ IO Ghulam Mustafa Rajpar PS Sharifabad, Karachi for the State.

2021 P Cr. L J 495

[Sindh (Larkana Bench)]

Before Aftab Ahmed Gorar and Shamsuddin Abbasi, JJ

FIDA HUSSAIN SHAHANI---Appellant

Versus

Dr. ABDUL QADIR and 6 others---Respondents

Criminal Acquittal Appeal No. D-16 of 2016, decided on 1st July, 2020.

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

----Ss. 302 & 149---Qatl-i-amd, unlawful assembly---Appreciation of evidence---Appeal against acquittal---Accused were charged for conducting operation of the wife of complainant being unqualified doctors, due to which she died---Record showed that neither there was previous enmity between the parties nor it was a case of pre-planned murder---Prosecution case was that the deceased died on account of her abdominal hysterectomy/major operation conducted through unqualified doctor(s)---Trial Court recorded acquittal findings in favour of accused, mainly for the reasons that the exhumation of dead body through the Magistrate and post-mortem of the deceased were not allowed to be done, therefore, the cause of death of deceased could not be ascertained---Available record showed that the Trial Court had taken due care in acquitting the accused---Complainant despite arguing the appeal at full length had not been able to point out any piece of incriminating evidence, which could hold that the findings recorded by the Trial Court were against the evidence brought on record---Impugned judgment was neither perverse nor arbitrary nor against the evidence on record---No substance was found in the appeal against acquittal, which was accordingly dismissed.

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

----Ss. 417 & 410---Appeal against acquittal/conviction---Appreciation of evidence---Distinction---Appreciation of evidence in an acquittal appeal vis-a-vis an appeal against conviction was not on same place---Evidence, in an appeal against conviction, was appraised with a strict view, whereas the same rigid method of appraisement of evidence was not permissible while deciding an acquittal appeal---Interference, in such appeals, was only made when it appeared that there was gross misreading of evidence which might cause miscarriage of justice---In acquittal appeals ordinarily the courts were reluctant to interfere with the judgment of the Trial Court and instead due weight was to be given to the findings of the Trial Court, as the evidence had been appraised and a conclusion had been drawn.

(c) Appeal against acquittal---

----Double presumption of innocence---Interference---Scope---In case of acquittal by a competent court of law after full-dressed trial, presumption of double innocence was attached to the findings of acquittal and interference was only made when it appeared that there was gross misreading of evidence which might had caused miscarriage of justice.

Muhammad Shafi v. Muhammad Raza and another 2008 SCMR 329 and Zulfiqar Ali v. Imtiaz and others 2019 SCMR 1315 rel.

Ghulam Dastagir A. Shahani for Appellants.

Javed Ahmed Soomro holds brief for Ali Nawaz Ghanghro for Respondent No.1.

Gulshan R. Dayo for Respondent No. 2.

Zahid Hussain Chandio for Respondents Nos. 4 to 6.

Mazhar Ali Bhutto for Respondent No. 7.

Muhammad Noonari, Deputy Prosecutor General.

2021 P Cr. L J 509

[Sindh]

Before Abdul Maalik Gaddi, J

RAHIM---Appellant

Versus

The STATE---Respondent

Criminal Bail Application No. 1704 of 2019, decided on 2nd December, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 269, 270 & 337-J---Negligent act likely to spread infection of disease dangerous to life, malignant act likely to spread infection of disease dangerous to life, causing hurt by means of a poison---Bail, grant of---Further inquiry---Recovery of 98 Puries (packets) of Mawa/Gutka---No private witness had been associated in spite of prior spy information received during patrolling and that the alleged shop from where the accused was arrested along with alleged Mawa/Gutka was situated in a populated area---Delay in sending the representative part for chemical examination which (delay) would also be required an explanation by prosecution---Whole case of the prosecution was based upon the evidence of police officials, therefore, no question arose for tampering the same at the hands of accused---Case had been challaned---Accused was no more required for investigation---Sections 269 & 270, P.P.C. were bailable and the punishment also did not fall within the prohibitory clause of S. 497, Cr.P.C.---Alleged hazardous/poisonous substance recovered from the possession of accused was not administered to anybody at the hands of accused, it could not be said that the accused was responsible for causing hurt through administration of poisonous material to anybody---Nothing was available on record to show that accused was selling the Gutka/Mawa, as no evidence for any purchaser existed---No purchaser was arrested at the time of incident and no purchase money had also been recovered---Accused had been in continuous custody since his arrest and was no more required for any purpose of investigation nor the prosecution had claimed any exceptional circumstance which could justify keeping the accused behind the bars for an indefinite period---Prosecution had not claimed that the accused was previously involved in same nature of cases--Nothing on record that accused was previously convicted in any case---Prima facie, accused had succeeded to bring his case within the purview of subsection (2) of S. 497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Muhammad Ramzan and Nisar Ahmed Narejo for Appellant.

Abdullah Rajput, Deputy Prosecutor General Sindh along with ASI Ali Gul Chandio Police Station Gharo for the State.

2021 P Cr. L J 527

[Sindh]

Before Mrs. Rashida Asad, J

Dr. SHUAIB KAUSAR and another---Applicants

Versus

The STATE---Respondent

Criminal Misc. Application No. 122 and Criminal Bail Applications Nos. 338 and 339 of 2019, decided on 17th February, 2020.

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

----S. 498---Penal Code (XLV of 1860), Ss. 326, 319 & 34---Thug, qatl-i-khata and common intention---Pre-arrest bail, refusal of---Scope---Accused persons in a case concerning medical negligence sought pre-arrest bail---Prima facie accused did not possess post-graduation degrees and knowingly well he performed 'cesarean section' and other surgeries which were ultra vires i.e. beyond his qualifications---Condition of complainant's wife thereafter had become worse and she was taken to another hospital in a very critical condition having failure of heart, respiratory, renal, liver, brain coagulation---Healthcare Commission in its report had imposed penalties against the main accused along with other accused persons and had also referred the case of main accused for cancellation of his licence---Main accused had failed to make out a case for grant of pre-arrest bail as he admittedly performed 'cesarean section'---Allegations against other accused persons required further probe into their guilt which could only be thrashed out after recording of the evidence---Interim pre-arrest bail granted to main accused was recalled and that of other accused persons was confirmed, in circumstances.

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

----S. 498---Pre-arrest bail---Conditions---Scope---Grant of pre-arrest bail to a person accused of committing a non-bailable offence is quite different to that after arrest---Competent court while exercising its discretion has to look if there is any element of eminent mala fide floating on the surface of the matter/case, implication and the arrest of the accused is tainted with malice out of ulterior motives and inevitable, irresistible maltreatment resulting into humiliation and unjustified harassment.

2007 SCMR 1607; 2004 SCMR 1375; PLD 1998 SC 97; PLD 2009 SC 427 and 2009 SCMR 1129 rel.

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

----S. 498---Pre-arrest bail---Tentative assessment---Scope---Court while deciding bail application has to make tentative assessment and deeper appreciation of material is not permissible.

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

----Ss. 561-A, 22-A & 22-B---Inherent powers of High Court---Powers of Ex-officio Justice of Peace---Quashing of FIR---Scope---Accused persons in a case concerning medical negligence assailed order passed by Ex-officio Justice of Peace and sought quashing of FIR---Validity---First Information Report had already been registered against the accused persons and the investigation was in progress---Legal and factual issues raised in the application could be taken by the accused persons in the first instance before the investigating officer and even before the Trial Court before framing of charge, if at all challan was submitted before the Trial Court, which had the power to discharge the accused persons at any stage of the proceedings---Powers under S. 561-A, Cr.P.C. were to be used sparingly and only in exceptional cases---No case for quashing of FIR was made out---Application was dismissed, in circumstances.

Nasreen Bibi v. Farrukh Shahzad and others (Criminal Appeal No.280 of 2013); Ch. Pervez Elahi v. The Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and 3 others 1995 MLD 615 and Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 rel.

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

----S. 561-A---Inherent powers of High Court---Scope---Powers under S. 561-A, Cr.P.C. are to be used sparingly and only in exceptional cases.

Ch. Pervez Elahi v. The Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and 3 others 1995 MLD 615 and Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 rel.

Shah Nawaz Ayub Dahiri for Applicants (in Criminal B. A. No. 339 in Criminal Misc. A. No. 122 of 2019).

Muhammad Ramzan for Applicants (in Cr. B.A. No. 338 of 2019).

Ms. Rubina Qadir and Faheem Hussain Panhwar, Deputy Prosecutor Generals, Sindh for the State.

Syed Zulfiqar Ali Shah for the Complainant.

2021 P Cr. L J 545

[Sindh]

Before Mrs. Rashida Asad, J

Lt. Col. (Retd.) BAQAR NAWAB---Appellant

Versus

Syed MUHAMMAD HASSAN TAUHEED and 2 others---Respondents

Criminal Acquittal Appeal No. 43 of 2015, decided on 13th April, 2020.

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

----Ss. 249-A & 417---Penal Code (XLV of 1860), Ss. 420 & 406---Criminal breach of trust---Cheating and dishonestly inducing delivery of property---Appeal against acquittal---Power of Magistrate to acquit at any stage---Scope---Magistrate acquitted the accused persons on the ground that Ss. 420 & 406, P.P.C., had different ingredients and as such the accused could not be convicted for both offences at the same time---Held; such reason or ground amounted to predicting the fate of a criminal case---Trial Court was duty bound to advert to and examine the contents of FIR, material and evidence submitted with charge sheet while framing charge and it could omit any of the sections of law for which accused could not be tried or if there was no evidence to proceed with trial for such allegation but could not acquit any accused in the middle of trial on the ground that conviction on both accounts would be illegal---Trial Court had to sift grain from chaff and after conclusion of trial to see what offence, if any, was proved against the accused---Mere mentioning or application of a wrong section in FIR or charge sheet was no ground to acquit accused under S. 249-A, Cr.P.C.---Order passed by Trial Court was perverse, arbitrary, un-sustainable in the eyes of law and suffered from factual and legal infirmity---Appeal was allowed and the case was remanded to the Trial Court with direction to conclude the trial after recording evidence of the parties.

2019 PCr.LJ Note 72, 2018 YLR 1695, PLD 2016 SC 55 and 2014 PCr.LJ 8 ref.

2000 PCr.LJ 752 rel.

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

----S. 249-A---Power of Magistrate to acquit at any stage---Scope---Judicial Magistrate is vested with adequate power to acquit an accused at any stage if the charge is groundless, there is no probability of the accused being convicted and as such continuation of proceedings would amount to abuse of process of law---Material submitted in support of charge sheet has to be looked into before considering a case for acquittal---Trial Court is supposed and obligated to examine all the evidence and material before taking cognizance i.e. framing of charge and if the accused does not plead guilty while screening through the proceedings under S. 243, Cr.P.C., the court of a Magistrate has to hear the complainant and take all such evidence as may be produced in support of the prosecution as envisaged in S. 244, Cr.P.C., which means that the provisions of S. 249-A, Cr.P.C., shall be sparingly used and further if the case strictly falls within four corners of the provision---Suffering of agony of trial and/or absence of possibility of conviction or legal impediment of conviction of two sections of P.P.C. at one trial is no ground to exercise powers vested under S. 249-A, Cr.P.C..

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

----S. 249-A---Power of Magistrate to acquit at any stage---Scope---Power of discharging the accused at the stage of taking cognizance and framing of charge is not available to court of Magistrate and as such the provisions of S. 249-A, Cr.P.C. are just enabling and such discretion is to be exercised in a judicial manner---Court is not expected to act mechanically to circumvent proceedings of trial after framing of charge frequently on flimsy or illusory grounds under the garb of power vested under S. 249-A, Cr.P.C.

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

----S. 249-A---Power of Magistrate to acquit at any stage---Delay in conclusion of trial---Scope---Delay in trial is not a ground, unless a sheer abuse of process of law is established on record, to acquit an accused under S. 249-A, Cr.P.C.

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

----Ss. 249-A & 242---Power of Magistrate to acquit at any stage---Charge to be framed---Scope--­Framing of charge connotes that a prima facie case is made out and in such eventuality the accused cannot be acquitted by exercise of power under S. 249-A, Cr.P.C..

1986 MLD 1048 rel.

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

----Ss. 249-A & 242---Power of Magistrate to acquit at any stage---Charge to be framed---Scope--­Framing of charge denotes appraisal of material and application of mind and in such eventuality it is the vested right of the complainant to produce entire evidence to prove charge/case against accused, unless it floats on record that charge is groundless.

Syed Nauman Zahid for Appellant.

Javed Ahmed Rajput for Respondents Nos. 1 and 2.

Farman Ali, Additional Prosecutor General Sindh for the State.

2021 P Cr. L J 576

[Sindh]

Before Mohammad Iqbal Kalhoro and Abdul Mobeen Lakho, JJ

JAVED and others---Appellants

Versus

The STATE---Respondent

Special Criminal A.T.As. Nos. 147, 148 of 2019, 224, 225 of 2018, decided on 18th December, 2019.

(a) Criminal trial---

----Recovery of weapon---Scope---Mere recovery of weapon without corroborative evidence which inspired confidence was not sufficient to convict the accused.

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

----Ss. 4 & 5---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Attempt to cause explosion or for making or keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, possession of illicit arms and ammunition, act of terrorism---Appreciation of evidence---Benefit of doubt---Contradiction in the statements of witnesses---Effect---Prosecution case was that during snap checking six hand grenades, three SMG loaded magazine with 40 cartridges, two rifles loaded magazine with 40 cartridges, one grenade launcher, 400 bullets of SMG in one plastic bag were recovered from the possession of accused---One person tied with an iron chain from the back side of the vehicle under a blanket was also recovered, who was kidnapped by said accused persons from his house and they were taking him to another place with the intention to kill and throw his dead body---Record showed that three prosecution witnesses had stated that "hand grenades" were recovered from the accused persons---Contrary to their evidence, remaining two prosecution witnesses had deposed that "06 rifle grenades" were recovered from the accused persons---Bomb Disposal Unit Report also supported the version of two prosecution witnesses by showing inspection of 06 riffle grenades---Said contradiction in the evidence of three witnesses when compared to remaining two witnesses with regard to the description of grenades had caused a severe blow to the veracity of prosecution case to the extent of recovery of grenades---Prosecution had failed to bring on record trustworthy evidence to prove the case against the accused persons---Appeal was allowed and accused were acquitted.

Tariq Pervez v. The State 1995 SCMR 1345; Muhammad Nawaz and another v. The State PLD 2005 SC 40; Muhammad Pervez and others v. The State and others 2007 SCMR 670; Zubair Ahmed alias Ladu v. The State 2018 YLR Note 160; Aqeel alias Tiloo v. The State 2018 PCr.LJ Note 12; Abdul Kari alias Patni v. The State 2018 PCr.LJ 1358; Asif Khan v. The State 2018 YLR 661; Sikandar alias Sani v. The State 2018 MLD 1220; Abdur Rehman v. The State 2018 YLR 1629; Siraj Ahmed v. The State 2011 PCr.LJ 48; Salman alias Lamba and others v. The State 2018 YLR 1092 and Asmatullah and others v. The State 2018 PCr.LJ 1042 ref.

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

----Ss. 4 & 5---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Criminal Procedure Code (V of 1898), S. 164---Attempt to cause explosion or for making or keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, possession of illicit arms and ammunition, act of terrorism---Appreciation of evidence---Benefit of doubt---Delay in recording confessional statement of accused---Effect---Prosecution case was that huge quantity of hand grenades, rifles, launchers, SMG with bullets were recovered from the possession of the accused persons---Confessional statement of accused was recorded by the Judicial Magistrate after a delay of seven days of arrest which did not seem to be voluntary as the accused admitted so many offences allegedly committed by him many years back, prosecution case was silent as to what action was taken against him in said cases---No certificate had been appended by the Judicial Magistrate with the confessional statement of the accused as provided under S. 164, Cr.P.C.---Moreover, accused had not been confronted with his confessional statement in his 342 Cr.P.C statement---Prosecution had failed to bring on record trustworthy evidence to prove the case against the accused persons without doubt---Appeal was allowed and accused persons were acquitted.

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

----S. 342---Power of court to examine the accused---Scope---If any incriminating evidence was not put to accused during his statement under S. 342, Cr.P.C., the same could not be used against him.

Mohammad Shah v. The State 2010 SCMR 1009; Muhammad Nawaz and others v. The State and others 2016 SCMR 267 and Akhtar Muhammad v. The State 1985 PCr.LJ 1118 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---Benefit of a single circumstance in the prosecution evidence must go to the accused.

Ikram Ullah v. The State 2017 YLR 712; Muhammad Nawaz and another v. The State and others PLD 2005 SC 40; Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel.

(f) Criminal trial---

----Appreciation of evidence---Principle---If a portion of evidence of prosecution witness had not been relied upon, the remaining portion would equally be looked at with suspicion.

Notice to Police Constable Khizar Hayat PLD 2019 SC 527 rel.

Syed Mehmood Alam Rizvi for Appellants (in Special Criminal A.T.As. Nos. 147, 148 of 2019, 224 and 225 of 2018).

Siraj Ali Khan Chandio, Additional Prosecutor General and Special Prosecution Rangers for the State (in Special Criminal A.T.As. Nos. 147, 148 of 2019, 224 and 225 of 2018).

2021 P Cr. L J 612

[Sindh]

Before Mohammed Karim Khan Agha and Zulfiqar Ali Sangi, JJ

Syed MUHAMMAD TEHSEEN and another---Appellants

Versus

The STATE and another---Respondents

Special Criminal Anti-Terrorism Appeal No. 5 of 2007, Special Criminal Anti-Terrorism Acquittal Appeal No. 18 of 2007 and Confirmation Case No. 01 of 2007, decided on 11th December, 2019.

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

----Ss. 302(b) & 427---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Pakistan Arms Ordinance (XX of 1965), S. 13(d)---Explosive Substances Act (VI of 1908), Ss. 3 & 5---Qatl-i-amd at mosque/Imam Bargah act of terrorism---Appreciation of evidence---Triple murder causing fear, panic and terror in society---Complainant lodged FIR against accused persons for committing act of terrorism causing Qatl-i-amd at a mosque/Imam Bargah---Object, design and intent to attack mosque and detonate suicide bomb inside mosque was in order to create terror and insecurity in minds of public and in particular on sectarian grounds---Such was done in order to create fear and terror amongst a sect/community and even make them too afraid even to conjugate at their place of worship---Offence so charged fell squarely within purview of Anti-Terrorism Act, 1997---If accused had an individual grievance with a particular member of the sect then he would have murdered him alone at some other place or alone in mosque rather than targeting whole sect in mosque at prayer time where maximum number of local members of sect were gathered at one place with a suicide bomber whilst shouting anti-Sect slogans---High Court declined to interfere in conviction and sentence awarded by Trial Court---Appeal was dismissed in circumstances.

Dadullah v. The State 2015 SCMR 856; Ghulam Hussain v. State PLD 2020 SC 61; Tariq Iqbal v. State 2017 SCMR 594 and Khalid Mehmood v. State 2017 SCMR 201 rel.

Muhammad Zaman v. The State 2014 SCMR 749; Akhtar Ali v. The State 2008 SCMR 6; Tariq Pervez v. The State 1995 SCMR 1345; Muhammad Saleem v. The State 2010 SCMR 374; Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Muhammad Ali v. The State 2015 SCMR 137; Mir Muhammad alias MIRO v. The State 2009 SCMR 1188; Umar Farooque v. The State 2006 SCMR 1605; Muzaffar Ali v. The State PLD 1964 (W.P) Lahore 32; Farman Ahmed v. Muhammad Inayat 2007 SCMR 1825; Imran Ashraf and 7 others v. The State 2001 SCMR 424; Gul Hassan v. The State 2008 MLD 668; Muhammad Ishaque v. Farman Shah PLD 1964 (W.P) Peshawar 58; Sohail Abbas and others v. Kashif and others PLD 2001 SC 546; Shafqat Mehmood and others v. The State 2011 SCMR 537; Sabir Ali alias Fauji v. The State 2011 SCMR 563; Sabir Ali v. The State 2011 SCMR 629; Muhammad Ayaz v. The State 2011 SCMR 769; Hamid Nadeem v. The State 2011 SCMR 1233; Maula Bux and others v. Chief Administrator of Auqaf, Lahore 2011 SCMR 207; Malik Muhammad Iqbal v. The State 2005 PCr.LJ 768; Atta Muhammad v. The State 1968 PCr.LJ 962; Wahab Ali v. The State 2010 PCr.LJ 157; Bukhshu v. The State 2009 PCr.LJ 405; Muhammad Uzair v. The State 2005 YLR 1533; Rafaqat Ali v. The State 2016 SCMR 1766; Niaz-ud-Din v. The State 2011 SCMR 725; Muhammad Ashraf v. The State 2011 SCMR 1046; Abdul Haq v. The State 2015 SCMR 1326; Manjeet Singh v. The State PLD 2006 SC 30; Muhammad Zaman v. The State 2007 SCMR 813; Aijaz Nawaz alias Baba v. The State 2019 PCr.LJ 1775 and Rehman Ali alias Baba v. The State 2002 YLR 3860 ref.

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

----Ss. 302(b) & 427---Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7 & 25(4A)---Pakistan Arms Ordinance (XX of 1965), S. 13(d)---Explosive Substances Act (VI of 1908), Ss. 3 & 5---Qatl-i-amd at mosque/Imam Bargah, act of terrorism---Appreciation of evidence---Benefit of doubt---Complainant lodged FIR against accused persons for committing act of terrorism causing qatl-i-amd at a mosque/Imam Bargah---Case of accused was on a different footing to the case of co-accused---Accused was not arrested from the spot, he was not injured and no recovery was made from him and identification parade was already discarded---High Court declined to interfere in order of acquittal---Appeal was dismissed in circumstances.

Appeal against Conviction

Abdul Razak for Appellants.

Syed Tasawar Hussain for the Complainant.

Muhammad Iqbal Awan, Deputy Prosecutor General for the State.

Appeal Against Acquittal

Nemo for Appellants.

Nemo for the Respondent.

2021 P Cr. L J 656

[Sindh]

Before Muhammad Saleem Jessar, J

The STATE through Prosecutor General Sindh---Applicant

Versus

SHAHZAD RIAZ and others---Respondents

Criminal Revision Application No. 201 of 2018, decided on 30th October, 2019.

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

----S. 5(2)---Penal Code (XLV of 1860), Ss. 109, 409, 420, 467, 471 & 34---Criminal Procedure Code (V of 1898), Ss. 249 & 249-A---Criminal breach of trust, cheating and forgery---Civil and criminal cases--- Simultaneous hearing---Sine die adjournment---Accused persons were allegedly involved in causing loss to national exchequer by misappropriating subsidy for tractors---Trial Court during pendency of proceedings adjourned proceedings sine die on grounds that civil and criminal proceedings on same subject matter were being simultaneously conducted---Validity---No legal bar existed if both, civil as well as criminal proceedings, relating to same or similar/identical subject matter proceeded simultaneously---If criminal proceedings were allowed to be continued, even in such an eventuality, at trial stage accused persons would be afforded sufficient opportunity of hearing to disprove allegations levelled against them---Accused persons would also be entitled to initiate other remedies available under law and appropriate proceedings against complainant and/or other responsible persons---Making claim for awarding compensation to them, if ultimately it was found and concluded that allegations leveled against accused persons were frivolous and vexatious and had been filed with ulterior motives only to victimize accused persons---High Court set aside order passed by Trial Court for sine die adjournment of proceedings---High Court directed Trial Court to proceed with trial on merits against all accused persons---Case was remanded in circumstances.

A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353 and Seema Fareed and others v. The State 2008 SCMR 839 distinguished.

2017 CLC 1140; Muhammad Akbar v. The State and Maulvi Muhammad Yasin Khan PLD 1968 SC 281; Muhammad Aslam v. The State 2017 SCMR 390; Abdul Haleem v. The State and others 1982 SCMR 988; Sheikh Muhammad Naseem v. Mst. Farida Gul 2016 SCMR 1931; Muhammad Aslam v. The State and other 2017 SCMR 390; Sheikh Muhammad Nafees v. Additional Sessions Judge Hafizabad 2010 PCr.LJ 1442 and Noor Muhammad v. The State and others PLD 2007 SC 9 ref.

Nasrullah Korai for Applicant.

Khawaja Shamsul Islam along with Mehmood for Respondent No.1 and Respondent No. 51.

Yousuf Molvi for Respondent No. 23.

Nadir Khan Burdi for Respondent No. 52.

2021 P Cr. L J 689

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Mrs. Rashida Asad, JJ

MANZOOR AHMED---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-03 and Confirmation Case No. 1 of 2017, decided on 30th September, 2020.

(a) Criminal trial---

----Evidence---Last seen evidence---Scope---Foundation of the "last seen together" theory was based on principles of probability and cause and connection, cogent reasons that the deceased in normal and ordinary course was supposed to accompany the accused, proximity of the crime scene, small time gap between the sighting and crime, no possibility of third person interference as well as time of death of victim.

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

----Ss. 302(b) & 377---Qatl-i-amd, sodomy---Appreciation of evidence---Last seen evidence---Scope---Accused was charged for murdering the minor son of complainant after committing sodomy---In the present case, a barber was appeared as last seen witness---Evidence of said witness showed that he got a barber shop near a Masjid---On the day of occurrence, said witness was present in his barber shop at about 9:00 p.m. after Isha prayer when the Namazis had gone after the prayer he had seen deceased standing on the door of Masjid and after some moment accused (His Islamiyat teacher) came on the door and he saw accused taking minor deceased through the stair case of Mosque---Evidence of said witness was enough to prove that the accused had taken the deceased-boy with him to the upstairs of Mosque and thereafter he was found in critical injured condition on the roof of Mosque---Evidence of complainant and other witnesses transpired that after the deceased-boy had gone to Mosque, and had never returned and later he was found in unconscious condition behind the piles of bricks on the roof of said mosque, which clearly showed that the deceased-boy was lastly seen with the accused who took him upstairs---Accused had not given account as to why the deceased-boy had not returned from the Mosque---Thus, the circumstances of last seen were absolutely against the accused---Such was a link to the chain of circumstances against the accused---Said piece of evidence connected the circumstances i.e. the deceased knew the accused who was his Islamic teacher, the incident took place within a short gap between the sighting and crime as according to the prosecution evidence the deceased-boy was alive and his heart was beating very slowly---Following the principle that if deceased was lastly seen alone in the company of accused shortly before the time he was presumed to have been killed at the place of occurrence---Reasonable inference could be drawn that accused was responsible for the death of deceased---Appeal against conviction was dismissed, in circumstances.

Khalid Javed and another v. The State 2003 SCMR 1419; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274; Muhammad Azhar Hussain and another v. The State and another PLD 2019 SC 595 and Ali Gul v. The State 2020 MLD 952 ref.

Mst. Robina Bibi v. The State 2001 SCMR 1914 rel.

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

----Ss. 302(b) & 377---Qatl-i-amd, sodomy---Appreciation of evidence---Act of sodomy---Scope---Accused was charged for murdering the minor son of complainant after committing sodomy---Record showed that accused had not confessed the act of sodomy before the Judicial Magistrate which would not be fatal to the case as there was convincing, cogent evidence of the prosecution witnesses to prove its case on the charge of sodomy committed with deceased-boy---Act of sodomy with the deceased-boy was fully established as the sperms were not only detected on shalwar of minor but on his internal anal swabs as well---In the presence of Report of Chemical Examiner and statement of Medical Officer, the case of the prosecution could not be doubted with tainted glasses on the point of sodomy of deceased before his murder---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b) & 377---Qatl-i-amd, sodomy---Appreciation of evidence---Medical evidence and confession of accused---Consistency---Scope---Accused was charged for murdering the minor son of complainant after committing sodomy with him---Record showed that the Medical Officer had supported the injuries on the person of deceased-boy to have been caused with sharp cutting weapon as confessed by the accused---Medical evidence was consistent to judicial confession as made by the accused---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b) & 377---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, sodomy---Appreciation of evidence---Confession, recording of---Accused was charged for murdering the minor son of complainant after committing sodomy with him---Confessional statement having been recorded without wastage of time and after observing all legal formalities, appeared to be voluntary, truthful and confidence inspiring which required no further corroboration---Appeal against conviction was dismissed, in circumstances.

Nizam-ud-Din v. Riaz and another 2010 SCMR 457 rel.

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

----Ss. 302(b) & 377---Qatl-i-amd, sodomy---Appreciation of evidence---Circumstantial evidence---Scope---Accused was charged for murdering the minor son of complainant after committing sodomy with him---No bar or hindrance existed to pass the sentence upon a killer when the chain of guilt was found not to be broken and irresistible conclusion of the guilt was surfacing from the evidence, which connected the accused with the commission of that offence without any doubt or suspicion---If the circumstantial evidence brought on the record was of such nature then the conclusion would be in the shape of conviction and no other conclusion would be drawn by any stretch of imagination in such a case---For the guilt of the accused, penalty of death or life imprisonment would be a normal event---Appeal against conviction was dismissed, in circumstances.

Khuda Bukhsh v. The State 2004 SCMR 331; Faisal v. The State 2007 SCMR 58; Sheraz Tufail v. The State 2007 SCMR 518; Israr Ali v. The State 2007 SCMR 525; Binyamin alias Khari and others v. The State 2007 SCMR 78; Ghulam Nabi v. The State 2007 SCMR 808 and Muhammad Akhtar v. The State 2007 SCMR 876 rel.

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

----Ss. 302(b) & 377---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, sodomy--- Appreciation of evidence--- Confessional statement, retraction of---Scope---Accused was charged for murdering the minor son of complainant after committing sodomy with him---Although, accused retracted his confession, but the same could be relied upon, because the manner adopted by him for commission of offence stated in confessional statement was fully corroborated by prosecution evidence available on record---Mashir, had attested all proceedings of the investigation including recovery of iron cutter---Nothing was on record that such confessional statement of the accused was the result of any pressure or coercion---Confessional statement was recorded in proper manner after observing all legal formalities by the Judicial Magistrate---Said confessional statement was true and voluntarily and mere retraction from such confession was not sufficient to discard it from consideration---Appeal against conviction was dismissed, in circumstances.

Muhammad Amin v. The State PLD 2006 SC 219 rel.

Mian Taj Muhammad Keerio for Appellant.

Shoukat Ali Kaka for the Complainant.

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

2021 P Cr. L J 729

[Sindh]

Before Mohammed Karim Khan Agha and Zulfiqar Ali Sangi, JJ

SHAH REHMAN DOSTAY and others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU (NAB) through Director General and others---Respondents

Constitutional Petitions Nos. D-7714 of 2019, D-1666, D-1785, D-3594, D-2145, D-2146 and D-2189 of 2020, decided on 8th September, 2020.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a) & 9(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Pre-arrest bail, grant of---Mala fide---Proof---Sub-Registrar, duty of---Dispute was with regard to registered sale deed of government land in the names of co-accused persons---Validity---"Pre-arrest bail" was extraordinary relief and was only available in cases where there was mala fide on the part of complainant or investigating agency---Accused persons failed to show mala fides on the part of National Accountability Bureau (NAB) rather the officials admitted that they had issued "No Objection Certificate" in favour of accused who was principal beneficiary from whom other accused persons purchased the land---Petitioner was Sub-Registrar and by virtue of his post he was duty bound to register every document produced before him and had no option to refuse registration---Duties of Sub-Registrar were mentioned in S. 52 of Registration Act, 1908---Verification of documents and their validity and genuineness was not duty of Sub-Registrar to check the same under R. 135 of Registration Rules, 1929---Case of petitioner was one of further inquiry---Pre-arrest bail was confirmed, in circumstances.

Ali Akber v. Director General, National Accountability Bureau 2017 YLR 1045; Fayyaz Ahmed v. The State and others 2014 SCMR 1628; Fazalur Rehman and another v. The State 1991 SCMR 1577; Abdul Baqi Mehar v. Inspector General of Registration and Commissioner and others 1989 SCMR 570; Sh. Ashfaq-ur-Rasool v. Capital Development Authority, through its Chairman, Islamabad and 2 others 2004 YLR 1143; Muhammad Hameed v. District Officer (Revenue) Lahore and another PLD 2007 Lah. 490; Province of Punjab through Collector, Faislabad and 8 others v. Muhammad Yaqoob 1992 CLC 2065; Ghulam Yasin v. District Officer (R), Jhang and 2 others PLD 2007 Lah. 689; Ghulam Mustafa Abbasi v. The State through ACE and another 2011 MLD 421 and Rana Mohammed Arshad v. Muhammad Rafique PLD 2009 SC 427 ref.

Ch. Abdul Rasheed for Petitioner (in Constitutional Petitions Nos. D-7714 of 2019 and D-2189 of 2020).

Zahid Hussain Baladi, Special Prosecutor, NAB for NAB (in Constitutional Petitions Nos. D-7714 of 2019, D-1666, D-1785, D-3594, D-2145, D-2146 and D-2189 of 2020).

Raj Ali Wahid Kunwar for Petitioner (in Constitutional Petition No. D-1666 of 2020).

G.M. Bhutto for Petitioner (in Constitutional Petition

No. D-1785 of 2020).

Khawaja Saiful Islam for Petitioners (in Constitutional Petitions Nos. D-3594, D-2145 and D-2146 of 2020).

2021 P Cr. L J 742

[Sindh (Larkana Bench)]

Before Naimatullah Phulpoto, J

TARIQUE and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-62 of 2015, decided on 3rd December, 2020.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Accused were charged for committing murder of daughter of complainant by cutting her throat with the knife---Ocular account had been furnished by parents of the deceased---Both eye-witnesses had clearly deposed that deceased was married to the accused---House of the complainant/father of the deceased was situated at the distance of ten paces from the shop of accused where murder of his daughter was committed---Complainant stated that accused persons were dragging deceased towards the shop and thereafter, accused cut throat of deceased with his knife and she expired at the spot---Mother of deceased had also witnessed the incident---Said witness deposed that accused cut throat of deceased with knife and other accused had also inflicted hatchet blows to deceased---Circumstances established that the prosecution had proved its case against accused beyond reasonable doubt on the basis of unimpeachable and confidence inspiring ocular evidence of unimpeachable corroborated by the medical evidence, recovery of knife and positive report of the Chemical Examiner---Accumulative effect of the facts and circumstances was that prosecution had established its case against accused to the hilt, leaving no room for interference---Consequently, appeal against conviction was dismissed to the extent of accused---Prosecution, however, had failed to bring on record evidence to satisfy the court that co-accused had shared common intention with the main accused---Prosecution case was that the co-accused was armed with hatchet which was neither used by him nor recovered from him---Said fact was evident in the evidence of complainant---Appeal against conviction was allowed to the extent of co-accused, in circumstances.

Haji Muhammad Sadiq v. Liaquat Ali and others 2014 SCMR 1034; Muhammad Abbas v. The State PLD 2020 SC 620 and Sufyan Nawaz and another v. The State and others 2020 SCMR 192 ref.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay of about five hours in lodging the FIR---Effect---Accused were charged for committing murder of daughter of complainant by cutting her throat with the knife---Record showed that the delay in lodging the FIR had been explained by the complainant that he could not go to the Police Station due to the odd hours of the night and he had fear of the accused persons---Delay in lodging of the FIR would not be fatal to the case of prosecution for the reasons that accused was the husband of the deceased---Houses of both the parties were situated adjacent to each other---Bulb was also lighting in the shop in front of the house of accused---Moreover, it appeared that no benefit was drawn by the complainant party from lodging the FIR with delay---Appeal against conviction to the extent of accused was dismissed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular evidence was corroborated by the medical evidence---Scope---Accused were charged for committing murder of daughter of complainant by cutting her throat with knife---In the present case, the ocular evidence was corroborated by the medical evidence---Lady Medical Officer had deposed that at 11:00 a.m. she conducted post-mortem examination of deceased aged about 22 years---From the external as well as internal examination of the deceased, Lady Medical Officer was of the opinion that death of deceased occurred as a result of injuries caused by the sharp cutting substance---Death was instantaneous and time between death and post-mortem examination was about eight hours---During investigation on spy information accused was arrested in presence of mashirs and during interrogation accused prepared to produce knife used by him in the commission of the offence---Eye-witnesses had no motive to falsely depose against accused persons---Appeal against conviction to the extent of accused was dismissed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence--- Recovery of weapon of offence and rope---Reliance---Scope---Accused were charged for committing murder of daughter of complainant by cutting her throat with the knife---Record showed that accused led the police and produced knife and rope from his house---Said knife and rope were sealed in presence of the mashirs and sent to the Chemical Examiner and the report was positive---Appeal against conviction to the extent of accused was dismissed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive was not proved---Scope---Accused were charged for committing murder of daughter of complainant by cutting her throat with the knife---Motive was stated to be a dispute over domestic matters between deceased and mother of accused, such disputes were very common---Motive of such nature could not be proved by independent evidence---Appeal against conviction to the extent of accused was dismissed, in circumstances.

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

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, common intention---Appreciation of evidence---Defence plea---Scope---Accused were charged for committing murder of daughter of complainant by cutting her throat with knife---In the present case, accused confessed that he had committed murder of his wife in the name of honour---Accused failed to substantiate such plea at trial---Deceased was deprived of both her life and reputation---Such killing was never honourable---Defence alleged that both eye-witnesses were parents of deceased lady, thus, interested, therefore, their testimony could not have been believed---Mere relationship of a witness with the deceased was no ground for discarding his evidence if he, otherwise appeared to be truthful and his presence at the place of occurrence was probable---Appeal against conviction to the extent of accused was dismissed, in circumstances.

Muhammad Abbas v. State PLD 2020 SC 620; Sheraz Tufail v. The State 2007 SCMR 518 and Khair Muhammad and another v. State 2007 SCMR 158 rel.

Irfan Badar Abbasi for Appellants.

Makhdoom Syed Tahir Abbas Shah for the Complainant.

Aitbar Ali Bullo, D.P.G. for the State.

2021 P Cr. L J 794

[Sindh (Larkana Bench)]

Before Abdul Maalik Gaddi and Mrs. Kausar Sultana Hussain, JJ

MEHIK KUMARI alias NANKI KUMARI and another---Petitioners

Versus

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

Constitutional Petitions Nos. D-3104 and D-3105 of 2020, decided on 9th July, 2020.

Child Marriage Restraint Act (XIX of 1929)---

----Ss. 3 & 4---Penal Code (XLV of 1860), S. 365-B---Criminal Procedure Code (V of 1898), S. 552---Kidnapping, abducting or inducing woman to compel for marriage---Custody of minor---Victim, a Hindu girl below the age of 18 years having contracted marriage with a Muslim boy after embracing Islam was shifted to Shelter Home---Mother of the victim girl claimed her custody---Scope---Record showed that the court had called victim girl for recording her statement just to ascertain the real facts and to reach at correct conclusion---Statement of victim girl showed that she had contracted marriage without any inducement after embracing Islam---Victim girl stated that she was a sui-juris---Said fact showed that she had attained the age of puberty, however, in her statement, victim girl categorically stated that she wanted to go with her mother, who was Hindu by religion---Perusal of record reflected that in Nikahnama, which had not been denied by any of the parties, her age was mentioned as eighteen (18) years, whereas, she had been medically examined and report of Medical Board on record showed her age as 15 to 16 years, meaning thereby that she had attained the age of puberty---High Court set at liberty the victim girl to go wherever she wanted---Since she wanted to go with her mother, who was present in court, therefore, Incharge Shelter Home was directed to hand over the custody of victim girl to her mother---Petition was disposed of accordingly.

Abid Hussain Qadri for Petitioner No. 1 (in C.P. No. D-3104 of 2020).

Ms. Shahnaz Sehar, Legal Officer, Panah Shelter Home, Karachi for Petitioner along with Petitioner in person.

Dildar M.S. Shaikh for Petitioner (in C.P. No. D-3105 of 2020 and for Respondent (in C.P. No. 3104 of 2020)).

Salman Talibuddin, Advocate General Sindh along with Ms. Leela Kalpana Devi, Additional Advocate General Sindh along with ASI Inayat Ali, P.S. Civil Line, Jacobabad.

Abrar Ali Khichi, Additional Prosecutor General, Sindh.

Mst. Kanta (mother of Mehak Kumari, now Aleeza) and her husband Vijay Kumar (father of Mehak Kumari, now Aleeza) are present.

2021 P Cr. L J 819

[Sindh (Hyderabad Bench)]

Before Muhammad Saleem Jessar, J

JAMIL SOOMRO---Applicant

Versus

HAJI and another---Respondents

Criminal Revision Application No. S-139 of 2019, decided on 1st November, 2019.

Criminal Procedure Code (V of 1898)---

----Ss. 497, 499 & 513---Bail---Bond of accused and sureties---Deposit instead of re-cognizance---Scope---Accused assailed order passed by Sessions Judge whereby he, while granting bail, had directed the accused to furnish solvent surety in the shape of Special Saving Certificate---Prayer made by the accused through the revision application was that instead of furnishing surety in the shape of a Special Saving Certificate he might be allowed to furnish surety in the shape of papers/documents relating to agricultural land---Validity---Section 499, Cr.P.C., contemplated execution of bond with sureties and not a cash deposit---Neither S. 499 nor S. 513 of the Code contained anything which authorized the court of its own accord to insist on the deposit of a sum of money as surety in the place of a bond---Such demand for cash surety was illegal---Revision application was allowed and the impugned order to the extent of depositing Rs.1,00,000/- in the shape of a Special Saving Certificates only was set aside and the accused was ordered to be released on furnishing solvent surety in the amount of Rs. 1,00,000.

Mst. Sher Bano and another v. The State PLD 1989 Kar. 602 and The State v. Mohammad Hasham Babar PLD 1997 Lah. 605 fol.

Shoukat Ali Pathan for Applicant.

Shewak Rathore, D.P.G., Sindh for the State.

2021 P Cr. L J 834

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Adnan-ul-Karim Memon, JJ

ABDUL AZEEM KHAN and others---Petitioners

Versus

The STATE (NAB) and others---Respondents

Constitutional Petitions Nos. D-979, D-983, D-993 and D-998 of 2020, decided on 8th October, 2020.

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

----Ss. 9(a)(vi) & 9(b)--- Constitution of Pakistan, Art. 199---Constitutional petition---Suspension of sentence---Bail, grant of---Illegal appointments---Old lady---Petitioner was convicted and sentenced to three years of imprisonment in case of illegal appointments---Validity---Case was based upon documentary evidence---Evidence of prosecution witnesses and observations of Trial Court were still to be re-appreciated and re-evaluated---No allegation was leveled regarding any misuse or abuse of concession of bail by petitioner during entire proceedings/trial of the case---Petitioner was old retired lady and law envisaged concession for her in the matter of bail---Sentence of imprisonment passed by Trial Court was quite short---Bail was allowed in circumstances.

Chairman, National Accountability Bureau, Islamabad through Prosecutor-General Accountability, Islamabad v. Mian Muhammad Nawaz Sharif and others Civil Appeal No. 1340 of 2018 and others rel.

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

----Ss. 9(a)(vi) & 9(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Suspension of sentence---Bail, grant of---Illegal appointments---Short sentence---Petitioners were convicted and sentenced to five years of imprisonment in case of illegal appointments---Validity---Sentence awarded to petitioners was short one and possibility of hearing of appeals filed by them against judgment passed by Trial Court, in the wake of backlog of cases in near future was farsighted---Bail was allowed in circumstances.

Abdul Hameed v. Muhammad Abdullah 1999 SCMR 2589 rel.

Bashir Ahmed Almani for Petitioner (in C.P. No. D-979 of 2020).

Ayaz Husain Tunio for Petitioner (in C.P. No. D-983 of 2020).

Ishrat Ali Lohar along with Zulfiqar Ahmed Korai for Petitioners (in C.P. No. D-993 of 2020).

Asif Ali Talpur for Petitioner (in C.P. No. D-998 of 2020).

Jangu Khan, Special Prosecutor NAB.

2021 P Cr. L J 851

[Sindh (Larkana Bench)]

Before Naimatullah Phulpoto, J

MUHAMMAD YOUNIS---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-134 of 2019, decided on 29th October, 2020.

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

----S. 24---Recovery of firearm---Appreciation of evidence---Benefit of doubt---Unlicensed T.T. pistol with magazine containing four live bullets was recovered during investigation of a murder case, on the disclosure of accused---Investigating Officer was supposed to make such entry/statement about disclosure of accused and recovery of weapon before leaving the police station, but it was not done by him---Recovery was a daytime event, Investigation Officer had also failed to call independent and respectable persons of the locality to witness the recovery proceedings---Place of recovery was also an open place and accessible to all---Investigating Officer in his evidence at nowhere had deposed that after recovery of the pistol he sealed the weapon in presence of the mashirs and he deposited same at the "Malkhana" of the police station---Defence had rightly pointed out that handwriting on the mashirnama of arrest and recovery and the FIR were of different persons---Said fact was conceded by the prosecution, but complainant/Investigating Officer in his cross-examination had admitted that mashirnama of arrest and recovery as well as the FIR were prepared by him---Record transpired that accused had been acquitted in the main case by the court---Record showed that pistol allegedly recovered on the pointation of the accused was used in the commission of the murder, but prosecution failed to prove before the Trial Court with regard to the safe custody and safe transmission---Neither entry of the "Malkhana" of the police station was produced before the Trial Court nor incharge of the "Malkhana" was examined---Positive report of the Ballistic Expert reflected that pistol was deposited by SDPO, but said SDPO was also not examined before the Trial Court---Accused in his statement recorded under S. 342, Cr.P.C. had claimed false implication in that case and stated that pistol had been foisted upon him---Description of the pistol was essential to have been recorded in the mashirnama, in circumstances---Prosecution failed to produce independent piece of evidence for the purpose of corroboration of the evidence of the prosecution witnesses, which was based solely on the evidence of the Police Officials---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

(b) Criminal trial---

----Witness---Police Official as witness---Reliance---Scope---No doubt, evidence of the Police Officials could not be discarded simply because they belong to police force, however, if the fate of the accused persons hinged upon the testimony of Police Officials alone, it was necessary to find out if there was any possibility of securing independent persons at the time---Reliance upon the evidence of the Police Officials without independent corroboration was unsafe.

Saifullah v. The State 1992 MLD 984 rel.

(c) Criminal trial---

----Benefit of doubt---Principle---If there is single circumstance which created reasonable doubts in a prudent mind about the guilt of the accused then the accused would be entitled to the benefit not as a matter of grace and concession but as a matter of right.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

Suhendar Kumar Gemnani for Appellant.

Aitbar Ali Bullo, Deputy Prosecutor General for the State.

2021 P Cr. L J 886

[Sindh]

Before Aftab Ahmed Gorar, J

Syed ZAHOOR-UL-HASSAN SHAH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 1803 of 2019, decided on 16th January, 2020.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 489-F & 506---Dishonestly issuing cheque and criminal intimidation---Pre-arrest bail, non-confirmation of---Dishonour of cheques---Dishonouring of cheque was a financial murder of not only the affected person but also his whole family, owing to the prevailing circumstances and by state of the affairs, being repugnant---Accused had failed to show any mala fide on the part of the complainant as well as on the investigation agency---Delay in lodging the FIR could be for the reasons to give a last opportunity to accused for payment of the due amount----Prima facie, accused had failed to show that the cheques were not dishonestly issued for payment of any loan or obligation---Accused having not made out a case for confirmation of the bail, pre-arrest bail granted to the accused was recalled----Application was dismissed, in circumstances.

2019 YLR 2467 and Shameel Ahmed v. The State 2009 SCMR 174 rel.

Khawaja Muhammad Azeem for Applicant.

Muhammad Dawood Narejo for the Complainant.

Hussain Bux Baloch, Additional Prosecutor General for the State.

2021 P Cr. L J 901

[Sindh (Larkana Bench)]

Before Khadim Hussain M. Shaikh, J

NAZIR AHMED and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No. S-534 of 2019, decided on 23rd December, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 269, 270 & 337-J---Negligent act likely to spread infection of disease dangerous to life, malignant act likely to spread infection of disease dangerous to life, causing hurt by means of poison---Bail, refusal of---Petitioners were arrested on recovery of 19 sacks of different kinds of Gutka, weighing 240 kilograms, while transporting the same in the car, which was in their control and possession---Such a huge quantity of Gutka valuing more than Rs. 1300000/-, could not be foisted upon the petitioners, more particularly, in view of the fact that no animosity or ill will against the police was alleged by them---Prosecution witnesses had supported the version of the complainant in their statements under S. 161, Cr.P.C.---Report of Government Analyst was positive---Sufficient material was available with the prosecution to connect the accused persons with crime---Bail could not be claimed as a matter of right in the cases like the present one involving huge quantity of such a dangerous item, which was more dangerous than narcotics---Offence under S. 337-J, P.P.C., carrying punishment up to ten (10) years did fall within the prohibitory clause of S. 497, Cr.P.C.---Petitioners had failed to make out their case for grant of concession of bail---Bail was refused, accordingly.

Ashfaq Hussain Abro for Applicants.

Aitbar Ali Bullo, Deputy Prosecutor General, Sindh for the State.

2021 P Cr. L J 909

[Sindh]

Before Mohammed Karim Khan Agha and Mrs. Kausar Sultana Hussain, JJ

ALI NAWAZ and 5 others---Applicants

Versus

The STATE and 2 others---Respondents

Criminal Revision Application No. 126 of 2020, decided on 19th November, 2020.

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

----Ss. 7 & 23---Penal Code (XLV of 1860), Ss. 385, 386 & 34---Putting person in fear of injury in order to commit extortion, extortion by putting a person in fear of death or grievous hurt, common intention---Application for transfer of case to court of ordinary jurisdiction was dismissed---Validity---Accused were charged for demanding bhatta from the complainant by showing Kalashnikov and other weapons and on his refusal, they extended threat to kill him and his family---Record showed that undoubtedly the offence so charged fell within the purview of S. 6(2) Anti-Terrorism Act, 1997, being the offence involving the extortion of money (bhatta) or property as was clear from the FIR---Complainant, in the FIR, had stated that he did not tell anyone about the bhatta demands and as such demands remained personal and private to him and the act of demanding bhatta from the complainant was not designed to coerce and intimidate the public and as such the required mens rea for the case to fall within the purview of the Anti-Terrorism Act, 1997 had not been made out by the prosecution---Application was allowed and the provisions of Anti-Terrorism Act, 1997, would be struck out of the FIR and charge and the case was transferred from Anti-Terrorism Court to the ordinary Court.

Ghulam Hussain v. State PLD 2020 SC 61 rel.

Waqarullah Korejo for Applicants.

Khadim Hussain Khuharo, Additional Prosecutor General for the State.

2021 P Cr. L J 915

[Sindh]

Before Mohammed Karim Khan Agha and Amjad Ali Sahito, JJ

STATE through Prosecutor General Sindh and another---Applicants

Versus

IMRAN SAWATI and others---Respondents

Criminal Revision Applications Nos. 9 and 18 of 2019, decided on 21st October, 2020.

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

----Ss. 302, 109, 201, 202 & 34---Criminal Procedure Code (V of 1898), S. 540---Qatl-i-amd, abetment, causing disappearance of evidence, intentional omission to give information of an offence, common intention---Summoning of witnesses---Scope---Complainant filed application under S. 540, Cr.P.C., for calling the witnesses of Joint Investigation Team (JIT) as those witnesses were material witnesses who were needed to be examined in order to prove the case and to exhibit JIT report, which application was dismissed by the Trial Court---Validity---In the present case, the ends of justice would not be served by allowing the trial to be further delayed for a substantial period of time, whilst 6 to 7 witnesses were examined and potentially cross-examined by a number of the accused to the detriment of the accused, who had been languishing in jail for 8 years on account of the failure of the prosecution to properly present and prosecute its case---Complainant tried to fill in lacunas at the very end of the trial to the prejudice of the accused---Scales of justice could not be tilted too far in favour of the prosecution to the prejudice of the accused---Assessment made by the Trial Court through the impugned order at that belated stage was found to be well reasoned and without any legal infirmity---No member of the Joint Investigating Team, who was now sought to be added as a witness (whose name was known at the time when the calendar of witnesses was submitted and could have been dropped later if deemed necessary by the prosecution), was included in the calendar of the prosecution witnesses---No member of the Joint Investigation Team had recorded statement under S. 161, Cr.P.C. and as such the accused would be prejudiced during cross-examination---No illegality or infirmity in the impugned order was found---Revision petition was dismissed accordingly.

Zuhrab Gul v. State 2017 YLR 1376; Muhammad Sharif Shar v. The State 2000 PCr.LJ 1882; Muhammad Murad Abro v. The State 2004 SCMR 966; Nawabzada Shah Zain Bugti v. The State PLD 2013 SC 160; Abdul Salam v The State 2000 SCMR 102; Ansar Mehmood v Abdul Khaliq 2001 SCMR 713; Province of Punjab v. Muhammad Rafique PLD 2018 SC 178; National Bank of Pakistan v. Mumtaz Ahmed 1984 PSC 297; Allah Wasaya v. The State 2018 MLD 489; The State v. Khaista Rahman 2013 MLD 1872; Muhammad Ayub v. Additional Sessions Judge Hafizabad and others 2011 YLR 2058 and Syed Saeed Muhammad Shah v. The State 1993 SCMR 550 ref.

HRCP v. Province of Sindh and others C.P. 50 of 2013 dated 24.09.2020 and Muhammad Naeem v. The State PLD 2019 SC 669 rel.

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

----S. 173---Joint Investigation team (JIT) formed to probe into a crime---Report of JIT---Evidentiary value---Joint Investigation Team Report was equivalent to a S. 173, Cr.P.C. report and was of no evidentiary value.

PLD 2018 SC 178 rel.

Ali Hyder Saleem, Deputy Prosecutor General for Applicant (in Criminal Revision Application No. 9 of 2019) and for Respondent (in Criminal Revision No. 18 of 2019).

Muhammad Amjad Hussain Khan and Aamir Mansoob Qureshi for Respondents (in Criminal Revision Application No. 9 of 2019).

Saad Fayyaz for Applicant (in Criminal Revision Application No. 18 of 2019).

2021 P Cr. L J 940

[Sindh (Larkana Bench)]

Before Muhammad Junaid Ghaffar and Irshad Ali Shah, JJ

SAHIB KHAN---Petitioner

Versus

DEPUTY INSPECTOR GENERAL OF POLICE, LARKANA and 2 others---Respondents

Constitutional Petition No. D-151 of 2020, decided on 1st September, 2020.

Criminal Procedure Code (V of 1898)---

----S. 156--- Re-investigation--- Challan, filing of--- Petitioner was aggrieved of filing of Challan by investigating officer before Trial Court and sought re-investigation into the matter---Validity---Petitioner was named in FIR and he on the basis of investigation was Challaned by police---Court having jurisdiction had already taken cognizance of the offence against petitioner---If petitioner was having feeling that he was innocent and involved in case by police falsely at the instance of complainant party, then he could prove his innocence adequately by putting his defence before Court which had taken cognizance of offence against him---Re-investigation of case was not justified at the cost of trial---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Raja Khurshid Ahmed v. Muhammad Bilal and others 2014 SCMR 474 disinguished.

Imtiaz Ali Mugheri for Petitioner.

Abdul Hamid Bhurgri, A.A.G. for the State.

2021 P Cr. L J 950

[Sindh (Larkana Bench)]

Before Irshad Ali Shah, J

SAMAD KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-36 of 2020, decided on 14th May, 2020.

Penal Code (XLV of 1860)---

----Ss. 269, 270 & 337-J---Negligent act likely to spread infection of disease dangerous to life, malignant act likely to spread infection of disease dangerous to life, causing hurt by means of a poison---Appreciation of evidence---Benefit of doubt---Safe custody---Non-recording of statement of sample bearer---Scope---Prosecution case was that the accused was found in possession of four sacks, each was found containing 20 Kilograms of "Betel Nuts" alleged to be poisonous and was intended to spread infection/disease likely to cause hurt to person or to be dangerous/poisonous to human lives---Admittedly, there was no independent witness to the incident and only 05 Kilograms of recovered substance had been subjected to chemical examination---Nothing was on record as to from which of the sacks, the alleged substance was segregated by the complainant as "sample"---Sample had been sent to the Chemical Examiner with delay of about thirteen days, which was not explained plausibly---Report of Chemical Examiner showed that the substance analyzed by him was not found to be recommended for human consumption within the meaning of S. 5 of the Pure Food Ordinance, 1960 and it also contravened the provision of R. 11 of Sindh Pure Food Rules, 1965---Neither of such section was applied by the police against the accused while submitting the final charge sheet---No hurt was caused to any one by means of alleged substance by the accused---Neither the in-charge of "Malkhana" nor the person who had taken the alleged substance to the Chemical Examiner had been examined by the prosecution to prove its safe custody and transmission---Circumstances established that the prosecution had not been able to prove its case against the accused beyond the shadow of doubt---Appeal against conviction was allowed, in circumstances.

Ikramullah and others v. The State 2015 SCMR 1003 rel.

Ashiq Ali Jatoi for Appellant.

Muhammad Noonari, D.P.G. for the State.

2021 P Cr. L J 958

[Sindh (Larkana Bench)]

Before Khadim Hussain M. Shaikh and Irshad Ali Shah, JJ

DAIM---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-50 of 2014, decided on 15th April, 2020.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 353, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), Ss. 231, 353, 537(b)---Constitution of Pakistan, Art. 10-A---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Recall of witnesses when charge is altered, evidence to be taken in presence of accused, case to be remanded when charge was defective, fair trial---Accused were charged for having deterred the police party by making fires at them with intention to commit their murder, after having formed an unlawful assembly, thereby two Police personnel lost their lives while seven police personnel sustained fire shot injuries---Record showed that after recording statements of the accused under S. 342, Cr.P.C., prosecution witnesses and complainant were recalled and re-examined at the instance of prosecution under S. 540, Cr.P.C.---Two prosecution witnesses adopted their examination-in-chief, while evidence of remaining prosecution witnesses recorded already, was impliedly adopted by the prosecution once again, which was against S. 231, Cr.P.C.---Section 231, Cr.P.C. prescribed that, if the charge was altered, added or amended, then the witnesses already examined were to be re-called and re-examined on point of alteration or addition so made in the charge---In the present case, on recalling, two prosecution witnesses adopted their examination-in-chief, which obviously was in violation of mandate contained by S. 353, Cr.P.C., which prescribed that the evidence (which included examination-in-chief, cross examination and re-examination) of witnesses should be taken in presence of accused facing trial---Omission in the charge and the procedure adopted at trial by Trial Court being incurable had not only occasioned failure of justice, as was defined under subsection (b) to S. 537, Cr.P.C. but had prejudiced the State and the accused in their defence seriously, which was against the mandate contained by Art. 10-A of the Constitution which guaranteed fair trial and due process to every person for determination of his civil rights and criminal charges---When parties were confronted with the said legal infirmities, it was fair enough to consent for remand of the case for fresh/de novo trial---Impugned judgment, in circumstances was set-aside and the case was remanded to Trial Court for fresh/de novo trial---Appeal was disposed of accordingly.

Zahid Karim and others v. The State and others 2005 PCr.LJ 998 rel.

Irfan Badar Abbasi for Appellants.

Ali Anwar Kandhro, D.P.G. for the State.

2021 P Cr. L J 1002

[Sindh (Sukkur Bench)]

Before Rasheed Ahmed Soomro and Amjad Ali Sahito, JJ

ZAIN ALI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-172 of 2019, decided on 28th January, 2020.

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

----Ss. 9(c), 29 & 25---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6---Criminal Procedure Code (V of 1898), S. 103---Transportation of narcotics---Presumption from possession of illicit articles---Mode of making searches and arrest---Search to be made in presence of witnesses---Scope---Accused was apprehended while transporting 563 kilograms of charas and 1.5 kilograms of opium which were recovered on his pointation from the secret cavities of the vehicle being driven by him---No question was put by the defence counsel to the witness during cross-examination that there was tampering with the case property at the police station or during transmission of the case property to the Chemical Examiner---Procedural details as mentioned in the Chemical Examiner's report about the tests applied did not fall short of "protocol"---Version of the complainant was fully corroborated by mashir of arrest and recovery, which was substantiated with the memo of arrest and recovery, FIR as well as Roznamcha departure and arrival entry showing their movement---Police official was not prohibited under the law to be the 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---Applicability of S. 103, Cr.P.C. in the narcotics cases was excluded and non-inclusion of any private witness was not a serious defect to vitiate the conviction---Prosecution had successfully discharged its duty thereby shifting the burden upon the accused within the meaning of S. 29 of the Control of Narcotics Substances Act, 1997---Appeal against conviction, being devoid of merits, was dismissed, in circumstances.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039; Khair-ul-Bashar v. The State 2019 SCMR 930 and Zafar v. The State 2008 SCMR 1254 distinguished.

Mushtaq Ahmed v. The State and others Criminal Petition No. 370 of 2019; State/ANF v. Muhammad Arshad 2017 SCMR 283; Ghulam Qadir v. The State PLD 2006 SC 61 and Salah-ud-Din v. The State 2010 SCMR 1962 rel.

The State v. Zaffar 2008 SCMR 1254 fol.

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

----S. 9---Transportation of narcotics---Liability of driver---Scope---Person who is on the driving seat shall be responsible for transporting narcotics if found in his vehicle.

Kashif Ameer v. The State PLD 2010 SC 1052 and Criminal Appeal No. 7-P of 2017 dated 20.09.2017 rel.

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

----R. 4---Dispatch of sample for test of analysis---Scope---Rule 4 of the Control of Narcotics Substances (Government Analysts) Rules, 2001 requires that the reasonable quantity of sample from the narcotic drug, psychotropic substance or controlled substances seized, shall be drawn on the spot of recovery and dispatched to the officer in charge of nearest Narcotic Testing Laboratory for the test either by insured post or through a special messenger.

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

----R. 5---Receipt in the laboratory and examination of sample with reference to "Test Memorandum"---Scope---Rule 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 provides that the sample should be received in the sealed condition in the laboratory---Officer-in-charge shall observe full protocol by carefully opening and giving a distinctly laboratory number---For that, separate register shall be maintained---All samples shall be passed to the analyst on the same day who will then keep the same in safe custody and examine it and record its or their weight in the test memorandum---Analyst will compare the markings on the test memorandums with markings on the packages/envelopes and will ensure that he tests the relevant sample.

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

----R. 6---Report or result of test or analysis---Scope---Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 provides that on analysis the result thereof together with full protocols shall be signed in quadruplicate and supplied forthwith to the sender in specified form.

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

----S. 25---Criminal Procedure Code (V of 1898), S. 103---Mode of making searches and arrest---Search to be made in presence of witnesses---Scope---Applicability of S. 103, Cr.P.C. in the narcotics cases has been excluded and non-inclusion of any private witness is not a serious defect to vitiate a conviction.

(g) Criminal trial---

----Witness---Police witness---Scope---Mere status of one as an official would not alone prejudice the competence of such witness unless and until he is proved to be interested, who has a motive to falsely implicate an accused or has previous enmity with the person involved.

Zaffar v.. The State 2008 SCMR 1254 and Farooq v. The State 2008 SCMR 970 rel.

Muhammad Shabbir Rajput for Appellant.

Mohsin Ali Khan, Special Prosecutor ANF for the State.

2021 P Cr. L J 1036

[Sindh (Hyderabad Bench)]

Before Khadim Hussain M. Shaikh, J

SAJEEL---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-1439 of 2019, decided on 2nd January, 2020.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 269, 270 & 337-J---Negligent act likely to spread infection of disease dangerous to life, malignant act likely to spread infection of disease dangerous to life, causing hurt by means of poison---Pre-arrest bail, confirmation of---Recovery of 315 sachets (purries) of Gutka---Only 6 sachets (purries) of Safina Gutka weighing about 12 grams, out of 630 grams, were sent to Chemical Analyzer which could easily be foisted upon any person---Such sachets, sent for expert opinion, could not be the representative samples for the remaining sachets, as every sachet was a separate small closed bag, containing small amount of substance---Investigation stood completed and the accused was regularly attending the Trial Court---Bail application of the accused was allowed and his interim pre-arrest bail was confirmed, in circumstances.

Zeeshan Ali Memon along with Applicant.

2021 P Cr. L J 1042

[Sindh]

Before Mohammed Karim Khan Agha and Abdul Mobeen Lakho, JJ

MUHAMMAD JUMMAN BROHI and another---Applicants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeal No. 4 of 2014, decided on 31st March, 2020.

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

----Ss. 365-A, 395 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abduction for ransom, dacoity, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused and co-accused persons while armed with deadly weapons entered into the Dera of complainant, overpowered the inmates, made them sit in a room whilst tying hands and legs together and took away cash, weapons, mobiles, hi-roof vehicle and kidnapped the son of complainant and son of brother-in-law of complainant---Record showed that there were many eye-witnesses to the kidnapping but none of them came forward to give identification evidence about the accused or even about the incident itself---Complainant sold his vehicle in which the abductees were kidnapped was a 'case property' prior to the trial---Accused just happened to confess their involvement in the offence before the police (which was inadmissible in evidence) whilst in custody in another case when the police had no evidence against them in that case despite knowing fully well that the present offence might lead to a sentence of capital punishment---Said fact did not appeal to reason, logic or common sense---Despite alleged confession the accused did not take the police to place where the abductees were held in captivity---Nothing was recovered from the accused and they did not lead the police to any recovery which was linked to the offence e.g. ransom money---Only evidence of any ransom demand being made was from the evidence of the complainant---No Call Data Record had been produced in support of evidence of complainant---No recording of the ransom demand being made had been produced---No evidence was available to the effect that as to who paid the ransom, where the same was paid, how much amount was paid, and that ransom money was withdrawn from any Bank account---No ransom money was recovered---Circumstances established that prosecution had not been able to prove its case against the accused beyond a reasonable doubt--- Appeal against conviction was allowed, in circumstances.

Gulfam v. State 2017 SCMR 1189 ref.

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

----Ss. 365-A, 395 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abduction for ransom, dacoity, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Circumstantial evidence---Scope---Prosecution case was that the accused and co-accused persons while armed with deadly weapons entered into the Dera of complainant, overpowered the inmates, made them sit in a room whilst tying hands and legs together and took away cash, weapons, mobiles, hi-roof vehicle and kidnapped the son of complainant and son of brother-in-law of complainant---There was no reliable ocular evidence as to the correct identification of the accused---Question arose as to whether there was any circumstantial evidence which would meet the legal requirements---Links were missing in the chain of evidence from the abduction to the release of the abductees, to the arrest of the accused to connect the accused to the abduction---Accused, in circumstances, could not be convicted on the basis of circumstantial evidence---Appeal against conviction was allowed, in circumstances.

Fayyaz Ahmed v. State 2017 SCMR 2026 and Azeem Khan v. Mujahid Khan 2016 SCMR 274 rel.

(c) Criminal trial---

----Benefit of doubt---Principle---Prosecution must prove its case beyond a reasonable doubt and it was not for the accused to disprove the case against him who might be taken any and as many defences as he liked to the allegations against him, as the onus rested on the prosecution to prove its case beyond a reasonable doubt---If there was any doubt in the prosecution case, the benefit must go to the accused.

Muhammed Shah v. State 2010 SCMR 1009 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---If there was a single circumstance, which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit not as a matter of grace and concession but as a matter of right.

Abdul Jabbar v. State 2019 SCMR 129 rel.

Asadullah Soomro for Applicants.

Nasarullah Malik for the Complainant.

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

2021 P Cr. L J 1061

[Sindh (Hyderabad Bench)]

Before Muhammad Saleem Jessar, J

DAIM---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-225 of 2016, decided on 31st October, 2019.

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

----S. 23---Criminal Procedure Code (V of 1898), Ss. 103 & 160---Penal Code (XLV of 1860), S. 187---Possession of unlicensed arms---Appreciation of evidence---Benefit of doubt---Search to be made in presence of witnesses---Delay in sending recovered weapon to Forensic Laboratory---Complainant acting as Investigating Officer---Scope---Accused was convicted for having been found in possession of an unlicensed pistol along with 5 live bullets lying in its magazine---Complainant did not associate any private person of the locality to act as mashir of arrest and recovery---Complainant was not supposed to fulfil a formality by merely asking private persons present at the spot to act as mashir but he should have utilized his powers by issuing notice under S. 160, Cr.P.C. to such person, which was not done---Complainant did not take any action under S. 187, P.P.C. against such person for not providing him assistance---Weapon was sent to the Forensic Laboratory after a delay of 10 days for which no explanation was given---Complainant had not even claimed that he had deposited the weapon in the malkhana during the intervening period---Complainant himself had acted as investigating officer, which conduct was depreciated by the High Court---Prosecution had not succeeded in discharging its obligation to prove the case beyond a shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

Ghulam Hussain and 2 others v. State 1998 PCr.LJ.779 ref.

Samandar alias Qurban and others v. The State 2017 MLD 539 and Yaqoob Shah v. The State 1995 SCMR 1293 rel.

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

----S. 34---Criminal Procedure Code (V of 1898), S. 103---Arrest and searches---Search to be made in presence of witnesses---Scope---Section 34 of Sindh Arms Act, 2013 does not expressly exclude the provisions of S. 103, Cr.P.C., to be applied in the cases under the Act but it simply provides that besides private persons, police officials can also be associated as mashirs of recovery.

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

----S. 103---Search to made in presence of witnesses---Scope---Officials making searches, recoveries and arrests are reasonably required to associate private persons, more particularly in those cases in which presence of private persons was admitted so as to lend credence to such actions and to restore public confidence.

State v. Bashir and others PLD 2008 SC 408 and Yameen Kumhar v. The State PLD 1090 Kar. 275 rel.

(d) Criminal trial---

----Complainant acting as Investigating Officer---Scope---Police officer who simultaneously complainant as well as the Investigating Officer of the case cannot be expected to collect and preserve evidence which goes against his case---Such Investigating Officer cannot properly perform the duties of an independent and fair Investigating Officer.

Nazeer Ahmed v. The State PLD 2009 Kar. 191 and State through Advocate General, Sindh v. Bashir and others PLD 1997 SC 408 rel.

Mohammad Siddique v. The State 2011 YLR 2261 and Mohammad Akram v. The State 1995 MLD 1532 ref.

(e) Criminal trial---

----Duty of prosecution---Benefit of doubt---Scope---Prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt, but no such duty is cast upon the accused to prove his innocence---Conviction must be based and founded on unimpeachable evidence and certainty of guilt---Any doubt arising in the prosecution case must be resolved in favour of the accused.

Wazir Mohammad v. The State 1992 SCMR 1134 and Shamoon alias Shamma v. The State 1995 SCMR 1377 rel.

(f) Criminal trial---

----Benefit of doubt---Scope---Accused is entitled to be extended benefit of doubt as a matter of right---An accused cannot be deprived of benefit of doubt merely because there is only one circumstance which creates doubt in the prosecution story.

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Haji Khan Jamali for Appellant.

Ms. Sana Memon, A.P.G. Sindh for the State.

2021 P Cr. L J 1086

[Sindh (Hyderabad Bench)]

Before Muhammad Saleem Jessar, J

BASHEER AHMED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-02 of 2015, decided on 10th December, 2019.\

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

----S. 23-A---Possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---One unlicensed pistol of .30-bore with magazine containing three live bullets was recovered from the possession of accused---Despite the fact that the place of arrest and alleged recovery of firearm weapon was a chowk situated on a busy road, no private/independent person of the locality was associated to act as mashir of arrest and recovery---Although, the complainant and mashir had deposed that complainant tried to associate private person as mashir but there was no private person available at the place and time of alleged incident---Once having admitted that bungalows were situated near the place of incident and that vehicles were coming and going on the road and further that shops of different items were situated at nearby road, so also that at a distance of only half kilometer chowk was situated, then it was incumbent upon the police to make efforts to find private persons from such a place---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 103---Search to be made in presence of witnesses---Purpose---Purpose of associating independent mashirs of the locality was to ensure the transparency of the recovery process---In view of provisions of S. 103, Cr.P.C., the officials making searches, recoveries and arrests were reasonably required to associate private persons, more particularly in those cases in which presence of private persons was admitted, so as to lend credence to such actions and to restore public confidence---Such aspect of the matter must not be lost sight of indiscriminately and without exception---Only cursory efforts were not enough merely in order to fulfil casual formality, rather serious and genuine attempts should be made to associate private mashirs of the locality.

State v. Bashir and others PLD 1997 SC 408 and Yameen Kumhar v. The State PLD 1990 Kar. 275 rel.

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

----S. 23-A---Possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---Delay in sending the weapon for analysis---One unlicensed pistol of .30-bore with magazine containing three live bullets was recovered from the possession of accused---Admittedly, the Investigating Officer had received the case property i.e. .30 bore T.T. pistol alongwith FIR and other documents on 1.4.2014---However, Investigating Officer sent the allegedly recovered firearm weapon on 22.04.2014 as was evident from the Forensic Science Laboratory Report---Although, the Investigating Officer had tried to fulfil that lacuna by deposing, that the case property was lying in malkhana before sending it to ballistic expert, however, neither any roznamcha entry/document to substantiate such assertion had been produced by Investigating Officer, nor the WPC, whom he allegedly handed over the case property and who allegedly sent the same to ballistic expert, hadbeen examined before the Trial Court--- Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Samandar alias Qurban and others v. The State 2017 MLD 539; Yaqoob Shah v. The State 1995 SCMR 1293; Ghulam Hussain and 2 others v. State 1998 PCr.LJ 779; Mohammad Imran Afridi v. The State 2018 YLR 2394 and Umed Ali v. The State 2018 MLD 1311 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---Conviction must be based and founded on unimpeachable evidence and certainty of guilt---Any doubt arising in the prosecution case must be resolved in favour of the accused.

Wazir Mohammad v. The State 1992 SCMR 1134 and Shamoon alias Shamma v. The State 1995 SCMR 1377 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---Accused could not be deprived of benefit of doubt merely because there was only one circumstance which created doubt in the prosecution story.

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Abdul Ghaffar Malak for Appellant.

Ms. Sana Memon, A.P.G., Sindh for the State.

2021 P Cr. L J 1124

[Sindh (Hyderabad Bench)]

Before Nadeem Akhtar, J

JUMO---Applicant

Versus

AHMED and 8 others---Respondents

Criminal Transfer Application No. S-64 of 2013, decided on 7th April, 2014.

Criminal Procedure Code (V of 1898)---

----S. 526---Penal Code (XLV of 1860), Ss. 302, 324, 147, 148, 149 & 504---Qatl-i-amd, attempt to Qatl-i-amd, rioting armed with deadly weapons, and intentional insult to breach peace---Transfer of trial---Lack of confidence---Administration of justice---Complainant was brother of deceased and sought transfer of trial to some other Court due to lack of confidence in the Trial Court---Validity---Matter involved alleged murder of real brother of complainant who lost faith and confidence in Trial Court and apprehended that he would not get justice from said Court---Circumstances in which one accused obtained bail and later on acquitted by Trial Court were sufficient to create suspicion and doubt in one's mind---Matter pertained to alleged offence of murder which if proved, could cause miscarriage in dispensation of justice---High Court transferred the case, as the trial should proceed in the Court in which both parties should have full faith and confidence---Application was allowed in circumstances. [p. 1127] A

Amjad Ali Sahito for Applicant.

Syed Madad Ali Shah for Respondent No. 1.

Muhammad Iqbal Kalhoro for Respondent No. 9.

2021 P Cr. L J 1161

[Sindh (Sukkur Bench)]

Before Nazar Akbar and Muhammad Faisal Kamal Alam, JJ

AHMED KHAN SOLANGI and others---Petitioners

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU and others---Respondents

C.Ps. Nos. D-709 of 2017, D-1351 of 2018, D-1830 of 2019 and D-1061 of 2020, decided on 3rd March, 2021.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a) & 9(b)---Constitution of Pakistan, Arts. 189 & 199---Constitutional petition--- Bail, grant of--- Return of benefits---Precedent---Judgments of Supreme Court---Applicability---Petitioners were arrested for committing misuse of authority and causing loss to public exchequer---Authorities objected to acceptance of proposal made by petitioners for return of benefits and had relied upon a judgment passed by Supreme Court wherein such kind of concession at bail stage was disapproved---Validity---Despite plea of hardship and delay in trial for almost four years, petitioners were ready to deposit alleged amount of loss determined by National Accountability Bureau (NAB) against each petitioner---Petitioners relied upon two judgments which were subsequent in time and passed by three members Bench of the Supreme Court whereas judgment relied upon by authorities was earlier in time and was delivered by two members Bench---Bail was allowed, in circumstances.

Tallat Ishaq v. National Accountability Bureau through Chairman and others PLD 2019 SC 112 ref.

C.P. No. 2300 of 2018 and Civil Petition No.1175-K of 2020 rel.

Rai Muhammad Khan's case 2017 SCMR 1152 distinguished.

Nisar Ahmed Bhanbhro for Petitioner No.1 (in C.P. No. D-709 of 2017).

Masood Rasool Babar for Petitioner No.2 (in C.P. No. D-1351 of 2018).

Abdul Karim Luhrani for Petitioner No. 3 (in C.P. No. 1830 of 2019).

Allah Bux Gabole for Petitioner No. 4 (in C.P. No. D-1061 of 2020).

Muhammad Zubair Malik, SP NAB for Respondents.

2021 P Cr. L J 1182

[Sindh]

Before Mohammed Karim Khan Agha and Zulfiqar Ali Sangi, JJ

RIAZ AHMED and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Chairman, National Accountability Bureau (NAB) and others---Respondents

Constitutional Petitions Nos. D-2148 of 2019, D-914 and D-915 of 2020, decided on 22nd April, 2020.

National Accountability Ordinance (XVIII of 1999)---

----S. 9---Constitution of Pakistan, Art. 199---Constitutional petition---Corruption and corrupt practices---Bail, refusal of---Grounds of lordship---Delay in conclusion of trial---Scope---Accused persons sought release on bail on hardship grounds---Supreme Court in Tallat Ishaq v. National Accountability Bureau (PLD 2019 SC 112) had, no doubt, made the grant of bail more stringent on hardship grounds but it had not excluded the same and it was allowed in exceptional circumstances at the discretion of the court---Some delay had been caused by the accused persons in conclusion of trials---Delay in the cases of accused persons was not shocking or unconscionable as such their petitions were dismissed---Trial Court was directed to complete the trial within a period of four months---Constitutional petition was disposed of accordingly.

Shahid Umar v. Chairman NAB and 2 others 2019 PCr.LJ 370; Atta Abbas Zaidi v. Chairman, National Accountability Bureau (NAB) and 2 others PLD 2017 Sindh 120; Syed Manzar Abbas v. National Accountability Bureau, through Director General 2019 MLD 581; Ch. Muhammad Ashraf, Advocate High Court v. Federation of Pakistan through Chairman, NAB Islamabad C.Ps. Nos. D-5574, 7099 and 7123 of 2018 and D-988 of 2019; Gulzar Ali and others v. The State C.Ps. Nos.D­-2911/2018, D-6251/2017 and D-4028/2016; Abu Bakar Dawood and others v. Federation of Pakistan and others C.Ps. Nos.D-4526, 4745, 4674 and D-4603/2018; Salah-ud-Din v. The State 2010 SCMR 1962 and Muhammad Nawaz v. The State 2002 SCMR 1381 ref.

Tallat Ishaq v. National Accountability Bureau PLD 2019 SC 112 rel.

Noor Muhammad Dayo for Petitioner (in C.P. No. D-2148 of 2019).

R.D. Kalhoro, Special Prosecutor NAB for the Complainant/State (in C.Ps. No. D-2148 of 2019, D-914 and D-915 of 2020).

Khawaja Shams-ul-Islam for Petitioner (in C.Ps. Nos. D-914 and 915 of 2020).

2021 P Cr. L J 1200

[Sindh]

Before Mohammed Karim Khan Agha and Zulfiqar Ali Sangi, JJ

Mian WAQAR AKHTAR PAGANWALA---Appellant

Versus

The STATE and another---Respondents

Criminal Accountability Appeal No. 11 of 2001, decided on 9th October, 2020.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a), 31-D [as inserted by National Accountability Bureau (Second Amendment) Ordinance (XXIV of 2000)] & 32---Willful default---Appreciation of evidence---Procedure to be followed---Retrospective effect of amendment in law---Scope---Accused was convicted by Trial Court for committing wilful default of finance facility availed from Bank and he was sentenced to imprisonment for seven years along with fine---Plea raised by accused was that reference was filed in violation of S. 31-D of National Accountability Ordinance, 1999, which was mandatory requirement---Validity---Complaint was filed by Bank on 14-12-1999 and reference was filed on 15-2-2000, whereas S. 31-D was inserted in National Accountability Ordinance, 1999, by National Accountability Bureau (Second Amendment) Ordinance, 2000 dated 5-7-2000, having no retrospective effect---Cases pending before Trial Court before coming into force of National Accountability Bureau (Second Amendment) Ordinance, 2000, were to continue to be prosecuted and conducted without reference from Governor State Bank of Pakistan---Trial Court in its judgment had discussed each and every point raised by accused and fully answered--- High Court declined to interfere in the judgment passed by Trial Court as the same was in accordance with law---Prosecution proved its case beyond reasonable doubt against accused by producing reliable trustworthy and confidence inspiring oral as well as documentary evidence---Appeal was dismissed, in circumstances.

Syed Mushahid Shah and others v. Federal Investigation Agency and others 2017 SCMR 1218; Naseem Abdul Sattar and 6 others v. Federation of Pakistan and 4 others PLD 2013 Sindh 357; Bank of Punjab through Authorized Attorney v. Messrs AMZ Ventures Limited and another 2013 CLD 2033; Ghulam Qadir and another v. The State 2012 YLR 1885; Bank of Punjab through Executive Vice President v. Messrs Acro Spinning and Weaving Mills Ltd. through Chief Executive and 16 others 2012 CLD 1819; Mian Munir Ahmed v. The State 2004 PCr.LJ 2012; The State through Chairman NAB and others v. Muhammad Asif Saigol and others PLD 2016 SC 620; Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607; Asim Textile Mills Ltd. and others v. National Accountability Bureau and others PLD 2004 Kar. 638; Ghulam Hussain Baloch and another v. Chairman National Accountability Bureau, Islamabad and 2 others PLD 2007 Kar. 469; Ch. Nisar Ali Khan v. Federation of Pakistan and others PLD 2013 SC 568; Pak Shaheen Containers Services (Pvt.) Ltd. v. Trustees of Port of Karachi and others PLD 2001 Kar. 30 and Messrs Kaloodi International (Pvt.) Ltd. and another v. Federation of Pakistan and others PLD 2001 Kar. 311 ref.

Noor Muhammad Dayo, Asif Ali, Hanif Samma and Tassaduq Nadeem for Appellant.

R.D. Kalhoro, Special Prosecutor, NAB for the State.

2021 P Cr. L J 1222

[Sindh (Sukkur Bench)]

Before Nadeem Akhtar, J

QASIM---Applicant

Versus

The STATE---Respondent

Cr. Bail Application No. S-498 of 2012, decided on 4th January, 2013.\

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, rioting armed with deadly weapon, common object---Bail, grant of---Failure to conduct identification parade---Delayed FIR---Un-natural conduct---Prosecution case was that five unidentified persons waylaid the complainant party and murdered one of them---All of the accused persons were armed with Kalashnikovs but the complainant and eye-witnesses had not explained how they were sure that the accused had fired at the deceased---Accused persons were residents of adjoining village but the complainant had failed to recognize them at the place of incident---None of the persons who were attracted to the spot had come forward to identify or name the accused---No description of accused persons was given in the FIR---Nothing was recovered from the possession or on the indication of accused while being in police custody---Case was lodged with a delay of two days---Statements of eye-witnesses naming the accused persons were recorded after 13 days of the incident---No identification parade of the accused was held---Accused was entitled to be released on bail---Petition for grant of bail was allowed, in circumstances.

Muhammad Iqbal v. The State 1984 SCMR 930; Mehmood Ahmed and 3 others v. The State and another 1995 SCMR 127; Lal Pasand v. The State PLD 1981 SC 142; Muhammad Rafique v. The State 1997 SCMR 412; Waris Muhammad v. Haji Ahmad Yar and another 1976 SCMR 182 and Shahzado v. The State PLD 2002 Kar. 402 rel.

Rasool Bux I. Siyal for Applicant.

Mohal Lal State Counsel for D.P.G.

Complainant in person.

2021 P Cr. L J 1237

[Sindh (Larkana Bench)]

Before Zulfiqar Ali Sangi, J

MEERO---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-3 of 2016, decided on 11th December, 2020.

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

----Ss. 302, 337-H(2), 114, 504, 148 & 149---Qatl-i-amd, rash or negligent act to endanger human life or personal safety of others, abettor present when offence committed, intentional insult with intent to provoke breach of peace, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Delay of about two and half hours in lodging the FIR---Scope---Accused was charged that he and co-accused committed murder of the deceased by firing---Motive behind the incident was stated to be the dispute between the parties over landed property---Record showed that the FIR of the case was registered promptly---Post-mortem of the deceased was conducted at a time, which excluded the possibility of consultation or deliberation on the part of the prosecution---Evidence of the witnesses had established that after the incident, complainant immediately went to the police station by leaving other two ladies at the dead body and after the FIR police along with the complainant came at the place of vardat wherefrom police referred the dead body to hospital for post-mortem---Circumstances established that the prosecution had proved the case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

Farman Ali and another v. The State and another 2020 SCMR 597 rel.

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

----Ss. 302, 337-H(2), 114, 504, 148 & 149---Qatl-i-amd, rash or negligent act to endanger human life or personal safety of others, abettor present when offence committed, intentional insult with intent to provoke breach of peace, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Accused was charged that he and co-accused committed murder of the deceased by firing---Record showed that after the incident, complainant immediately approached the police station where her FIR was registered---Complainant had given full particulars of the incident in the FIR, thereafter, police proceeded towards the place of vardat and referred the dead body for post-mortem---Presence of complainant and the eye-witnesses at the place of incident was fully established---All the witnesses deposed that the accused along with other accused actively participated in the commission of offence and he fired from his weapon upon the deceased which hit the deceased---Evidence of witnesses was corroborated by medical evidence including the recovery of crime empties from the place of vardat---Circumstances established that the prosecution had proved the case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

Imtiaz alias Taj v. The State and others 2018 SCMR 344; Munir Ahmed and another v. The State and others 2019 SCMR 79; Muhammad Shah v. The State 2010 SCMR 1009 and Ishtiaq Masih v. The State 2010 SCMR 1039 ref.

Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152; Abid Ali and 2 others v. The State 2011 SCMR 208; Lal Khan v. State 2006 SCMR 1846; Zulfiqar Ahmed and another v. State 2011 SCMR 492 and Muhammad Riaz and another v. The State and another 2007 SCMR 1413 rel.

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

----Ss. 302, 337-H(2), 114, 504, 148 & 149---Qatl-i-amd, rash or negligent act to endanger human life or personal safety of others, abettor present when offence committed, intentional insult with intent to provoke breach of peace, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Non-recovery of weapon of offence---Effect---Accused was charged that he along with his co-accused committed murder of the deceased by firing---Record showed that all the prosecution witnesses supported the case of prosecution by deposing that the accused along with other co-accused directly fired from the Kalashnikovs which hit the deceased---Direct evidence of the witnesses was further corroborated by medical evidence as the doctor who examined the deceased had found eight separate firearm injuries on the person of the deceased---Circumstances established that the prosecution had proved the case beyond a reasonable doubt against the accused---Appeal against conviction was dismissed accordingly.

(d) Criminal trial---

----Non-recovery of crime weapon--- Effect--- If charge was proved by other direct, natural and confidence inspiring evidence then non- recovery of crime weapon was not fatal to prosecution case.

Sikander Teghani alias Muhammad Bux Teghani v. The State 2016 YLR 1098 rel.

(e) Criminal trial---

----Evidence---Minor contradictions---Scope---If in the evidence, prosecution established its case beyond a reasonable doubt then if there might be some minor contradictions which were always available in each and every case the same might be ignored.

Zakir Khan v. The State 1995 SCMR 1793 rel.

Habibullah Ghouri for Appellant.

Muhammad Noonari, Deputy Prosecutor General for the State.

2021 P Cr. L J 1270

[Sindh (Hyderabad Bench)]

Before Muhammad Shafi Siddiqui and Muhammad Faisal Kamal Alam, JJ

ABDUL GHAFFAR---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Interior, Government of Pakistan and 2 others---Respondents

Constitutional Petition No. D-2147 of 2019, decided on 17th March, 2020.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a) & 9(b)--- Constitution of Pakistan, Art. 199---Constitutional petition---Bail, refusal of---Medical ground---Treatment in jail premises---Angina class III, Hypertension, Parkinson and Diabetes were the ailments on the basis of which accused sought his release from custody on bail---Validity---Petitioner-accused needed treatment and nursing---Associated diseases of hypertension were apparently main cause of associated heart diseases and petitioner-accused should be away from home stresses and other related tensions and routine business issues---High Court allowed petitioner-accused to avail medical treatment from hospitals and doctors of his choice at his risk and cost and should not be delayed under any circumstances---Bail was declined in circumstances.

Malik Muhammad Yousufullah Khan v. The State PLD 1995 SC 58; Mian Manzoor Ahmad Watto v. The State 2000 SCMR 107 and Zakhim Khan Masood v. The State 1998 SCMR 1065 distinguished.

Ishrat Ali Lohar for Petitioner.

Jangoo Khan, Senior Special Prosecutor NAB and Muhammad Humayoon Khan, D.A.G. for Respondents.

2021 P Cr. L J 1282

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Amjad Ali Sahito, JJ

STATE through Chairman National Accountability Bureau---Petitioner

Versus

SYED KHURSHEED AHMED SHAH and another---Respondents

Constitutional Petition No. D-1841 of 2019, decided on 4th March, 2020.

(a) Jurisdiction---

----Assumption of, by citing or relying upon wrong provision of law---Effect---Citing or relying upon wrong provision of law to assume jurisdiction over a lis is of no consequence, provided the Court otherwise has jurisdiction under the Constitution, Statute or any other provision of law to pass order.

Iqbal Z. Ahmed and others v. National Accountability Bureau through Chairman and others 2018 PCr.LJ 1694 rel.

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

----Ss. 9(a) & 9(b)---Criminal Procedure Code (V of 1898), S. 91---Constitution of Pakistan, Art. 199---Constitutional petition---Bail---Jurisdiction of Court---Accused was arrested by National Accountability Bureau (NAB) on the allegations of corruption and corrupt practice---Accountability Court released the accused subject to submission of bond under S. 91, Cr.P.C.---Accused after his release from custody sought post arrest bail from the High Court in exercise of Constitutional jurisdiction---Validity---Order for release of accused was passed by Accountability Court for want of filing Reference within 90 days of the arrest---After passing such orders by Accountability Court, reference was filed before the Court against accused---Accused filed Constitutional petition before High Court for post arrest bail and the same was pending---Accountability Court had no power to take bond from accused in terms of S. 91, Cr.P.C.---High Court directed Accountability Court to proceed with reference expeditiously and set aside the order in question---Petition was allowed accordingly.

Olas Khan and others v. Chairman NAB through Chairman and others PLD 2018 SC 40 ref.

Muhammad Zubair Malik, Special Prosecutor NAB and Muhammad Mehmood Sultan Khan Yousfi, Deputy Attorney General for Petitioner.

Mukesh Kumar G. Karara for Respondents.

2021 P Cr. L J 1311

[Sindh (Larkana Bench)]

Before Mohammed Karim Khan Agha and Zulfiqar Ali Sangi, JJ

USMAN PATHAN---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-17 and Criminal Reference No. D-3 of 2017, decided on 17th March, 2021.

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

----Ss. 302(b), 324, 353, 109 & 120-B---Explosive Substances Act (VI of 1908), Ss. 3, 4 & 5---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, abetment, criminal conspiracy, causing explosion likely to endanger life or property, attempt to cause explosion or making or keeping explosive with intent to endanger life or property, possession of illegal weapons, explosives and grenade, act of terrorism---Appreciation of evidence---Prosecution case was that the accused along with co-accused being terrorist were present in the Eidgah, while co-accused exploded hand grenade, due to which three Police Personnel were injured and terrorist died---Record showed that the FIR was lodged on the same day and the slight delay in lodging it had been explained by the facts and circumstances of the case whereby a suicide bomber was apprehended and another suicide bomber was shot dead at Eidgah who injured three policemen by blasting a hand grenade after they shot him---Injured had to be taken to hospital and under those fearful, stressful and chaotic circumstances it was but natural that there would be some delay in lodging the FIR, which had been fully explained---Even otherwise the accused was apprehended on the spot wearing a suicide vest at the Eidgah who was unknown to the complainant and the police and there was no enmity between them and thus they had no reason to implicate him in a false case---Accused was named in the FIR with a specific role---Accused was caught red handed at the Eidgah in disguise wearing a hidden suicide jacket full of explosives---Arrest of accused on the spot wearing the suicide jacket was corroborated by the five eye-witnesses---Evidence of the five eye-witnesses was corroborated by the Bomb Disposal Expert who arrived at the scene when the accused was still present along with Head Constable who had arrested him and recovered the suicide jacket---Bomb Disposal Expert defused the bombs in the suicide jacket which explosives were sent off for examination---Medical evidence of the injured police at the scene and the dead suicide bomber corroborated the prosecution version of events---Accused had a motive for the murder as his parents had been killed in a drone attack---Age of the accused had been proven to be over 18 years at the time of the offence as evidenced by the result of the ossification test which found him to be over 18 years of age---Said issue of the accused being under 18 years of age was never raised at trial and as such that argument of the accused was without merit---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt---Appeal against conviction was dismissed accordingly.

Sarfraz alias Shaffa v. The State 2007 SCMR 758 rel.

Intekhab Ahmad Abbas v. The State 2018 SCMR 495; Muhammad Kamran v. The State 2003 SCMR 1070; Abdul Mateen v. Sahib Khan PLD 2006 SC 538; Sajjan Solangi v. The State 2019 SCMR 872; Imran alias Dully v. The State 2015 SCMR 155; Hamid Nadeem v. The State 2011 SCMR 1233; Wazir Muhammad v. The State 2005 SCMR 277; Muhammad Mubeen v. The State 2002 PCr.LJ 729; Ishtiaq Ahmed Mirza v. Federation of Pakistan PLD 2019 SC 675; Asfandyar v. Kamran 2016 SCMR 2084; Application by Hussain Nawaz Sharif: In the matter of PLD 2019 SC 196; Sher Bahadur v. Fayyaz 2015 SCMR 955; Sultan Ahmed v. Additional Sessions Judge-I PLD 2004 SC 758; Sabir Ali v. The State 2005 YLR 821; Umar Hayat v. Jahangir 2002 SCMR 629; Shamaal Khan Shah v. The State 2012 PCr.LJ 897; Province of Punjab v. Muhammad Rafique PLD 2018 SC 178; Muhammad Akram v. Muhammad Haleem 2004 SCMR 218; Qamar-uz-Zaman alias Kala v. The State 2011 SCMR 856; Muhammad Raheel alias Shafique v. The State PLD 2015 SC 145; Muhammad Latif v. The State PLD 2008 SC 503; Khadim Hussain v. The State PLD 2010 SC 669 and Hameed Ullah v. The State 2016 YLR 2632 ref.

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

----Ss. 302(b), 324, 353, 109 & 120-B---Explosive Substances Act (VI of 1908), Ss. 3, 4 & 5---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, abetment, criminal conspiracy, causing explosion likely to endanger life or property, attempt to cause explosion or making or keeping explosive with intent to endanger life or property, possession of illegal weapons, explosives and grenade, act of terrorism---Appreciation of evidence---Minor contradictions in the statements of witnesses---Scope---Prosecution case was that the accused along with his co-accused being terrorist were present in the Eidgah, while co-accused exploded hand grenade, due to which three Police Personnel were injured and terrorist died---All the witnesses were consistent in their evidence and even if there were some contradictions in their evidence, same were minor in nature and not material and certainly not of such materiality so as to effect the prosecution case and the conviction of the accused---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt---Appeal against conviction was dismissed accordingly.

Zakir Khan v. State 1995 SCMR 1793 and Khadim Hussain v. The State PLD 2010 SC 669 rel.

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

----Ss. 302(b), 324, 353, 109 & 120-B---Explosive Substances Act (VI of 1908), Ss. 3, 4 & 5---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, abetment, criminal conspiracy, causing explosion likely to endanger life or property, attempt to cause explosion or making or keeping explosive with intent to endanger life or property, possession of illegal weapons, explosives and grenade, act of terrorism---Appreciation of evidence---Police Officials as witnesses---Scope---Prosecution case was that the accused along with co-accused being terrorist were present in the Eidgah, while co-accused exploded hand grenade, due to which three Police Personnel were injured and terrorist died---All the prosecution witnesses were Police Officials---Said police witnesses had no enmity or ill will towards the accused and had no reason to falsely implicate him in the case---Evidence of the said police witnesses could be fully relied upon, in circumstances--- Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt--- Appeal against conviction was dismissed accordingly.

Mustaq Ahmed v. The State 2020 SCMR 474 rel.

Mushtaq Ahmed for Appellant.

Ali Anwar Kandhro, Additional Prosecutor General for the State.

Mazhar Hussain Mangrio for the Complainant.

2021 P Cr. L J 1339

[Sindh (Larkana Bench)]

Before Aftab Ahmed, Gorar, J

NAIMATULLAH---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-74 of 2018 and M.As. Nos. 457 and 458 of 2020, decided on 11th June, 2020.

Criminal Procedure Code (V of 1898)---

----S. 345(2)---Penal Code (XLV of 1860), Ss. 302(b) & 201---Ta'azir and Qisas---Wali---Compounding of offence---Scope---Inheriting the right to compound offence---Scope---Record showed that the father and brothers of deceased having been nominated as accused in the case, who were absconding, were not entitled to inherit any share out of the property of the deceased---Report of Trial Court showed that the accused had not deposited the share out of Diyat in respect of minor legal heirs, who were brothers of deceased---Accused submitted that deceased was an unmarried girl, hence after exclusion of father of deceased, being one of the nominated accused, to inherit any share out of Diyat amount, only the mother of deceased, among the members of deceased's family, was the sole surviving legal heir to possess all legal rights to compromise with the accused on any of the terms permitted by the law---Notice was also published to invite objections from general public---Trial court had recorded the statements of adult legal heirs of deceased, who in their statements had clearly stated that they had forgiven the accused being one of their family member in the name of Almighty Allah and had waived their right of Qisas and Diyat and had recorded no objection to the acquittal of accused---Mother of deceased had appeared and stated that she had forgiven the accused voluntarily, without any coercion, compulsion or inducement and thereby she had waived her right of Qisas and Diyat---Legal heirs of deceased had forgiven the accused and had prayed for their acquittal of the accused, which showed that the compromise arrived between the parties was voluntary---Applications under S. 345(2), Cr.P.C., for permission to compound the offence was allowed and in consequence thereof the compromise between the accused and legal heirs of deceased was accepted---Accused was acquitted of the charge in terms of compromise.

Bashir Ahmed v. The State PLD 1995 Kar. 5 rel.

Ahmed Bux Abro and Dildar Ali Chandio for Appellant.

Aitbar Ali Bullo, Deputy Prosecutor General for the State.

Mst. Mamtaz Khatoon, mother of deceased, present in person.

2021 P Cr. L J 1384

[Sindh]

Before Mohammed Karim Khan Agha and Zulfiqar Ali Sangi, JJ

IMRAN---Appellant

Versus

The STATE through VIIth Anti-Terrorism Court inside Central Prison, at Karachi---Respondent

Special Criminal Anti-Terrorism Appeal No. 81 of 2017, decided on 8th May, 2020.

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

----Ss. 302, 324, 436 & 34---Explosive Substances Act (VI of 1908), Ss. 3 & 4---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, mischief by fire or explosive substance with intent to destroy house, common intention, causing explosion likely to endanger life or property, act of terrorism---Appreciation of evidence---Benefit of doubt---Scope---Prosecution case was that accused was present along with three of his accomplices in a house when the bomb went off killing all three of them---Rental agreement of the house where the explosion took place was not in the name of the accused and there was no evidence that he lived in the house where the explosion took place or was linked to it in any way---Mother of the accused had stated under oath that the accused lived with her---Medical evidence did not tend to support the prosecution case but rather tended to support the accused person's case that he was a bypasser---Medical evidence revealed that three persons who had died in the bomb blast were severely disfigured which was to be expected, as according to the evidence of Bomb Disposal Unit expert a large amount of explosive had been used in a small room and as such severe injuries were expected to those present in the room---Accused, on the other hand, had received very minor injuries which indicated that he was not in the room at the time when the explosion had occurred and that he might well have been a bypasser---No evidence was available as to where the accused was when he was taken to the hospital i.e. whether he was inside the building or outside the building---Accused was not arrested on the scene of the incident but rather at the hospital where he had gone to receive treatment---Only piece of compelling evidence against the accused appeared to be that he had named one of the accomplices---Such evidence alone was insufficient to convict the accused---Prosecution had not proved its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

Anwar Shamim and another v. The State 2010 SCMR 1791; Karim Nawaz v. The State 2009 SCMR 1105 and Zeeshan alias Manna v. The State 2019 YLR 59 ref.

(b) Criminal trial---

----Burden of proof---Scope---Burden lies on the prosecution to prove its case against the accused beyond a reasonable doubt and it is not the responsibility of the accused to prove his innocence.

Khawaja Naveed Ahmed for Appellant.

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

2021 P Cr. L J 1410

[Sindh (Larkana Bench)]

Before Mohammed Karim Khan Agha and Zulfiqar Ali Sangi, JJ

MUHAMMAD SALLAH KHAN and another---Applicants

Versus

The STATE---Respondent

Criminal Revision Application No. D-13 of 2020, decided on 18th February, 2021.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 353, 404, 440, 436, 427, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, dishonest misappropriation of property possessed by deceased person at the time of his death, mischief committed after preparation made for causing death or hurt, mischief by fire or explosive substance with intent to destroy a house, mischief causing damage to the amount of fifty rupees, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Application for not allowing the prosecution to examine the witnesses given up in the earlier rounds of trial was dismissed---Effect---Accused/applicants were charged that they along with fifty others attacked on a police check post which led to the death and injury of a number of Police Officers and some of the attackers---Prosecution gave up many witnesses---Under Art. 10-A of the Constitution, the accused were entitled to both a fair and expeditious trial and the onus always laid on the prosecution to prove its case beyond a reasonable doubt without being given opportunities to fill in lacunas in its case which would benefit the prosecution and prejudice the accused---Trials could not be never ending where an accused, who under the law was innocent until proven guilty, remained unnecessarily in jail pending conclusion of their trial---Record showed that the charge had been framed and reframed at least on four separate occasions and on at least two occasions all the prosecution and defence evidence had been led and the trial was ripe for rendering judgment---Said fact potentially gave the prosecution an advantage to their witnesses as when on each occasion the trial started from scratch they had the opportunity to improve their evidence and be ready to counter the cross-examination of the defence which they had heard on numerous occasions which prejudiced the defence---In the present case, re-starting the trial from scratch on four separate occasions the applicants had to undergo years on end in custody despite having the right of an expeditious trial---Prejudice was also caused to the accused, since the trial had been completed twice and was ready for arguments and judgment the prosecution had advance notice of the entire defence case prior to the trial restarting from scratch when the charge was amended once again and as such the prosecution were given a considerable advantage to the detriment of the accused---Potential prejudice was being caused by the prosecution to the accused by allowing witnesses who were previously given up by the prosecution again to give evidence which raised the inference/perception that those already given up prosecution witnesses might have been won over by the prosecution or induced by the prosecution to the prejudice of the accused and were filling up the lacunas in the prosecution case---In particular the first two accused who were originally arrested and whose case was ripe for final arguments and rendition of judgment these given up witnesses would not have even been a part of their case but were now being used against them---No prosecution witness who had already been given up by the prosecution at some stage of the case between the framing of original charge until the latest charge could be called to give evidence at the trial---Revision petition was allowed by setting aside impugned order and Trial Court was directed to complete the trial expeditiously without calling witnesses, who had already been given up, in the past by the prosecution.

Muhammad Naeem v. The State dated 10.05.2019 in Criminal Appeals 81-L and 82-L of 2017 and Nusrat Ali Shah and others v. The State dated 20-02-2019 in Criminal Appeals Nos. 24-26-K of 2018 rel.

Asif Ali Abdul Razak Soomro and Safdar Ali Ghouri for Appellants.

Mohammad Noonari, Deputy Prosecutor General for the State.

2021 P Cr. L J 1424

[Sindh]

Before Mohammed Karim Khan Agha and Abdul Mobeen Lakho, JJ

KHALIL AHMED and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 129, 142 and Confirmation Case No. 4 of 2020, decided on 20th April, 2021.

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

----Ss. 302(b), 201 & 34---Qatl-i-amd, causing disappearance of evidence of offence, common intention---Appreciation of evidence---Benefit of doubt---Accused were charged for committing murder of the deceased---Record showed that there was no eye-witness to the deceased having been murdered or burnt---No last seen evidence to connect the deceased with the accused was available---Apart from the accused, co-accused admitted in her S. 342, Cr.P.C. statement that the deceased left her flat and was never seen alive again---Co-accused was married to the deceased which was a position which the prosecution had not been able to refute and as such it was quite natural for him to be with her and left the flat albeit on his own---Complainant of the case who was a policeman, who registered the FIR, was not examined simply because he was on Ex-Pakistan leave for two months---Complainant' s evidence was always significant especially as in the case he was alive and was returning to Pakistan within two months and as such the trial ought to have been adjourned to enable him to give evidence and also enable the accused to cross-examine him---Accused and deceased had no ill will or enmity with each other, so there was no reason for the accused to have murdered the deceased, rather they were all friends---Prosecution had neither put forward nor proved any motive as to why the accused would murder the deceased---Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

Mst. Askar Jan v. Muhammed Daud 2010 SCMR 1604 ref.

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

----Ss. 302(b), 201 & 34---Qatl-i-amd, causing disappearance of evidence of offence, common intention---Appreciation of evidence---Medical evidence---Scope---Accused were charged for committing murder of the deceased---Medical evidence showed that the deceased was strangled and then his body was burnt 100% which was found decomposed and unidentifiable---Medico-Legal Officer could not have reached the conclusion that the deceased died first of strangulation before being burnt, how was Medico-Legal Officer able to see any ligature marks on a 100% burnt and decomposed body, which was unidentifiable and had to be identified through DNA---No rope or string or other item was recovered from any of the accused which proved the strangulation---Prosecution theory that the deceased was put to sleep by the use of tranquilizers so that he could then be strangled was also not borne out by the medical evidence which found no intoxicating substance in the body of the deceased during his post-mortem--- Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 201 & 34---Qatl-i-amd, causing disappearance of evidence of offence, common intention---Appreciation of evidence---Extra-judicial confession before police---Admissibility---Accused were charged for committing murder of the deceased---Record showed that co-accused made confession whilst in police custody---Interestingly, it was not even known why she was in police custody and why she out of the blue would decide to confess before the police and implicate the other accused---Such confession in any event could not be used against accused without independent corroboration of an unimpeachable source---No effort was made to bring the co-accused before a Judicial Magistrate to record her confession under S. 164, Cr.P.C., however, confession before the police was inadmissible in evidence especially when accused was in police custody---Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

Hayatullah v. State 2018 SCMR 2092 rel.

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

----Ss. 302(b), 201 & 34---Qatl-i-amd, causing disappearance of evidence of offence, common intention---Appreciation of evidence---Circumstantial evidence--- Scope--- Accused were charged for committing murder of the deceased--- Prosecution produced circumstantial evidence in the shape of Call Data Record, which was completely irrelevant as it was an admitted position by the co-accused that she and the other accused and the deceased were all friends and as such there was no reason why they should not be in touch with each other on the night of the incident---No recording of their conversations have been produced, they could have simply been discussing the cricket or any other subject under the sun---No reliable circumstantial evidence was available to link the accused to the murder as to fulfil the legal requirements of a conviction based on circumstantial evidence---Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

(e) Criminal trial---

----Circumstantial evidence---Scope---Prosecution must provide all links of evidence in one unbroken chain where one end of the same touches the dead body and the other the neck of the accused.

Fayyaz Ahmed v. State 2017 SCMR 2026 and Azeem Khan v. Mujahid Khan 2016 SCMR 274 rel.

(f) Criminal trial---

----Benefit of doubt---Principle---Prosecution must prove its case against the accused beyond a reasonable doubt and that the benefit of doubt must go to the accused by way of right as opposed to concession.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Syed Amir Shah for Appellant (in Criminal Appeal No. 129 and Confirmation Case No. 4 of 2020).

Muhammad Iqbal Awan, Deputy Prosecutor General for the State (in Criminal Appeal No. 129, Confirmation Case No. 4 of 2020).

Syed Muhammad Ali Bukhary for Appellant (in Criminal Appeal No. 142 and Confirmation Case No. 4 of 2020).

Muhammad Iqbal Awan, Deputy Prosecutor General for the State (in Criminal Appeal No. 142 and Confirmation Case No. 4 of 2020).

2021 P Cr. L J 1457

[Sindh (Hyderabad Bench)]

Before Omar Sial, J

ADIL NADEEM---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-751 of 2020, decided on 9th October, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Prevention of Electronic Crimes Act (XL of 2016), S. 22---Child pornography---Bail, refusal of---Delayed FIR---Scope---Prosecution case was that a cyber crime operation was launched abroad to fight the diffusion of child sexual abuse material through social media groups in which 351 foreign numbers were investigated; one of them being that of accused, FIA raided the house of accused, seized his cell phone as well as two computer hard drives---Seized drives were sent for forensic analysis and images/videos of minors were found---Accused contended that the FIR was lodged after 3 years; that the images/videos were uploaded by his brother who had died and that the offence with which he was charged did not fall within the prohibitory clause of S. 497, Cr.P.C.---Telephone number identified by the Interpol was admittedly in use of the accused nor the recoveries were denied---Fact that gangs from all over the world were investigated, their respective details were obtained and then traced back to the individual countries from where the child pornography originated justified the delay---Fact that the accused was in exclusive use of equipment for the last few years and had taken pains to install application locking passwords on the same, required deeper analysis of evidence---High Court observed that behaviour would be repeated if bail was granted or that the accused would abscond---Nature of accusations and the material collected to date merited the case to fall within the exception of granting bail when the offence fell within the non-prohibitory clause of S. 497, Cr.P.C.--- Application for grant of bail was dismissed, in circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 rel.

Mian Taj Muhammad Keerio for Applicant.

Aslam Pervez, Assistant Attorney General for Pakistan along with SI Saeed Ahmed FIA Cyber Crime Hyderabad for the State.

2021 P Cr. L J 1480

[Sindh]

Before Abdul Maalik Gaddi, J

SANAULLAH---Petitioner

Versus

The STATE through Prosecutor General, Sindh and another---Respondents

Criminal Revision Appeal No. 114 of 2019, decided on 3rd October, 2019.

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

----S. 540---Application for summoning material witness or examine person present--- Further cross-examination--- Scope--- Applicant assailed the dismissal of his application under S. 540, Cr.P.C. filed for re-calling and re-examining the alleged eye-witnesses for further cross-examination after a period of almost two years---Prosecution witnesses had already been cross-examined by the counsel for the accused---Trial could not be held in accordance with the wishes of the counsel for the accused and the witnesses could not be summoned only on the ground that the earlier defense counsel had failed to put material and necessary questions to the witnesses---Neither the defense nor the prosecution could be allowed to fill the lacuna by re-summoning of the witnesses under S. 540, Cr.P.C.---Revision application was dismissed.

Mehrzad Khan v. The State PLD 1991 SC 430; Muhammad Yunus v. The State 2004 PCr.LJ 699; Muhammad Falak Sher v. The State and others PLD 2018 Lah. 13 and Muhammad Ashraf v. State and 4 others 2007 PCr.LJ 905 distinguished.

Rasheed Ahmed v. Ibrahim and others 1996 PCr.LJ 1439 ref.

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

----S. 540---Application for summoning material witness or examine person present---Scope---Section 540, Cr.P.C. is divided in two parts: First part is discretionary while second part is mandatory---Powers under second part could only be exercised when the Court is satisfied that further cross-examination will be essential for the just decision of the case---Section 540, Cr.P.C. imposes responsibility upon the Court that these powers must be exercised with due care and caution---Court cannot use these powers to advance the cause of prosecution or defense but these powers are only meant to advance the cause of justice---Powers under S. 540, Cr.P.C. are not meant to fill in the gaps or lacunas left by the parties to the proceedings.

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

----S. 540---Power to summon material witness or examine person present---Further cross-examination---Scope---Opportunity of cross-examination cannot be repeated without valid reason and also not on the ground that now a new counsel has been engaged and he has thought up a new line of defence according to which he wants to cross-examine the prosecution witnesses once again.

Dilbar v. The State PLD 1986 Kar. 385 rel.

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

----S. 540---Power to summon material witness or examine person present---Scope---Neither the defence nor the prosecution can be allowed to fill the lacuna by re-summoning of the witnesses under S. 540, Cr.P.C..

(e) Administration of justice---

----Each case has to be decided on its own facts and circumstances and Courts are required to exercise jurisdiction independently.

The State v. Haji Kabeer Khan PLD 2005 SC 364 ref.

Aswad Ali Chohan for Petitioner.

Ms. Aamna Ansari, Additional P.G. Sindh for the State.

2021 P Cr. L J 1502

[Sindh]

Before Mohammed Karim Khan Agha and Abdul Mobeen Lakho, JJ

MUHAMMAD SOHAIL and others---Appellants

Versus

The STATE and others---Respondents

Special Criminal A.T. Appeal No. 198 of 2020 and Criminal Revision Application No. 18 of 2021, decided on 26th May, 2021.

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

----Ss. 365-A, 506-B & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abduction for ransom, criminal intimidation, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Delay of about one month in lodging the FIR---Effect---Accused were charged for kidnapping the son of complainant for ransom---Record showed that the complainant lodged his FIR around one month after the date of the incident---Delay in registering the FIR was not fatal to the prosecution case as the delay had been explained by the fact that in kidnapping of children usually there was some delay in registering the FIR as the priority was the recovery of the child by at first searching for him---Complainant reported the matter to the concerned police station, which refused to register the FIR and the complainant got his FIR lodged on the orders of the court--- Such a delay was not fatal to the prosecution case.

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

----Ss. 365-A, 506-B & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abduction for ransom, criminal intimidation, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Contradictions in the statement of witnesses---Scope---Accused were charged for kidnapping the son of complainant for ransom---Complainant in the FIR stated that the persons who kidnapped his son had muffled faces, which contradicted the evidence of his other son/witness who, according to his evidence seen the kidnappers in un-muffled faces---Circumstances established that the case of the prosecution was riddled with doubt to which the accused was entitled to be benefited---Appeal against conviction was allowed, in circumstances.

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

----Ss. 365-A, 506-B & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abduction for ransom, criminal intimidation, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Unexplained delay in nominating the accused persons---Effect---Accused were charged for kidnapping the son of complainant for ransom---None of the accused on the day of the incident was named in the report to the police station or in the complainant's first statement under S. 161, Cr.P.C.---When the complainant gave his further statement the accused was not nominated and only he became a nominated accused for the first time nearly 18 months after the incident which raised the suspicion of his false implication---Accused was arrested in the case whilst he was already under arrest in another case and shortly after he was officially nominated as an accused in the case---Complainant had no clear idea who was in fact responsible for the alleged abduction as the names changed from statement to statement when according to son of complainant/witness the names were immediately known which casted doubt on whether the complainant was undertaking a pick and choose exercise of who should be the accused and who to falsely implicate---No evidence was available on record to show as to when the accused was originally arrested which meant that he could have been arrested before the kidnapping---Circumstances established that the case of the prosecution was riddled with doubt to which the accused was entitled to be benefited---Appeal against conviction was allowed, in circumstances.

Aamir Ali and 2 others v. The State 2017 PCr.LJ 1451; Ghulam Mustafa v. The State 2009 SCMR 916; Haji Arif v. The State PLD 2007 Quetta 50; Rehmat Ali alias Rehma v. The State 2018 YLR 1181; Farooq Ahmed v. The State 2020 SCMR -78; Khizar Hayat's case PLD 2019 SC 527; Hajan and others v. The State 2014 PCr.LJ 1123; Gohar Khan v. The State 2020 YLR 195; Suleman Shah alias Sunny v. The State 2020 YLR 2226; Attaullah alias Qasim v. The State PLD 2006 Kar. 206; Muhammad Kamran v. The State 2021 SCMR 479; Zafar v. The State 2008 SCMR 1254; Rashid Aslam v. The State 2017 YLR 2052; Abbas v. The State 2008 SCMR 108; Riaz Ahmad v. The State 2004 SCMR 988; Junaid Rehman v. The State PLD 2011 SC 1135; Zakir Khan v. The State 1995 SCMR 1793 and Ghulam Hussain Soomro v. The State PLD 2007 SC 71 ref.

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

----Ss. 365-A, 506-B & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abduction for ransom, criminal intimidation, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Identification of accused by the witness---Scope---Accused were charged for kidnapping the son of complainant for ransom---Record showed that the evidence of witness who was son of the complainant and brother of the abductee was not believable because when two separate moving cars were driven past him he claimed to be able to remember and recognize the seven kidnappers in one car along with its registration No. and the six kidnappers in another car and also its registration number but incredibly could not remember the colours of the cars---Such level of identification of the thirteen persons along with car registration numbers of which he only got a fleeting glance in was simply not believable and did not appeal to logic, reason, commonsense or natural human conduct---Circumstances established that the case of the prosecution was riddled with doubt to which the accused was entitled to the benefit---Appeal against conviction was allowed, in circumstance.

Msk Askar Jan v. Muhammed Daud 2010 SCMR 1604 and Fayyaz Ahmed v. State 2017 SCMR 2026 rel.

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

----Ss. 365-A, 506-B & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abduction for ransom, criminal intimidation, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Last seen evidence---Scope---Accused were charged for kidnapping the son of complainant for ransom---In the present case, there was no eye-witness to the kidnapping or the last seen evidence merely the suspicions of complainant---Presumably those suspicions were based on the information which was given to complainant by his son/witness whose evidence was disbelieved and/or on account of the fact that enmity existed between complainant party and the accused and the absconding co-accused which gave him every reason to falsely implicate them---According to the evidence of complainant, he was living and working in other city with his family when the abduction of his son took place and he found out about it after he finished the work, however no evidence had been produced that he actually was in another city at the relevant time---In fact family of complainant was permanently residing in another city which was where his abducted son went to school---Complainant was not proved to be present in the city with his family at the time of the abduction of his son---No one being an eye-witness to the abduction how the complainant was able to take the police to the place of wardat when no one knew where his son had been abducted from---Circumstances established that the case of the prosecution was riddled with doubt to which the accused was entitled to be benefited---Appeal against conviction was allowed, in circumstances.

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

----Ss. 365-A, 506-B & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abduction for ransom, criminal intimidation, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt--- Circumstantial evidence--- Prosecution produced circumstantial evidence in the shape of Call Data Record---Scope---Accused were charged for kidnapping the son of complainant for ransom---In the present case, the CDR which was collected did not link any such demand to the accused let alone to any person operating in foreign country where the complainant allegedly paid the ransom---No mobile phone or SIM was ever recovered from the accused or any other absconding co-accused to link them to the ransom demand or any CDR or any other communication with the accused---No voice recording of the ransom demand was available, which casted extreme doubt on the prosecution case---Circumstances established that the case of the prosecution was riddled with doubt to which the accused was entitled to be benefited---Appeal against conviction was allowed, in circumstances.

Azeem Khan v. Mujahid Khan 2016 SCMR 274 rel.

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

----Ss. 365-A, 506-B & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abduction for ransom, criminal intimidation, common intention, act of terrorism---Appreciation of evidence---Payment of ransom amount---Benefit of doubt---Accused were charged for kidnapping the son of complainant for ransom---Record showed that the complainant claimed that he paid a ransom amount of Rs. one crore and five lac to the absconding co-accused yet there was no evidence where the complainant got that money from e.g. no Bank withdrawal slip was produced---Complainant also claimed to be a transporter so it was difficult to know where he got such a huge amount of money from in cash---No explanation was given in the evidence and interestingly not a single rupee of the alleged ransom was ever recovered---According to the evidence of the complainant, he called the Investigating Officer to his house where they stayed the night while he crossed over into foreign country where after paying the ransom his son was released by the kidnappers, however, there was no evidence that he ever crossed over into foreign country---In such circumstances, it could not be ruled out that the abductee was staying with a relative of the complainant and he simply went and collected him and produced him before the police after pretending to pay a ransom---Notably the police witnesses in their evidence did not mention any thing about the complainant intending to pay any ransom or seeing any ransom amount despite staying at the complainant's house---Likewise the police from place "K" who came to "Q" on the complainant's calling did not have any permission to do so pursuant to that private inquiry being carried out by the complainant---Police party came in a private vehicle and not a police mobile---No relevant entries of their departure and return were exhibited---Police party would be extremely unlikely to come from "K" to "Q" in their own vehicle at their own expense with no guarantee of any arrest being made or the abducted boy being recovered---All said facts tended to cast doubt on the complainant's evidence---Circumstances established that the case of the prosecution was riddled with doubt to which the accused was entitled to be benefited---Appeal against conviction was allowed, in circumstances.

Raj Ali Wahid Kanwar for Appellant (in Special Criminal A.T. Appeal No. 198 of 2020).

Muhammad Hanif Samma for the Complainant (in Special Criminal A.T. Appeal No. 198 of 2020).

Mohammad Iqbal Awan, Deputy Prosecutor General and Ms. Rahat Ahsan, Additional Prosecutor General for the State (in Special Criminal A.T. Appeal No. 198 of 2020 and Criminal Revision Application No. 18 of 2021).

Muhammad Hanif Samma for Applicant (in Criminal Revision Application No. 18 of 2021).

Raj Ali Wahid Kanwar for Respondent No. 2 (in Criminal Revision Application No. 18 of 2021).

2021 P Cr. L J 1553

[Sindh]

Before Nadeem Akhtar, J

MUHAMMAD SHAFIQUE---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 1010 of 2014, decided on 11th July, 2014.\

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

----S. 497---Sindh Arms Act (V of 2013), Ss. 23(1)(a), 2(c) & 2(d)---Unlicensed possession of firearms--- Bail, grant of---'Arms'---'Firearms'---Scope---Accused was found to be in possession of an unlicensed pistol and was accordingly arrested---"Pistols" were included in the definition of "arms" and not in the definition of "firearms"---Prosecution had booked and challaned the accused under S. 23(1)(a), which was applicable to "firearm or ammunition" and not to "arms"---Accused had not tried to run away from the police nor had he avoided to face them---First Information Report did not even suggest that the police officers had, at first, tried to search for independent witnesses, but when no such witnesses were found only then they themselves had searched the accused and had prepared the memo of arrest and recovery---Accused was not required for any further investigation---No probability of tampering in the case existed---Case of accused required further inquiry---Bail application was allowed, in circumstances.

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

----Ss. 2(c), 2(d), 3, 23(1)(a) & 24---Arms---Firearms---Licence for acquisition and possession of fire arms and ammunition---Unlicensed possession of firearms---Punishment for possessing arms with intent to use for unlawful purposes---Scope---Terms "arms" and "firearms" have been separately and distinctly defined in clauses (c) and (d) of S. 2---Punishment and penalty for acquiring, possessing, carrying or controlling any "firearm" or ammunition in infringement of section 3 is provided in S. 23(1)(a), which is imprisonment for a term which may extend to 14 years and with fine---Whereas, the punishment for possessing "arms" or ammunition, licensed or unlicensed, with the aim to use them for any unlawful purpose, is provided in S. 24, which is imprisonment for a term which may extend to 10 years and with a fine---Intention of legislature is clear that not only the offences in relation to "arms" and those relating to "firearms" are to be dealt with separately but since punishments having different terms in respect of "arms" and "firearms" have been specifically separated in the Sindh Arms Act, 2013, punishment under S. 23(1)(a) cannot be awarded for an offence committed under S. 24 and vice versa.

Ayaz Ali v. The State PLD 2014 Sindh 282 ref.

Kabir Ahmed for Applicant.

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

2021 P Cr. L J 1577

[Sindh]

Before Abdul Maalik Gaddi and Mrs. Rashida Asad, JJ

Mrs. ADEEBA KHAN---Applicant

Versus

The STATE through FIA---Respondent

Criminal Bail Application No. 36 of 2020, decided on 7th April, 2020.

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

----S. 497---Penal Code (XLV of 1860), Ss. 409, 420, 468, 471, 109 & 34---Criminal breach of trust by public servant, or by banker, merchant or agent, cheating or dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment, common intention---Bail, refusal of---Accused a female being branch manager of a bank allegedly misappropriated huge amount of Rs. 22 Million by misusing her official position---Accused was nominated in FIR as well as in complaint with similar allegations---During investigation prosecution witnesses in their statement under S. 161, Cr.P.C. had implicated the accused in the commission of the offence---Nothing on record that prosecution witnesses and complainant of the case, who was also branch Manager of a Bank had any ill will/malice with the accused---Investigating Officer of the case during investigation had collected sufficient documentary evidence which was on record, prima facie, connected the accused in the commission of the offence, which appeared to be serious and heinous in nature---Bail application was dismissed, in circumstances.

Saeed Ahmed v. The State 1996 SCMR 1132; Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Zaigham Ashraf v. The State and others 2016 SCMR 18; Aman Ullah v. The State and another 2017 YLR 1263; Muhammad Bilal Anwar Shakir v. The State 2017 MLD 1957; Hussain Haqani v. The State 2000 PCr.LJ 161; Chaudhry Shujat Hussain v. The State 1995 SCMR 1249; Chief Manager/Attorney, Allied Bank Limited v. Shahid Ullah and others PLD 2009 SC 446; Haseeb Khan and another v. The State through FIA CBC, Karachi 2012 PCr.LJ. 1; Muhammad Hanif S. Kalia and 2 others v. The State 2009 PCr.LJ. 1192 and Ahmed Khan v. The State 2013 YLR 2233 ref.

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

----S. 497---Bail---Tentative assessment---Scope---Observations, if any, made in the bail order were tentative in nature and would not affect the merits of the case.

Muhammad Saleem Mangrio and Muhammad Jamil for Applicant.

Muhammad Ahmed, Assistant Attorney General for the State.

Syed Israr Ali for the Complainant.

2021 P Cr. L J 1603

[Sindh]

Before Mohammed Karim Khan Agha and Zulfiqar Ali Sangi, JJ

ABDUL JABBAR and others---Appellants

Versus

The DIRECTOR GENERAL, NATIONAL ACCOUNTABILITY BUREAU and others---Respondents

Criminal Accountability Appeals Nos. 12 and 13 of 2018 along with C.P. No. D-6262 of 2018, decided on 1st October, 2020.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(iii)(iv) & 9(vi)---Illegal pecuniary advantages, assets beyond means and misuse of authority---Appreciation of evidence---Sentence, reduction in---Accused persons were convicted by Trial Court and were sentenced to imprisonment for ten years---Validity---Sentencing was at the discretion of Court and was not a mechanical exercise---Court, in exercising its discretion was to consider numerous factors such as minimum and maximum sentence which could be imposed on conviction, role of accused person, gravity of offence, in cases by National Accountability Bureau (NAB) case amount of loss caused to the State, kind of remorse shown by accused, was accused capable of reformation, age of accused, his health, conduct in jail and period already spent in jail---Mitigating factors were made out by accused which justified reduction in their sentences as NAB was unable to give any cogent reason as to why 10 years sentence of imprisonment was imposed on each of the accused should be maintained---High Court maintained conviction awarded by Trial Court but reduced the sentence to one already undergone---Appeal was dismissed in circumstances.

Muhammed Juman v. State 2018 SCMR 318 and Tariq Saeed v. State 2020 SCMR 1177 ref.

Syed Mehmood Alam Rizvi for Appellant (in Criminal Accountability Appeal No. 12 of 2018).

Shahab Sarki and Ms. Rubina K. Durrani for Appellant/ Petitioner (in Criminal Accountability Appeal No. 3 and C.P. No. D-6262 of 2018).

R. D. Kalhoro, Special Prosecutor NAB for Respondents (in Criminal Accountability Appeal No. 3 and C.P. No. D-6262 of 2018).

2021 P Cr. L J 1631

[Sindh]

Before Naimatullah Phulpoto and Abdul Mobeen Lakho, JJ

MUHAMMAD SHARIF and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No. 323 and Confirmation Case No.6 of 2019, decided on 21st January, 2021.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Accused were charged that they threw petrol on the complainant and set him on fire and he succumbed to the injuries during treatment--- Admittedly, FIR was lodged by the complainant/ deceased himself while he was under treatment at Burns Ward of Civil Hospital before Police Official, which had been believed and acted upon in convicting the accused persons although their attention to that crucial piece of evidence was not drawn to and no explanation thereof was sought from them at the time of their examination under S. 342, Cr.P.C.---Record showed that no question as to statement of eye-witness under S. 164, Cr.P.C. recorded before the Judicial Magistrate---Motive for commission of offence, which was custody of the minor (son of the deceased) aged about 04 years who was in the custody of the accused persons at the time of the incident, was asked---In the peculiar circumstances of the case, Failure on the part of the court to draw the attention of the accused persons to the dying declaration as well as statement of eye-witness recorded under S. 164, Cr.P.C., before the Judicial Magistrate, which had been used against them and had also been acted upon, had caused prejudice to them and had also resulted in miscarriage as well as failure of justice and as such, it was a case of an illegality---Had the accused persons been given any opportunity to explain such important pieces of evidence, they might have given some plausible explanation or might have led some evidence to rebut and meet the same---Accused should be given notice of the point/points which he must meet in order to exonerate himself---Such was not mere a formality but essential part of the trial---Appeal was allowed and case was remanded to the Trial Court with direction to record statement of accused under S. 342, Cr.P.C. afresh by putting all the incriminating pieces of evidence to him.

Muhammad Shah v. The State 2010 SCMR 1009 and Qaddan and others v. The State 2017 SCMR 148 rel.

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

----S. 342---Examination of accused---Scope---Accused person has to be given an opportunity, under the law to explain the evidence on which his conviction is sought to be or going to be based, which is a mandatory requirement under S. 342, Cr.P.C., which could not be ignored---Law provided that it is wholly against the provisions of Criminal Procedure Code and principle of natural justice that a person/accused should be convicted on the basis of something of which he was not given notice and to which he was never required to give explanation.

Muhammad Hanif Noonari for Appellants.

Iftikhar Ahmed Shah for the Complainant.

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

2021 P Cr. L J 1654

[Sindh (Larkana Bench)]

Before Zafar Ahmed Rajput, J

MANIK alias MOHAMMAD ALI and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. S-91 of 2016, decided on 6th March, 2020.

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

----S. 154---First Information Report---Object and scope---First Information Report in a criminal case is an extremely imperative piece of evidence for the purpose of corroborating the oral evidence adduced at the trial---Object of insisting upon prompt lodging of the FIR to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye-witnesses present at the crime scene---Delay in lodging the FIR quite often results in adornment with mala fide lodging intention---On account of delay, the FIR not only deprived of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation, adversely affecting the case of the prosecution.

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

----Ss. 302, 324, 337-H(2), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rash and negligent act, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Ocular and medical evidence---Contradictions---Effect---Accused were charged for making firing upon the complainant party, due to which one cousin of complainant died while other was injured---Motive behind the occurrence was stated to be that accused party damaged the paddy crop of complainant party on which the parties exchanged hot words---Ocular testimony consisted of two witnesses, complainant and a witness---Both the said witnesses were cousins of the deceased---Witnesses had reiterated the contents of the FIR, however, deposed in cross-examination that the deceased received firearm injuries at the distance of 9/10 paces and injured received fire from 5 to 6 paces and witnesses were at the distance of 10/15 paces from the accused---Witnesses had further deposed that the incident continued for 5 to 10 minutes---Medical Officer had contradicted the said witnesses by stating that the deceased received firearm injuries at the distance of 35 feet---Circumstances established that the prosecution had failed to prove its case against accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 324, 337-H(2), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rash and negligent act, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Chance witnesses---Unnatural conduct of witnesses---Scope---Accused were charged for making firing upon the complainant party, due to which one cousin of complainant died while other was injured---In the present case, the accused allegedly fired continuously for 5 to 10 minutes, but none of the said eye-witnesses received even a single injury despite the fact that they were also available at the scene of incident, with the deceased and injured at the short distance---As per post-mortem report, the dead body was identified by two persons, who were also stated to be the cousin of the deceased, but none of the said eye-witnesses had disclosed their names as accompanying persons on the way to hospital from police station and even they had not been cited as witnesses in the calendar of witnesses---Had the said eye-witnesses been accompanied by the injured and dead body from the occurrence, they would have identified the dead body to Medical Officer---Such state of affairs made the presence of said eye-witnesses at the occurrence doubtful--- Circumstances established that the prosecution had failed to prove its case against accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 324, 337-H(2), 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, rash and negligent act, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Withholding best evidence---Scope---Accused were charged for making firing upon the complainant party, due to which one cousin of complainant died while other was injured---Injured had not been examined by the prosecution---Injured being natural witness his presence at the occurrence could not be doubted, hence, evidence of injured witness was the best piece of evidence but the prosecution withheld the same by not putting him in witness box---Said witness was given up on the statement of complainant that the injured witness had lost his mental balance due to sustaining severe bullet injury---No supporting medical certificate was annexed by the complainant with the said statement, therefore, the prosecution, without assigning any convincing reasons, withheld the best piece of evidence of injured witness---Presumption, in circumstances, could fairly be raised, that had injured witness been produced in court, he would have not supported the prosecution case---Circumstances established that the prosecution had failed to prove its case against accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Art. 129(g)---Withholding best evidence---Scope---If a best piece of evidence was available with the party and the same was not produced in court then it could be presumed that the party had some ulterior and sinister motive behind the same---Presumption could fairly be drawn that had the said evidence produced, it would have been unfavourable to the said party.

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

----Ss. 302, 324, 337-H(2), 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, rash and negligent act, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Recovery of crime empties---Scope---Accused were charged for making firing upon the complainant party, due to which one cousin of complainant died while other was injured---Allegedly, Investigating Officer accompanied by the complainant, visited the place of incident in presence of mashirs and secured blood stained earth in sealed parcel and 10 empties of 7.62 bore, 5 of 12 bore and 3 of TT pistol from the place of occurrence---Mashir had given different version in cross-examination by stating that the complainant handed over the empties to police at place of occurrence---Complainant had also admitted in cross-examination that he handed over the blood stained earth and empties to Investigating Officer which he sealed at the place of occurrence---In view of such facts, no credibility could be attached to the recovery memo as recovery of empties was not affected from the occurrence but handed over by the complainant---Circumstances established that the prosecution had failed to prove its case against accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 324, 337-H(2), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rash and negligent act, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Crime weapon was recovered from the accused---Reliance---Scope---Accused were charged for making firing upon the complainant party, due to which one cousin of complainant died while other was injured---Kalashnikov was recovered from accused---Investigating Officer had deposed that on spy information, he took mashirs and reached near Minor Bridge where he arrested accused and recovered Kalashnikov from his possession under memo of arrest and recovery---Mashir in his cross-examination first admitted that the Kalashnikov was given by the complainant to police, but then again said that in fact complainant was present at the time of arrest of accused and recovery of Kalashnikov from him---Investigating Officer had not stated that at the time of arrest of said accused, the complainant was also accompanied by him as deposed by the said mashir---Record did not show that the complainant was also accompanied by the police party at the time of arrest of accused---Such contradictory statement of said mashir made the recovery of Kalashnikov from the possession of accused doubtful---Circumstances established that the prosecution had failed to prove its case against accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 324, 337-H(2), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rash and negligent act, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Delay in sending the recovered weapon and crime empties for analysis---Effect---Accused were charged for making firing upon the complainant party, due to which one cousin of complainant died while other was injured---Record showed that the alleged recovered Kalashnikov and empties were sent to the office of Forensic Science Laboratory after 10 days of the said recovery---Said fact had rendered the report legally unacceptable as the possibility could not be ruled out of consideration that the same had been managed and maneuvered in order to get favorable report of Ballistic Expert---Circumstances established that the prosecution had failed to prove its case against accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Safdar Ali G. Bhutto for Appellants.

Ali Anwar Kandhro, Additional Prosecutor General for the State.

Saleem Raza Jakhar for the Complainant.

2021 P Cr. L J 1686

[Sindh (Hyderabad Bench)]

Before Mohammed Karim Khan Agha and Zulfiqar Ali Sangi, JJ

AMJAD and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. D-134, D-136 of 2016 and Confirmation Case No. 26 of 2016, decided on 23rd June, 2021.

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

----Ss. 302(b), 377, 341, 147, 148 & 149---Qatl-i-amd, unnatural offence, wrongful restraint, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Delay of about twenty four hours in lodging the FIR---Scope---Accused were charged for committing sodomy with the son of complainant and then murdering him---Record showed that the FIR was lodged within just over 24 hours of the incident---Any delay in lodging the FIR had been fully explained---According to the evidence of complainant, his party which included the deceased were abducted by the accused persons and other co-accused at about 3.30 p.m. where they were held captive until about 6.00 am---When he managed to escape, he then had to reach his village where he informed the nekmard and other relatives, who then all returned to the wardat where the dead body was laying, the police was called, which carried out necessary formalities at the wardat---Dead body was then taken to the hospital where the post mortem was conducted where after the body was released for burial and after burial of the dead body, the FIR was lodged leaving no time to cook up a false case against the accused persons and their co-accused---Any delay in lodging the FIR had been fully explained based on the particular facts and circumstances of the case---Such delay in filing the FIR by the complainant was not fatal to the prosecution's case---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

Mst. Asia Bibi v. The State and others PLD 2019 SC 64; Altaf Hussain v. The State 2019 SCMR 274; Muhammad Imran v. The State 2020 SCMR 857; Muhammad Asif v. The State 2017 SCMR 486; Hashim Qasim v. The State 2017 SCMR 986; Muhammad Akram v. The State 2009 SCMR 230; Ali Haider alias Papu v. Jameel Hussain and others PLD 2021 SC 362; Imran Ali v. The State 2018 SCMR 1372 and Gul Muhammad v. The State 2011 SCMR 670 rel.

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

----Ss. 302(b), 377, 341, 147, 148 & 149---Qatl-i-amd, unnatural offence, wrongful restraint, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Ocular account furnished by complainant---Scope---Accused were charged for committing sodomy with the son of complainant and then murdering him---In the FIR the accused persons and their co-accused were named with specific roles---No specific/proven enmity had come on record between the complainant party and the accused which would motivate the complainant to lodge a false case against the accused persons---Eye-witness lodged the FIR on the same day with promptitude and named both the accused in the FIR with specific roles---No material improvement had been made by the eye-witness---Evidence from the contents of FIR was not dented let alone damaged despite a lengthy cross examination---Complainant did not intervene to save his son as he was unarmed, tied up and held at gun point---Evidence of complainant was found to be reliable, trust worthy and confidence inspiring---In the present case, it did not appeal to reason, logic or commonsense that a father who was an eye-witness would let the rapists and murderers of his son go scot free by substituting them with innocent persons (the accused)---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt--- Appeal against conviction was dismissed accordingly.

Muhammad Ehsan v. The State 2006 SCMR 1857; Farooq Khan v. The State 2008 SCMR 917 and Allah Ditta v. State PLD 2002 SC 52 rel.

(c) Criminal trial---

----Witness---Related and interested witness---Reliance---Scope---Evidence of related witness can be safely relied upon if there is no ill-will and/or enmity between the parties.

Ijaz Ahmed v. The State 2009 SCMR 99 and Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152 rel.

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

----Ss. 302(b), 377, 341, 147, 148 & 149---Qatl-i-amd, unnatural offence, wrongful restraint, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Medical evidence---Scope---Accused were charged for committing sodomy with the son of complainant and then murdering him---Medical Officer and his post mortem report fully supported the eye-witness/prosecution evidence---Medical Officer stated in his evidence that he carried out the post mortem of the deceased where he found incised wounds on the neck, head and right lumber region which was caused by a sharp cutting weapon, which was consistent with the oral evidence of the eye-witnesses---Complainant had stated that the accused made his son fall to the ground having face towards ground before sodomy was committed on him---Evidence of Medical Officer revealed that there was abrasions on both elbows and knee joints of the deceased which would be consistent with the position he was in whilst sodomy was committed on him---Chemical report also found human sperm on the anal swabs taken from the deceased---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b), 377, 341, 147, 148 & 149---Qatl-i-amd, unnatural offence, wrongful restraint, rioting, rioting armed with deadly weapon, unlawful assembly--- Appreciation of evidence--- Recovery of incriminating material---Effect---Accused were charged for committing sodomy with the son of complainant and then murdering him---Record showed that the weapons being the sickle and hatchet/axe were recovered by the police on the pointation of the accused after their arrest from a hidden place which only the accused could have known about, namely from a boring machine and thus could not have been foisted on them---Blood stained earth taken from the wardat, clothes of the deceased, hand kerchief used to tie the deceased recovered from the wardat, the sickle and the hatchet/axe recovered on the pointation of the accused as per chemical report were all found to be stained with human blood---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b), 377, 341, 147, 148 & 149---Qatl-i-amd, unnatural offence, wrongful restraint, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Police Officials as witnesses---Scope---Accused were charged that two accused committed sodomy with the son of complainant and then murdering him---In the present case, two Police Officers, the first respondent and the Investigating Officer, fully corroborated the prosecution case except in respect of witnessing the incident and gave natural believable evidence in respect of the conduct of the investigation in terms of inspection of wardat, relevant mashirnamas, arrest of the accused, recovery of the weapons on their pointation---All relevant mashirnamas were signed by Police Official who was an employee of the police department---Nearly all relevant police entries had been exhibited---Police witnesses had no enmity or ill will towards the accused and had no reason to falsely implicate them in the case by making up their arrest or foisting the sickle and hatchet on them---Evidence of the police witnesses could be fully relied upon, in circumstances---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

Mustaq Ahmed v. The State 2020 SCMR 474 rel.

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

----Ss. 302(b), 377, 341, 147, 148 & 149---Qatl-i-amd, unnatural offence, wrongful restraint, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Minor contradictions in the statements of witnesses---Scope---Accused were charged for committing sodomy with the son of complainant and then murdering him---Record showed that all the witnesses were consistent in their evidence---Even if there were some contradictions in their evidence, which were minor in nature and not material and certainly not of such materiality so as to effect the prosecution case and the conviction of the accused---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

Zakir Khan v. State 1995 SCMR 1793 and Khadim Hussain v. The State PLD 2010 SC 669 rel.

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

----Ss. 302(b), 377, 341, 147, 148 & 149---Qatl-i-amd, unnatural offence, wrongful restraint, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Defence plea---Scope---Accused were charged that two accused committed sodomy with the son of complainant and then murdered him---Neither of the accused gave evidence on oath or called a single witness in support of their defence case---In the face of two reliable, trust worthy and confidence inspiring eye-witnesses the defence case had not at all dented the prosecution case---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

Mumtaz Alam Laghari for Appellants.

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

Ayaz Khaskheli associate of Sajjad Ahmed Chandio for the Complainant.

2021 P Cr. L J 1753

[Sindh (Hyderabad Bench)]

Before Adnan-ul-Karim Memon, J

Mst. FOUZIA alias WAZIRAN---Applicant

Versus

SSP, DISTRICT JAMSHORO and others---Respondents

Criminal Miscellaneous Application No. S-295 of 2020, decided on 28th August, 2020.

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

----S. 25---Criminal Procedure Code (V of 1898), S. 491---Habeas corpus---Maintainability---Custody of minors---Scope---Petitioner sought recovery of her sons and daughter who were alleged to have been illegally detained by their uncle---Validity---High Court in exercise of powers under S. 491, Cr.P.C. had to exercise parental jurisdiction and was not precluded in all circumstances from giving due consideration to the welfare of minors and to ensure that no harm or damage came to them physically or emotionally by reason of breakdown of the family tie between the parents---Application under S. 491, Cr.P.C. was maintainable for just recovery of minors from illegal custody of any person---Controversy raised by the parties needed to be looked into by the Guardians Court by way of proper proceedings---Application was disposed of with direction to the petitioner to approach the concerned Guardian Court.

Shabana Naz v. Muhammad Saleem 2014 SCMR 343 rel.

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

----S. 491---Guardians and Wards Act (VIII of 1890), S. 25---Habeas corpus---Custody of minors---Scope---Proceedings under S. 491, Cr.P.C., are not available for declaring any person as guardian or for determining all the questions relating to the custody of minor because the final decision of regular custody is to be decided before the Guardian Court in the proceedings initiated by the parties claiming the custody of the minor.

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

----S. 17---Guardian, appointment of---Matters to be considered by the Court in appointing guardian---Scope---Paramount consideration while deciding the question of custody of minor is the welfare of the minor---Welfare includes his moral, spiritual and material wellbeing and while considering what is the welfare of minor the court shall have regard to the age, sex, religion of the minor, the character and capacity of the proposed guardian, his nearness of kin to the minor and the preference of minor, if he is intelligent enough to make it.

Imtiaz Ali Channa for Applicant.

Azizullah Buriro for Respondents.

Shahid Ahmed Shaikh, D.P.G. along with Inspector Ghulam Hyder Panhwar, SHO Police Station Khairpur Nathan Shah District Dadu for the State.

2021 P Cr. L J 1826

[Sindh (Larkana Bench)]

Before Mohammed Karim Khan Agha and Zulfiqar Ali Sangi, JJ

MUHAMMAD SHAHRUKH and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. D-21, D-41, Confirmation Case No. D-03 of 2015 and Criminal Appeal No. D-24 of 2020, decided on 4th March, 2021.

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

----Art. 43--- Confession made by co-accused--- Scope--- Judicial confession made by one co-accused against another co-accused in a capital case could not be used to convict the persons named in the confession by the maker without unimpeachable independent corroborative evidence.

Federation of Pakistan v. Muhammed Shafi Muhammedi, Advocate 1994 SCMR 932; Arif Nawaz Khan and 3 others v. The State PLD 1991 FSC 53; Jehangir Malik v. The State 2005 YLR 3258; Altaf Ashraf v. The State PLD 2009 Lah. 549; Pir Mazhar-ul-Haq v. The State 1992 PCr.LJ 1910; Muhammed Ismail v. State 2017 SCMR 898 and Faqir Ullah v. Khalil-Uz-Zaman 1999 SCMR 2203 rel.

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

----Ss. 302 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 43---Qatl-i-amd, unlawful assembly, act of terrorism---Appreciation of evidence---Confession made by co-accused---Scope---Accused were charged for committing murder of brother of the complainant by firing---In the present case no mobile phones of the accused persons had been recovered let alone any CDR connecting the phones of the confessor with the accused persons had been collected or exhibited---Present accused were not part of any identification parade---Car allegedly used to transport some of the accused persons to the murder scene was not in their names---No DNA or finger print evidence had been proved against them---No evidence was available to corroborate the judicial confession of co-accused in so far as it related to the accused persons---Aspect of the charge concerning accused hiding the murder weapons was not substantiated by any evidence---Said aspect did not appear even in the confession and the Investigating Officer was not able to recover any such weapons despite digging up the area where they were allegedly hidden---Said fact was just a bald unsubstantiated allegations---Allegedly, both the accused were absconders---Said fact that both the accused were absconders was also irrelevant in the circumstances of the case---Circumstances established that no case was made out against said two accused--- Appeal against conviction was allowed, in circumstances.

Faqir Ullah v. Khalil-Uz­-Zaman 1999 SCMR 2203; Azeem Khan v. Mujahid Khan 2016 SCMR 275; Muhammad Pervez v. The State 2007 SCMR 670; Khalid Javed v. The State 2003 SCMR 1419; Mushtaq Masih v. The State 2015 MLD 1727; Hazrat Bilal v. The State 2000 PCr.LJ 865; Akhtar v. The State 2020 SCMR 2020; Ibrarullah v. The State and another 2020 PCr.LJ 144; Nawab Khan and others v. The State; Sawal Khan v. Mian Khan and another 1968 PCr.LJ 1588; Wilayat Ali v. The State and another 2004 SCMR 477; Jafar Ali v. The State 1998 SCMR 2669 and Muhammad Shoaib and others v. The State 2013 MLD 1469 ref.

Fayyaz Ahmed v. State 2017 SCMR 2026 and Muhammed Aslam v. State 1972 SCMR 194 rel.

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

----Ss. 302 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, unlawful assembly, act of terrorism---Appreciation of evidence---Test identification parade---Scope---Accused were charged for committing murder of brother of the complainant by firing---Record showed that the identification parade was carried out by Judicial Magistrate and all the co-accused were identified by a witness as playing a particular role in the murder---Court could not safely rely on the identification of any of the accused by said witness at the identification parade and as such the identification parade results could not corroborate the retracted judicial confession---First Information Report which was lodged promptly after the incident was against unknown persons---No eye-witness came forward for over six weeks which was allegedly following an advertisement in a newspaper the day before the accused was arrested and there was no explanation on record as to why the eye-witness waited six weeks before coming forward---Eye-witness who came forward was not named in the FIR and there was no evidence that he knew any of the accused before the incident---Eye-witness did not give his S. 161, Cr.P.C. statement for at least six weeks after the incident---Such delay in recording the statement under S. 161, Cr.P.C. of an eye-witness was quite fatal to the prosecution case---Record showed that it was a nighttime incident at 9.30 p.m. in January and therefore would have been dark---No evidence of source of light had been given---No evidence had been given to show how far away the alleged eye-witness was from the incident---Identification of four of the accused must be in doubt---Eye-witness in his statement under S. 161, Cr.P.C. made six weeks after the incident, gave no 'hulia' or description of the accused---Instead eye-witness apparently relied on sketches which he drew from memory---Such sketches were not exhibited at trial and as such it further casted doubt on the safeness of his identification of the accused; it did not appeal to logic, reason, commonsense and natural behaviour that in the middle of a brutal murder and chaotic scene with armed men shouting at night that the eye-witness was carefully able to examine and remember fully the faces of said accused---Such conduct was just not believable---Natural conduct in such scenario would have been to flee and keep away from the murder scene---Circumstances established that the prosecution had failed to prove its case against the said accused beyond any doubt---Appeal against conviction was allowed, in circumstances.

Noor Mohammed v. State 2020 SCMR 1049; Muhammed Asif v. State 2017 SCMR 486; Azhar v.State 2017 SCMR 135 and Javed Khan alias Bacha v. State 2017 SCMR 524 rel.

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

----Ss. 302 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, unlawful assembly, act of terrorism---Appreciation of evidence---Statement of eye-witness---Scope---Accused were charged for committing murder of brother of the complainant by firing---Eye-witness did not give evidence under oath and the co-accused persons had no chance to cross-examine him and test his evidence---Said eye-witness might have been shattered on cross-examination---From the evidence it was unclear who that eye-witness was; was eye-witness a chance witness; why was eye-witness at the scene---Nothing was known about his creditability e.g. profession, job, trade etc---Eye-witness complete unknown quantity---Fact that the eye-witness came forward a day before the said co-accused persons were conveniently arrested whilst all sitting in one car also raised doubts that he was a planted witness under police pressure---No explanation had been given as to why eye-witness took so long to come forward---Circumstances established that the prosecution had failed to prove its case against the said accused beyond any doubt---Appeal against conviction was allowed, in circumstances.

Gulfam v. State 2017 SCMR 1189 rel.

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

----Ss. 302 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, unlawful assembly, act of terrorism---Appreciation of evidence---Non-recovery of weapon of offence from co-accused persons---Effect---Accused were charged for committing murder of brother of the complainant by firing---Record showed that no weapon was recovered from any of the co-accused persons and as such the Forensic Science Laboratory Report could not connect them to the offense despite the fact that it was positive---Circumstances established that the prosecution had failed to prove its case against the said accused beyond any doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Accused were charged for committing murder of brother of the complainant by firing---No Call Data Record was produced in evidence to link any of the co-accused persons at the given time of the crime---Positive blood test would go to the death of the deceased and was irrelevant for purposes of connecting the co-accused persons to the crime---No motive had been asserted by the prosecution for the murder---None of the recoveries were put to any of the co-accused persons during their S. 342, Cr.P.C. statements and as such could not be used to convict them--- Taking the police to the place of wardat was irrelevant as the police already knew the place of wardat which had also been shown on the T.V and written about in newspapers---Extra judicial confessions before the police during interrogation were inadmissible in evidence---Circumstances established that the prosecution had failed to prove its case against the said accused beyond any doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 164--- Retracted judicial confession--- Independent corroboration---Scope---Confession could be used against its maker if it was found to be voluntary, true and tying into the facts of the case and there were only minor procedural irregularities.

Azeem Khan v. Mujahid Khan 2016 SCMR 274; Bahadur v State PLD 1996 SC 336 and Muhammed Ismail v. State 2017 SCMR 898 rel.

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

----Ss. 302 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, unlawful assembly, act of terrorism---Appreciation of evidence---Judicial confession---Infirmities---Accused were charged for committing murder of brother of the complainant by firing---Main procedural defect was that after making the confession the co-accused was handed back to the police and was not remanded to judicial custody---Co-accused also claimed in his S. 342, Cr.P.C. statement that his confession was not voluntary as in fact he and his family were threatened---Unexplained seven days delay in recording the confession was found which was not signed by him---In situations where the accused had not been warned that he would not be handed back to the police if he confessed or if he was handed back to the police after his confession the courts had found such situations to be very damaging to the voluntariness of the retracted judicial confession---Circumstances established that the prosecution had failed to prove its case against the said accused beyond any doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Pervez and others v. The State and others 2007 SCMR 670; Gangoo Ram v. The State 2003 PCr.LJ 1608 and Syed Azeem Shah v. The State PLD 1987 Quetta 96 rel.

(i) Criminal trial---

----Evidence---Piece of evidence not challenged---Scope---If a piece of evidence was not challenged in a criminal case, it would not be deemed to be an admission.

Mst. Asia Bibi v. State PLD 2019 SC 64 rel.

Muhammad Imran Shamsi for Appellants (in Criminal Appeal No.21 pf 2015).

Aamir Mansoob Qureshi for Appellants (in Criminal Appeals Nos. D-41 of 2015 and D-24 of 2020).

Ali Anwar Kandhro, Additional P.G. for the State.

2021 P Cr. L J 1861

[Sindh]

Before Mohammed Karim Khan Agha and Zulfiqar Ali Sangi, JJ

MUHAMMAD ARSHAD LATIF and another---Appellants/Petitioners

Versus

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

Criminal Accountability Appeals Nos. 17 and 18 of 2019 along with C.Ps. Nos. D-2433 and 2432 of 2019, decided on 8th October, 2020.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(viii) & 31-D--- Wilful default---Appreciation of evidence---Notice, non-reply of---Address, change of---Effect---Accused persons alleged to have committed wilful default in repayment of bank loan---Trial Court convicted accused persons and sentenced them to imprisonment for five years along with payment of fine---Validity---Notices were duly served on address of defaulting company as per records of bank provided by defaulting company---Prosecution exhibited courier receipts to show that Bank notices were received at the address of company given by accused persons at the time of taking out the loan---If accused persons changed their address then it was their duty to inform change of address to Bank but they failed to do so---Not the job of Bank to trace out whereabouts of loan defaulters before serving notices on them---Bank was only obliged to serve notice to defaulters on address last provided by them to bank--- Accused persons did not put any plausible reason as to why they failed to repay loan and did not even join investigation of NAB to justify their position despite they were sent call up notices---Accused persons did not even make one loan instalment repayment and deliberately avoided all notices from their bank and State Bank of Pakistan regarding treating their loan as wilful default---Defaulted amount was wilful---Division Bench of High Court declined to interfere in judgment passed by Trial Court as accused persons failed to point out any error in the same either as a matter of law or fact---All ingredients required to make out a case of wilful default were proved through cogent, reliable and trustworthy oral and documentary evidence---Prosecution proved its case beyond reasonable doubt---Appeal was dismissed in circumstances.

Khan Asfand Yar Wali and others v. Federation of Pakistan and others PLD 2001 SC 607; Islamuddin Shaikh v. Federation of Pakistan and others PLD 2001 Kar. 419; Kaloodi International (Pvt.) Ltd. v. Federation of Pakistan PLD 2001 Kar. 311; Irfan Nawab through Attorney v. Soneri Bank Limited 2013 CLD 1922 and Intikhab A. Syed v. Chairman NAB 2019 MLD 127 ref.

Mian Munir Ahmed v. State 2004 PCr.LJ 2012 rel.

Nabeel Kolachi for Appellants/Petitioners (in Criminal Accountability Appeals Nos. 17 and 18 of 2019 along with C.Ps. Nos. D-2433 and 2432 of 2019).

R.D. Kalhoro, Special Prosecutor NAB for the State (in Criminal Accountability Appeal No. 18 of 2019 along with C.P. No. D-2432 of 2019).

2021 P Cr. L J 1887

[Sindh]

Before Abdul Maalik Gaddi and Mrs. Rashida Asad, JJ

MUHAMMAD SHAKEEL alias BANARSI---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeal No. 264 of 2017, decided on 24th April, 2020.

Sindh Arms Act (V of 2013)---

----S. 23(1)(a)---Unlicensed possession of arms---Non-examination of ballistic expert---No independent witnesses engaged during recovery proceedings---Prosecution case was that the accused being in police custody in another case agreed to produce explosive substances as well as different weapons he buried in a park---Departure entry was not stamped---Unstamped daily diary entry produced during trial had no evidentiary value and could not be relied upon---Events which occurred pursuant to suspicious departure of police party could not be assumed to have been proved beyond shadow of doubt---Moreover, despite allegation of recovery of only one bomb launcher, two launchers were produced by the prosecution witnesses---Trial Court while disbelieving production of launchers had acquitted the accused from the charges of Ss. 4 & 5 of Explosive Substances Act, 1908 and S. 7(1)(ff) of Anti-Terrorism Act, 1997, holding such recovery to be shrouded in mystery, however, it convicted the accused under S. 23(1)(a) of Sindh Arms Act, 2013---Recovered weapons were received by the Forensic Laboratory with a delay of one day and it was not explained by the prosecution as to with whom the pistol and cartridges remained during the intervening period---No official from the Forensic Division was examined---Place of incident was a public park, and the complainant had sufficient time to call independent respectable persons of the locality to witness the recovery proceedings but such exercise was not carried out---False implication of the accused could not be ruled out, in circumstances--- Appeal against conviction was allowed, in circumstances.

Salman alias Lamba and another v. The State 2018 YLR 1092 and Sansar Ali Abro v. The State 2018 PCr.LJ Note 153 rel.

Muhammad Imran Meo for Appellant.

Abdullah Rajput, Deputy Prosecutor General Sindh for the State.

2021 P Cr. L J 1

[Lahore (Rawalpindi Bench)]

Before Ch. Abdul Aziz and Raja Shahid Mehmood Abbasi, JJ

ZAKA ULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 596 of 2017 and Murder Reference No. 63 of 2017, heard on 5th March, 2020.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Delay of about one hour and twenty minutes in lodging the FIR---Effect---Accused was charged that he sprinkled petrol on the complainant/deceased and then kindled fire with lighter, and victim later succumbed to the injuries---Motive behind the occurrence was that accused used to demand money from deceased which she refused---Record showed that crime was reported to police without afflux of any delay and as a necessary consequence the FIR was registered within one hour and twenty minutes---Sole perpetrator nominated therein was the accused---Defence objected that signature or thumb impression of deceased/complainant was not on the complaint, thus FIR registered thereupon had no legal sanctity---Record transpired that the victim after being brought to hospital was provided medical care by Medical Officer, who deposed that both hands, wrists and arms of victim were badly burnt and obtaining her signature upon the complaint was out of question---Statement of victim was recorded in the presence of Medical Officer and a gist of same was even mentioned in Medico Legal Certificate---Neither Medical Officer nor scribe of FIR had any personal grouse against accused so as to incorporate incorrect tale of occurrence in the complaint---Absence of her signature and that too on account of some disability could not be taken as an illegality or irregularity so as to damage the prosecution case---Appeal against conviction was dismissed with modification in sentence.

Rishi v. State [2008 (15) R.C.R (Criminal) 339]; Mahender Kaushik and another v. State of Delhi [2015 (29) R.C.R (Criminal) 883]; State of Gujarat v. Patel Maheshbhai Ranchhodbhai [2008 (3) GLR 2566]; Ramesh son of Tulshiram Mahajan v. The State of Maharashtra [2011 (21) R.C.R (Criminal) 762]; C. Suresh v. The State [2015 (1) MadWN (Cri) 238]; Shri Ganesh Sakharam Kamble v. State of Maharashtra [2011 (3) Bomb. C.R (Cri.) 586] and Rameshbhai Dahyabhai v. State of Gujarat [2008 Cri.L.R 761] rel.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art.46---Qatl-i-amd---Appreciation of evidence---Dying declaration, reliance on---Scope---Accused was charged that he sprinkled petrol on the complainant/deceased and then kindled fire with lighter, and victim later succumbed to the injuries---Record showed that dying declaration of the deceased was made in the presence of Medical Officer and Investigating Officer in hospital, within one hour and twenty minutes of the occurrence and accused was the sole perpetrator nominated therein---Since victim died subsequently, hence her statement was used during trial as "dying declaration" and was projected the bastion of prosecution case---Medical Officer affixed her signature upon statement of victim as certificate of correctness---Medical Officer gave opinion on a police query that victim was fit to make statement---Neither the Medical Officer nor the Investigating Officer was either related with deceased or had any affair of abhorrence with the accused, thus by no stretch they could be treated as mendacious---Nothing as such was available from which it might have even remotely insinuate that deceased was pitched in an affair of grouse or grudge with accused so as to substitute him in her dying declaration as the sole perpetrator of crime by letting the actual culprit go scot-free---Evidence of dying declaration was found to inspire confidence, thus conviction could be awarded thereupon---Appeal against conviction was dismissed with modification in sentence.

Niaz-ud-Din and another v. The State and another 2011 SCMR 725 and Farman Ullah v. Qadeem Khan and another 2001 SCMR 1474 rel.

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

----Ss. 302(b) & 336-B---Qatl-i-amd, hurt caused by corrosive substance---Appreciation of evidence---Sentence, reduction in---Accused was charged that he sprinkled petrol on the complainant/ deceased and then kindled fire with lighter, the victim was later succumbed to the injuries---Ocular account of the incident had been furnished by two witnesses---Said witnesses attracted to the crime scene after hearing the hue and cry of deceased and saw her engulfed in fire---Said witnesses honestly admitted that they had neither seen accused pouring gasoline upon the deceased nor igniting her to fire---Said aspect was vociferously projected by the defence for excluding the testimony of said witnesses from consideration but it positively reflected upon their honesty and credibility---Deposition of said witnesses was in the nature of res gestae and was admissible in evidence---Circumstances and facts of the case showed that both the witnesses reached the spot immediately after the occurrence and found victim engulfed in fire and also heard her crying that accused did it---Eye-witness further deposed that he had seen accused running from the spot---Deposition of both the witnesses inescapably had come within the purview of Art. 19, Qanun-e-Shahadat, 1984---Said event forming res gestae occurred in a manner that it could safely be stated as connected with the main occurrence and could not be separated therefrom---However, there were two parts of the prosecution case, first part of prosecution case comprised of the main incident wherein burn injuries were caused to victim and second one related to her death---Burn injuries to the victim caused by the accused had been established beyond shred of any suspicion from the dying declaration of deceased as well as from the statements of two witnesses---However, the prosecution was found to have failed in proving beyond scintilla of any doubt that the deceased died in foreign country due to no other reason but because of burn injuries caused by the accused---In order to prove the cause of death of victim, the prosecution solely banked upon Letter of Interpol and Certificate of Death issued by district court of said foreign country---Both the documents were brought on record through the statement of Assistant District Public Prosecutor apparently under S. 510, Cr.P.C.---Admittedly, through that provision, only the documents purporting to be report of Chemical Examiner, Serologist, Finger Print Expert, Firearm Expert appointed by the Government were admissible in a criminal trial, without calling them as witnesses---In that backdrop, Letter of Interpol and Certificate of Death, since were not issued by experts appointed by Government of Pakistan in terms of S. 510, Cr.P.C., thus were not per se admissible under the foregoing provision---No evidence was available on record to prove with certainty that the deceased died only due to the injuries received during the crime in question, thus the conviction and sentence of accused under S. 302(b), P.P.C. was unsustainable---However, the prosecution had proved beyond doubt that the burn injuries were caused to the victim by none other than the accused---Accused thus, was found guilty of offence under S. 336-B, P.P.C. and accordingly sentenced to suffer rigorous imprisonment of fourteen years--- Appeal against conviction was dismissed with said modification in sentence.

Shabbir Hussain alias Sukku v. The State PLD 2003 SC 368; Krishna Ram Das v. The State AIR 1964 ASSAM 53; Muhammad Aslam Shah v. The State 1993 PCr.LJ 704 and Irfan v. State PLJ 2010 FSC 203 rel.

Sardar Abdul Raziq Khan for Appellant.

Khurram Shahzad for the Complainant.

Shahid Mahmood, Deputy Prosecutor General Punjab along with Afzaal SI with record for the State.

2021 P Cr. L J 40

[Lahore (Bahawalpur Bench)]

Before Sadiq Mahmud Khurram, J

MUHAMMAD TARIQ AJMAL---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 1797-B of 2019, decided on 21st August, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Emigration Ordinance (XVIII of 1979), Ss. 17 & 22---Passports Act (XX of 1974), S. 6---Penal Code (XLV of 1860), S. 406---Travel Agencies Act (XXX of 1976), Ss. 6 & 14---Unlawful emigration, receiving money for providing foreign employment, trafficking in passports or documents required for obtaining a passport, criminal breach of trust, prohibition to act as a travel agency without licence---Bail, grant of--- Completion of investigation---Further inquiry---Scope---Allegation against the accused was that he was found running an illegal travel agency and when the raid was conducted, he could not produce any valid licence to the raiding party and led to the recovery of nine Pakistani passports along with other documents---Accused was not found to be in possession of a forged document---Accused had produced a certification of incorporation of a private limited company, issued by Additional Joint Registrar of the Companies---Accused was holding 52500 shares of the said company---Said aspect of the case was not investigated by the Investigating Officer---No action was taken against the accused under Travel Agencies Act, 1976---Section 14 of Travel Agencies Act, 1976 provided that no court could take cognizance of an offence punishable under the Act except upon a complaint made in writing by or under the authority of the Federal Government---Federal Government had authorised the Controller, Department of Tourist Services, to make complaints in courts in respect of the offences under the said Act committed by the travel agencies---Applicability of S. 6, Passports Act, 1974 required determination by the Trial Court, after appraising evidence---Nothing incriminating was recovered from the accused by Investigating Officer---No other case of similar nature was registered against the accused---Insertion of the word "or" in Ss. 17 & 22 of Emigration Ordinance, 1979, S. 6 of Passports Act, 1974 and S. 406, P.P.C. by the Legislature, meant that the sentence of imprisonment was not mandatory and it had been left at the discretion of the court of law to either sentence the accused with imprisonment or with fine or both---Discretion while sentencing the accused could only be exercised by the Trial Court after recording of evidence---Law provided the possibility that if the accused was convicted after recording of evidence he could be sentenced to payment of fine only---Accused was not required by the Investigation Agency for further investigation---No proof was available with the prosecution that the accused would either abscond or tamper with the prosecution evidence---Case of the accused required further inquiry and probe which could only be undertaken by the Trial Court---Accused was admitted to post-arrest bail, in circumstances.

Sardar Muhammad Shehzad Khan Dhukkar for Petitioner.

Muhammad Umair Mohsin for the witness Sabir and Mian Amir Nawaz for the witness Abdul Razzaq.

2021 P Cr. L J 47

[Lahore (Rawalpindi Bench)]

Before Ch. Abdul Aziz, J

SHER AFZAL---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 1378-B of 2020, decided on 5th August, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Bail, refusal of---Accused was charged that he and co-accused, duly armed with deadly weapons, committed murder of husband and brother-in-law of complainant by firing---Record showed that two brothers lost their lives after the receipt of multiple firearm traumas, stated to have been inflicted by proclaimed offender and co-accused---Present accused was saddled with the accusation of having exhorted his co-accused to commit the crime---Tale of the incident was spontaneously furnished to police within 1-1/4 hour---Generally, a person burdened with the allegation of shouting lalkara was granted post-arrest bail but that was not an inflexible rule of the subject---For a just decision of post arrest bail in such cases, the court had to tentatively see the back ground in which a perpetrator shouted lalkara, his interest in the crime and the quantum of influence which he exerted upon his co-assailants---For that material, the court could draw an opinion about the existence or non-existence of reasonable grounds in terms of S. 497(1), Cr.P.C., so as to decide the bail plea of such an accused---If it had arisen from the record that the accused shouting lalkara had some deep-rooted interest in crime and was in a position to influence his co-accused so as to control his aggression, the concession of post-arrest bail could be withheld from him---Shouting of lalkara by a person in commanding and overwhelming position was a sufficient overt act towards the commission of crime---Expression "lalkara" stand for utterance of words by an overzealous accused at the crime scene, inciting others to commit an offence---Since the accused-petitioner was in dominance over his co-accused, hence, the "lalkara" raised by him could in no manner be treated as proverbial, rather it could best be defined as commanding in nature---Despite being in a position of influence, accused-petitioner made no effort to calm down the situation rather ignited it through an overzealous shouting of "lalkara", culminating into the death of two real brothers---Plea of petitioner for post-arrest bail merits no acceptance, same was turned down---Petition was dismissed accordingly.

Chiragh Din and others v. The State PLD 1967 SC 340 and Muhammad Ashraf v. The State 1996 MLD 884 rel.

Muhammad Ikhalaque Awan for Petitioner.

Asad Abbas and Zahid Raza for the Complainant.

2021 P Cr. L J 55

[Lahore]

Before Malik Shahzad Ahmad Khan and Raja Shahid Mehmood Abbasi, JJ

The STATE through Prosecutor General Punjab---Petitioner

Versus

IKRAM ULLAH KHAN, DUTY MAGISTRATE 1ST CLASS and another---Respondents

Writ Petition No. 22107 of 2020, heard on 3rd June, 2020.

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

----S. 9(c)---Qanun-e-Shahadat (10 of 1984), Art. 8---Name of informer, non-disclosure of---Scope---Police was legally not bound to mention name of informer (spy) in FIR---Police had legal protection to keep secret the name of informer (spy).

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

----S. 9(c)---Criminal Procedure Code (V of 1898), Ss. 63 & 167---Discharge of accused---Complainant as investigating officer---Scope---Accused was arrested for recovery of 3800 grams of Charas from car driven by him---Duty Magistrate instead of sending accused to judicial lock up discharged him of the offence as complainant himself had investigated the case---Validity---No legal bar existed that complainant of case registered under Control of Narcotic Substances Act, 1997, could not be the investigating officer of that case---Functioning of police officer in a case of narcotics, in his dual capacity as a complainant and as an investigating officer, was neither illegal nor unlawful, so long as it did not prejudice the case of accused person---Question of prejudice (if any) could not be proved at the time of trial and an accused could not be discharged on such ground without recording of evidence by Trial Court---High Court set aside order passed by the Magistrate as the same was result of colourful exercise of his powers and was passed on the basis of extraneous reasons---High Court directed to take accused in custody and remanded the matter to Magistrate to decide application for judicial remand---Constitutional petition was allowed, in circumstances.

Muhammad Hanif v. The State 2003 SCMR 1237; Surraya Bibi v. The State 2008 SCMR 825; Salah-ud-Din v. The State 2010 SCMR 1962; Zafar v. The State 2008 SCMR 1254; State through Advocate-General Sindh v. Bashir and others PLD 1997 SC 408; Muhammad Akram v. The State 2007 SCMR 1671 and The State v. Abdali Shah 2009 SCMR 291 ref.

Waqas Anwar, Deputy Prosecutor General and Fiaz, SI along with record for the State.

Respondent No. 2 present in person along with Amir Raza Bhatti, Advocate.

2021 P Cr. L J 71

[Lahore]

Before Sardar Ahmed Naeem and Farooq Haider, JJ

Ch. SHAHID MEHMOOD and others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU (NAB) and others---Respondents

Writ Petitions Nos. 72985, 73658, 78784, 78785 of 2019 and 16367 of 2020, decided on 7th May, 2020.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(ix) & 9(b)--- Constitution of Pakistan, Art. 199---Constitutional petition---Bail, refusal of---Cheating members of public at large---Prima facie case---Accused persons were arrested for cheating members of public-at-large by establishing a Cooperative Housing Society---Validity---Deeper appreciation of evidence could not be undertaken at such stage and the Court was to only sift available material in a tentative manner---Witnesses examined by investigating agency supported version of complainant suggesting involvement of accused persons in the scam---Creation of Society, then its re-activation after about twenty five years, the manner of exercising authority by the then/and present office bearers in making payments to builders, then amending original agreement to justify increase/enhancement in price, suggested a strong nexus of accused persons with one another and with the crime---No performance guarantee of developers as per agreement was available on record---Till date, the members of the Society were without any plot or possession---Proposed land of Society was visited by investigating agency which found that it was deserted land till the day of visit---No development was made by the developers---Investigating agency collected sufficient incriminating material against accused persons regarding their culpability---High Court declined to exercise discretion in favour of accused persons---Bail was declined, in circumstances.

Sardar Muhammad Latif Khan Khosa and Mian Muhammad Hussain Chotya for Petitioners.

Yasir Munawar Cheema for Petitioners (in Writ Petition No.73658 of 2019).

Muhammad Asad Manzoor Butt and Hafiz Muhammad Nauman for Petitioners (in Writ Petitions Nos. 78785 and 78784 of 2019).

Ch. Salman Zahoor for Petitioner (in Writ Petition No. 16367 of 2020).

2021 P Cr. L J 93

[Lahore (Multan Bench)]

Before Anwaarul Haq Pannun, J

LAL SHER---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 1023 of 2010, heard on 10th June, 2020.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused and co-accused (since dead) made firing upon the brother of the complainant, he fell down on the ground and died---Motive behind the occurrence was stated to be the previous litigation between the complainant and co-accused over horse breeding grant of land---Record showed that initially the FIR was lodged by the complainant against two nominated and one unknown accused person---Co-accused(since dead) had been attributed the effective role of inflicting firearm injuries on the person of deceased, which as per opinion of the Medical Officer who conducted the post-mortem examination over the dead body of the deceased were ante-mortem in their nature leading to his death---Remaining two accused including the appellant had not been ascribed any role and it had been alleged that they were accompanying the real culprit at the time of alleged occurrence---Accused/appellant was not alleged to be carrying any weapon at the time of the occurrence---Record transpired that it was a broad day light occurrence but no specific features of the accused i.e. stature, height, complexion, shape of the face including face cuts, colour of clothes etc. were mentioned in the FIR, no specific features were available with the prosecution which could be made basis for confirmation of identity of the accused persons at the time of test identification parade---Circumstances established that the case was replete with doubts, the benefit of which would favour the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, common intention--- Appreciation of evidence---Delay in conducting test identification parade---Effect---Prosecution case was that the accused and co-accused (since dead), made firing upon the brother of the complainant, he fell down on the ground and died---Record showed that the accused was arrested after nine months of the registration of FIR and for identifying him, his test identification parade was conducted after 13 days of the arrest under the supervision of Judicial Magistrate---Accused was identified without assigning him respective role in the occurrence by the complainant and the witnesses during the identification parade---In absence of description of features in the FIR and the statements under S. 161, Cr.P.C., the accused could not be incriminated on the basis of conclusion of test identification parade---Ocular account furnished by the prosecution against the accused was devoid of credence and was not reliable---Appeal against conviction was allowed, in circumstances.

(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---Recovery of motorcycle on the pointation of accused---Scope---Prosecution case was that the accused with his co-accused (since dead), made firing upon the brother of the complainant, he fell down on the ground and died---Record showed that during investigation, motorcycle was recovered by the Investigating Officer on his pointation---Said recovery was inconsequential as no colour, model and registration number of the said motorcycle had been mentioned in the FIR---Moreover, when the prosecution had failed to establish its ocular version beyond shadow of reasonable doubt mere recovery need not to be discussed elaborately being corroboratory piece of evidence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive was not proved---Scope---Prosecution case was that the accused with his co-accused (since dead), made firing upon the brother of the complainant, he fell down on the ground and died---Motive behind the occurrence, as mentioned in the FIR, was litigation between the complainant and co-accused over grant of horse breeding land---Accused, in circumstances, had no motive to commit the alleged offence--- Appeal against conviction was allowed, in circumstances.

(f) Criminal trial---

----Benefit of doubt---Principle---Benefit of reasonable shadow of doubt would always favour the accused as a matter of right and not as of grace.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Prince Rehan Iftikhar Sheikh for Appellant.

Nemo for the Complainant.

Malik Mudassir Ali, Deputy Prosecutor General for the State.

2021 P Cr. L J 138

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh and Sadiq Mahmud Khurram, JJ

ANSAR ABBAS alias PAKORI---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 1089 of 2018, heard on 5th December, 2019.

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

----Ss. 9(c) & 9(b)--- Possession of narcotics--- Appreciation of evidence---Consolidated sample---Failure to weigh each slab of recovered substance (charas)---Effect---Accused was alleged to have been found in possession of 1062 grams of charas---Charas was recovered in the shape of three slabs as admitted by both the witnesses of recovery---Complainant, instead of taking separates samples of the recovered substance from each piece, had only taken one consolidated sample from the recovered substance and that too from one piece, which sample was subsequently tested and reported as positive by the Forensic Laboratory---Investigating Officer and the complainant had not weighed the three slabs of the recovered charas during the course of investigation---Similarly, during the trial the said three slabs of the recovered charas were not weighed separately---Prosecution case was not clear as to from which of the three slabs of the recovered charas, the sample parcel was prepared---Prosecution had only been able to prove that 100.57 grams of charas was recovered from the possession of the accused, that being the weight of charas which was received at the Forensic Laboratory---Accused was held liable to be responsible for having 100.57 grams of charas in his possession, which weight of recovered contraband attracted the provisions of S. 9(b) of the Control of Narcotic Substances Act, 1997---Appeal was partly allowed and the conviction of the appellant recorded by the Trial Court for an offence under S. 9(c) of the Control of Narcotic Substances Act, 1997 was converted into one under S. 9(b), in circumstances.

Ghulam Murtaza and another v. The State PLD 2009 Lah. 362 ref.

Abdul Hameed v. The State 2016 SCMR 707 and Ameer Zeb v. The State PLD 2012 SC 380 rel.

Ch. Akbar Ali for Appellant.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

2021 P Cr. L J 167

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

ASIF MASIH---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal Revision No. 17688 of 2019, decided on 17th December, 2019.

Penal Code (XLV of 1860)---

----S. 295-B---Defiling of the Holy Quran---Accused, a lunatic---Bail---Scope---Accused was alleged to have defiled / damaged the Holy Quran and Trial Court declined to release accused under S. 466, Cr.P.C., despite the ailment was supported by report of Medical Board---Validity---After initiating proceedings under Ss. 464/465/466, Cr.P.C. if it was found that accused was incapable of making his defence then there was no purpose to keep such accused in jail for an indefinite period---Denial of relief under S. 466, Cr.P.C. to accused was against the principle of natural justice---Bail was allowed accordingly.

Atta Muhammad v. The State PLD 1960 West Pakistan 111 rel.

Ms. Aneeqa M. Anthony for Petitioner.

Muhammad Naveed Umar Bhatti, Deputy Prosecutor General for the State.

2021 P Cr. L J 174

[Lahore (Bahawalpur Bench)]

Before Sardar Muhammad Sarfraz Dogar and Tariq Saleem Sheikh, JJ

FIDA HUSSAIN and 3 others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 322 of 2016/BWP and Murder Reference No. 46 of 2016/BWP, heard on 14th January, 2020.

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

----Ss. 302, 337-A(i), 337-A(ii), 337-F(v), 337-L(2), 148 & 149---Criminal Procedure Code (V of 1898), S. 161---Qanun-e-Shahadat (10 of 1984), Art. 129(g)--- Qatl-i-amd, shajjah-i-khafifah, shajjah-i-mudihah, ghayr-jaifah, hashimah, rioting, armed with deadly weapon, common object--- Appreciation of evidence--- Benefit of doubt---Dishonest improvements--- Delayed statement--- Withholding best evidence---Contradiction in ocular and medical evidence---Recovery of commonplace articles---Motive, not proved---Scope---Accused party was alleged to have launched an attack upon the complainant party when they were present in their fields while the accused party blamed the complainant party for attacking them in their house---Prosecution failed in proving the place of occurrence through pointation of blood-stained earth---Eye-witnesses had made dishonest improvements in their depositions---Statement of eye-witness was recorded with an unexplained inordinate delay---Independent eye-witnesses, despite availability, were not produced---Ocular account was in conflict with medical evidence---Soties, allegedly recovered from accused persons, were commonplace articles and were not blood-stained---Motive of the case was shrouded in mystery---Accused persons had not got recorded their statements; had not mentioned the motive and it was difficult to believe that accused party had not reacted, not even in self-defence---Both parties had suppressed their role and showed that the other side was the aggressor and the real culprit---High Court while extending benefit of doubt to the accused persons accepted their appeal.

Syed Saeed Mohammad Shah and another v. The State 1993 SCMR 550; Abdul Khaliq v. The State 1996 SCMR 1553; Muhammad Khan v. Maula Bakhsh and another 1998 SCMR 570; Muhammad Asif v. The State 2017 SCMR 486; Muhammad Hussain v. The State 2008 SCMR 345 Irfan Ali v. The State 2015 SCMR 840 and Usman alias Kaloo v. The State 2017 SCMR 622 ref.

Rajmeer Khan and another v. Noor-ul-Haq and others 2019 SCMR 1949 rel.

(b) Criminal trial---

----Witness---Dishonest improvements---Scope---Witness who makes dishonest improvements in his statement is not trustworthy.

Ibrar Hussain and others v. The State and another 2007 SCMR 605; Akhtar Ali and others v. The State 2008 SCMR 6; Muhammad Rafique and others v. The State and others 2010 SCMR 385; Muhammad Naeem Inayat v. The State 2010 SCMR 1054; Muhammad Salem v. Muhammad Azan and another 2011 SCMR 474 and Sardar Bibi and others v. Munir Ahmed and others 2017 SCMR 344 ref.

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

----Art. 129(g)---Withholding best evidence---Effect---Prosecution has the prerogative to examine witnesses of its choice but where a material witness is given up and best evidence is withheld, Court may draw an adverse inference under illustration (g) of Art. 129 of the Qanun-e-Shahadat, 1984.

Shahbaz Masih v. The State 2007 SCMR 1631 and Muhammad Asif v. The State 2017 SCMR 486 ref.

(d) Criminal trial---

----Witness---Injured witness---Scope---Injuries on a prosecution witness only indicate his presence at the spot but what he deposes cannot be accepted as gospel truth; his testimony must be evaluated on its own merits in accordance with the principles of criminal jurisprudence.

Said Ahmad v. Zammured Hussain and 4 others 1981 SCMR 795; Muhammad Hayat and another v. The State 1996 SCMR 1411; Muhammad Pervez and others v. The State and others 2007 SCMR 670; Amin Ali and another v. The State 2011 SCMR 323; Nazir Ahmad v. Muhammad Iqbal and another 2011 SCMR 527 and Atta Ullah and 3 others v. The State 2016 YLR 2148 ref.

Syed Zeeshan Haider assisted by Zafar Iqbal Sheikh for Appellants.

Asghar Ali Gill, Deputy Prosecutor General for the State.

Muhammad Ashfaq Gujjar for the Complainant.

2021 P Cr. L J 205

[Lahore]

Before Mrs. Ayesha A. Malik, J

SADAF AZIZ and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petitions Nos. 13537 and 27421 of 2020, decided on 4th January, 2021.

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

----S. 164-A---Universal Declaration of Human Rights, 1984, Art.7---Convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishment, 1984, Art. 16---International Covenant on Economic, Social and Cultural Rights, 1966, Art. 12---Convention Against Elimination of All Forms of Discrimination Against Women, 1979---Victim of rape, examination of---Medical jurisprudence---Virginity test---Applicability---Medical protocol has taken a total shift from its original view and now as per accepted medical protocols, virginity test is no longer considered to be relevant in cases of rape or sexual abuse---Virginity test has no scientific or medical basis---International obligations cast a responsibility on Government of Pakistan to ensure that all necessary steps are taken to prevent discrimination and specifically to prevent carrying out virginity testing---Globally it is accepted that virginity testing does not establish offence of rape or sexual abuse nor past sexual conduct has any relevance in medico-legal examination, which aims to collect evidence on the charge of sexual violence.

24th Edition of Modi's Textbook; A global review; Reproductive Health written by Rose McKeon Olson and Claudia Garcia-Moreno; Strengthening the Medico-Legal Response to Sexual Violence; Eliminating Virginity Testing: An Interagency Statement and Statement on Virginity Testing rel.

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

----Art. 151(4) [as amended by Criminal Law (Amendment) (Offences Relating to Rape) Act (XLIV of 2016)]---Victim of rape---Past character of victim---Requirement---Adopting line of questioning on character of victim has effectively been prohibited under Criminal Law (Amendment) (Offences Relating to Rape) Act, 2016 by deleting Art. 151(4) of Qanun-e-Shahadat, 1984---Past history of victim with reference to her sexual intercourse or her being of easy virtue or habitual to sex is totally unnecessary---Fact regarding past history degrades concerned victim.

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

----S. 164-A---Sexual violence---Virginity test of victim---Object, purpose and scope---Virginity testing is highly invasive, having no scientific or medical requirement, yet carried out in the name of medical protocols in sexual violence cases---Such is humiliating practice which casts suspicion on victim as opposed to focusing on accused and incident of sexual violence---In effect such test amounts to gender based discrimination as it is neither a medical condition which requires treatment nor does it provide any clinical benefit to victim---Sole purpose of virginity test is to determine whether victim is habituated to sexual intercourse so as to corroborate her statement on the charge of rape and sexual abuse---Investigation into incident of sexual violence, whether victim was previously accustomed to sexual intercourse is hardly determinative question---Issue in sexual violence is whether accused committed rape on victim in time and circumstances complained of---If victim is found to not be a virgin, it cannot and does not suggest that she was not raped or sexually abused---Such test places victim on trial in place of accused and shifts focus on her virginity status---Sexual behavior of victim is totally irrelevant as even the most promiscuous victim does not deserve to be reaped nor should incident of sexual violence be decided on the basis of virginity test.

(d) Constitution of Pakistan---

----Arts. 9, 14 & 25---Fundamental rights of women---Victim of rape---Virginity test---Right to life, liberty, dignity and equal treatment---Applicability---Such rights ensure that life is to be lived with dignified existence protecting one from degradation and ensuring accessibility to a decent physical, social and cultural environment, it also protects a person from structured stigmatizing as a stereotype discrimination adversely impacts dignity of a person---Such rights ensure that right to receive healthcare of a high standard and to the highest attainable standard of physical and mental health---Virginity test by its very nature is invasive and an infringement on privacy of a woman, to her body and is blatant violation of dignity of a woman---Conclusions drawn from such tests about a woman's sexual history and character is a direct attack on her dignity and leads to adverse effects on social and cultural standing of a victim---Such test is also discriminatory as it is carried out primarily to ascertain whether or not the victim is sexually active for which there is no justification as being sexually active is irrelevant to incident of rape or sexual abuse---If at all there is any testing of status of hymen, it can only be for medical purposes with respect to injury or treatment, there is no justification for such information to be used for the purposes of determining whether or not incident of rape or sexual abuse took place.

Ahmad Abdullah and 62 others v. Government of the Punjab and 3 others PLD 2003 Lah. 752; Bashir Ahmad and another v. Maqsood Ahmad and another 2010 PCr.LJ 1824; Liaqat Ali Chughtai v. Federation of Pakistan through Secretary Railways and 6 others PLD 2013 Lah. 413; Hafiz Junaid Mahmood v. Government of Punjab and others PLD 2017 Lah. 1; Government of Sindh through Secretary Health Department and others v. Dr. Nadeem Rizvi and others 2020 SCMR 1 and Mst. Beena v. Raja Muhammad and others PLD 2020 SC 508 rel.

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

----S. 164-A---Qanun-e-Shahadat (10 of 1984) Art. 151(4) [as amended by Criminal Law (Amendment) (Offences Relating to Rape) Act (XLIV of 2016)]---Guidelines for the Examination of Female Survivors/ Victims of Sexual Abuse, 2020---Constitution of Pakistan, Arts. 9, 14 & 25---Women rights---Victim of rape---Virginity test, vires of---Two finger test---False accusation---Scope---Petitioners assailed jurisdiction of High Court in the interest and benefit of victims of sexual violence---Authorities relied upon Guidelines for the Examination of Female Survivors/Victims of Sexual Abuse, 2020, issued for conducting medical examination by Women Medical Officer---Validity---Tendency to levy false charges of rape and sexual abuse did not justify carrying out virginity testing as the purpose of medico-legal examination was to ascertain whether or not an act of sexual violence had taken place---Even if charge was false, a proper examination on the basis of science and forensic evidence would bring out the truth---Guidelines for Examination of Female Survivors/Victims of Sexual Abuse, 2020, did not categorically prohibit virginity testing, rather they attempted to camouflage the issue so as to continue such practice---High Court directed and declared that the authorities to revise Guidelines for the Examination of Female Survivors/Victims of Sexual Abuse, 2020, so that all required protocols and instructions as per international practice were included; that there was no clarity with reference to Guidelines for the Examination of Female Survivors/Victims of Sexual Abuse, 2020, which replaced 2015 Instructions and SOPs, for the purposes of carrying out medico-legal examination in female victims of rape or sexual abuse; that two finger test and hymen test carried out for purposes of ascertaining virginity of a female victim of rape or sexual abuse was unscientific having no medical basis, therefore, it had no forensic value in cases of sexual violence; that virginity test offended personal dignity of female victim, therefore, was against right to life and right to dignity enshrined in Arts. 9 & 14 of the Constitution; that virginity tests were discriminatory against female victim as they were carried out on the basis of their gender, therefore, offended Art. 25 of the Constitution; that Guidelines for the Examination of Female Survivors/Victims of Sexual Abuse, 2020, SOPs and 2015 Instructions were illegal to the extent of two finger test or hymen test for the purpose of ascertaining virginity of victims, as such tests were against the Constitution; that Federal and Provincial Governments to take necessary steps to ensure that virginity tests were not carried out in medico-legal examination of victims of rape and sexual abuse; that Provincial Government to devise appropriate medico-legal protocols and guidelines along with Standard Operating Procedures in line with international practice that recognized and managed sensitively care of victims of sexual violence and that the authorities to impart regular training and awareness programs so that all stakeholders must understand that virginity test had no clinical or forensic value---Constitutional petition was allowed accordingly.

Barrister Sameer Khosa, Maria Farooq and Salman Ijaz for Petitioners (in Writ Petition No. 13537 of 2020).

Sahar Zareen Bandial, Hammad Saeed and Eamaan Noor Bandial for Petitioners (in Writ Petition No. 27421 of 2020).

Ishtiaq Ahmad Khan, Additional Attorney General for Pakistan and Mrs. Ambreen Moeen, Deputy Attorney General for Pakistan along with Dr. Sajid Bari, Civil Surgeon and Mian Waqar Ahmad, Law Officer from National Commission for Human Rights, Muhammad Ali Khan Mazari, Deputy Director office of Secretary, Ministry Human Rights, Fahad Azhar, Ms. Shahida Sukhera, Law Officers of Respondent No.7, Ministry of Human Rights, Rana M. Shafique, Legal Advisor Respondent No.5, Punjab Forensic Science Agency and Dr. M. Tahir Jamil, Ministry of National Health Services, Regulations and Coordination for Respondents.

Muhammad Shan Gull, Additional Advocate General, Punjab, Ch. M. Jawad Yaqub, Additional Advocate General Punjab, Akhtar Javed, Additional Advocate General and Sardar Qasim Hassan Khan, Assistant Advocate General with Aslam Javed, Senior Law Officer, Hamid Shahzad, Law Officer, Ali Rashid, Law Officer, Hafiz Yousuf, Law Officer, Dr. Umar Ishaq, Deputy Secretary Specialized Healthcare and Medical Education, Department, Khurram Abbas Wahga, Primary and Secondary Healthcare Department, Ahmad Osama, Section Officer, Home Department, Abbas Ali, Law Officer, Secretary Special Healthcare Department, Kamran Razzaq, PMC (PMDC), Ms. Aasia Shafiq, Law Officer, WDD and Professor Dr. Arif Rasheed Malik, Chairman Department of Forensic Medicine KEMU, Lahore Surgeon Medico Legal Punjab, Lahore for Respondents.

2021 P Cr. L J 250

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh, J

Malik TARIQ HANIF AWAN---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal Revision No. 127 of 2010, decided on 10th July, 2020.

Criminal Procedure Code (V of 1898)---

----Ss. 498, 498-A, 435 & 439---Pre-arrest bail, grant of---Principles of adjudication on bail applications---No bail to be granted to a person not in custody, in Court or against whom no case was registered, etc.----Dismissal of application for bail for non-prosecution---Absence of accused from Court premises---Policy of law on adjudication of bail applications---Scope---Accused/applicant impugned order of court below whereby his application for pre-arrest bail was dismissed on ground of non-prosecution due to his absence from court despite fact that accused subsequently filed miscellaneous application explaining that he had been picked up by police on day of such hearing---Validity---Bail before arrest was an extraordinary relief which was granted in special circumstances to protect innocent persons from victimization though abuse of law for ulterior motives---Pre-arrest bail was not to be used as substitute or alternative for post-arrest bail and accused person must surrender before court and physically appear not only at time of first hearing but also on all subsequent hearings till bail application had been decided unless accused person's attendance was dispensed with---Where accused was absent for a genuine cause, then court must show indulgence---Policy of law was that bail should be decided within shortest possible time and frequent dismissals of bail application for non-prosecution was abuse of process of law and a dilatory tactic which could not be permitted---Once pre-arrest bail application was admitted, then same must be decided on merits in all eventualities---Impugned order could not be sustained as court below dismissed pre-arrest bail application of accused for non-prosecution instead of deciding same on merits; and did not wait for reply of State on accused's application alleging pickup by police---Impugned order was set aside and matter was remanded to court below to decide accused's application for pre-arrest bail on merits and in accordance with law---Revision was allowed, accordingly.

Jairam Das and others v. King Emperor ILR (1945) 26 Lah. 57: AIR (32) 1945 P.C. 94; Hidayat Ullah Khan v. The Crown PLD 1949 Lah. 21; The Crown v. Khushi Muhammad PLD 1953 FC 170; Sadiq Ali v. The State PLD 1966 SC 589; Muhammad Ayub v. Muhammad Yaqub and another PLD 1966 SC 1003; Maulana Fateh Muhammad v. The State PLD 1973 Lah. 874; Shabbir Ahmad v. The State PLD 1981 Lah. 599 Maulana Fateh Muhammad v. The State PLD 1973 Lah. 874; Abdul Hamid Khan Jatoi v. The State 1973 PCr.LJ 1032; Sahibzada Ahmad Raza Khan Qasuri and 4 others v. The State 1974 PCr.LJ 482; Subedar Abdul Rehman and another v. The State 1981 PCr.LJ 61; Umra Khan and another v. The State PLD 1980 Pesh. 145; Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82; Jahanzeb and another v. The State 1999 MLD 1222; Muhammad Shafi v. The State 1989 PCr.LJ 1746; Mst. Salima Bibi and others v. The State 2000 PCr.LJ 138; Abdul Rashid and 3 others v. The State 2006 YLR 2058; Muhammad Yaseen alias Yaseen and others v. The State 2010 YLR 2334; Tahir Hussain and another v. The State 1994 PCr.LJ 2490; Muhammad Khan and 4 others v. The State 2000 YLR 1334; Zargam Khan and 6 others v. The State 2007 YLR 1582; Muhammad Saleem Akhtar v. The State PLD 1966 SC 135 and Mukhtar Ahmad v. The State and others 2016 SCMR 2064 rel.

Muhammad Khalid Ashraf Khan for Petitioner.

Adnan Latif, Deputy Prosecutor General with Maqbool Ahmad A.S.I. for the State.

Shahzad Hassan Awan for Respondent No.2.

2021 P Cr. L J 293

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh, J

MUNIR AFTAB---Petitioner

Versus

The STATE and others---Respondents

Writ Petition No. 6076 of 2020, heard on 19th June, 2020.

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

----Ss. 167 & 344---Procedure when investigation cannot be completed in twenty-four hours---Remand, grant of---Principles to be followed by the Magistrates enumerated.

Following are the guidelines for exercise of powers by the Magistrates under sections 167 and 344, Cr.P.C.

(1) During first 15 days the Magistrate may authorize the detention of the accused in judicial custody liberally but shall not authorize the detention in the custody of the police except on strong and exceptional grounds and that too for the shortest possible period;

(2) The Magistrate shall record reasons for the grant of remand;

(3) The Magistrate shall forward a copy of his order passed under section 167, Cr.P.C., to the Sessions Judge concerned;

(4) After the expiry of 15 days the Magistrate shall require the police to submit complete or incomplete challan and, in case the challan is not submitted, he shall refuse further detention of the accused and release him on bail with or without surety;

(5) After the expiry of 15 days, no remand shall be granted unless the application is moved by the police for the grant of remand/adjournment;

(6) The application moved by the prosecution/police after the expiry of 15 days of the arrest of the accused shall be treated as an application for adjournment under section 344, Cr.P.C.;

(7) Before granting remand the Magistrate shall ensure that evidence sufficient to raise suspicion that the accused has committed the offence has been collected by the police and that further evidence will be obtained after the remand is granted;

(8) The Magistrate shall not grant remand/adjournment in the absence of the accused;

(9) The Magistrate should avoid giving remand/ adjournment at his residence.

(10) The Magistrate shall give opportunity to the accused to raise objection, if any, to the grant of adjournment/remand;

(11) The Magistrate shall record objection which may be raised by an accused person and shall give reasons for the rejection of the same;

(12) The Magistrate shall examine police file before deciding the question of remand;

(13) If no investigation was conducted after the previous remand, the Magistrate shall refuse to grant further remand/adjournment;

(14) The Magistrate shall not allow remand/adjournment after two months (which is a reasonable time) of the arrest of the accused unless it is unavoidable;

(15) In case complete challan is not submitted, the Magistrate shall commence trial on the strength of incomplete challan and examine the witnesses given in the list of witnesses;

(16) If the challan is not submitted within two months, the Magistrate shall report the matter to the Sessions Judge of the district and also bring the default of the police to the notice of Superintendent of Police of the district;

(17) The Magistrate shall not grant remand mechanically for the sake of co-operation with the prosecution/police;

(18) The Magistrate shall always give reasons for grant of remand and adjournment.

The State v. Nasir Javed Rana, Civil Judge Ist Class/Magistrate Section 30, Rawalpindi PLD 2005 SC 86; Ghulam Sarwar and another v. The State 1984 PCr.LJ 2588; Syed Mohsin Ali Shah v. The SHO, Police Station Garh Maharaja 1995 MLD 771 and Muhammad Jilani v. The State and another 2001 YLR 435 rel.

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

----Ss. 561-A & 167---First Information Report---Police was to investigate the FIR and collect evidence---Court had no authority to interfere in the proceedings by Police unless those were mala fide or without jurisdiction---High Court could not invoke S. 561-A, Cr.P.C., to issue directions to the Investigators.

Emperor v. Khawaja Nazir Ahmad AIR 1945 PC 18 ref.

(c) Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006)---

----S. 9(5)--- Conduct of prosecution--- Powers of prosecutor to scrutinize report submitted under S. 173, Cr.P.C.---Word "scrutinize", meaning and connotation of---Term "scrutinize" had a wide connotation and included the power to add or delete a section/offence of P.P.C.

Emperor v. Khawaja Nazir Ahmad AIR 1945 PC 18; Shahnaz Begum v. The Hon'ble Judges of the High Courts of Sindh and Balochistan and another PLD 1971 SC 677; Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31; Raja Muhammad Nadeem v. The State and another PLD 2020 SC 282; Rasoolan Bibi v. Additional Sessions Judge and others PLD 2009 Lah. 135 and Nadeem alias Deema v. District Public Prosecutor, Sialkot and 7 others 2012 PCr.LJ 1823 rel.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Criminal investigation---Prosecution of accused---Scope---High Court did not entertain Constitutional petitions challenging insertion or deletion of sections of P.P.C. or offence(s) by the Investigating Officer and could not allow requests for judicial review of the opinion/direction of the public prosecutor given to the police for such amendment, on the ground that error, if any, did not prejudice either party and could be rectified by Trial Court at time of framing of charge.

Nadeem Sarwar v. Station House Officer, Police Station Sadar, Hafizabad and 2 others 2000 YLR 756; Nadeem alias Deema v. District Public Prosecutor, Sialkot and 7 others 2012 PCr.LJ 1823 and Azizullah Khan v. SHO Police Station Sadar, Mianwali and 4 others 2013 PCr.LJ 1411 rel.

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

----Ss. 22, 22-A & 22-B---Justice of the Peace---Functions to be performed---Nature-Petitions under Ss. 22-A & 22-B seeking direction of Justice of Peace to Investigating Officer to add or delete an offence were not tenable as Justice of Peace under said sections had no jurisdiction to issue such directions.

Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lah. 470; Messrs Shamim Bibi v. Additional Sessions Judge, Lahore and another 2008 YLR 2017; Rasoolan Bibi v. Additional Sessions Judge and others PLD 2009 Lah. 135 and Muhammad Sharif v. District Police Officer and 2 others PLD 2015 Lah. 84 rel.

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

----Ss. 167, 173 & 344--- Procedure when investigation cannot be completed in twenty-four hours---Remand, grant of--- Adding / deleting of offence(s)---Report of Police Officer---Nature of powers of Magistrate under S. 167, Cr.P.C.----Scope----At time of remand, Magistrate could direct Investigating Officer to add, delete or substitute an offence mentioned in FIR if circumstances so warranted, however he / she could not ask the Station House Officer (SHO) to submit report under S. 173, Cr.P.C. in a particular manner, that is, against a person he/she desires, or in respect of such offence(s) he / she wished for.

Ch. Muhammad Anwar Samma and others v. The State 1976 SCMR 168; Allah Bachaya and 3 others v. The State 2001 PCr.LJ 1082; Haq Nawaz v. The State 2002 YLR 1234; Laeeq Ahmad v. The State 2006 YLR 664; Ashiq Hussain and another v. State and another PLJ 2016 Cr.C. (Lahore) 153; Muhammad Waqas v. The State 2002 SCMR 1370; Cantonment Board, Rawalpindi through Executive Officer and others v. Lt.-Col.(Retd.) Allah Dad Khan and another 2015 SCMR 832; Haji Farman Ullah v. Latif-ur-Rehman 2015 SCMR 1708; Shahzeb and others v. The State 2016 SCMR 1740; Syed Arshad Ali Shah Bukhari v. The State and others 2011 SCMR 1644; Rafiq Haji Usman v. Chairman, NAB and another 2015 SCMR 1575; Mirza Shaukat Baig and others v. Shahid Jamil and others PLD 2005 SC 530; Chhatrapal Singh v. State of U.P. 2003(2) A.A.R. 56A (HC); Sanaul Haque v. State of U.P. and another 2008 Cri.LJ 1998; Munni v. State of Haryana and another 2013 (8) R.C.R. (Criminal) 3011; Nadeem Sarwar v. Station House Officer, Police Station Sadar Hafizabad and 2 others 2000 YLR 756; Muhammad Jilani v. The State and another 2001 YLR 435; Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lah. 470; Abdul Sattar v. Amir Muhammad Khan and others PLD 2007 Lah. 444; Noor Jahan v. Judge, Anti-Terrorism Court, Bahawalpur and 8 others 2010 YLR 139; Faisal Ejaz v. State and 3 others PLJ 2012 Lah. 18 and Sajid Parvez v. The State and 4 others 2018 MLD 380 rel.

Ch. Ahsan Ali Gill for Petitioner.

Ahmad Nadeem, Assistant Advocate General for the State.

Malik Muhammad Ijaz Khokhar for Respondent No.4.

2021 P Cr. L J 360

[Lahore]

Before Sardar Ahmed Naeem and Farooq Haider, JJ

RAFAQAT ALI alias PHAKOO and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 1977 of 2016, Criminal Appeal No. 413 of 2017 and Murder Reference No. 489 of 2016, heard on 7th October, 2020.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay of about two hours and forty minutes in lodging the FIR---Effect---Accused was charged that he and co-accused committed murder of father of the complainant by firing---Record showed that occurrence allegedly took place at 01:20 a.m. (during night) on 24.05.2014 and statedly reported to the police through written application at 04:00 a.m. on 24.05.2014, moved by complainant in police station---Facts remained that police station was situated at a distance of six miles from the place of occurrence---Police rapt showed that police was having intimation about the occurrence since 1:40 on 24.05.2014 on the basis of information furnished by an informer and on such information SHO had reached at the place of occurrence---Said state of affairs reflected about registration of case after concoction, which was fatal for the case of prosecution.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of about more than seventeen hours in conducting post-mortem of the dead body---Effect---Accused was charged that he and co-accused committed murder of father of the complainant by firing---Post-mortem was conducted after more than seventeen hours---Said fact was clearly mentioned in post-mortem examination report; in such circumstances, it was clear that no delay was caused by the doctor in conducting post-mortem examination and as soon as police papers were handed over to him, he immediately conducted post-mortem examination---Said unexplained delay in conducting post-mortem examination over the dead body of the deceased clearly reflected that neither complainant nor any other cited eye-witness was available at the relevant time at place of occurrence--- High Court observed that assailants were not known, time was consumed by the prosecution for tailoring story for registration of the case, arraying the accused and planting/procuring witnesses after consultation and deliberation---Such situation further established the that case was not registered at the stated time rather at belated stage with much delay, however, ante-time was shown in the record--- Appeal against conviction was allowed, in circumstances.

Haroon Shafique v. The State and others 2018 SCMR 2118; Mian Sohail Ahmad and others v. The State and others 2019 SCMR 956; Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068; Sufyan Nawaz and another v. The State and others 2020 SCMR 192 and Muhammad Yasin and another v. The State through P.G. Punjab and others 2020 SCMR 1237 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Non-availability of justification for the presence of eyewitnesses at the place of occurrence---Chance witness---Scope---Accused was charged that he and co-accused committed murder of father of the complainant by firing---Ocular account of the occurrence had been furnished by two witnesses including complainant also---One firearm shot had been made and that too in the room of the deceased and his second wife at the odd hours of the night i.e. at 01:20 a.m., thus, question of presence of the complainant and other cited eye-witnesses at that time at said place of occurrence was of crucial/vital importance in the case---Presence of eye-witnesses in the room of deceased and his second wife, the place of occurrence, was an attempt to settle the dispute between the deceased and his second wife which had arisen due to illicit relations between second wife of deceased and the accused---Record showed that it had been found that prosecution had not produced any cogent evidence to prove the aforesaid illicit relations---So much so, complainant as well as eyewitness did not depose that they ever had seen accused and second wife of deceased in any such condition, which could be referred to say that they were having any illicit relations---Said witnesses even did not state that they had seen dispute, which took place due to that reason---Complainant simply claimed in his statement before the court that his father told him about alleged illicit relations of his second wife, however, on the one hand, no detail about the same was given by complainant and on the other, it was a hearsay evidence and even he did not mention in the application for registration of case that his father told him about the illicit relations---Witness had clearly stated that he never acted as instrument in the patch up of any quarrel between anybody---Presence of complainant along with other cited eye-witnesses in the room of his father and step mother at the odd hours of the night i.e. time of occurrence, could not be established---Complainant stated that he usually slept at 08/09:00 p.m., hence, presence of complainant in the room of occurrence at odd hours of night i.e. 01:20 a.m., was not in his routine---Complainant was chance witness with respect to his stated presence at the time and place (i.e. in the room) of occurrence and he could not establish any valid reason for his presence there at that time---Appeal against conviction was allowed, in circumstances.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Imtiaz alias Taj v. The State and others 2018 SCMR 344; Nazir Ahmad v. The State 2018 SCMR 787; Sufyan Nawaz and another v. The State and others 2020 SCMR 192 and Mst. Mir Zalai v. Ghazi Khan and others 2020 SCMR 319 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Ocular account---Ocular account was not supported by medical evidence---Scope---Accused was charged that he and co-accused committed murder of father of the complainant by firing---Since, no exact locale of entry wound i.e. on left or right ear was mentioned in the ocular account, therefore, medical evidence could not give any confirmation to the ocular version---Appeal against conviction was allowed, in circumstances.

(e) Criminal trial---

----Medical evidence---Scope---Medical evidence was mere supportive type of evidence, which could tell about locale, nature, magnitude of injury and kind of weapon used for causing injury but it could not tell about identity of the assailant who caused the injury which was of no help to the prosecution in peculiar facts and circumstances of the case.

Sajjan Solangi v. The State 2019 SCMR 872 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon and crime empty---Scope---Accused was charged that he and co-accused committed murder of father of the complainant by firing---Record showed that a pistol was recovered but the same was inconsequential for the reason that as per report of Forensic Science Agency, one empty, which was statedly secured from the place of occurrence, did not match with the pistol allegedly recovered from the accused, thus, the said recovery was of no help to the case of prosecution---Appeal against conviction was allowed, in circumstances.

(g) Criminal trial---

----Motive---Scope---If substantive piece of evidence in the form of ocular account had been disbelieved then motive was of no help to the case of prosecution as the same lost its significance.

Muhammad Ahsan Bhoon and Nighat Saeed Mughal for Appellants.

Ms. Nuzhat Bashir, Deputy Prosecutor General for the State.

Syed Mubashar Ali Naqvi for the Complainant.

2021 P Cr. L J 378

[Lahore]

Before Sardar Muhammad Sarfraz Dogar and Asjad Javaid Ghural, JJ

MUHAMMAD SARWAR---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU and others---Respondents

Writ Petition No. 67392 of 2019, decided on 21st January, 2021.

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

----Ss. 9(a)(vi) & 9(b)-- Constitution of Pakistan, Art. 199--- Constitutional petition---Pre-arrest bail, refusal of---Mala fide, proof of---Departmental inquiry---Petitioner was senior auditor in the office of Accountant General and was alleged to have been involved in embezzlement of funds---Validity---During departmental fact-finding inquiry, petitioner along with his co-accused of Accountant General Office during years 2015-2017, was found responsible for certifying 838 bills in contravention with their legal responsibilities and duties and he was dismissed from service---During investigation it was found that in the relevant period petitioner made huge transaction of Rs.11,000,000/- in his salary account which he could not justify---Petitioner admitted withdrawal of Rs.100,000/- by his son via cheque from account of a co-accused as his share of scam on the asking of petitioner---Nothing was available on record to show that implication of petitioner in case was actuated with any mala fide intention or ulterior motives---Petitioner was required by investigating agency for the purpose of further investigation---Sufficient incriminating material is available on record to connect petitioner with alleged offence---Pre-arrest bail was dismissed in circumstances.

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

----Ss. 9(a)(vi) & 9(b)--- Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Pecuniary advantage, absence of---Petitioner was arrested by NAB in case of embezzlement of funds in government office---Plea raised by petitioner was that one of his close relative who was co-accused, got registered company in his name using his identity card against amount which he had given to thatco-accused for investment purposes---Petitioner further contended that he opened Bank account and had authorized the co-accused to operate the same and did not know about activities of the co-accused with regard to the company and Bank account which was opened in his name--- Validity---Company and bank account of petitioner were being operated by co-accused---Petitioner was arrested on 4-10-2019 and during his physical remand of 68 days no incriminating material could be recovered from him---Nothing was available on record to show that petitioner had got any pecuniary benefit for the alleged scam---Petitioner had been behind the bars since his arrest and his physical custody was not required to police any more for further investigation---Bail was allowed in circumstances.

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

----Ss. 9(a)(vi) & 9(b)--- Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Medical ground--- Petitioner was arrested by NAB for causing embezzlement of funds in government office where he was working as cashier---Plea raised by petitioner was that he was suffering from CVA with left hemiparesis---Validity---Jail authorities reported that petitioner was a known patient of hypertension, diabetes mellitus and CVA with left hemiparesis i.e. weakness of left upper and lower limbs---C.T. Scan revealed right basalganglionic pathology---Petitioner was being provided necessary treatment for the past 8 months but he was suffering from paralysis and was bed-ridden who was unable to move, urinate, defecate or even change his clothes---Health condition of petitioner was not only deteriorated but also miserable---Petitioner was arrested on 12-11-2019, process of investigation was complete and his physical custody was not required for further investigation---Bail was allowed in circumstances.

Qazi Misbah-ul-Hassan for Petitioner along with Petitioner in person.

Muhammad Asad Manzoor Butt for Petitioner (in Writ Petition No. 15208 of 2020).

Muhammad Zahid Mughal for Petitioner (in Writ Petition No. 13681 of 2020).

Syed Qamar Ali Rizvi for Petitioner (in Writ Petition No. 21709 of 2020).

2021 P Cr. L J 403

[Lahore (Rawalpindi Bench)]

Before Ch. Abdul Aziz, J

SHAZIA PARVEEN SALEEM---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 1432-B of 2020, decided on 7th August, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Cheating, forgery for the purpose of cheating, using as genuine a forged document---Bail, grant of---Prosecution case was that the accused-petitioner, a female, got prepared a forged guardianship certificate and on the basis thereof entered into an agreement to sell a house---Admittedly, the husband (late) of the accused-petitioner was owner of the said house, who died in September, 2018---Accused-petitioner was having two daughters and two sons, the youngest out of them was about 16 years old---Accused-petitioner entered into an agreement to sell for the said house and got prepared guardianship certificate in respect of said son---Admittedly the house in question belonged to the legal heirs of deceased and all of them were on same page having no inheritance dispute--- Allegedly, accused-petitioner obtained guardianship certificate after hiring the services of legal practitioner but though the needful was done but by providing a forged document---Said stance of accused-petitioner remained un-probed during investigation---Sections 420 & 471, P.P.C., applied in the FIR were bailable, whereas the offence under S. 468, P.P.C., though was non-bailable but entailed maximum imprisonment up to seven years---Grant of bail in offences punishable with imprisonment of less than 10-years was rule and refusal was an exception---Bail was to be granted as a rule in offences having imprisonment of less than 10-years---Bail, in appropriated cases, could be withheld provided there existed some recognized exceptional circumstances, which must be mentioned in the order---Courts below ignored the first proviso of S. 497, Cr.P.C., whereby bail was to be granted benevolently to a female accused--- Accused-petitioner was admitted to bail, in circumstances.

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

Imran Khan Abbasi for Petitioner.

2021 P Cr. L J 427

[Lahore (Multan Bench)]

Before Ch. Mushtaq Ahmad and Sadiq Mahmud Khurram, JJ

JAMAL KHAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 529 of 2018, heard on 14th October, 2019.

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

----Ss. 9(c) & 29--- Possession of narcotics--- Presumption---Appreciation of evidence---Prompt FIR---Corroborative evidence---Safe custody---Scope---Accused was alleged to have been in possession of 7000 grams of charas when he was apprehended by police---Prosecution witnesses had corroborated each other on all material points, including date, time and place of occurrence, the quantity of recovered narcotics and the manner in which recovery was effected---First Information Report was got lodged within a short span of ten minutes and the complainant had not only named the accused but had also mentioned each and every minor as well as material facts of the incident therein, which excluded the possibility of deliberation or consultation regarding false implication of the accused in the case---Nothing was available on record which could establish that the witnesses had deposed against the accused and implicated him in the case due to previous enmity, grudge, malice or to fulfil some ulterior motive---Prosecution had successfully proved the safe custody and deposit of the case property from the place of occurrence to the police station and from the police station to the office of Forensic Science Laboratory---Once the prosecution was able to bring on record evidence to discharge the initial onus of proof then the burden shifted upon the accused to prove otherwise, which he failed to do in the present case---Prosecution had successfully proved its case against the accused beyond any shadow of reasonable doubt---Appeal against conviction was dismissed.

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

----S. 25---Criminal Procedure Code (V of 1898), S. 103---Mode of making searches and arrest---Search to be made in presence of witnesses---Scope---Section 25 of Control of Narcotic Substances Act, 1997 excludes the applicability of S. 103, Cr.P.C., therefore, association of witnesses from the public is not mandatory in narcotic cases.

Aala Muhammad and another v. The State 2008 SCMR 649 and Muhammad Hanif v. The State 2003 SCMR 1237 ref.

(c) Criminal trial---

----Evidence---Police witness---Scope---Testimony of police officials is as good as evidence of any other witness unless the accused is 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 ref.

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

----Rr. 4 & 5---Dispatch of sample for test or analysis---Receipt in the laboratory and examination of sample with reference to Test Memorandum---Directory provision---Scope---Rules 4 & 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001 are directory and not mandatory in nature---Mere fact that samples were sent beyond the prescribed period of 72 hours would not be fatal unless the accused shows that the samples were tampered or he was otherwise prejudiced by the delay.

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

----R. 5---Receipt in the laboratory and examination of sample with reference to Test Memorandum---Substantial compliance---Scope---Rule 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001 provides a process for proper examination of the sample in the Narcotics Testing Laboratory and it reflects the best practice to be adopted while dealing with examination of the sample, hence substantial compliance of said rule is sufficient as its non-compliance does not offend or upset the statutory regime of the Control of Narcotic Substances Act, 1997.

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.

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

----R. 6---Report of result of test or analysis---Scope---Accused was alleged to have been in possession of 7000 grams of charas when he was apprehended by police---Accused contended that report of Forensic Science Laboratory could not be read into evidence as the same was not clear with respect to the test conducted to identify and analyze the recovered narcotic and that it was necessary for the Analyst to have appended the results of each and every test conducted by them in order to establish the identity of the narcotic---Perusal of the report of Forensic Science Laboratory revealed that it had mentioned the test which was performed on the received items of evidence and the results and the conclusions---Report revealed that received items were found to contain charas---High Court held that report of Forensic Science Laboratory was in line with the settled principles---Appeal was dismissed.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 rel.

Shahid Khan Sherwani for Appellant.

Ch. Muhammad Akbar, Deputy Prosecutor General for the State.

2021 P Cr. L J 449

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh, J

MAZHAR HUSSAIN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 531 of 2017, heard on 19th December, 2019.

(a) Criminal trial---

----Res judicata, principle of---Applicability in criminal cases---Scope---Principle of res judicata, which was generally understood with reference to civil law, had also been extended to criminal proceedings---When ordinary appellate remedies had been exhausted, or the prescribed time for filing any appeal had expired, a conviction or acquittal was to be regarded as irrevocable, as a result, a person's acquittal could not be subsequently challenged in other proceedings by adducing evidence that he was in fact guilty of the offence of which he was acquitted.

Sambasivam v. Public Prosecutor, Federation of Malaya (1950) AC 458; G v. Coltart, (1967) 1 QB 432; R v. Hay (1983) 77 Cr.App R 70; DPP v. Humphrys (1977) AC 1; U.S. v. Butler 38 Fed.498 (E.D. Mich. 1889 and U.S. v. Oppenheimer 242 U.S. 85 (1916) rel.

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

----S. 403---Constitution of Pakistan, Art. 13---Double punishment---Rule of double jeopardy---Scope---Second trial---Prohibition---Scope---Analysis of S. 403, Cr.P.C.---Conditions to be fulfilled when second trial barred, enumerated.

Analysis of section 403, Cr.P.C. evinces that second trial would be barred when the following conditions are fulfilled:-

(i) the accused must have been previously tried by a Court of competent jurisdiction;

(ii) there must have been a hearing and determination on merits and he must have been convicted or acquitted;

(iii) the conviction or acquittal recorded in the previous trial remains in field;

(iv) the parties in the two trials must be the same;

(v) the fact-in-issue in the earlier trial must be identical with what is sought to be re-agitated in the subsequent trial.

(vi) the second trial is not in respect of any distinct offence for which a separate charge might have been framed in the previous trial under section 235(1), Cr.P.C.; and

(vii) the dismissal of a complaint, the stopping of proceedings under section 249, Cr.P.C. or the discharge of the accused does not constitute acquittal and does not bar second trial.

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

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), Ss. 200 & 345---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Private complaint---Compounding of offence---Procedure---Prosecution case was that the accused and unknown co-accused simultaneously fired at deceased/Policeman---Motive behind the occurrence was a property dispute---Complainant in his private complaint, filed application under S. 248, Cr.P.C., stating that a compromise between the parties had been effected owing to which he wanted to withdraw his private complaint and had no objection if the accused were acquitted---Complainant was allowed to withdraw the complaint and the Court acquitted the accused and his co-accused---Validity---Section 248, Cr.P.C. titled as "Trial of summons cases by Magistrates" did not apply to trials by the Court of Session which were conducted under Chapter XXII-A, Cr.P.C.---Order of the Trial Court was patently illegal and without jurisdiction---Criminal case could only be compounded in the manner provided in S. 345, Cr.P.C.---Offence under Ss. 302/34, P.P.C., could be compounded by the legal heirs of the deceased with the permission of the court before which the prosecution was pending---Withdrawal of private complaint was a unilateral act while composition of offence required participation of the other party---Court could not grant the permission envisaged in S. 345, Cr.P.C., in a vacuum and it had to satisfy itself about the genuineness of the compromise and the legal capacity of those who were making it---Unilateral statement of the complainant that he promised with the accused was not sufficient---In the present case, impugned order proceeded on the solitary statement of complainant---No evidence of valid compromise between the legal heirs of deceased and the accused was available---Admittedly, private complaint was still at the initial stage when the complainant withdrew it---Although charge was framed but the statement of not a single witness was recorded and unless the accused had been acquitted after regular trial the second prosecution was not barred.

Nazar Ahmad v. Muhammad Aslam and 2 others 1988 PCr.LJ 1787 = PLJ 1989 Cr.C (Lah.) 226; Arshad Ali v. Liaqat Dhudhi and 5 others 2008 MLD 816 = 2007 YLR 1503; Ahmed Din v. A.S.J. and others 2011 YLR 428; Muhammad Ishaq v. The State 1992 PCr.LJ 1273; Azmat Bibi and another v. Mst. Asfa Riaz and 3 others 2002 YLR 401; Ch. Zulfiqar Ali v. Chairman, NAB and others PLD 2003 Lah. 593 and Muhammad Akhtar and 4 others v. The State and 2 others 2008 PCr.LJ 858 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of about one hour and forty minutes in lodging the FIR---Effect---Record showed that the incident in which deceased was killed took place during the night at 11:30 p.m.---First Information Report was registered on the complaint of complainant (since dead) the same night at 1:10 a.m.---Since the police station was just two furlongs from the place of occurrence, it was by no means prompt---Circumstances established that the prosecution had failed to prove the charge against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Mst. Asia Bibi v. The State and others PLD 2019 SC 64 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused and co-accused committed murder of the deceased by firing---Motive behind the occurrence was a property dispute---Record showed that the prosecution did not produce any evidence to prove the alleged motive except a bald statement of a witness---Prosecution could have examined the original owner of the property and adduced the relevant sale deed/mutation if the transaction was documented but it did not do so---An adverse presumption could be drawn against prosecution under Art. 129(g) of Qanun-e-Shahadat, 1984, in circumstances, that the prosecution had failed to prove the motive---No direct motive was attributed to the accused---Prosecution had failed to prove the charge against the accused beyond reasonable doubt, in circumstances--- Appeal against conviction was allowed, in circumstances.

Lal Khan v. The State 2006 SCMR 1846; Riaz Ahmed v. The State 2010 SCMR 846; Khalid @ Khalidi and 2 others v. The State 2012 SCMR 327 and Pathan v. The State 2015 SCMR 315 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Chance witnesses having no justification for presence at the place of occurrence---Effect---Prosecution case was that the accused and co-accused committed murder of the deceased by firing---Motive behind the occurrence was a property dispute---Record showed that the complainant passed away before the commencement of trial---Prosecution, therefore, produced cousins and brother-in-law of the complainant respectively and deposed in line with the complaint and FIR, however, there were a number of factors which impinged on their credibility and made their presence at the crime scene at the relevant time extremely doubtful---Claim of witnesses that on the night of occurrence they had gone to house of deceased to attend a Panchayat convened for resolution of the dispute was doubtful---Both the witnesses worked at petrol stations and admitted that they had long working hours which often extended till late in the night, they were, thus, chance witnesses---Statements of the said witnesses under S. 161, Cr.P.C., were recorded with unexplained delay---Prosecution had not produced any person from house of deceased who was a natural witness, thus, best evidence was withheld and adverse inference could be drawn against the prosecution on that score---Scaled site plan and medical evidence contradicted with regard to the distance from which the accused and his co-accused fired at deceased---Site plan showed that the distance was 25 feet while the post-mortem report showed blackening and tattooing on most of the injuries---Said injuries were not possible from that distance---Witnesses had deposed that they rushed deceased in injured condition to the hospital in a car and during that activity their clothes were stained with blood and some of it also dropped on the car's carpet---Prosecution neither produced the soiled clothes of the witnesses before the Investigating Officer nor showed the carpet to him and even at the trial the same were not exhibited---Post-mortem of the deceased was conducted about twelve hours after the incident---No explanation for the said delay was furnished---Circumstances established that the prosecution had failed to prove the charge against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Asif v. The State 2017 SCMR 486; Mir Muhammad v. The State 1995 SCMR 610; Amin Ali and another v. The State 2011 SCMR 323; Irshad Ahmad v. The State 2011 SCMR 1190; Muhammad Ilyas v. Muhammad Abid alias Billa and others 2017 SCMR 54 and Abdul Jabbar alias Jabbari v. The State 2017 SCMR 1155 rel.

(g) Criminal trial---

----Medical evidence---Scope---Medical evidence was at the most confirmatory and could not be a substitute for the ocular account---Medical evidence could only furnish details about the seat of injuries, their duration and the weapon used in the commission of offence but could not identify the culprit(s).

Muhammad Mansha v. The State 2018 SCMR 772 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon and crime empties---Reliance---Scope---Prosecution case was that the accused and his co-accused committed murder of the deceased by firing---Record showed that on 16.5.2004 four crime empties were recovered from the place of occurrence---Official witness testified that on 28.7.2015 the accused while in police custody made disclosure and led to the recovery of pistol which he took into possession and later sent to the Forensic Science Agency for comparison with the empties---Report of the Forensic Science Agency was negative as they did not match owing to difference in individual characteristics---Alleged recovery of pistol was effected eleven years after the incident and it was hard to believe that it could remain in safe custody for such a long time, hence, said piece of evidence was liable to be discarded---Circumstances established that the prosecution had failed to prove the charge against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Tariq Nadeem assisted by Ch. Ahsan Ali Gill for Appellant.

Muhammad Sarfraz Khan Khichi, Deputy Prosecutor General for the State.

Nemo for the Complainant.

2021 P Cr. L J 479

[Lahore]

Before Aalia Neelum, J

MUHAMMAD ASIF and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 610 of 2017, heard on 10th February, 2020.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Delay of about twenty hours in lodging the FIR---Effect---Prosecution case was that the son of complainant was coming from his field after getting the fodder for his buffalos, when the accused while armed with deadly weapons assaulted and gave fist, kick and iron rod blows to the son of the complainant, who succumbed to the injuries---First Information Report was got registered on written complaint---Facts remained that the distance between the police station and the place of occurrence was 1/2 kilometre, whereas the complainant took twenty hours for reporting the incident at Police Station---First Information Report was lodged by the complainant after considerable delay of twenty hours without explaining the said delay---Delay in lodging the FIR resulted in embellishment, which was a creation of afterthought---Circumstances established that the prosecution had badly failed to bring home charge against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Contradictions in the statements of witnesses---Scope---Prosecution case was that the son of complainant was coming from his field after getting fodder for his buffalos, when the accused while armed with deadly weapons, assaulted and gave fist, kick and iron rod blows to him, who succumbed to the injuries---Medical Officer who conducted post mortem examination of the deceased, mentioned in the post mortem examination report that, death occurred at 11:45 a.m., however, the death certificate was not brought on the record by the prosecution---In the post mortem examination report, it was also mentioned that dead body was received in the dead house at 4:00 p.m.---Police documents were received at 08:00 p.m. and thereafter post mortem examination upon the dead body was conducted at 08:30 p.m.---Said Medical Officer deposed that dead boy received in dead house at 4.00 p.m.---Documents from police were received at 8.00 p.m. and post-mortem was conducted at 8.30 p.m.---Investigating Officer deposed that dead body of deceased was handed over to Police Constable at about 4.30 p.m. for post-mortem---Said Police Constable deposed that dead body was handed over to him at about 4.00/5.00 p.m. on the said date---Such aspects of the case created serious dents on the prosecution version going to its roots---In Column No.1 of inquest report it was recorded that the dead body of deceased was lying at road---Inquest report, sketch-plan and the drawing of the place prepared by the Investigating Officer showed that the dead-body was lying along in front of a mosque and not at hospital---Said aspect of the matter was sufficient to cast doubt about the genuineness of the prosecution story---Circumstances established that the prosecution had failed to bring home charge against the accused beyond any reasonable doubt--- Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Chance witnesses---Non-availability of justification for presence of witness at the place of occurrence---Scope---Prosecution case was that the son of complainant was coming from his field after getting fodder for his buffalos, when the accused while armed with deadly weapons, assaulted and gave fist, kick and iron rod blow to him who succumbed to the injuries---Ocular account of the incident had been furnished by two witnesses---Eye-witness deposed that he was standing at place of occurrence at the time of occurrence---Witness stated that he was coming from his field but regarding coming from field and reason for standing there had not been deposed to the police---Said witness had not shown to the police his agriculture land wherefrom he was coming---Witness did not give any proof of his ownership of any agriculture land---Similarly, the other eye-witness, who was uncle of the deceased, had deposed that the distance between the place of occurrence and his house was about two/three acres---Said witness was allegedly cultivator but never provided any proof to the police regarding his ownership of any agriculture land---Deposition of said witnesses revealed that they were chance witnesses---Circumstances established that the prosecution had failed to bring home charge against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances

Muhammad Akram v. The State 2009 SCMR 230 rel.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Motive was not proved---Effect---Prosecution case was that the son of complainant was coming from his field after getting fodder for his buffalos, where the accused while armed with deadly weapons assaulted and gave fist, kick and iron rod blows to him, who succumbed to the injuries---Record showed that the motive established by the prosecution was not proved which as alleged could not be considered against the accused---Appeal against conviction was allowed, in circumstances.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 rel.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recovery of crime weapons at the instance of accused---Scope---Prosecution case was that the son of complainant was coming from his field after getting fodder for his buffalos, when the accused while armed with deadly weapons assaulted and gave fist, kick and iron rod blows to him, who succumbed to the injuries---Record showed that a hatchet at the instance of the accused and an iron-rod at the instance of co-accused---Said recoveries had been made from the courtyard of their Haveli---Investigating Officer admitted during cross-examination that the place of recovery was an open place without gate and hatchet and iron-rod being of common pattern were available in the market easily---Even otherwise, it did not appeal to reason that the accused would keep hatchet and iron-rod with them intact in order to produce them before the Investigating Officer on their arrest---Recoveries of the hatchet and iron-rod became doubtful, in circumstances---Appeal against conviction was allowed.

(f) Criminal trial---

----Benefit of doubt--- Principle--- Single circumstance creating reasonable doubts in a prudent mind about the guilt of the accused persons would make them entitled to its benefit, not as a matter of grace and concession but as a matter of right. [p. 488] J

Naseem Ullah Khan Niazi for Appellants.

Ms. Noshe Malik, Deputy Prosecutor General for the State.

Nemo for the Complainant.

2021 P Cr. L J 504

[Lahore]

Before Muhammad Qasim Khan and Asjad Javaid Ghural, JJ

TAHIR ABBAS---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal Revision No. 72656 of 2019, decided on 21st January, 2020.

Criminal Procedure Code (V of 1898)---

----Ss. 161 & 162---Examination of witnesses by police---Statement to police not to be signed---Use of such statement in evidence---Exhibition of supplementary statement in evidence---Scope---Petitioner assailed order passed by Trial Court whereby supplementary statement of complainant was allowed to be exhibited during his examination-in-chief---Validity---Station House Officer was bound to reduce into writing information regarding any cognizable offence rendered by the informer and there was no legal impediment for its exhibition during the trial---Once the crime report was lodged, any information gathered by the complainant at subsequent stage and placed before the Investigating Officer was treated as his statement under S. 161, Cr.P.C. which could be used by the defence for the purpose of contradiction as provided under S. 162, Cr.P.C.---Complainant was always at liberty to make statement before trial court regarding contents of such statement/application as well as his other statements recorded under S. 161, Cr.P.C. but there was no provision in the criminal law for independent exhibition of such statement---Trial Court had committed material illegality while passing the impugned order, which was set aside and the revision petition was allowed.

Naseer Haider and another v. The State and 2 others 2008 YLR 1092; Muhammad Safdar and others v. The State and others 2016 PCr.LJ 220 and Yasir Imran alias Yasir Arafat v. Muhammad Ashraf and others 2014 MLD 337 ref.

Navid Inayat Malik for Petitioner.

Muhammad Siddique Zafar Qadri for Respondent No. 2.

2021 P Cr. L J 517

[Lahore (Multan Bench)]

Before Malik Shahzad Ahmad Khan and Sadiq Mahmud Khurram, JJ

MUHAMMAD SAJJAD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 690 of 2019, heard on 16th January, 2020.

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

----Ss. 9(c) & 36---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6---Possession of narcotics---Report of Government Analyst---Report of result of test or analysis---Appreciation of evidence---Benefit of doubt---Non-mentioning of full protocols---Effect---Accused was alleged to have been found in possession of two packets of charas---Report of Forensic Laboratory did not give the details of the full protocols and the tests applied at the time of analysis of sample---Report of Forensic Laboratory failed to describe in it the details of the full protocols and the stest applied was inconclusive, unreliable, suspicious and untrustworthy and did not meet the evidentiary presumption attached to a report of the Government Analyst under S. 36(2) of Control of Narcotic Substances Act, 1997---Appeal against conviction was allowed, in circumstances.

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---"Protocol"---Meaning---Term "protocol" having not been defined in the Rules, its dictionary meaning was "A plan of scientific experiment or other procedure---"Protocol" was also referred to as the precise method for carrying out or reproducing given experiment---"Protocol" therefore was a recognized standard method of plan for carrying out the test applied to ascertain the nature of the substance under examination--- No test could take place without a protocol.

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

----S. 36---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6---Criminal Procedure Code (V of 1898), S. 510---Report of Government Analyst---Report of result of test or analysis---Examination of Government Analyst---Scope---Protocol is a recognized standard, method or plan for carrying out the test applied in ascertain the nature of the substances under examination---No test can take place without a protocol---Government Analyst must show that the test applied was in accordance with a recognized standard protocol---Any test conducted without a protocol loses its reliability and evidentiary value---Report of Government Analyst must contain, (i) the test applied; (ii) the protocols applied to carry out these tests and (iii) the result of the test(s)---Once the above three requirements of R. 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001, are contained in the report of the Government Analyst, any ambiguity therein may be resolved by the Trial Court by exercising its power under proviso to S. 510, Cr.P.C. which provision states that the court may, if it considers necessary in the interest of justice, summon and examine the person by whom such report has been made---Trial Court while examining the said report has the power to summon the Government Analyst in case there is any ambiguity in the report and seek clarification thereof---Such clarification can only be based on the existing record of the Government Analyst and does not mean to allow the Government Analyst to conduct a fresh test or prepare another report, for that would amount to giving the prosecution a chance of filling the gaps and omissions in the report---Trial Court must alos be midful of the legal position that the per se admissibility of the report i.e. without examining the Analyst (expert) does not vouch for its evidentiary value.

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

----S. 29---Presumption from possession of illicit articles---Initial burden of proof---Scope---Manner and standard of proof in cases registered under the Control of Narcotic Substances Act, 1997, is slightly different but the prosecution is always bound to discharge the initial onus of proof.

Ikramullah and others v. The State 2015 SCMR 1002; Akhtar Iqbal v. The State 2015 SCMR 291 and Muhammad Hussain v. The State 2008 SCMR 345 ref.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

(e) Criminal trial---

----Benefit of doubt---Scope---Burden to prove the guilt of the accused always lies on the prosecution---Even the slightest doubt results in failure of the case of the prosecution---Benefit of doubt is not to be granted as a concession but as of right.

(f) Criminal trial---

----Sentence---Harder the sentence is, stricter the standard of proof should be.

Muhammad Hashim v. The State PLD 2004 SC 856 ref.

Ameer Zeb v. The State PLD 2012 SC 380 rel.

(g) Criminal trial---

----Benefit of doubt---Scope---Single circumstance creating reasonable doubt is sufficient to cast doubt about the veracity of prosecution case and the benefit of said doubt has to be extended in favour of the accused not as a matter of grace or concession but as a matter of right.

Malik Muhammad Saleem for Appellant.

Ch. Muhammad Akbar, Additional Prosecutor General for the State.

2021 P Cr. L J 537

[Lahore (Bahawalpur Bench)]

Before Tariq Saleem Sheikh, J

MUHAMMAD SHAHID---Petitioner

Versus

AQEEL and 5 others---Respondents

Criminal Revision No. 01/2020/BWP, decided on 25th March, 2020.

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

----Art. 133(3)---Re-examination of witness---Scope­--Petitioner assailed order passed by Trial Court whereby his application for re-examination of medical officer was dismissed---Medical officer had suggested in his examination-in-chief that the duration of all the injuries at the time of death of deceased was six hours but during cross-examination he deposed that the duration of perianal injuries might be three to four hours---Time difference raised many a questions which needed an answer---Petitioner's case would be prejudiced if medical officer was not re-examined and his explanation on the issue was not sought---Petition was allowed, in circumstances.

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

----Ss. 265-A & 493--- Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006), S. 9---Trial before Court of Session to be conducted by Public Prosecutor---Public Prosecutor may plead in all Courts in cases under his charge---Conduct of Prosecution---Scope--­Petitioner assailed order passed by Trial Court whereby his application under Art. 133(3) of Qanun-c-Shahadat, 1984 was dismissed---Contention of respondents was that the public prosecutor was in-charge of the prosecution's case, as such, the petitioner had no locus standi to file such application---Validity---Section 265-A, Cr.P.C., ordained that the public prosecutor would conduct every trial before a court of Sessions initiated upon a police report---Section 9 of Punjab Criminal Prosecution Services (Constitution, Functions and Powers) Act, 2006, stipulated that the prosecutors appointed thereunder would be responsible for the conduct of prosecution on behalf of the Government---Words "police report" and "Government" were significant as they made a trenchant distinction between State cases and those initiated on private complaints--- Public prosecutor was in-charge of only the first category---Respondents contended that the above interpretation was consistent with S. 493, Cr.P.C., which made the Public Prosecutor in-charge of all cases and declared that privately instructed counsel would be subordinate to him---Words 'any case of which he has charge' clearly showed that S. 493, Cr.P.C., spoke of certain specific cases and not all of them---Case of petitioner was initiated on a private complaint, therefore, contention of respondents was repelled.

State through National Bank of Pakistan v. Mumtaz Ahmad and others 1984 SCMR 594 and Zarif Khan v. The State 1987 PCr.LJ 1131 distinguished.

Muhammad Shafi v. The State and 9 others PLD 1981 Kar. 221 ref.

Muhammad Sharif and others v. Rahmat Ali and others 1980 PCr.LJ 438 and State of Punjab v. Surjit Singh and another AIR 1967 SC 1214 rel.

(c) Criminal trial---

----Purpose---Scope---Purpose of criminal trial is to ensure that a person accused of an offence receives a fair and impartial evaluation of the situation in order to determine whether he is guilty or not.

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

----Art. 133---Order of examination of witness---Object---Absolute right to re-examine a witness---Scope---Object of examination-in-chief is to elicit from the witness all the facts or such of them as he can testify in order to prove the case of the party calling him---Cross-examination, in contrast, tests his credibility by detecting and exposing discrepancies and educing suppressed facts---Cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief-Right of re-examination arises only after the witness has been cross-examined and as per clause (3) of Art. 133 of Qanun-e-Shahadat, 1984, its purpose is to clear an ambiguity or clarify or explain a matter which has cropped up during cross-examination---Use of word "shall" in Art. 133(3), Qanun-e-Shahadat, 1984 shows that the party who has produced the witness has the absolute right to re-examine him where explanation of an issue is required---Where something new is desired to be introduced, the counsel should seek leave of the court and in such eventuality the adverse party may further cross-examine that matter.

The Halsbury's Laws of England (Fourth Edition, Volume No.17, page 195, para 280; Mst. Sami and 8 others v. Mst. Firdos Begum and 15 others 2002 CLC 1989; Rammi alias Rameshwar v. State of Madhya Pradesh AIR 1999 SC 3544; Sarkar's Law of Evidence (18th Edition, p.2809) and Pannayar v. State of Tamil Nadu AIR 2010 SC 85 rel.

Malik Muhammad Aslam for Petitioner.

Malik Muhammad Latif, Deputy Prosecutor General for the State.

2021 P Cr. L J 553

[Lahore]

Before Manzoor Ahmad Malik, J

MUHAMMAD RAFIQUE---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 387-J of 2010, heard on 28th January, 2015.

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

----S. 302(b)---Qatl-i-amd---Prosecution case based on circumstantial evidence---Where there was no direct evidence and prosecution case hinged on the circumstantial evidence, utmost care and caution was required for reaching at a just decision of the case---In such like cases every circumstance should be linked with each other and it should form such a continuous chain that its one end touched the dead-body and other neck of the accused---However, if such chain link was missing then its benefit must go to the accused.

Asadullah and another v. State and another 1999 SCMR 1034 ref.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Benefit of doubt---Last seen evidence---Evidence of last seen was furnished by the complainant (father of deceased), complainant's wife and another witness---Complainant categorically stated during his cross examination that when the accused called his deceased son, he (complainant) was not present in his house---Similarly complainant's wife while appearing before the Trial Court did not name the accused in any context---So far as the testimony of the other witness was concerned the same was contradicted by the stance taken by the complainant in his cross examination where he affirmatively responded to the suggestion that accused had no speaking terms with him and in the circumstances there was no occasion for the deceased to go with the accused, therefore, no reliance could be placed on the evidence of last seen furnished by the prosecution---Appeal was allowed and accused was acquitted of the charges levelled against him while extending him benefit of doubt.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Last seen evidence---Wajtakkar evidence---Evidence of wajtakkar furnished by a witness did not inspire confidence as the such evidence was introduced by the complainant in his private complaint wherein name of accused was not mentioned---Moreover, in his cursory statement the witness did not disclose the name of accused to the extent of evidence of wajtakkar---Though while appearing before the Trial Court said witness named the accused in such respect but he was confronted with the contents of his earlier statement recorded in cursory evidence and the improvement was brought on the record---Appeal was allowed and accused was acquitted of the charges levelled against him while extending him benefit of doubt.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Prosecution witness improving his (earlier) version to strengthen the prosecution case---No reliance could be placed on such (improved) statement of the witness.

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

----Ss. 302(b) & 377---Qatl-i-amd, sodomy---Appreciation of evidence---Benefit of doubt---Motive---Allegations contained in the FIR were that accused was of loose character and he compelled the deceased to perform carnal intercourse with him, and that after sodomizing the deceased-victim, the accused murdered him---However, the statement of the doctor who medically examined the deceased showed that no semen was detected on the anal swabs sent to the Chemical Examiner and as such the very reason assigned by the complainant against the accused for committing the murder of deceased could not be proved---Moreover, the accused was acquitted of the charge under S. 377, P.P.C. but no appeal against acquittal of the accused from the said charge was filed either by the complainant or by the State which suggested that the prosecution felt content with the acquittal of the accused from the charge of sodomy---Appeal was allowed and accused was acquitted of the charges levelled against him while extending him benefit of doubt. (f) Penal Code (XLV of 1860)---

----Ss. 302(b) & 377---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Medical evidence---Opinion of doctor---Doctor who conducted post mortem examination on dead body of deceased did not observe any injury on the dead body and in the opening sentence of his opinion stated that it was drowning which led to asphyxia and cardiopulmonary arrest leading to death---Said doctor also stated during his cross examination that according to the report of chemical examiner, semen was not detected in the anal swabs---During his cross examination the said doctor stated that findings may be present which indicated penetration but these may not be consistent with the penetration of penis until and unless anal swabs tested positive for semen---Medical evidence, therefore, demolished the prosecution case instead of advancing the same---Appeal was allowed and accused was acquitted of the charges levelled against him while extending him benefit of doubt.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery evidence---Prosecution relied on recovery of a bicycle belonging to the deceased allegedly at the instance of the accused---Said recovery was tainted with doubts for several reasons: firstly there was no allegation in the private complaint that when deceased left his house he was on a cycle; secondly according to the recovery memo as well as statements of police officials the cycle was recovered on 20.6.2009 whereas the witness of last seen evidence stated during his cross examination that at a junction point for public transport some people informed the police that bicycle of deceased was available in the house of accused and on such information accused was nominated as accused in the FIR who was arrested by the police on the same night and cycle was also recovered---In such circumstances it was not safe to rely on the recovery of cycle at the instance of the accused, which even otherwise was merely a corroborative piece of evidence and relevant only when other evidence inspired confidence, which was not the situation in the present case---Appeal was allowed and accused was acquitted of the charges levelled against him while extending him benefit of doubt.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Evidence disbelieved qua co-accused persons---Whether the same evidence could be believed qua the accused for convicting him---Held, that if an ocular testimony of a witness was to be disbelieved against a particular set of accused and was to be believed against another set of the accused facing the same trial, then the Court must search for independent corroboration on material particulars.

Iftikhar Hussain and another v. State 2004 SCMR 1185 ref.

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

----S. 302(b)--- Qatl-i-amd--- Benefit of doubt---Scope---Where the prosecution case was doubtful in nature, the accused was entitled to benefit of doubt not as a matter of grace but as of right.

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

Barrister Aiyan Tariq Bhutta for Appellant.

Nisar Ahmad Virk, Deputy District Public Prosecutor for the State.

Rai Khadim Hussain Kharal for the Complainant.

2021 P Cr. L J 593

[Lahore (Multan Bench)]

Before Ch. Abdul Aziz, J

Mst. KHATOON BIBI---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal Miscellaneous No. 2231-H of 2020, decided on 21st May, 2020.

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

----S. 491---Police Rules, 1934, Rr. 22.3 & 22.4---Habeas corpus petition---Police Officer to maintain manual register---Scope---Bailiff, on direction of court, produced detenus before court and in his report, he submitted that arrest of detenus was shown in roznamcha front desk but no manual roznamcha was available with the police---Station House Officer appeared in the court along with three detenus and stated that they were arrested in two criminal cases and their arrest was also incorporated in the computerised Daily Diary---Record showed that none of the detenus was nominated as accused in either of the two cases---Station House Officer stated that detenus were implicated in the case through the supplementary statements made by the complainants of both the cases---Complainant in his supplementary statement recorded in one case, nominated one detenu and that too solely on the basis of suspicion---Complainant in supplementary statement mentioned names of all the three detenus but in a general manner, without even raising a suspicion about their involvement in the occurrence---Supplementary statements, which were solely made basis for the arrest of detenus, upon scrutiny of record were found to be dubious and prepared for knitting a defence so as to frustrate the present petition---Record showed that no warrant of arrest were obtained, which was essentially required keeping in view the afflux of time between supplementary statement and the date of arrest of detenus---Initially a naive effort was made to defend said supplementary statements but when the SHO was apprised that their genuineness could be ascertained by summoning Register No. V and the absence therein of corresponding entry of the relevant case diaries would entail serious consequences, he retreated from his stance and resorted to silence---Record showed that despite repeated asking of bailiff, the police files of both the cases were not placed before him---Detenus informed the bailiff that they were being unlawfully confined within the precincts of police station for the last four days and that too without getting any court order---No entry about the arrest of detenus was incorporated in Daily Diary in consonance with R. 22.48 of Police Rules, 1934---Though the projected incriminating supplementary statements were recorded on 24.03.2020, however, till 11.05.2020, date of alleged arrest, no arrest warrants were obtained by the police---All the said factors convincingly demonstrated that the victims were kept in police captivity unlawfully and improperly---Bailiff was a court official and in habeas petitions visited police stations under authority of Court, thus his demand for examination of record and search of police station was to be met with acceptance---Refusal to meet with the requirements of bailiff, essential for executing the Court order, made the delinquent Police Official vulnerable to initiation of contempt of court proceedings---Comments submitted by SHO, admitted that twenty eight goats were taken into police possession under S. 550, Cr.P.C., on 27.02.2020 vide Entry No.31 of even date incorporated in Station Diary---Goats, though according to police, were impounded after being found abandoned by unknown persons but no corresponding entry was made in Register No.VII in accordance with Rr. 22.20 & 22.57 of Police Rules, 1934---Since the Court had already arrived at an irresistible conclusion that the detenus fell prey to police excess of unlawful detention, attributable to SHO and Police Constable/ respondents, thus deserved award of compensation to be paid by both the offending Police Officials---As a necessary corollary, SHO was directed to pay Rs.20,000/- to the detenus as compensation---So far as Police Constable was concerned, highhandedness pointed to him by the detenus was on much higher pedestal as he not only made unlawful ingress in the house of the victims but also maltreated the female inmates---Besides that point, Police Constable not only caused embarrassment to all the officials of concerned police station but also disgraced the martyrs of police department---In such circumstances, Police Constable was burdened to pay Rs.40,000/- to the detenus as compensation---Since an opinion affirmative to plea of detenus of unlawful detention was formed, hence they were set at liberty---Petition was disposed of accordingly.

Rana Muhammad Aslam v. Azmat Bashir and others 2011 SCMR 1420; Ali Ahmed v. Muhammad Yakoob Almani, Deputy Superintendent of Police, Qasimabad, Hyderabad and 5 others PLD 1999 Kar. 134; Abdul Majid v. SHO, Police Station Rohilanwali District Muzaffargarh 1995 PCr.LJ 1209; Shahid Hussain v.The State and others 1997 PCr.LJ 1582; Muhammad Manzoor v. SHO, Police Station Layya, District Multan and another 1997 MLD 1331; Haji Noor Hassan v. Khalid Masood, Inspector/SHO, Police Station "B" Division, Rahim Yar Khan 1998 PCr.LJ 1451 and Naseer Ahmad v. SHO, Police Station Tirandah Muhammad Panah, District Rahim Yar Khan 1998 PCr.LJ 196 rel.

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

----S. 491---Habeas petition---Requirements---While deciding the habeas petition, the court had to carefully scan the record so as to ascertain that the victim was deprived of his liberty in accordance with law or otherwise---Court, for achieving that objective, could examine the facts of case, information forming basis of detention and the counter defence put forth against such plea.

Government of Sindh through The Chief Secretary, Karachi and 4 others v. Raeesa Farooq and 5 others 1994 SCMR 1283 and Abdul Baqi Baloch v. Government of Pakistan PLD 1968 SC 313 rel.

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

----S. 491---Constitution of Pakistan, Arts. 9, 10 & 14---Habeas petition---Duty of court---If sufficient material was discernible from the facts and record of the case that an individual was kept in captivity unlawfully by a Police Official, the Courts had to come forward with a pragmatic approach for the protection of fundamental rights guaranteed under Arts. 9, 10 & 14 of the Constitution and must not hesitate in awarding even cost/compensation to the victim---Such amount was to be paid by none other than the delinquent Police Officials---Court, in appropriate cases, might pass an order for registration of criminal case as well as initiation of departmental proceedings against the delinquent---Even otherwise, how a public functionary could be let off so as to go scot-free when he was found to have infringed the right of an ordinary individual, guaranteed to him under the Constitution---Such an approach would render the provisions embodied in Arts. 9, 10 & 14 of the Constitution as nullity---Courts were saviors of the fundamental rights granted to the subjects of a State and must guard them enviously.

Mazharuddin v. The State 1998 PCr.LJ 1035 rel.

Ch. Muhammad Akram for Petitioner.

2021 P Cr. L J 636

[Lahore]

Before Asjad Javaid Ghural, J

MUHAMMAD ISHAQ---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 10434-B of 2021, decided on 15th March, 2021.

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

----S. 498---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Ad-interim pre-arrest bail, recalling of---Issuance of cheque by the accused and his signature thereon were admitted---Plea of accused was that the disputed cheque was infact issued as a "guarantee" but nothing as such was found mentioned in the said cheque, therefore, at bail stage, oral submission of the accused could not be given credence---During investigation, the accused had been found guilty---Accused had failed to point out any malice or ulterior motive on the part of the complainant to falsely implicate him in the case---Bail petition was dismissed, and order granting ad interim pre-arrest bail to the accused was recalled.

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

----S. 498---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Ad-interim pre-arrest bail, recalling of---Plea of accused that he had already filed a civil suit seeking cancellation of (dishonored) cheque---Held, that merely on the basis of filing of such suit no case for grant of extra ordinary relief of pre-arrest bail was made out---Bail petition was dismissed, and order granting ad interim pre-arrest bail to the accused was recalled.

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

----S. 498---Pre-arrest bail, grant of---Scope---Pre-arrest bail was an extra ordinary relief, which was meant only for innocent persons where the intended arrest of an accused was found to be actuated by mala fide on part of the complainant or the police.

Mukhtar Ahmad v. The State 2016 SCMR 2064 ref.

Syed Ali Mumtaz for Petitioner along with Petitioner in person.

Azhar Hussain Malik, Additional Prosecutor General along with Mian Shahid, SI for the State.

2021 P Cr. L J 644

[Lahore]

Before Asjad Javaid Ghural, J

MAQBOOL AHMAD and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 6597-B of 2020, decided on 27th October, 2020.

Criminal Procedure Code (V of 1898)---

----S. 498---Pre-arrest bail---Certificate qua pendency of bail petition, falsity of---Professional misconduct---Scope---Accused persons sought bail before arrest from the High Court---Law Officer apprised the court that pre-arrest bail of the accused persons had been confirmed by the court of first instance during pendency of the bail petition before the High Court---Advocate of the accused persons, in reply to the show cause notice issued by the court, submitted that first bail petition of the accused persons was dismissed on merits, whereupon, he applied for bail before arrest in the High Court; that during pendency of the petition, a compromise was effected between the parties, as such he filed second bail petition before the Additional Sessions Judge on fresh ground of compromise; that he was a young lawyer and could not disclose the factum of pendency of present petition before the Additional Sessions Judge---Counsel tendered unconditional apology with a commitment that such mistake would not be repeated in future---Held, concealment of fact relating to pendency of bail petition before the Additional Sessions Judge was a professional misconduct---Purpose of requiring certificate qua pendency of any matter was that before adjudicating upon the matter the Court should be well aware of the entire facts so that a conflicting order might not be passed---Show-cause notice issued to the counsel was discharged with a stern warning--- Petition was disposed of accordingly.

Khawar Mehmood Khatana and Rashid Siraj for Petitioners along with Petitioners in person.

2021 P Cr. L J 682

[Lahore]

Before Anwaarul Haq Pannun, J

TAHIRA NASEEM---Petitioner

Versus

ARSHAD MEHMOOD and others---Respondents

C.M. No. 48-M of 2019 in C.M. Diary No. 46946 of 2019 in Criminal P.S.L.A. Diary No. 35884 of 2010, decided on 5th December, 2019.

Criminal Procedure Code (V of 1898)---

----S. 417(2)---High Court (Lahore) Rules and Orders, Vol.V, Chapt.-I, Pt.-A, Rr. 9 & 9-A---Penal Code (XLV of 1860), Ss. 302 & 109---Qatl-i-amd---Special Petition for Leave to Appeal---Judicial business---Office objection---Failure to fix time to remove office objection---Administrative Judge, jurisdiction of---Appeal against acquittal under S. 417(2), Cr.P.C. filed by applicant after its scrutiny was returned by office requiring filing of certain documents but without specifying any time for making pointed out deficiency of documents good---Matter was straightaway placed before Administrative Judge in list of motion cases---None was present on behalf of applicant to contest office objection and the same was sustained vide order dated 22-5-2015---Applicant sought restoration of his appeal against acquittal---Validity---Proceedings before Administrative Judge were not judicial rather the same were administrative in their nature---Provisions of Limitation Act, 1908, were not applicable to such proceedings---If some memorandum of appeal etc. was resubmitted after its return beyond period mentioned in memorandum in office, same was not to be treated as barred by limitation---In view of R. 9(i) of Volume-V, Chapt-I, Pt.-A of High Court (Lahore) Rules and Orders, applicant should have been given opportunity while specifying time to make up the pointed out deficiencies by providing required documents at the first instance and thereafter Administrative Judge while passing order of sustaining objection in the interest of justice---High Court restored Appeal against acquittal as office objection was unsustainable---High Court directed office to fix the same for its hearing on administrative side---Application was allowed in circumstances.

Rana Naveed Ahmad Khan v. Province of Punjab through Secretary LG & CD PLD 2014 Lah. 436; Employees Management Group, Pak-Saudi Fertilizer Limited through Authorized Representative v. Government of Pakistan, Ministry of Privatization (Privatization Commission) 2002 YLR 1487; Farman Ali v. Muhammad Ishaq and others PLD 2013 SC 392; Muhammad Boota v. Basharat Ali 2014 CLD 63; 2006 YLR 650; PLD 1991 SC 973 and Noor Badsha v. United Bank Limited through President and 3 others 2015 PLC (C.S.) 646 ref.

2021 P Cr. L J 713

[Lahore]

Before Sardar Ahmed Naeem and Farooq Haider, JJ

The STATE through Prosecutor General Punjab, Lahore---Petitioner

Versus

MUHAMMAD SHAHZAD---Respondent

Criminal Miscellaneous No. 3295-BC of 2020, decided on 3rd December, 2020.

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

----S. 497(5)---Drugs Act (XXXI of 1976), Ss. 23 & 27---Imports, manufacture and sale of drugs---Bail, cancellation of---Scope---Prosecution case was that huge quantity of thirteen unregistered and expired drugs were recovered from the medical store of accused whereas case of accused was that a Drug Inspector along with his Naib Qasid had come to his medical store; that he started inspection of the store but the accused restrained them from the inspection on the ground that he was not a notified area Drugs Inspector; that the said Drugs Inspector telephonically called the complainant (Drugs Inspector having jurisdiction) at the spot; that during the intervening period Drugs Inspector placed a shopper on the table before the arrival of the complainant and later on told him that it was recovered from the store of the accused---Reasons which prevailed upon the Trial Court for confirmation of pre-arrest bail were that the raid was not conducted by a notified area Drugs Inspector; that fake/managed recovery was planted upon the accused; that investigating agency had failed to evaluate the version of the accused; that statements of the witnesses including Drugs Inspector and Naib Qasid under S. 161, Cr.P.C. were not available on the file; that accused was a self-qualified person and was running a medical store since fifteen years; that the accused was a first offender and that nothing was recovered from the possession of the accused---Findings of the Trial Court were based on mis-reading as the accused was specifically nominated in the crime report with specific role of keeping unregistered/expired medicines in his medical store of which he had failed to produce warranty/invoices---Signatures of accused at the foot of Form-V negated his own version of planting a fake recovery---Statements of Drugs Inspector and Naib Qasid recorded under S. 161, Cr.P.C., were available on the police file---Accused had filed the application seeking pre-arrest bail without asserting mala fide in the petition---No ill will or animosity was attributed to any of the prosecution witnesses for his false implication---Impugned order was neither based on proper evaluation of facts nor the law on the subject, thus, could not be sustained and was liable to be set aside---Petition for cancellation of pre-arrest bail was allowed, in circumstances.

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

----S. 497(5)---Bail cancellation of---Scope---Ordinarily, where the accused after the grant of bail misuses the same, interferes in the proceedings of the trial, extends threats to the witnesses or create any sort of hindrance in conclusion of trial, the court granting bail can cancel the same on the basis of evidence before him by exercising jurisdiction under S. 497(5), Cr.P.C. but if the bail granting order is without jurisdiction and is passed without observing mandatory provisions of law then High Court has jurisdiction to entertain the application under S. 497(5), Cr.P.C. for cancellation of bail earlier granted to the accused.

Nazir's case 1971 SCMR 637; Zia-ul-Hassan v. The State PLD 1984 SC 192 and Muhammad Irfan v. The State and another 2020 SCMR 2017 rel.

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

----S. 498---Pre-arrest bail---Scope---Mala fide on the part of the prosecution especially the police has to be shown through some cogent and convincing reasons to get concession of pre-arrest bail.

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

----S. 498---Pre-arrest bail---Scope---Concession of pre-arrest bail is a remedy of an exceptional and extraordinary nature which has to be granted in exceptional cases and discretion has to be used with care/caution---If in all cases, the concession of pre-arrest bail is allowed to each and every accused of a case, the process of investigation would be strangulated and the investigating agency would not be able to complete its investigation in a smooth manner.

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

----S. 498---Pre-arrest bail---Scope---Pre-arrest bail cannot be granted on the basis of bald assertions of an accused by ignoring material evidence collected during the investigation.

Gulshan Ali Solangi and others v. The State through P.G Sindh 2020 SCMR 249 rel.

Imdad Hussain Chatha, Deputy Prosecutor General for Petitioner.

Saeed Akhtar Khan for Respondent.

2021 P Cr. L J 738

[Lahore (Multan Bench)]

Before Sardar Muhammad Sarfraz Dogar and Ch. Abdul Aziz, JJ

ZULFIQAR ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 107 of 2019, heard on 27th October, 2020.

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

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotics---Mode of making searches and arrest---Search to be made in presence of witnesses---Sentence, reduction of---Scope---Accused was alleged to have been found in possession of 1090 grams of charas---Statements of prosecution witnesses had successfully provided the detail of events pertaining to the arrest, recovery of charas and its securing through parcel---Prosecution witnesses were cross-examined at length by the defence, however, they remained consistent and gave no leverage to the defence---Positive report from the office of Forensic Laboratory with regard to parcel sent for chemical analysis was yet another factor to prove the guilt of the accused---Recovery was, no doubt, effected from public place and none from the public was associated in the proceedings but the accused could not obtain benefit out of it as according to S. 25 of the Control of Narcotic Substances Act, 1997, the provisions of S. 103, Cr.P.C., were not applicable---Accused was rightly convicted by the Trial Court, in circumstances---Accused was a first offender and had served out three years out of his sentence of 04 years and 06 months---Appeal was dismissed, conviction of accused was maintained but his sentence was reduced to the period already undergone by him.

Khuda Bakhsh v. The State 2015 SCMR 735 and State through the Deputy Director (Law), Regional Directorate, Anti-Narcotics Force v. Mujahid Naseem Lodhi PLD 2017 SC 671 ref.

Prince Rehan Iftikhar Sheikh for Appellant.

Ch. Muhammad Akbar, Additional Prosecutor General for the State.

2021 P Cr. L J 750

[Lahore]

Before Sadaqat Ali Khan and Shehram Sarwar Ch., JJ

AKHTAR ALI and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 61430-J and Murder Reference No. 319 of 2017, heard on 18th January, 2021.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 374---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay in registration of FIR and in conducting autopsies---Statement of injured victim---Failure to prove motive---Effect---Accused persons were convicted, inter alia, under S. 302(b), P.P.C. and sentenced to death---Contention of accused, inter alia, was that prosecution had failed to prove their case---Delay of four and a half hours existed in reporting the alleged crime to police and no explanation for such delay was provided by witnesses of ocular account---Autopsies were conducted after 12 hours from occurrence, and such delay in setting machinery of law in motion spoke volumes against veracity of prosecution version---Statement of injured victim under S. 161, Cr.P.C. was recorded four days after occurrence, and such delay was without any plausible occurrence and mere fact that such witness was injured in occurrence would not stamp him as truthful witness---Evidence of eye-witnesses to alleged occurrence was shaky in nature and could not be relied on for maintaining conviction of accused---Complainant and other witnesses of ocular account did not utter any word regarding alleged lalkara raised by accused and in examination-in-chief did not state motive alleged by prosecution, and therefore it had to be held that alleged motive was not proved by prosecution---Ocular account was in direct conflict with medical evidence---Case against accused was therefore replete with number of circumstances which created doubt regarding prosecution's story and same was sufficient to give benefit of doubt to accused---High Court set aside conviction and sentence of accused and acquitted them while extending benefit of doubt---Appeal was allowed, accordingly.

Altaf Hussain v. The State 2019 SCMR 274; Irshad Ahmed v. The State 2011 SCMR 1190; Nazeer Ahmed v. The State 2016 SCMR 1628; Muhammad Khan v. Maula Bakhsh and another 1998 SCMR 570; Amin Ali and another v. The State 2011 SCMR 323; Shahbaz v. The State 2016 SCMR 1763; Imtiaz alias Taj v. The State and others 2018 SCMR 344; PLD 2019 SC 527 and Muhammad Akram v. The State 2009 SCMR 230 rel.

(b) Criminal trial---

----Benefit of doubt---Prosecution had to prove its case against accused on its own legs and could not take benefit from weakness in the case of the defence---Single circumstance, if it created doubt regarding prosecution's case, then same was sufficient to give benefit of doubt to accused.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Sheraz Zaka, Ali Muhammad Zahid Bukhari and Khalida Parveen for Appellants.

Munir Ahmad Sial, Deputy Prosecutor General for the State.

Nemo for the Complainant.

2021 P Cr. L J 776

[Lahore (Multan Bench)]

Before Sardar Muhammad Sarfraz Dogar and Asjad Javaid Ghurral, JJ

NAJAM-US-SAQIB---Appellant

Versus

The STATE through NAB---Respondent

Criminal Appeal No. 222262 of 2018, heard on 2nd March, 2021.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(ix) & 10---Cheating members of public at large---Sentence, reduction of---Factors for consideration---Accused was convicted by Trial Court for committing offence of cheating members of public at large and was sentenced to imprisonment for five years---Accused sought reduction in sentence to one already served out---Validity---Accused was first offender, he faced agony of investigation and trial---Accused was on bail and was taken into custody on the day of pronouncement of judgment and remained behind the bars---Continuous incarceration of accused for more than two years and eight months served the very purpose of prosecuting him which met the ends of justice as well---High Court maintained the conviction under S. 10 of National Accountability Ordinance, 1999 but modified the sentence to imprisonment already undergone--- Appeal was dismissed accordingly.

Qazi Misbah-ul-Hassan for Appellant.

Ahsan Rasool Chattha, Special Public Prosecutor, NAB for the State.

2021 P Cr. L J 787

[Lahore]

Before Sardar Muhammad Sarfraz Dogar and Asjad Javaid Ghurral, JJ

USMAN SAEED---Petitioner

Versus

JUDGE ACCOUNTABILITY COURT NO. 3, LAHORE and 3 others---Respondents

Writ Petition No. 66772 of 2019, heard on 20th January, 2021.

(a) Interpretation of statutes---

----Special laws---Applicability---When there are two special laws both of which contain overriding clauses, in case of conflict between the two laws generally the statute later in time prevails over the statute prior in time---Such presumption is not automatic, instead a host of other factors including the object, purpose and policy of the both statutes and legislature's intention, as expressed by the language employed therein need to be considered in order to determine which of the two special laws is to prevail.

Syed Mushahid Shah and others v. Federal Investigation Agency and others 2017 SCMR 1218 rel.

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

----S. 9(a)---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 20 & Preamble---Accountability Court, jurisdiction of---Scope---Petitioner was facing trial before Accountability Court on the allegation that he was involved in misappropriation of funds of Government owned Bank as he maneuvered and tampered various General Ledger Heads of the Bank with mala fide intention in order to cause loss to Bank---Plea raised by petitioner was that jurisdiction to trial was with Banking Court and not Accountability Court---Validity---Banking Court had jurisdiction under Financial Institutions (Recovery of Finances) Ordinance, 2001, in those cases where relationship of customer and financial institution existed between the parties---Provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001, would come into play in the eventualities mentioned in the Preamble itself and it did not cover offence allegedly committed by petitioner while being in service of Bank---National Accountability Ordinance, 1999, was a special law promulgated for such purpose and catered offence committed by a 'holder of public office'---Case of petitioner was fully covered in terms of S. 9 of National Accountability Ordinance, 1999---High Court declined to interfere in trial of petitioner before Accountability Court---Constitutional petition was dismissed, in circumstances.

Mian Ayaz Anwar and others v. State Bank of Pakistan and others 2019 CLD 375 ref.

Farooq Hussain and others v. Sheikh Aftab Ahmad and others PLD 2020 SC 617 rel.

Haider Rasool Mirza for Petitioner.

Mian Tariq Shafique Bhandara, Deputy Attorney General for Federation of Pakistan.

Ahsan Rasool Chatha, Special Prosecutor for NAB with Adnan Faisal Gondal, A.D/I.O. NAB.

Iftikhar Hussain Shah for Respondent-National Bank.

2021 P Cr. L J 811

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi and Ch. Abdul Aziz, JJ

ZEESHAN IRSHAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 499 of 2018, heard on 5th March, 2020.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Scope---Accused was convicted for having been found in possession of 1300 grams of charas---Trial Court while framing charge against the accused had mentioned the date of recovery of charas as 27-11-2017, whereas both the recovery witnesses had deposed that the charas was recovered on 28-11-2017---Likewise, during cross-examination, both the recovery witnesses had denied the suggestion that the accused was taken into custody on 27-11-2017---Such an anomaly had gained more importance in the context that even in the crime report the recovery was stated to have been effected on 27-11-2017---Lacuna regarding the date of occurrence had shattered the prosecution case---Recovery witnesses while appearing in the dock had unanimously deposed that out of the recovered substance, 65 grams were separated for chemical analysis, however, the weight of sample parcel was found by Forensic Laboratory to be 69.90 grams---High Court observed that the parcel sent for chemical analysis was not the representative sample of the recovered charas---Appeal against conviction was accepted, in circumstances.

(b) Criminal trial---

----Administration of justice---Mistake in releasing a criminal was better than punishing an innocent person.

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

(c) Criminal trial---

----Benefit of doubt--- Scope--- Prosecution case, for securing conviction, must not suffer from infirmities and the guilt of accused was required to be proved beyond scintilla of doubt---If any doubt emerges from the prosecution case, there was no reason to withhold its benefit on the ground that the case was of heinous nature.

(d) Criminal trial---

----Benefit of doubt---Scope---Benefit of every reasonable doubt was to be extended to the accused which could best be provided through the judgment of acquittal.

Ch. Sajid Raza for Appellant.

Shahid Mehmood, Deputy Prosecutor General for the State.

2021 P Cr. L J 821

[Lahore]

Before Ali Baqar Najafi, J

MUHAMMAD AYOUB---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 8424-B of 2021, decided on 4th March, 2021.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 376 & 511---Rape, attempting to commit offences punishable with imprisonment for life or for a shorter term---Bail, grant of---Further inquiry---Delay in lodging of FIR---Possibility of false implication---Investigation finding accused as innocent---Matter was reported to the police about nine (9) days after the occurrence on the pretext that accused had been requesting the complainant not to lodge the criminal case but the latter did not agree and lodged the FIR---During investigation several inhabitants of the locality categorically stated that the FIR was falsely lodged on account of a monetary dispute between the complainant and the accused---Admittedly the accused was an employee of the complainant, therefore, the possibility of false implication on account of monetary dispute could not be totally ruled out---Investigating Officer prepared a discharge report in favour of the accused which although was not agreed to by the Judicial Magistrate, but as no second investigation was ordered, therefore, it was the final opinion of the police---Furthermore accused had spent about 3-1/2 months behind bars since his arrest---Case of the accused called for further inquiry into his guilt as contemplated under S. 497(2), Cr.P.C.---Accused was admitted to bail in circumstances.

Sharif Khan v. The State and another 2021 SCMR 87 ref.

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

----Ss. 497(2) & 164---Penal Code (XLV of 1860), Ss. 376 & 511---Rape, attempting to commit offences punishable with imprisonment for life or for a shorter term---Bail, grant of---Further inquiry--- Significant improvements made by victim in her S. 164, Cr.P.C. statement---As per the statement of victim during lodging of FIR, she stated that when her parents had gone to a market, she was alone at home and when her father came back, the door was locked from inside and when he knocked the door she raised hue and cry which attracted two persons from the locality, who scaled over the wall and entered into the house and saw the accused trying to commit zina with her---However, in her subsequent statement under S. 164, Cr.P.C., the victim stated that on the date of occurrence the accused came into the house in the absence of her parents, made her an offer of Rs.50/- and when she went to take the money he grabbed her, pulled off her clothes and was also carrying a gun; whereafter, her parents came back home and the accused managed to escape---Improvements to the extent of Rs.50/- offered by the accused and then coming of both parents at home and accused taking off the victim's clothes were improvements which were significant even at the bail stage---In such circumstances case of the accused called for further inquiry into his guilt as contemplated under S. 497(2), Cr.P.C.---Accused was admitted to bail in circumstances.

Mian Arshad Ali Mahar for Petitioner.

Miss Umin-ul-Baneen, DDPP with Nusrat, ASI for the State.

2021 P Cr. L J 844

[Lahore (Rawalpindi Bench)]

Before Sadiq Mahmud Khurram, J

Dr. MANZOOR HUSSAIN MALIK---Petitioner

Versus

The STATE and another---Respondents

Writ Petition No. 1655-Q of 2020, heard on 13th January, 2021.

(a) Transplantation of Human Organs and Tissues Act (VI of 2010)---

----Ss. 14, 10, 11 & 9---Constitution of Pakistan, Art. 199---Cognizance of offences under the Transplantation of Human Organs and Tissues Act, 2010 ---Illegal kidney transplant---Quashment of FIR---Scope---Petitioner/accused sought quashment of FIR in respect of offences under Ss. 10, 9 & 11 of Transplantation of Human Organs and Tissues Act, 2010 (the Act) wherein allegations of conducting illegal kidney transplant were levelled on him---Contention of petitioner, inter alia, was that under S. 14 of Transplantation of Human Organs and Tissues Act, 2010; no court could take cognizance of an offence under said Act except on complaint in writing made by Monitoring Authority, or Secretary or aggrieved person who had given notice of no less than 15 days, and same was not done in the present case---Validity---Taking cognizance of an offence by a court was distinct from investigation of a reported offence by police or any other investigating agency, and said S. 14(2) of the Act, did not place embargo on reporting of an alleged offence under Transplantation of Human Organs and Tissues Act, 2010 to police, and subsequent registration of FIR and investigation---Constitutional petition was dismissed, in circumstances.

Industrial Development Bank of Pakistan and others v. Mian Asim Fareed and others 2006 SCMR 483 rel.

(b) Constitution of Pakistan---

----Art. 199--- Criminal Procedure Code (V of 1898), Ss. 249-A & 561-A---Constitutional jurisdiction of High Court---Quashing of proceedings/FIR---Inherent jurisdiction of High Court---Scope---High Court in its Constitutional jurisdiction and under S. 561-A of Cr.P.C. had authority to quash a FIR, but such jurisdiction was to be exercised in exceptional and rare cases; and had to be done with circumspection so as to not effect due process of law and exercise to be carried out by Investigating Agencies / police.

Director-General, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others PLD 2013 SC 401 rel.

Mubaras Khan Alizai for Petitioner.

Khaqan Meer, Assistant Attorney General for Pakistan with Imran Ahmed, Director Legal and Muhammad Tariq, Assistant Director Legal, Punjab Human Organ Transplantation Authority (PHOTA).

2021 P Cr. L J 857

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi and Sadiq Mahmud Khurram, JJ

ZAFRAN MEHMOOD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 382-J and Murder Reference No. 8 of 2018, heard on 3rd November, 2020.

(a) Criminal trial---

----Witness---Eye-witness, evidence of---Principle---In absence of physical proof or reason for presence of witnesses at the crime scene, the same cannot be relied upon.

Muhammad Rafiq v. State 2014 SCMR 1698; Usman alias Kaloo v. State 2017 SCMR 622 and Nasrullah alias Nasro v. The State 2017 SCMR 724 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Night time occurrence---Absence of source of light---Natural witnesses, non-association of---Accused was convicted by Trial Court for causing Qatl-i-amd of husband of complainant---Validity---Failure of investigating officer to take into possession the electric bulb allegedly present at place of occurrence and had lighted at the occurrence proved that none was available and only an invented and false claim of such electric bulb was made by witnesses---High Court declined to presume existence of any light source as prosecution failed to establish fact of availability of light source---None of three brothers, two sisters and mother of deceased appeared before investigating officer to depose regarding occurrence which had taken place in the house inhabited by them---Such persons were the most natural witnesses of occurrence as their presence at place of occurrence could not be disputed---High Court rejected prosecution evidence as prosecution failed to produce inmates of place of occurrence---Division Bench of High Court set aside conviction and sentence awarded to accused who was acquitted of the charge---Appeal was allowed in circumstances.

G. M. Niaz v. The State 2018 SCMR 506; Muhammad Ashraf Javeed and another v. Muhammad Umar and others 2017 SCMR 199 and Zafar v. The State and others 2018 SCMR 326 ref.

Usman alias Kaloo v. State 2017 SCMR 622; Shamshad v. The State 1998 SCMR 854; Muhammad Irshad v. Allah Ditta and others 2017 SCMR 142; G. M. Nias v. The State 2018 SCMR 506; Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327; Mian Sohail Ahmed and others v. The State and others 2019 SCMR 956; Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068; Muhammad Javed v. The State 2016 SCMR 2021; Muhammad Ismail and others v. The State 2017 SCMR 898; Nasrullah alias Nasro v. The State 2017 SCMR 724 and Nasrullah alias Ali Sher v. The State 2008 SCMR 707 rel.

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

----Arts. 117 & 122---Burden of proof, shifting of---Principle---Accused is presumed to be innocent unless proved otherwise---Burden is placed on prosecution to prove beyond doubt the guilt of accused which in turn can never be shifted to accused unless legislature by express terms commands otherwise---When prosecution is able to discharge burden of proof by establishing element of offence, which are sufficient to bring home the guilt of accused then burden shifts upon accused under Art. 122 of Qanun-e-Shahadat, 1984, to produce evidence of facts which are especially in his exclusive knowledge.

Nasrullah alias Nasro v. The State 2017 SCMR 724; Hameed Gul v. Tahir and 2 others 2006 SCMR 1628; Arshad Khan v. The State 2017 SCMR 564; Rehmat alias Rahman alias Waryam alias Badshah v. The State PLD 1977 SC 515; Muhammad Jamshaid and another v. The State and others 2016 SCMR 1019; Asad Khan v. The State PLD 2017 SC 681 and Abdul Majeed v. The State 2011 SCMR 941 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---For giving benefit of doubt, it is not necessary that there should be so many circumstances---If only a single circumstance creating reasonable doubt in the mind of prudent person is available then such benefit is to be extended to 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.

Barrister Osama Qazi and Raja Ghaneem Aabir for Appellant.

Sajjad Hussain Bhatti, Deputy Prosecutor General for the State.

2021 P Cr. L J 895

[Lahore]

Before Tariq Saleem Sheikh, J

MUHAMMAD YASIR---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No. 1185 of 2010, heard on 12th January, 2018.\

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

----Ss. 7, 6 & 4---Accused taking plea of being juvenile at time of commission of offence(s)---Scope---Where accused claims minority of age, he must take such plea at earliest available opportunity and an adverse inference should be drawn against such accused in event of delayed claim of being juvenile.

Muhammad Aslam and others. v. The State and another PLD 2009 SC 777 and Muhammad Raheel alias Shafique v. The State PLD 2015 SC 145 rel.

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

----Ss. 279 & 337-G---Criminal Procedure Code (V of 1898) Ss. 435 & 439---Rash driving or driving on a public way---Punishment for hurt by rash or negligent driving---Simultaneous conviction of accused under Ss. 279 & 337-G, P.P.C.---Scope---Accused impugned his conviction under Ss. 279 & 337-G, P.P.C. on ground, inter alia, that that under law, he could not have been convicted under Ss. 279 & 337-G, P.P.C. simultaneously---Validity---Bare reading of Ss. 279 & 337-G, P.P.C. revealed that same applied to two different situations---Section 279, P.P.C. was applicable where there was rash or negligent driving or riding on public way which endangered human life, however where such driving actually caused hurt to person(s), then S. 337-G, P.P.C. would be attracted---Accused therefore could not have been convicted under Ss. 279 & 337-G, P.P.C. simultaneously---Imposition of separate sentences would not be justified where acts constituting two different offences formed part of same transaction against same accused---In the present case, it was proved that accused actually caused hurt to victims and therefore his conviction fell squarely within ambit of S. 337-G, P.P.C.---Trial Court therefore erred by convicting accused simultaneously under Ss. 279 & 337-G, P.P.C.---High Court set aside conviction of petitioner under section 279 PPC while maintaining conviction under S. 334-G, P.P.C.---Revision was disposed of, accordingly.

Ragho Prasad v. Emperor AIR 1939 Pat. 388; Badshahzada v. The State 1993 PCr.LJ 699; Haris Khan v. The State PLD 1993 Pesh. 146 and Muhammad Hanif v. The State 1984 PCr.LJ 746 rel.

(c) Criminal trial---

----Conviction of accused---Principles---Imposition of separate sentences would not be justified where acts constituting two different offences formed part of same transaction against same accused.

Ragho Prasad v. Emperor AIR 1939 Pat. 388; Badshahzada v. The State 1993 PCr.LJ 699; Haris Khan v. The State PLD 1993 Pesh. 146 and Muhammad Hanif v. The State 1984 PCr.LJ 746 rel.

Muhammad Ikram Ullah Khan for Petitioner.

Raja Ahmad Nawaz for the Complainant.

Ikram Ullah Khan, DPG for the State.

2021 P Cr. L J 914

[Lahore]

Before Shehram Sarwar Ch., J

ADNAN SHEHZAD---Applicant

Versus

The STATE and another---Respondents

Criminal Miscellaneous Application No. 6028-B of 2021, decided on 16th February, 2021.

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

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, grant of---Completion of investigation---Scope---Accused sought bail in an FIR registered under S. 489-F, P.P.C.---Accused was not required for the purposes of investigation---Offence under S. 489-F, P.P.C., did not fall within the prohibitory clause of S. 497, Cr.P.C.---Section 489-F, P.P.C. was not promulgated for using as a tool for recovery of the amounts due in business dealings for which civil remedy had already been provided---Trial of the case was not in sight---Petition for grant of post-arrest bail was allowed, in circumstances.

Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488 and Riaz Jafar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708 ref.

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

----S. 497---Bail---Scope---Where a case fell within non-prohibitory clause, the concession of granting bail must be favourably considered and should only be declined in exceptional cases.

Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488 rel.

Nadeem Shibli for Applicant.

Rana Tasawar Ali Khan, DPG along with Ameer Nawaz, ASI with record for the State.

2021 P Cr. L J 935

[Lahore (Rawalpindi Bench)]

Before Ch. Abdul Aziz, J

REHAN SHEHZAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 356-B of 2021, decided on 4th March, 2021.

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

----S. 497---Penal Code (XLV of 1860), Ss. 324, 337-A(i), 337-A(iii), 337-A(iv), 337-L(2), 338-F & 34---Attempt to commit qatl-i-amd, shajjah-i-khafifah, shajjah-i-hashimah, shajjah-i-munaqqilah, common intention---Bail, refusal of---Complainant being wife of accused was subjected to domestic violence which, inter alia, resulted in a fracture of her facial bone---Injury in question was ascribed to none other than the accused---Injury gave rise to an offence under S. 337-A(iii), P.P.C., entailing punishment of imprisonment of either description for a term, which might extend to 10 years, thus attracted the prohibitory clause of S. 497, Cr.P.C.---In such like offences, the concession of post arrest bail was to be withheld, if reasonable grounds for believing existed that the accused was guilty of such an offence---Accused was reasonably connected with the commission of crime, thus, disentitled from seeking concession of post arrest bail---Contention of accused was that the offence under S. 337-A(iii), P.P.C. entailed primary punishment of Arsh whereas imprisonment was the secondary punishment---Held; an accused burdened with the allegation of having caused hurt to some other living person, in view of S. 338-F, P.P.C., could be detained in jail during the pendency of trial in larger interest of the society---Petition for grant of bail was dismissed, in circumstances.

Haji Maa Din and another v. State and another 1998 SCMR 1528 ref.

Dr. Abdul Kadir Audah in his Book rel.

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

----S. 497---Bail---Court while hearing a bail application has to make tentative assessment from the material namely; nature of accusation embodied in FIR, statements of the witnesses recorded under S. 161, Cr.P.C., medical evidence and other incriminating material collected during the course of investigation.

Ch. Afrasiab Khan and Muhammad Yaqoob for Petitioner.

Ms. Memoona Ehsan ul Haq DDPP with Munir, S.I. for the State.

2021 P Cr. L J 946

[Lahore]

Before Sadaqat Ali Khan, J

DEPUTY DIRECTOR, ANTI-MONEY LAUNDERING, INTELLIGENCE INVESTIGATION, INLAND REVENUE, LAHORE---Appellant

Versus

SPECIAL JUDGE, CUSTOMS, TAXATION AND ANTI-SMUGGLING, LAHORE and 5 others---Respondents

Criminal Appeal No. 52336 of 2017, heard on 18th February, 2021.

Anti-Money Laundering Act (VII of 2010)---

----Ss. 20, 39, 23 & 8---Special Judge (Customs, Taxation and Anti-smuggling) Jurisdiction to try offences under Anti-Money Laundering Act, 2010---Predicate offences---Tax evasion and concealment of income---Scope---Department impugned order of Court of Special Judge (Customs, Taxation and Anti-smuggling) whereby it was held that said court had no jurisdiction to try offences relating to tax evasion and concealment of income under Anti-Money Laundering Act, 2010 unless such predicate offences were already pending before it---Validity---Predicate offences, if same were triable by any court other than Court of Session, then offence of money laundering and all matters connected thereto were to be tried by court trying such predicate offences as mentioned in Schedule-I of Anti-Money Laundering Act, 2010----Per S. 20(1)(a) of Anti-Money Laundering Act, 2010; Special Judge (Customs, Taxation and Anti-smuggling) had exclusive jurisdiction try offences relating to tax evasion and all matters connected therewith or incidental thereto, like in the present case---Impugned order was therefore set aside, and matter was remanded to court of Special Judge (Customs, Taxation and Anti-smuggling)---Appeal was allowed, accordingly.

Barrister Muhammad Umer Riaz for Appellant.

Nemo for Respondents.

2021 P Cr. L J 962

[Lahore]

Before Sardar Muhammad Sarfraz Dogar and Asjad Javaid Ghural, JJ

ALMAS AHMAD---Petitioner

Versus

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

Writ Petition No. 57410 of 2020, decided on 6th April, 2021.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a) & 9(b)---Constitution of Pakistan, Art. 199--- Constitutional petition---Bail, grant of---Delay in conclusion of trial---Case of further inquiry---Petitioners were arrested 2-1/2 years ago on the allegation of causing loss to national exchequer by misusing their authority during acquisition of land for government project---Validity---No prospect of early conclusion of trial and petitioners could not be kept behind the bars for an indefinite period---Investigation process was complete and physical custody of accused persons was no more required to National Accountability Bureau for further investigation---Trial Court required 1-1/2 years more for conclusion of trial subject to full cooperation of prosecution as well as accused persons---No incriminating material was recovered from petitioners, who joined investigation and were no more required for further investigation---Case against petitioners was one of further probe and inquiry into their guilt by Trial Court after recording of evidence---Bail was allowed, in circumstances.

Muhammad Zahid Mughal and Zaib-un-Nisa for Petitioners along with the Petitioners in person (in Writ Petitions Nos.57410 and 57412 of 2020).

Tariq Ameer Qureshi for Petitioners along with the Petitioners in person (in Writ Petitions Nos.13458 and 13462 of 2021).

Muhammad Zahid Mughal for Petitioner (in Writ Petition No.18034 of 2020).

Adnan Shuja Butt for Petitioner (in Writ Petition No.66213 of 2020).

Hafiz Muhammad Noman Zafar for Petitioners (in Writ Petitions Nos. 1856 and 3183 of 2021).

Ch. Zaheer Abbas for Petitioners (in Writ Petitions Nos.3050 and 6476 of 2021).

2021 P Cr. L J 990

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh and Sadiq Mahmud Khurram, JJ

Syed AOUN MUHAMMAD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 784-ATA of 2018, decided on 12th November, 2019.

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

----Ss. 4 & 5---Arms Ordinance (XX of 1965), S. 13---Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 19-A---Criminal Procedure Code (V of 1898), S. 103---Attempt to cause explosion or making or keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, possession of unlicensed arms, act of terrorism, mode of making searches and arrest, search to be made in presence of witnesses---Appreciation of evidence---Prompt FIR---Police witnesses---Scope---Accused alleged to be a terrorist and member of a proscribed Religious Party was found to have been in possession of one pistol and a hand grenade---First Information Report was got lodged within short duration and the complainant had not only named the accused but also mentioned each and every minor as well as material fact of the incident---Prosecution had proved its case against the accused through the statements of police officials, recoveries made from the accused and the positive report of Forensic Laboratory---Section 19-A of the Anti-Terrorism Act, 1997 excluded the applicability of S. 103, Cr.P.C. therefore, association of witnesses from the public was not mandatory---Depositions of police witnesses could not be brushed aside merely on the bald allegation that they happened to be employees of the police department---Prosecution had produced sufficient evidence before the trial court to prove ocular account of its case, so it was not under obligation to produce any witness from public that too when it had already produced two police officers who were as independent witnesses as the private persons might be, because they had no enmity, ill-will grudge or ulterior motive to depose falsely against the accused---Appeal against conviction was dismissed, in circumstances.

(b) Criminal trial---

----Witness---Police witness---Scope---Police witness is as good witness as any other witness until and unless the defence successfully shatters his credibility or bring on record any mala fide of police witness to depose against the accused.

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

----S. 19-A---Criminal Procedure Code (V of 1898), S. 103---Mode of making searches and arrest---Search to be made in presence of witnesses---Scope---Section 19-A of the Anti-Terrorism Act, 1997 excluded the applicability of S. 103, Cr.P.C.---People from public try not to indulge themselves in such like cases as witnesses of the occurrence so as to avoid future enmity with the terrorists.

Malik Muhammad Ahsan Karol for Appellant.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

2021 P Cr. L J 1015

[Lahore (Bahawalpur Bench)]

Before Sadiq Mahmud Khurram, J

MUHAMMAD IJAZ---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 972-B/2020/BWP, decided on 8th April, 2020.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 337-U(i), 337-A(i), 337-A(ii), 337-A(iii), 337-A(iv), 337-F(i), 337-F(iv), 337-F(v), 337-L(2), 148 & 149---Bail, refusal of---Subsequent bail petition---Fresh ground---Scope---Petitioner filed second bail application on the grounds that subsequent to the earlier order, the offence under S. 337-A(vi), P.P.C. was deleted and the offence under S. 337-A(iii), P.P.C. was added and that the petitioner risked being effected by corona virus disease 2019 (COVID-19), if not released---Substitution of the offence under S. 337-A(iii), P.P.C., in place of the offence under S. 337-A(iv), P.P.C. hardly created any fresh ground---Overcrowded prison, though an inconvenient abode, nonetheless, without a contaminated inmate was a safe place as it was more expedient to screen the each inmate after plugging the new entrants---Petitioner's age was less than 55 years---COVID-19 did not create any ground of release of petitioner---Petition was dismissed, in circumstances.

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

----S. 497---Bail---Withdrawal of bail petition---Principle---Withdrawal of a bail petition coordinates with collapse of all the grounds available then, making it obligatory for the petitioner to search for a fresh ground not available to him earlier and having arisen subsequent to the earlier order of withdrawal, so as to move a second or subsequent bail application(s).

Nazir Ahmed and another v. The State and others PLD 2014 SC 241 and Muhammad Aslam v. The State and others PLD 2015 SC 41 ref.

The State through Advocate-General, N.-W.F.P. v. Zubair and 4 others PLD 1986 SC 173 rel.

2021 P Cr. L J 1026

[Lahore]

Before Sardar Ahmed Naeem, J

MUHAMMAD ASIF---Petitioner

Versus

AMJAD ALI and 5 others---Respondents

Criminal Revision No. 57092 of 2020, decided on 9th November, 2020.

(a) Criminal trial---

----Witness---Hostile or un-favourable witness---Determination---Hostile witness can only be declared by a Court though it is generally at the request of attorney posing the questions---In determining as to who can be considered a hostile witness, Court decides based on witness demeanor and credibility, if the witness should be treated as hostile---Court can also rule that witness is un-favourable witness and not hostile witness---Just because a witness is providing un-favourable evidence, it does not mean such witness is doing so in an effort to be vindictive.

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

----Ss. 302 & 109---Qanun-e-Shahadat (10 of 1984), Arts. 133 & 151---Qatl-i-amd and abetment---Appreciation of evidence---Hostile witness---Right to cross-examine---Locus standi---Petitioner was a prosecution witness who intended to cross examine another prosecution witness on the plea of his being hostile to prosecution---Credibility of statement of a witness could be permitted to be impeached by prosecution of its own witness, if statement of such witness in examination in chief was in deviation to his previous statement or such statement was adverse to the interest of prosecution---No such permission could be granted to prosecution on the basis of averment of statement of witness in cross examination by defence---Permission could not be granted to prosecution to cross examine a witness after he was cross examined by accused to impeach credibility of his statement made by him during cross examination---Application was not filed at appropriate stage and no request was made by complainant or legal heir of deceased for invoking powers of Trial Court under Art. 150 of Qanun-e-Shahadat, 1984---Petitioner was only a witness and not amongst legal heirs and had no locus standi to file application for such declaration---High Court declined to interfere in the order passed by Trial Court declining to declare the witness as hostile---Revision was dismissed in circumstances.

Dahyabhai Chhaganbhai Thakkar v. State of Gujarat AIR 1964 SC 1563; Mukhtar Ahmad v. The State 2003 SCMR 1374; Gura Singh v. State AIR 2001 SC 330; State of Bihar v. Lalu Prasad alias Lalu Prasad Yadav AIR 2002 SC 2432; Bashir Ahmad v. The State and another PLD 2019 Lah. 594 and Muhammad Boota and another v. The State 1984 SCMR 560 distinguished.

(c) Words and phrases---

----"Party"---Meaning.

Webster's Third New International Dictionary; Corpus Juris Secundum; Bouvier's Law Dictionary and advanced law lexican P. Ramanatha Aiyar's rel.

2021 P Cr. L J 1038

[Lahore (Rawalpindi Bench)]

Before Muhammad Tariq Abbasi, J

IRFAN AKBAR KHAN, SECRETARY, AIR EAGLE (PVT.) LTD. RAWALPINDI---Petitioner

Versus

STATE through Station House Officer,Police Station Airport, Rawalpindi and 3 others---Respondents

Writ Petition No. 3119 of 2020, heard on 2nd March, 2021.

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

----S. 173---Police Rules, 1934, R. 24.7---Report of police officer---Cancellation of FIR---Scope---Petitioner assailed the order passed by Magistrate whereby he had cancelled the FIR on the recommendation of the police---Wordings of Magistrate was nothing but a stamp of confirmation upon the proceedings of the police, without application of mind---Police could move for cancellation of FIR in case where information was maliciously false, false owing to mistake of law, false owing to mistake of fact, offence reported was found to be non-cognizable or the matter was fit for a civil suit---Order passed by Magistrate did not disclose any such reasons---Magistrate was also to see whether strict compliance of R. 24.7 of Police Rules, 1934, was made by police or otherwise---Constitutional petition was allowed and the Magistrate was directed to take up the cancellation report again for passing a fresh speaking order.

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

----S. 173---Report of police officer---Cancellation of FIR---Scope---Magistrate while exercising power under S. 173(3), Cr.P.C. is not to act as pawn, in the hands of the police and pass mechanical order, without application of his conscious mind to the facts and the material placed before him---Magistrate must realize that the power to cancel a police case is of wide amplitude, which has the effect of bringing to halt a criminal prosecution, which otherwise would entail a detailed process---Such a power, therefore, by its very nature, cannot be designed to be exercised on mere ipse dixit of the police---Otherwise, the very purpose for conferring this power to the Magistrate on responsible level in supervisory capacity would stand defeated---Magistrate while acting fairly, justly, honestly and applying his mind to the material before him and duly considering all the aspects of the matter should pass a speaking and well-reasoned order, rather than putting his signatures in an unjustified manners, whichever is placed before him by the police---Order of Magistrate was to indicate as how and on the basis of which material, he finds himself in agreement with the cancellation report---Any order passed in a mechanical manner, without indicating independent application of mind, is deprecated.

M. Aftab Saigal v. Station House Officer, Police Station North Cantt., Lahore and 9 others 1994 MLD 1659 rel.

Syed Ishtiaq Haider for Petitioner.

Shaukat Rauf Siddiqui, A.A.G. and Dr. Muhammad Anwar Khan Gondal, A.P.G. with Jawad S.I/SHO and Qasim, ASI for the State.

Raja Faheem Altaf for Respondents Nos. 3 and 4.

2021 P Cr. L J 1058

[Lahore]

Before Ch. Mashtaq Ahmad, J

JAVED ASHRAF KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No. 724 of 2012, heard on 11th November, 2020.

Punjab Essential Articles (Control) Act (XVII of 1973)---

----S. 6---Punjab Fertilizers (Control) Order, 1973, S. 18---Sale of adulterated and fake fertilizers---Scope---Accused, in a factory, was alleged to have been found in possession of Zinc Sulphate 21% without a license of Controller---Complainant in his examination-in-chief found that fertilizer analysis report reflected 18% zinc sulphate instead of 21%, stated in his cross-examination that he was informed by manager of the factory that the accused was not owner of the factory; that although some private persons were present in the factory but none was associated with recovery process; that he did not know whether something was being purchased or sold in the factory when the raid was conducted and that samples sent for analysis could be affected by wetness in air---Nominal difference in zinc sulphate ratio could not be made basis for recording conviction---Prosecution had failed to prove charge against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Sarfraz Ali Khan for Petitioner.

Ms. Tahira Parveen, Additional Prosecutor General for the State.

Complainant in person.

2021 P Cr. L J 1071

[Lahore (Multan Bench)]

Before Sardar Muhammad Sarfraz Dogar, J

SAJID IRTAZA---Petitioner

Versus

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

Writ Petition No. 11402 of 2018, heard on 1st December, 2020.

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

----Ss. 22-A & 22-B---Penal Code (XLV of 1860), S. 489-F---Negotiable Instruments Act (XXVI of 1881), S. 84---Ex-officio Justice of Peace, jurisdiction of---Dishonest issuance of the cheque---Direction to register the case---Stale cheque---Scope---Contention of the petitioner/accused was that ex-officio Justice of Peace had wrongly ordered to register the case against him as the respondent/complainant had presented the cheque-in-question after about one and half year---Validity---As provided under S. 489-F, P.P.C., dishonest issuance of cheque did not attract the offence in each and every case where the cheque was dishonored---Even absence of one element to constitute the offence under S. 489-F, P.P.C., would take the case out of its ambit---Cheque or negotiable instrument presented after six months of its due date was generally termed as stale and under the banking practice,the bank was not obliged to honour the same unless instructed by the account-holder---Criminal proceedings could not be initiated on the basis of a stale cheque---Even on the civil side, the Court could refuse to entertain certain claims based on stale cheque, e.g. treating such suit as an ordinary one instead of a suit under summary procedure---Respondent presented the cheque-in-question to the concerned bank after about one-and-half year which was patently out of date---Respondent knew fully well that the cheque-in-question would not be encashed yet he presented the same merely to bring the case against the petitioner under S. 489-F, P.P.C., thus, such conduct of the respondent contrivedly malicious---Respondent did not approach the Court (of Ex-officio Justice of Peace) with clean hands and had concealed the material facts---Exposing the petitioner to investigative process and to face rigors of criminal prosecution was not a small measure---Reasonable and tangible material with evidential basis must existed to set the law into motion so as to bring about an indictment---Insertion of S. 22-A(6)(iii) of Cr.P.C. was not meant to necessarily allow every such application as Legislature would not have been used word 'may' in said section which (word) spoke of 'discretion' by application of mind---High Court set aside the impugned order passed by the Ex-officio Justice of Peace for the registration of case against the petitioner/accused---Constitutional petition was allowed, in circumstances.

Habib Bank Limited v. Jamilur Rehman 1994 MLD 271; Shafqat Hussain Hashmi v. The State 2012 MLD 1551 and Kamran Akhter v. Jawed Ahmed Khan 2005 CLC 797 ref.

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

----S. 489-F---Dishonest issuance of cheque---Elements---Offence to constitute dishonest issuance of cheque, foundational elements were (i) the cheque was duly issued, (ii) it was issued with dishonest intent (iii) it was issued towards repayment of a loan or fulfillment of an obligation, and (iv) it was dishonoured on presentation---Absence of even one of said elements would take the case out of ambit of S. 489-F, P.P.C.

(c) Negotiable Instruments Act (XXVI of 1881)---

----S. 84---Penal Code (XLV of 1860), S. 489-F---Stale (out of date) cheque---Presentation of the cheque for encashment---Reasonable time---Scope---Cheque for the usage of trade and of bankers---Distinction---Validity---Section 489-F, P.P.C. did not stipulate any period within which the holder must present the cheque to the bank for encashment, however, S. 84(1) of the Negotiable Instrument Act, 1881 ('the Act 1881'), stipulated that the cheque was to be produced for encashment within reasonable time---Under subsection (2) of S. 84 of the Act 1881, the determining factors mentioned for the reasonable time were; the nature of the instrument, the usage of trade and of bankers and facts of the particular case---Cheque presented for encashment before the bank beyond the period of six months of its due date was generally regarded as the stale cheque---Cheques termed 'out of date' for purposes of negotiation were distinguished from those (cheques) which were termed 'out of date' by banker's custom---Most bankers used to return cheques which were presented six or more months after their date, marking the same 'out of date' and requiring the drawer's confirmation before payment---Unless the cheque was presented within reasonable time after the ostensible date of its issuance, the same should not be honoured.

(d) Indian Negotiable Instruments Act, 1881---

----S. 138---Penal Code (XLV of 1860), S. 489-F---Dishonour of cheque---Scope---In India, under S. 138 of Indian Negotiable Instruments Act, 1881, dishonouring of the cheque was culpable---However, the said provision was distinguishable from S. 489-F, P.P.C. the same not only gave statutory recognition to the concept of stale cheque but also emphasized that the cheque must be valid one at the time of presentation.

Rekha Rani Pyne v. Sambhunath Halder 2000 (4) ICC 228; Stanley Barros Pereira v. Julieta Cota e Clemente and another 2006 (2) GOA L.R 287 and Arunbhai Nilkanthrai Nanavati v. Jayaben Prohlad Bhai 2000 Cri.LJ 1152 ref.

Muhammad Shareef Karkhi Khera for Petitioner.

Tariq Nadeem, A.A.G. for the State.

Respondent in person.

2021 P Cr. L J 1100

[Lahore]

Before Tariq Saleem Sheikh, J

SHAHBAZ AHMAD---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No. 19771 of 2021, heard on 23rd April, 2021.

Criminal Procedure Code (V of 1898)---

----Ss. 465, 466, 464 & 561-A---Trial where accused was a person of unsound mind/lunatic/mentally ill---Release from custody of mentally ill accused pending trial or investigation---Determination as to state of mental health of accused---Mandatory procedure to be followed by Trial Court where accused was mentally ill---Scope---Accused impugned order of Trial Court whereby his application for release from custody, after Trial had commenced, on basis of being of unsound mind/mentally unwell under Ss. 465 & 466, Cr.P.C., was rejected---Validity---Record revealed that Trial Court had not followed procedure prescribed by S. 465, Cr.P.C., as jail authorities had recorded aberration in accused's behavior, and put him on medication and counselling; however, accused was still produced before Trial Court on different dates and his mental condition was not noticed by Trial Court or public prosecutor---Subsequently after receipt of report of Medical Board, Trial Court was required to examine head of said Board as a court witness, record his examination in writing and afford opportunity of hearing to both prosecution and defence to cross-examine and adduce evidence---Under S. 465(2), Cr.P.C., trial of the factum of unsoundness of mind and incapacity of an accused person was part of the trial before Trial Court and further proceedings were to be postponed if Trial Court came to conclusion that accused was mentally unfit---Such provisions of S. 465, Cr.P.C. were mandatory in nature and were not followed by Trial Court in the present case---High Court quashed all proceedings against accused and directed that de novo trial be held, and also directed that factum of accused's mental soundness should be redetermined in accordance with law by Trial Court---Criminal revision was disposed of, accordingly.

McNabb v. United States, 318 U.S 332, 347 (1943); Lawrence Gostin and Lance Gable, The Human Rights of Persons with Mental Disabilities: A Global Perspective on Application of Human Rights Principles to Mental Health, 63 Md. L. Rev. 20- 121 (2004). Available at: http://scholarship.law.georgetown, edu/facpub/98/; Victor Rosario Congo v. Ecuador, Case 11.427 (Inter-American Commission on Human Rights Report 29/99) 12 March 1997; https://www.un.org/development/ desa/disabilities/convention-on-the-rights-of- Persons - with - disabilities. html; UN Committee on CRPD, Concluding observations on initial report of Australia, 10th Session, 2-13 September 2013, CPRD/AUS/CO/1, available at https://www.refworld.org/docid/ 52805bcb4.html; Manual on Mental Health and Mens Rea, Justice Project Pakistan, p. 37; The Hanover Fire Insurance Company v. Messrs Muralidhar Banechand PLD 1958 SC 138; Al-Jehad Trust through Habibul Wahab Al-Khairi, Advocate, and 9 others v. Federation of Pakistan through Secretary, Ministry of Kashmir Affairs, Islamabad and 3 others 1999 SCMR 1379; Human Rights Case No.29388-K of 2013 PLD 2014 SC 305; Sam Parker, Determination of Insanity in Criminal Cases, 26 Cornell L. Rev. 375 (1940). Available at: http://scholarship.law.cornell.edu/clr/vol26/iss3/6; Muhammad Naseem v. The State 1982 SCMR 754; Khan Baig v. The State PLD 1984 Lah. 434; Abdul Wahid alias Wahdi v. The State 1994 SCMR 1517; Sirajuddin v. Afzal Khan and another PLD 1997 SC 847; Fauqual Bashar v. The State 1997 SCMR 239 and Safia Bano and another v. Home Department, Government of Punjab, through its Secretary and others PLD 2021 SC 488 rel.

Saeed Ashraf Warraich for Petitioner.

Zaman Khan Vardag, Additional Advocate-General and Rana Tasawar Ali Khan, Deputy Prosecutor General for the State.

Javed Imran Ranjha assisted by Attique-ur-Rehman Ranjha for the Complainant.

2021 P Cr. L J 1145

[Lahore (Multan Bench)]

Before Sardar Muhammad Sarfraz Dogar, J

MUHAMMAD WAQAS and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Revisions Nos. 468 of 2017 and 49 of 2018, decided on 17th November, 2020.

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

----S. 466---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Release of lunatic, pending trial---Scope---Application filed by the petitioner under S. 466(1), Cr.P.C. for his release and handing over his custody to his father till he recovered from his unsoundness of mind, was dismissed---Scope---Record showed that petitioner, who along with his co-accused was involved in case FIR registered under Ss. 302, 324 & 34, P.P.C. for committing the murder of deceased and causing injuries to another person, was found to be of unsound mind and incapable of making his defence before Trial Court, which postponed the proceedings and the petitioner was directed to be shifted to Mental Hospital Lunatic Asylum---Validity---Facts and circumstances of the case, prima facie, showed that the petitioner was not mentally fit and was of unsound mind and so it was not possible for him to understand the proceedings of the trial, thus, the petitioner's case was fully covered by subsection (1) of S. 466, Cr.P.C.---Criminal revision was accepted by setting aside the impugned order to the extent of dismissal of application of the petitioner for his release and as a sequel of, petitioner was directed to be released on security being given that he shall be properly taken care of and shall be prevented from doing injury to himself or to any other person and for his appearance when required by the court.

(b) Administration of justice---

----When the law requires a thing to be done in a particular manner then that thing must be done in that manner alone or not at all.

Ch. Umar Hayat for Petitioner (in Criminal Revision No. 468 of 2017).

Nemo for Petitioner (in Criminal Revision No. 49 of 2018).

Muhammad Ali Shahab, DPG for the State.

2021 P Cr. L J 1192

[Lahore]

Before Anwaarul Haq Pannun, J

RAB NAWAZ---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 3917-B of 2021, decided on 23rd February, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497--- Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Transportation of narcotics---Bail, grant of---Non-availability of report of Chemical Examiner---Completion of investigation---Physical disability of accused---Further inquiry---Scope---Accused was alleged to have been apprehended while transporting 3290 grams of charas---Contention of accused was that he was suffering from physical disability and as such he was unable to drive the car---Report requisitioned from the Superintendent, District Jail, reflected that the accused was suffering from old firearm injury on left femur operated from a Hospital with metallic open fixation, which was removed after about one year, thereafter external plastic leg support was applied, thus, in such backdrop, case against accused had, at least, become to be one for his release on bail due to physical disability---Report of the Chemical Examiner had also not been received so far---Investigation of the case had already been completed---Petition for grant of bail was allowed, in circumstances.

Hussain Ullah v. State and another 2019 SCMR 1651 ref.

Nasir Mehboob Tiwana for Petitioner.

2021 P Cr. L J 1212

[Lahore (Rawalpindi Bench)]

Before Muhammad Tariq Abbasi, J

AZHAR MANZOOR and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Revision No. 124 of 2020, heard on 23rd February, 2021.

Criminal Procedure Code (V of 1898)---

----Ss. 233, 356 & 342---Separate charges for distinct offences---Record in other cases---Memorandum when evidence not taken down by the Magistrate or Judge himself---Examination of accused---Scope---Accused persons assailed order passed by Sessions Judge whereby case was remanded to the Magistrate for decision afresh after framing of proper charge and recording statements under S. 342, Cr.P.C.---Charge was framed in violation of S. 233, Cr.P.C. and therefore could not be given legal sanctity---Statements of prosecution witnesses were recorded by Reader of the Court and that too without a memorandum in terms of S. 356, Cr.P.C.---Statement under S. 342, Cr.P.C. of one of the accused persons was recorded through the counsel of complainant party despite availability of accused before the Trial Court---Trial could not be termed to have been acted as per the procedure and law---Proper course in such like situation was to direct for de novo trial---Revision petition was accepted and the Trial Court was directed to hold de novo trial.

Malik Asif Taufique for Petitioners.

Sajjad Hussain Bhatti, Deputy Prosecutor General with Asif, SI/SHO for the State.

Mehmood Azam Baloch for Respondent No. 2.

2021 P Cr. L J 1232

[Lahore]

Before Asjad Javaid Ghural, J

Hafiz Syed MUHAMMAD USMAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 24453-B of 2020, decided on 12th February, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention---Bail, refusal of---Accused/petitioners being Police Officials were charged for committing murder of son of complainant by firing---Record showed that the accused/petitioner was nominated in the crime report with the allegation that he and one known and two unknown accused (having no name-badge on the uniform), being employees of the Dolphin Police Force, stopped the deceased for search and on his move to park the car, they opened firing, injured him, left him lying at the spot and did not bother to take him to the hospital---Complainant made supplementary statement on the same day and nominated unknown as co-accused, being the other Police Officials, who had stopped the deceased and made fire shots from behind the car hitting the deceased at his back by crossing the driving seat---Post mortem examination report of the deceased showed two stitched fire arm injuries and one injury, being the entry wound, was found fatal to his life---Recovery of respective fire arm weapons was shown against each accused out of which the weapon recovered from accused/petitioner stood matched with the crime empty secured from the place of occurrence---Accused/petitioners were arrested in the case and during investigation they were found responsible for the murder of the deceased---Material available on record was sufficient to connect the accused/petitioners with the commission of alleged occurrence---Offence charged against the accused/petitioners attracted the prohibitory limb of S. 497, Cr.P.C.---Petitions were dismissed, in circumstances.

Syed Farhad Ali Shah for Petitioner.

Muhammad Mehmood Chaudhary for Petitioner (in Criminal Miscellaneous No. 40201-B of 2020).

Malik Muhammad Arif Bera for Petitioner (in Criminal Miscellaneous No. 49852-B of 2020).

Khurram Shahzad Baig for the Complainant.

2021 P Cr. L J 1256

[Lahore]

Before Shehram Sarwar Ch., J

MUHAMMAD ASLAM and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 366-J of 2015, 43721-J of 2017, Criminal Revision No. 643 of 2015 and Criminal P.S.L.A. No. 185 of 2015, heard on 22nd February, 2021.

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

----Ss. 302, 324, 337-A(i), 337-F(v), 337-F(vi), 337-L(2), 459, 114, 148 & 149---Qatl-i-amd. attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-hashimah, ghayr-jaifah-munaqqillah, causing hurt, hurt caused whilst committing lurking house-trespass or house-breaking, abettor present when offence committed, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Delay of about thirty seven hours in lodging the FIR---Effect---Prosecution case was that the accused party assaulted on complainant party, due to which, one person died whereas two sustained injuries---Motive behind the occurrence was that one year ago daughter of accused (niece of deceased) contracted love marriage with brother of complainant, due to said grudge, the accused committed the occurrence---Distance between police station and the place of occurrence was eleven kilometres---Delay of about thirty seven hours in reporting the crime to the police without any plausible explanation---All the witnesses of ocular account did not utter even a single word about the said delay---Said inordinate delay in setting the machinery of law in motion spoke volumes against the veracity of prosecution version---Circumstances established that the prosecution remained failed to discharge its responsibility of proving the case against the accused---Appeal against conviction was allowed, in circumstances.

Altaf Hussain v. The State 2019 SCMR 274 rel.

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

----Ss. 302, 324, 337-A(i), 337-F(v), 337-F(vi), 337-L(2), 459, 114, 148 & 149---Qatl-i-amd. Attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-hashimah, ghayr-jaifah-munaqqillah, causing hurt, hurt caused whilst committing lurking house-trespass or house-breaking, abettor present when offence committed, rioting, armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Presence of complainant at the spot doubtful---Scope---Prosecution case was that the accused party assaulted on complainant party, due to which, one person died whereas two sustained injuries---Ocular account of the incident had been furnished by three witnesses including complainant---Presence of complainant on the spot at the time of incident was doubtful in nature because he did not receive even a scratch during the incident---Statement of said witness was that soon after the incident he shifted all the injured persons to hospital but Medico-Legal Reports available on record, his name was not mentioned in the relevant column of accompanying the injured to hospital---Delay in the FIR also casted doubt about his presence on the spot at the time of incident---Circumstances established that the prosecution remained failed to discharge its responsibility of proving the case against the accused---Appeal against conviction was allowed, in circumstances.

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

----S. 161---Delay in recording the statement of witness by the police---Scope---Credibility of a witness is looked with serious suspicion if his statement under S. 161, Cr.P.C., is recorded with delay without offering any plausible explanation.

Muhammad Khan v. Maula Bakhsh and another 1998 SCMR 570 rel.

(d) Criminal trial---

----Witness---Injured witness---Statement of injured witness---Scope---Merely injury on the body of a person would not stamp him/her truthful witness.

Amin Ali and another v. The State 2011 SCMR 323 rel.

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

----Ss. 302, 324, 337-A(i), 337-F(v), 337-F(vi), 337-L(2), 459, 114, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-hashimah, ghayr-jaifah-munaqqillah, causing hurt, hurt caused whilst committing lurking house-trespass or house-breaking, abettor present when offence committed, rioting, armed with deadly weapon, unlawful assembly--- Appreciation of evidence---With-holding of material witness---Effect---Scope---Prosecution case was that the accused party assaulted on complainant party, due to which, one person died whereas two persons sustained injuries---Complainant had claimed that another person also sustained injuries during the occurrence but he was not produced by the prosecution during the trial and as such the complainant withheld the best evidence available with him---Circumstances established that the prosecution failed to discharge its responsibility of proving the case against the accused---Appeal against conviction was allowed, in circumstances.

(f) Criminal trial---

----Witness---Credibility---If a witness who told lie about any material fact must be disbelieved as to all other facts.

PLD 2019 SC 527 rel.

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

----Ss. 302, 324, 337-A(i), 337-F(v), 337-F(vi), 337-L(2), 459, 114, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-hashimah, ghayr-jaifah-munaqqillah, causing hurt, hurt caused whilst committing lurking house-trespass or house-breaking, abettor present when offence is committed, rioting, armed with deadly weapon, unlawful assembly---Appreciation of evidence---Motive was not proved---Prosecution case was that the accused party assaulted on complainant party, due to which, one person died whereas two sustained injuries---Motive behind the occurrence was that a year before daughter of accused (niece of deceased) contracted love marriage with brother of complainant and they both started living in another city---Couple had come to the house of complainant to meet and at the time of incident they were sleeping in a room of the house---Admittedly, the motive incident took place one year prior to the main occurrence and during the said interregnum no untoward incident took place between the parties---No solid/convincing evidence qua motive was produced by the prosecution during the trial---No independent witness qua motive was joined by police in investigation or produced by prosecution in the trial---Prosecution had failed to substantiate motive against the accused---Circumstances established that the prosecution failed to discharge its responsibility of proving the case against the accused--- Appeal against conviction was allowed, in circumstances.

(h) Criminal trial---

----Medical evidence---Scope---Medical evidence could confirm the ocular account with regard to the receipt of injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death but it will not tell the names of the assailants.

Ata Muhammad and another v. The State 1995 SCMR 599 rel.

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

----Ss. 302, 324, 337-A(i), 337-F(v), 337-F(vi), 337-L(2), 459, 114, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-hashimah, ghayr-jaifah-munaqqillah, causing hurt, hurt caused whilst committing lurking house-trespass or house-breaking, abettor present when offence committed, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Weapons of offence were recovered at the instance of accused---Reliance---Scope---Prosecution case was that the accused party assaulted on complainant party, due to which, one person died whereas two sustained injuries---Record showed that 444 bore rifle and .30-bore pistol were recovered at the instances of accused and co-accused but the same were immaterial because no report of Forensic Science Agency qua said weapons was available on the record---Alleged recovery of sota at the instance of accused did not advance the case of prosecution because it was an ordinary sota, easily available in the market, likewise, recovery of motorcycle at the instance of accused was of no avail to the prosecution because it was a joint recovery allegedly effected at the instance of all the accused---Circumstances established that the prosecution failed to discharge its responsibility of proving the case against the accused---Appeal against conviction was allowed, in circumstances.

(j) Criminal trial---

----Duty of prosecution---Scope---Prosecution has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weakness of the defence.

(k) Criminal trial---

----Benefit of doubt---Principle---If there was a single circumstance which created doubt regarding the prosecution case, the same would be sufficient to give benefit of doubt to the accused.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Ch. Abdul Aziz Ghulam Rasool Sial, Muhammad Akram Khaksaar, Khan Qalb-e-Abbas Sial and Saiqa Javed along with Muhammad Aslam (Appellant) on bail for Appellant.

Ahmad Saeed, Deputy Prosecutor General for the State.

Hamad Akbar Walana and Khudadad Chattha for the Complainant.

2021 P Cr. L J 1289

[Lahore]

Before Sardar Muhammad Sarfraz Dogar and Asjad Javaid Ghural, JJ

Rana SANA ULLAH KHAN---Petitioner

Versus

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

Writ Petition No. 13581 of 2020, decided on 5th April, 2021.

Constitution of Pakistan---

----Art. 199---National Accountability Ordinance (XVIII of 1999), Ss. 9, 19 & 16-A---Control of Narcotic Substances Act (XXV of 1997), S. 37---Corruption and corrupt practices---Call up notice---Assets beyond means---Freezing of assets---Pre-arrest bail, grant of---Scope---Accused sought premium of pre-arrest bail in a call-up notice issued under S. 19 of the National Accountability Ordinance, 1999 and the subsequent proceedings thereto regarding accumulation of assets beyond known sources of income---Held; accused was served with the call-up notice just after 3 days from the passing of a bail granting order in another case---Accused was required to appear in person before the Combined Investigation Team in connection with an inquiry initiated by the National Accountability Bureau (NAB) on three different complaints against the accused and others on allegations of accumulation of assets beyond known sources of income, whereas, all the assets and properties, subject matter of the inquiry, had already been frozen by the Anti-Narcotics Force on the allegations of having been acquired through involvement in narcotics trafficking and further process for continuation/confirmation of freezing was pending before the court of competent jurisdiction---National Accountability Bureau (NAB) could not take the cognizance of the matter with regard to the same properties without invoking the provisions of S. 16-A of National Accountability Ordinance, 1999---Prosecution had not explained that what prevented the Authorities from arresting the accused when he was already in custody and why had they kept the inquiry pending and never issued any call up notice to the accused and as soon as he was ordered to be released on bail by the court he was issued a call up notice---Constitutional petition was accepted and the ad-interim pre-arrest bail already granted to the accused was confirmed.

Anti-Corruption Establishment Punjab through D.G. v. National Accountability Bureau through Chairman NAB and others 2016 SCMR 92 rel.

Muhammad Ahsan Bhoom, Muhammad Amjad Pervaiz, Rao Muhammad Aurangzaib, Ch. Muhammad Nawaz, Anwar Hussain, Mian Naseem Saqlain and Muhammad Adil Chattha for Petitioner along with the Petitioner.

2021 P Cr. L J 1300

[Lahore]

Before Sohail Nasir, J

MUMTAZ alias BHUTTO---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 30606 of 2021, decided on 21st May, 2021.

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

----S. 498---Penal Code (XLV of 1860), Ss. 337-F(i) & 354---Damiyah and assault or criminal force to woman with intent to outrage her modesty---Pre-arrest bail, grant of---Scope---Accused sought pre-arrest bail in an FIR lodged under Ss. 337-F(i) & 354, P.P.C.---Allegation against accused was that when the complainant asked for her money, he being armed with pistol dragged her in the street and her clothes were torn---Requirements for pre-arrest bail were different from those relevant to bail after arrest---Question of declining the bail came into field only when offence was non-bailable, because in bailable offences no discretion was available with the Court to refuse the concession of bail, be it pre-arrest or after arrest---Accused was admitted to pre-arrest bail, in circumstances.

Mst. Zeenat Begum v. Sadaqat Sagheer and another 2020 PCr.LJ Note 4 ref.

Allah Bachaya and 3 others v. The State 2001 PCr.LJ 1082 rel.

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

----Ss. 496, 497 & 498---Bail---Bail in bailable offences---Scope---Denial of statutory right to a litigant by the Courts is called injustice---When such refusal relates to liberty of a person having right of bail in bailable offences, it is called gross injustice that means to treat someone in an unfair way.

Alam Zeb and another v. The State and others PLD-2014 SC 760 rel.

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

----Ss. 496, 497 & 498---Bail---Bail in bailable offences---Right of accused---Scope---Section 496 of the Code makes it clear that powers under said provision can be exercised by a Court only for a person other than a person accused of a non-bailable offence, whereas S. 497, Cr.P.C. also leaves no ambiguity that these powers are to be exercised in case of non-bailable offence, however, powers under S. 498, Cr.P.C. are beyond any such restrictions of bailable or non-bailable offence as same says that "the High Court or Court of Session may in any case, whether there be an appeal on conviction or not, direct that any person be admitted to bail"---Words "in any case" used in the provision makes no difficulty to understand that a person irrespective of the fact that he is the accused of a bailable or non-bailable offence can be admitted to pre-arrest bail---When Ss. 496, 497 & 498, Cr.P.C. read together there remains no uncertainty that while deciding an application, may it be for bail after arrest or pre-arrest, in bailable offence the Court is left with no discretion to refuse the concession to an accused as in such eventuality the grant of bail is a right and not favour, whereas in non-bailable offence the grant of bail is not a right but concession/grace.

Mian Mahmud Ali Qasuri and others v. The State PLD 1963 SC 478; Tariq Bashir v. The State PLD 1995 SC 34; Imtiaz Ahmad and another v. The State PLD 1997 SC 545 and Allah Bachaya and 3 others v. The State 2001 PCr.LJ 1082 rel.

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

----Ss. 496 & 497---Bail---Bailable offences and non-bailable offences---Scope---Accused has indefeasible right of bail in case of bailable offence---Bail is not a mere privilege in such cases but a right of the subject whose liberty is regarded as a precious asset to be preserved undiminished---Grant of bail in such cases is a right and not favour, whereas in non-bailable offence the grant of bail is not a right but concession/grace---Court has no option but to admit the accused to bail in bailable offence.

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

----S. 497---Bail---History of bail in England and United States of America, detailed.

(f) Administration of justice---

----Denial of statutory right to a litigant by the Courts is called injustice.

(g) Administration of justice---

----Judge in all circumstances is under obligation to decide a case in accordance with law---Phrase "in accordance with law" means that a person will comply with the terms of the law and will abide by or obey the law---Law is not to be violated by the King Maxim: Lex Non a Rege Est Violanda is equally applicable to the modern state.

(h) Maxim---

----Lex Non a Rege Est Violanda---Scope---King when deciding any case should not violate the law himself also---Law is equal and same for every person---Law does not discriminate on the basis of any post or position, but is same for every person whether he be King or not.

(i) Administration of justice---

----Judge is to follow the laws of the land and principles settled by the superior Courts---Courts have only to go behind the principle "Let justice be done though the heavens may fall"---Emotion is a fundamental aspect of human existence---Feelings about options exert a powerful influence on choice in normal healthy people ---Intuition and anecdote suggest that people react more positively toward others whom they like or for whom they feel sympathy than towards others whom they dislike or for whom they feel disgust---Unlike Judges are expected to put their emotional reactions to litigants aside.

(j) Administration of justice---

----Prejudice and Sympathy are the names of witnesses whose testimony is never recorded, but must nevertheless be reckoned with in trials by jury---Judges are supposed to make reasoned decisions based on the facts and the law rather than on the basis of sympathy or empathy for litigants---Emotion, sympathy, empathy and kindness are aliens during the dispensation of justice---Such principle signifies the belief that justice must be realized regardless of consequences.

Mian Mushtaq Ahmad Anjum for Petitioner.

Ms. Rahila Shahid, DDPP for the State.

Complainant in person.

Muhammad Bilal, SI with Record.

2021 P Cr. L J 1334

[Lahore]

Before Anwaarul Haq Pannun and Muhammad Amjad Rafiq, JJ

TAHIR NAQASH---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 70487 of 2019, heard on 8th June, 2021.

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

----S. 9(c)--- Possession of narcotics---Appreciation of evidence---Scope---Accused was alleged to have been found in possession of 16 kilograms of heroin--- Recovery of contraband was proved through the testimony of three witnesses, being recovery witnesses and the witness who took the complaint to police station for registration of FIR---Later had deposed that after registration of FIR, he had returned back to place of recovery with a copy of FIR along with the Investigating Officer---Presence of Investigating Officer at the place of occurrence was also proved and defence could not challenge his testimony---Prosecution had succeeded in proving the charge beyond shadow of reasonable doubt---Appeal against conviction was dismissed, in circumstances.

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

----S. 9(c)---Police Rules, 1934, R. 22.70---Qanun-e-Shahadat (10 of 1984), Art. 87---Possession of narcotics---Store-Room Register---Certified copies of public documents---Scope---Accused was alleged to have been found in possession of 16 kilograms of heroin---Examination of entry in Register No. XIX (Store-Room Register as prescribed in R. 22.70 of the Police Rules, 1934) showed that name of police station and district was not mentioned in the page brought on record---Public documents could be proved through production of certified copies yet they should be in the form as required under Art. 87 of the Qanun-e-Shahadat, 1984---Register No. XIX was not duly proved; therefore, any page/part of register brought on record without formal proof amounted to improper admission of evidence---If such practice was allowed to continue then every junior ranked police official while bringing on record any register while claiming it as genuine, real and true without the knowledge of senior officers in the hierarchy of police station or the department could thwart the sanctuary of prosecution case---Entry of Register No. XIX produced in evidence, being not certified through process of law, was rejected.

Nasir Khan Afridi assisted by Jahanzeb for Appellant.

Ch. Humayoun Aslam, Deputy Prosecutor General for Respondents.

2021 P Cr. L J 1346

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh, J

MUHAMMAD SHAKIR---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 3742/B of 2020, decided on 12th February, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), 295-B---Universal Declaration of Human Rights, 1948, Art. 18---De-filing of the holy Quran---Bail, grant of---Case of further inquiry---Accused was alleged to have willfully damaged copies of the holy Quran by burying them and spilling water and stamping the place with feet---Validity---Freedom of conscience and right to profess, practice and propagate religion as a fundamental right has been recognized under Art. 18 of Universal Declaration of Human Rights, 1948---Such has a corresponding duty to respect thoughts and beliefs of other people---Scriptures and holy personages have central place in a religion and sect so those must also be respected---Holy Quran is heart and soul for the Muslims who demand same veneration for it from all and sundry---Mens rea was one of the essential elements to constitute an offence under S. 295-B, P.P.C.---Subject to certain conditions, Shariah recognized burial as one of the modes to dispose of old and unusable copies of the Quran---Accused was behind the bars for about 14 months and his trial was not likely to be concluded in foreseeable future--- Continuous incarceration of accused would be like punishing him before conviction---Bail was allowed in circumstances.

Industrial Development Bank of Pakistan and others v. Mian Asim Fareed and others 2006 SCMR 483; Muhammad Nazir v. Fazal Karim and others PLD 2012 SC 892; Ali Gohar and others v. Pervaiz Ahmed and others PLD 2020 SC 427; Haq Nawaz v. The State and others 2000 SCMR 785; Wazir v. The State PLD 1962 (W.P.) Lahore 405; Alam Din v. The State PLD 1973 Lah. 304; Muhammad Bashir alias Bakola and 8 others v. Superintendent of Police, City Division, Lahore, and 9 others 2007 PCr.LJ 864; Syed Faraz Shah v. The State 2011 MLD 535; Muhammad Siddique and another v. Province of Punjab and others 2020 PCr.LJ 197; Rimsha Masih v. Station House Officer, Police Station Ramna, and others PLD 2013 Isl. 1; Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182; Shahzaman and 2 others v. The State and another PLD 1994 SC 65; Khalid Saigol v. The State PLD 1962 SC 495; Ch. Abdul Malik v. The State PLD 1968 SC 349; Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Maulana Abdul Aziz v. The State 2009 SCMR 1210; Nasir Khan v. Waseel Gul and another 2011 SCMR 710; Husnain Mustafa v. The State and another 2019 SCMR 1914; Mumtaz Imtiaz v. The State and another 2012 YLR 1110; Shabbiran Bibi v. The State and another 2018 PCr.LJ 788; Imtiaz Ahmed and another v. The State PLD 1997 SC 545; Khawaja Salman Rafique and another v. National Accountability Bureau through Chairman and others PLD 2020 SC 456 and Vaman Narain Ghiya v. State of Rajasthan AIR 2009 SC 1362 rel.

Ch. Umar Hayat and Javed Abbas Sial for Petitioner.

Adnan Latif Sheikh, Deputy Prosecutor General with Khizar/SI for the State.

Mehr Zamir Hussain Sandhal, Deputy Attorney General for Pakistan.

Muhammad Ayub Buzdar, Assistant Advocate General Punjab.

Tahir Mehmood, President High Court Bar Association, Multan.

2021 P Cr. L J 1372

[Lahore (Bahawalpur Bench)]

Before Muhammad Shan Gul, J

MUHAMMAD ATIF SAEED---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE/EX-OFFICIOJUSTICE OF THE PEACE, CHISHTIAN DISTRICTBAHAWALNAGAR and 3 others---Respondents

Writ Petition No. 4719 of 2021/BWP, decided on 10th June, 2021.

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

----Ss. 22-A & 22-B---Penal Code (XLV of 1860), S. 489-F---National Accountability Ordinance (XVIII of 1999), Ss. 9 & 18---Powers of Ex-officio Justice of Peace---Registration of FIR---Dishonestly issuing a cheque---Cognizance of offences by National Accountability Bureau (NAB)---Scope---Petitioners challenged order passed by Justice of Peace while contending that despite presence of applications disclosing the commission of a cognizable offence, the Justice of Peace had proceeded to dismiss the applications on the premise that the accused was in the custody of National Accountability Bureau (NAB) and since a Reference was pending against him, therefore, the petitioners were advised to approach the NAB authorities for the purpose of addressing their grievances---Held; offence under S. 489-F, P.P.C. was not a scheduled offence of the National Accountability Ordinance, 1999 and therefore the bar contained in its S. 18(d) might not applicable in the present case---Transaction complained of did not have any connection with the Reference pending before the Accountability Court---Offence under S. 489-F, P.P.C. was distinct and separate from the offence of cheating the public at large---Two different set of evidence was required to prove distinct offences---Two offences under different enactments could result out of a single transaction---Constitutional petitions were allowed, in circumstances.

Malik Sohail Aslam v. Superintendent of Police (Operation), Lahore and 3 others 2017 YLR 1548; Abdul Rehman Malik v. Synthia D. Ritchie, Americans National and others 2020 SCMR. 2037 and Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539 ref.

Muhammad Nadeem Anwar v. Securities and Exchange Commission of Pakistan through Director NBFCs Deptt. Islamabad 2014 SCMR 1376; Mian Haroon Riaz Lucky and another v. The State and others 2021 SCMR 56; Jitendra Panchal v. The Intelligence Officer (Bombay High Court) 2008 Cri.LJ 974; State of Bombay v. S.L. Apte and another AIR 1961 SC 578; Jeffers v. United States 432 U.S. 137 1977 and State of Bihar v. Murad Ali Khan, Farukh Salauddin 1988 SCR Supl. (3) 455 rel.

(b) Criminal trial---

----Two offences under different enactments can result out of a single transaction.

Muhammad Nadeem Anwar v. Securities and Exchange Commission of Pakistan through Director NBFCs Deptt. Islamabad 2014 SCMR 1376 rel.

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

----Ss. 22-A, 22-B & 154---Powers of Ex-officio Justice of Peace---Registration of FIR---Accused person's right of hearing---Scope---Section 154, Cr.P.C. does not envisage any hearing for an accused before registration of a criminal case---Neither before the Station House Officer (SHO), nor before the Justice of Peace and not even before the High Court even if the accused is present---At the time of the First Information Report (FIR) accused persons named in the complaint have no right of hearing.

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

----S. 154---Information in cognizable cases---Registration of FIR---Scope---Words "every information relating to commission of a cognizable offence" pertain only the information so provided and do not pertain to actual commission of a cognizable offence---Information so supplied, as long as it is in respect of a cognizable offence, irrespective of its veracity, has to be accepted as gospel truth by the Station House Officer (SHO), in terms of his statutory obligation under S. 154, Cr.P.C.

Saeed Ahmad and others v. Naseer Ahmad and others PLD 2000 Lah. 208; Muhammad Aslam v. Additional Sessions Judge and others 2004 PCr.LJ 1214; Sana Ullah v. SHO Police Station Civil Lines, Gujart and 3 others PLD 2003 Lah. 228 and Mst. Gul Reza and others v. The State and others 2002 PCr.LJ 9 ref.

Shakeel Ahmad Malik and Muhammad Gulzar Khaliq for Petitioner.

Barrister Syed Ali Nauman Shah, A.A.G.

Muhammad Arshad Qayyum, Special Prosecutor for NAB Multan on Court call.

2021 P Cr. L J 1393

[Lahore]

Before Tariq Saleem Sheikh, J

MUZAFFAR AHMAD---Petitioner

Versus

The STATE and 2 others---Respondents

Writ Petition No. 50883 of 2020, decided on 26th May, 2021.

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

----Ss. 63, 173, 167 & 561-A---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court---Scope---High Court (Lahore) Rules and Orders Vol. III Chapter 11, Part-B, R. 6---Discharge of apprehended person on order of Magistrate----Nature of order of discharge under S. 63, Cr.P.C.---Adjudication by Judicial Magistrate under S. 63, Cr.P.C.---Scope---Cancellation of a case was totally different from discharge of an accused person as former terminated further investigation by police while latter did not---Word "discharge" used in S. 173, Cr.P.C. was used in a different sense as it was used in respect of bond, while the same was used in S. 63, Cr.P.C. in respect of arrest---High Court observed that while making order for discharge under S. 63, Cr.P.C., Magistrate must his mind to facts and circumstances of a case and should be honest fair and just to accused as well as prosecution; and inter alia, take into consideration nature of allegation(s) against accused, evidence collected or likely to be collected and defence plea of accused as well as any evidence accused had produced in respect thereof and additionally should examine police diaries and record reasons for his opinion---Validity of an order for discharge of an accused did not depend on period such accused had been in custody of police and time taken by police to investigate a case however, Magistrate should not act in haste and see to it that his order for discharge did not nip the prosecution case---Such order for discharge of an accused was an administrative and not judicial order and was not amenable to revisional jurisdiction but in appropriate cases could be challenged under S. 561-A, Cr.P.C. or through Constitutional petition seeking writ of certiorari; which was to be a check against arbitrariness on Magistrate's part---Subject to R. 6 of Rules and Orders of the Lahore High Court, Vol. III Chapter 11 Part-B, Magistrate could discharge an accused even suo motu when such accused was produced before him for remand under S. 167, Cr.P.C.

Nazir Ahmad v. The State PLD 1987 Lah. 236; Muhammad Waseem v. Additional Sessions Judge, Dera Ghazi Khan and 3 others 1985 PCr.LJ 224; Ashiq Hussain v. Sessions Judge, Lodhran and 3 others PLD 2001 Lah. 271; Jameel Ahmed and 3 others v. The Superintendent of Police, Range Crime Branch, Rawalpindi Division, Rawalpindi 1999 PCr.LJ 310; Rehmat Ali v. Nazir Hussain 1997 MLD 1135; Talib Hussain and another v. Muhammad Aslam and another 1997 PCr.LJ 56; Waqarul Haq alias Mithoo and another v. The State PLD 1988 Lah. 336; Ashiq Hussain v. Sessions Judge, Lodhran and 3 others PLD 2001 Lah. 271; Maqbool Ahmed v. Station House Officer, Police Station Changa Manga, District Kasur and another 1999 PCr.LJ 1198; Muhammad Ali and another v. Station House Officer and 6 others 1994 PCr.LJ 1806; Muhammad Hussain v. The Ilaqa Magistrate Ist Class, Lahore and 4 others 1995 PCr.LJ 97; Allah Ditta v. Saeed Ahmed Awan and 2 others 2004 YLR 1410; Mst. Mehnaz v. Judicial Magistrate Ist Class/Civil Judge, Attock and 2 others 2008 YLR 1669; Masood-ul-Hassan v. Habib-ur-Rehman and 6 others PLD 1998 Lah. 517; Muhammad Shafi and 3 others v. Station House Officer, Uggoki, Tehsil and District Sialkot and another 1999 PCr.LJ 1345; Imran Sattar v. Judicial Magistrate and others PLJ 2001 Lahore 728; Shahid Raza Bhatti v. Magistrate Section 30, District Courts, Rawalpindi and 2 others 1999 MLD 1847; The State through Advocate-General N.W.F.P. v. Ubaidullah and another 2005 MLD 1883; Shakoor Khan v. Mst. Iqbal Bano and another 2012 YLR 2258; Khadim Hussain Shah v. Judicial Magistrate and others 2019 MLD 363; Iftikhar Ahmed v. The State and others PLD 2020 Lah. 931; Zahira Habibulla H. Sheikh and another v. State of Gujarat and others AIR 2004 SC 3114; The State v. Nasir Javed Rana, Civil Judge Ist Class/Magistrate Section 30, Rawalpindi PLD 2005 SC 86; Hidayatullah and others v. The State through Advocate-General, N.W.F.P. Peshawar High Court, Peshawar 2006 SCMR 1920 and Muhammad Sharif and 8 others v. The State and another 1997 SCMR 304 rel.

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

----S. 489-F---Criminal Procedure Code (V of 1898), S. 63---Offence of dishonestly issuing a cheque---Cheques given as security---Determination as to whether a case of dishnouring a cheque constituted an offence under S. 489-F, P.P.C.---Scope---Petitioner impugned order of Judicial Magistrate whereby after registration of FIR under S. 489-F on complaint of petitioner, the accused was discharged by Judicial Magistrate under S. 63, Cr.P.C.---Validity---Proposition that all cheques given for security or security cheques were beyond scope of S. 489-F, P.P.C. was too broad to be accepted and every transaction must be minutely examined to determine whether said section was attracted to same---In the present case, prima facie, liability arose out of claim of breach of a contract, a claim neither admitted nor acknowledged by accused, and in such circumstances it was doubtful whether an offence under S. 489-F, P.P.C. was committed---Judicial Magistrate in impugned order had observed that dispute between parties was of a civil nature and petitioner wanted to use machinery of criminal law to settle same---No jurisdictional defect or legal infirmity could be pointed out in impugned order---Constitutional petition was dismissed, in circumstances.

Mian Allah Ditta v. The State and others 2013 SCMR 51; Messrs Indus Airways Pvt. Ltd. and others v. Messrs Magnum Aviation Pvt. Ltd. and another (2014) 12 SCC 539 and Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Limited (2016) 10 SCC 458 rel.

Syed Moazzam Ali Shah for Petitioner

Zaman Khan Vardag, Additional Advocate General for the State.

Ahmad Faheem Bhatti for Respondent No. 3.

2021 P Cr. L J 1447

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi and Sadiq Mahmud Khurram, JJ

TARIQ MAHMOOD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 225 of 2020, heard on 15th October, 2020.

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

----S. 31-A---Constitution of Pakistan, Arts. 9 & 10-A---Abscondance to avoid service of warrants---Security of person, right to fair trial---Scope---Accused assailed his conviction which was recorded in his absence---In the present case, the Trial Court adopted a completely different procedure for the trial of offence under S. 31-A of the National Accountability Ordinance, 1999 (Ordinance) from the procedure provided under Chapter XXII-A or Chapter XXII (summary trial) of the Code of Criminal Procedure, 1898---Trial Court, thus deviated from the well-recognized procedure of the trial of the offences as mandated by S. 17(b) of the Ordinance---Court, by virtue of S. 17(c) of the Ordinance was required to record reasons for dispensing with the procedure as provided in Cr.P.C. or S. 17(b) of the Ordinance---Perusal of the record revealed that the Trial Court did not pass any order dispensing with the procedure provided under Cr.P.C. or the procedure provided under S. 17(b) of the Ordinance for the trial of offence nor recorded any reason to dispense with the said procedure which was the most essential and precondition for dispensing with the procedure mentioned in Cr.P.C.---In the absence of any order or reason for dispensing with the provisions of Cr.P.C. the Trial Court was duty bound to adopt the procedure as provided under S. 17(b) of the Ordinance hence, committed an illegality---Said illegality could not be cured under S. 537, Cr.P.C. because it had materially caused prejudice to the accused and occasioned a failure of justice---Procedure adopted by the Trial Court was liable to be set aside---Procedure adopted by the Trial Court also violated the provisions of Arts. 9 & 10-A of the Constitution---In the present case the Trial Court issued warrants for the arrest of the accused to procure his attendance so that the trial concerning main offence in the reference might be commenced against him---As the warrants were not being served, therefore, the statement of the process-server was recorded to issue proclamation as required under S. 87, Cr.P.C. and thereafter the attachment of property of the accused person---Proceedings were initiated to compel the accused to appear before the court---Statement of process-server recorded by the Trial Court to procure the attendance of the accused for the purpose of his trial in the main reference could not be equated with the evidence without fulfilling the conditions of Qanun-e-Shahadat, 1984 and S. 353, Cr.P.C.---Statement of process-server could not be used for convicting the accused---Conviction and sentence recorded by the Trial Court were not sustainable, in circumstances---Appeal against conviction was allowed, in circumstances.

Abdul Sattar Molla v. Crown PLD 1953 FC 145 rel.

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

----S. 32---Limitation Act (IX of 1908), S. 5---Appeal---Appreciation of evidence---Condonation of delay---Appeal was to be filed within ten days of the final judgment but the present appeal had been filed beyond that period--- Accused sought condonation of delay on the plea that as the judgment was void, therefore, no time limit would run against the accused for filing the appeal---Validity---Record showed that the judgment passed by the Trial Court was void ab initio, hence the bar of limitation could be ignored.

Muhammad Shafi v. Mushtaq Ahmed 1996 SCMR 856 rel.

Malik Muhammad Ajmal Awan for Appellant.

Husnain Khurshid, Special Prosecutor for NAB for the State.

2021 P Cr. L J 1470

[Lahore]

Before Sadaqat Ali Khan and Shehram Sarwar, Ch., JJ

IHSAN ULLAH and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 56221-J, 37230, 37236 and 47664 of 2017 and Murder Reference No. 277 of 2017, heard on 9th November, 2020.

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

----Ss. 302(b) & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd and common intention---Appreciation of evidence---Benefit of doubt---Contradiction in ocular and medical evidence---Non-mentioning of names of eye-witnesses in the FIR---Joint identification parade---Recovery of weapon from open place---Effect---Accused persons were alleged to have murdered the maternal nephew of complainant on a passage---Presence of complainant on the spot at the time of incident was doubtful---Complainant had attributed single firearm injury to one of the accused whereas the doctor who conducted autopsy of the dead body had noted two firearm injuries on the person of deceased---Story of prosecution as mentioned in the FIR was improbable and did not appeal to prudent mind because there was no mention in the FIR as to who prompted the accused to fire on the deceased---Names of prosecution witnesses were not mentioned in the FIR---Identification parade carried no value in the eyes of law because the same was held jointly in which the accused persons were made to sit jointly along with thirty dummies---Prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeals against conviction are allowed, in circumstances.

Gulfam and another v. The State 2017 SCMR 1189 ref.

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

----Ss. 302(b) & 34---Qatl-i-amd and common intention---Recovery of weapon from open place---Scope---Recovery of pistols at the instance of accused persons was immaterial because the pistols were recovered from a graveyard which was an open place, accessible to everyone.

(c) Criminal trial---

----Medical evidence---Scope---Medical evidence may confirm the ocular account with regard to the receipt of injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death, but it would not tell the names of the assailants.

Ata Muhammad and another v. The State 1995 SCMR 599 ref.

(d) Criminal trial---

----Duty of prosecution---Scope---Prosecution has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weakness of the case of defence.

(e) Criminal trial---

----Benefit of doubt---Scope---Single circumstance creating reasonable doubt regarding the prosecution case is sufficient to give benefit of doubt to the accused.

Muhammad Akram v. The State 2009 SCMR 230 ref.

Kamran Javed Malik and Rana Sarfraz Yousaf for Appellants.

Syed Najam-ul-Hassan, Defence Counsel appointed at State expense.

Rai Akhtar Hussain, Deputy Prosecutor General for the State.

Sardar Najeeb Akbar Khan for the Complainant.

2021 P Cr. L J 1485

[Lahore]

Before Ali Baqar Najafi, Aalia Neelum, and Syed Shahbaz Ali Rizvi, JJ

Mian MUHAMMAD SHAHBAZ SHARIF---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and another---Respondents

Writ Petition No. 20793 of 2021, decided on 22nd April, 2021.

Per Ali Baqar Najafi, J

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

----S. 497---Bail---Medical ground---Principle---Medical claim cannot be accepted as claimed rather is required to be investigated by Medical Board comprising of experts in the subject to ascertain type and severity of ailment and availability of essential treatment inside jail.

Muhammad Arshad v. The State and another 1997 SCMR 1275; Malik Muhammad Yousafullah Khan v. The State and another PLD 1995 SC 58; Hanif Ahmed Bhatti v. Federation of Pakistan and others PLD 2005 Kar. 364; Imtiaz Ahmed v. The State through Special Prosecutor, ANF 2017 SCMR 1194 and Sharjeel Inam Memon v. National Accountability Bureau 2018 SCMR 2023 rel.

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

----S. 9(b)---Criminal Procedure Code (V of 1898), S. 497---Bail---Delay in conclusion of trial---Vacant court---Effect---Vacancy of Accountability Court does not make it a case of incarceration as statutory ground is not available to a person under National Accountability Ordinance, 1999.

Mian Muhammad Nawaz Sharif v. NAB (W.P. No. 63511 of 2019 decided on 25.10.2019) rel.

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

----S. 9(a)---Words "corrupt practices"---Scope---Words "corrupt practices" are succession of acts of a similar kind of spoiled, tainted, vitiated, depraved, debased and morally degenerated acts.

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

----S. 5(c)---Transfer of Property Act (IV of 1882), S. 41---Assets--- Benami transaction---Pre-conditions---In order to prove Benami Transaction, source of income; custody of title documents; possession of property; and motive of transaction, have to be proved through confidence inspiring evidence.

Din Muhammad Wagan v. Mst. Rashida Khatoon through Legal Heirs 2002 CLC 1573; Messrs Shalimar Ltd., Karachi v. Raisuddin Siddiqui and 3 others 1979 CLC 338; Sree Meenakshi Mills Ltd., Madurai v. Commissioner of Income Tax, Madras PLD 1957 SC (Ind.) 188; Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703; Abdul Majeed and others v. Amir Muhammad and others 2005 SCMR 577 and Jane Margrete William v. Abdul Hamid Mian 1994 CLC 1437 ref.

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

----S. 14---Corruption and corrupt practices---Onus to prove---Shifting of onus---Presumptions---Scope---National Accountability Bureau (NAB) is not absolved of its responsibility to prove case against accused as presumption of innocence always lies in favour of accused person---Onus shifts only after initial discharge of burden by prosecution.

Asfand Yar Wali's case PLD 2001 SC 607 rel.

(f) Good Governance---

----Public office holder---Conduct---Public office holder must command respect, honour, dignity and should be 100% "Mr. Clean"---Such is hallmark of democracy.

Per Ali Baqar Najafi, Aalia Neelum and Syed Shahbaz Ali Rizvi, JJ agreeing with Sardar Muhammad Sarfraz Dogar, J. [Majority View]

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

----Ss. 9(a) & 9(b)---Anti-Money Laundering Act (VII of 2010), Ss. 3 & 4---Criminal Procedure Code (V of 1898), S. 378---High Court (Lahore) Rules and Orders, Vol. V, Chapter 4, Part-H, R. 5---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Benefit of doubt---Larger Bench, constitutiin of---Case of further inquiry---Difference of opinion---Petitioner-accused was facing trial on the allegations of corruption and corrupt practices and money laundering---Full Court was constituted as Division Bench of High Court had difference of opinion---Validity---Court had to keep in view whether case of petitioner called for further inquiry into his guilt---In absence of any property purchased or owned in personal name of accused and in absence of direct proof that his family members were his dependents or vice versa and in absence of direct proof that money came through Foreign Telegraphic Transfers in account of accused as some crime proceed or money laundering, such allegation could not be accepted as gospel truth---Difference of opinions between Judges of Division Bench of High Court, on bail matter showed existence of reasonable grounds to connect accused with crime as doubtful---Such difference of opinion entitled accused to benefit of doubt, which was a factor essential for grant of bail---Bail was allowed in circumstances.

Ch. Zulfiqar Ali v. The State PLD 2002 SC 546; Tallat Ishaq v. National Accountability Bureau through Chairman, and others PLD 2019 SC 112; Hamza Shahbaz Sharif v. NAB and others W.P. No.7425 of 2021; Agha Massihuddin Khan Durrani and others v. Chairman, National Accountability Bureau, Islamabad and others PLD 2020 Sindh 365; Justice Qazi Faez Isa v. The President of Pakistan and others PLD 2021 SC 1; Mst. Zahida Sattar and others v. Federation of Pakistan and others PLD 2002 SC 408; Makhdoom Javed Hashmi v. The State and 2 others 2003 PCr.LJ 266l; Ghulam Sarwar Khan Lalwani v. The State 2016 PCr.LJ 1343 and Brig. (R) Imtiaz Ahmad v. The State PLD 2017 Lah. 23 ref.

Maryam Nawaz Sharif v. Chairman, NAB and 2 others PLD 2020 Lah. 205; Khalid Aziz v. The State 2011 SCMR 136; Ghani-ur-Rehman v. National Accountability Bureau and others PLD 2011 SC 1144; Brig. (R) Imtiaz Ahmad v. The State PLD 2017 Lah. 23; Abdul Aleem Khan v. The State and others (W.P. No. 16630 of 2019) decided on 15.05.2019; Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif, Prime Minster of Pakistan/Member National Assembly, Prime Minster's House, Islamabad and 9 others PLD 2017 SC 265; Agha Massihuddin Khan Durrani and others v. Chairman, National Accountability Bureau, Islamabad and others PLD 2020 Sindh 365; Muhammad Shakil v. Sakhi Zaman and 3 others 1999 SCMR 32 and Muzammil Niazi and others v. The State PLD 2003 Kar. 526 rel.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 fol.

Azam Nazir Tarar, Muhammad Amjad Pervaiz, Attaullah Tarar, Khawaja Mohsin Abbas, Muhammad Nawaz Chaudhry, Zahir Abbas, Khawar Ikram Bhatti, Muhammad Nasir Chohan, Anwaar Hussain, Mian Naseem Saqlain and Muhammad Adil Chattha for Petitioner.

2021 P Cr. L J 1517

[Lahore (Rawalpindi Bench)]

Before Muhammad Ameer Bhatti, C.J.

MUHAMMAD RIAZ---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No. 128 and Criminal Miscellaneous No. 1-M of 2021, decided on 2nd August, 2021.

Criminal Procedure Code (V of 1898)---

----Ss. 497, 439, 426 & 435---Revision---Enhancement of sentence---Suspension of sentence where length of sentence fell within parameters of a "short sentence"---Bail pending appeal, grant of---Scope---Accused impugned order made under S. 439, Cr.P.C. whereby his sentence was enhanced from four years to seven years and sought suspension of sentence and release on bail---Contention of accused, inter alia, was that impugned order for enhancement of sentence was made by revisional court under S. 439, Cr.P.C. without issuing notice to accused---Validity---Failure to issue notice to accused meant that order for enhancement of his sentence could not be sustained and same was a glaring illegality which was floating on surface of impugned order---Sentence of accused fell within parameters of "short sentence" and therefore such sentence of accused was suspended and accused was ordered to be released on bail subject to furnishing of surety---Revision was allowed, accordingly.

Abdul Hameed v. Muhammad Abdullah and others 1999 SCMR 2589; Mahmood Iqbal v. The State 2008 MLD 1376; Rizwan and another v. Federation of Pakistan through Secretary Ministry and 2 others 2013 YLR 520 and Ilyas alias Billu v. The State 2008 MLD 312 rel.

Mian Muhammad Arif for Petitioner.

2021 P Cr. L J 1527

[Lahore (Multan Bench)]

Before Muhammad Shan Gul, J

DAWOOD ABDUL GHAFOOR---Petitioner

Versus

JUSTICE OF PEACE and others---Respondents

Writ Petition No. 9086 of 2021, heard on 16th June, 2021.

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

----Ss. 22-A, 22-B & 154---Penal Code (XLV of 1860), S. 489-F---Dishonoured cheque---Direction to register criminal case---Ex-Officio Justice of Peace---Jurisdiction---Petitioner was aggrieved of direction issued by Ex-Officio Justice of Peace to Station House Officer of police station concerned to register FIR against petitioner for issuing a cheque which was dishonoured on presenting at Bank---Validity---Cheque was issued in respect of an obligation which was dishonored---No extraneous consideration was allowed under S. 489-F, P.P.C. to be taken into account before it could be triggered, it was in the nature of self-executory provision---As long as a cheque in respect of an obligation was dishonoured upon presentation and an endorsement to such effect was provided by Bank, the offence was complete---Application narrating such occurrence was to be acted upon in terms of S. 154, Cr.P.C.---Cheque and slip provided by bank showing that cheque had been dishonoured was placed before Ex-Officio Justice of Peace---High Court declined to interfere in the order passed by Ex-Officio Justice of Peace---Constitutional petition was dismissed in circumstances.

Malik Sohail Aslam v. Superintendent of Police (Operation), Lahore and 3 others 2017 YLR 1548; Mian Allah Ditta v. The State and others 2013 SCMR 51; Rana Shahid Ahmad Khan v. Tanveer Ahmad and others 2011 SCMR 1937; M. Anwar, Barrister-at-Law v. The Station House Officer, Civil Lines, Police Station, Lahore and another PLD 1972 Lah. 493; Saeed Ahmad v. Naseer Ahmad PLD 2000 Lah. 208; M. Anwar, Barrister-at-Law v. The Station House Officer, Civil Lines, Police Station, Lahore and another PLD 1972 Lah. 493; Sana Ullah v. SHO Police Station Civil Lines, Gujrat and 3 others PLD 2003 Lah. 228; Muhammad Bashir v. Station House Officer, Okara Cantt and others PLD 2007 SC 539; Abdul Rehman Malik v. Synthia D. Ritchie, Americans National and others 2020 SCMR 2037; Sindh Employees Social Security Institution and another v. Dawood Cotton Mills Ltd. PLD 1977 SC 177; Munawar Malik v. The State and 3 others 2000 YLR 3027; Khizar Hayat and others v. Inspector General of Police (Punjab), Lahore and others PLD 2005 Lah. 470; Mst. Sughran Bibi v. The State PLD 2018 SC 595 and Lallan Chaudhry v. State of Bihar (2006) 12 SCC 229 rel.

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

----S. 154---Words 'shall' and 'information'---Effect---Word 'shall' which carries mandatory connotation has been used and is indicative of the intent of legislature---No subjective or even objective discretion left to police officer by S. 154, Cr.P.C. and strict statutory prescription makes the provision a self-executory mechanism--- Term 'information' appearing in S. 154, Cr.P.C. is not qualified or conditioned upon any prefixed terms such as reasonable, credible, believable, truthful etc.---Station House Officer has no discretion or authority whatsoever to ascertain veracity of such information before deciding to act upon it--- Legally it is impermissible to allow a police officer to read term 'preliminary inquiry' or 'prior hearing' into the provision before registering an FIR.

(c) Interpretation of statutes---

----Literal meaning---Applicability---Literal rule of interpretation is nearly biblical when it comes to interpreting a statute---Other rules i.e. purposive, teleological or mischief rule can only be resorted to when no intelligible result can be arrived at from literal reading.

B. Premanad v. Mohan and others (2011) 4 SCC 266 rel.

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

----Ss. 154 & 173---Constitution of Pakistan, Art. 10-A---Registration of FIR--- Right of fair trial and due process---Scope---First Information Report is not an adverse order or action, therefore, Art. 10-A of the Constitution has no applicability, as it speaks about a fair trial---When an FIR is registered, whole volley of opportunities of hearing surfaces and remains till the time a challan is submitted in terms of S. 173, Cr.P.C.---Even during trial an accused is blessed with numerous opportunity bringing entire exercise in accord with Art. 10-A of the Constitution.

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

----Ss. 4(l), 169 & Part-V--- Police Rules, 1934, R. 24.4---Investigation---Provision of R. 24.4 of Police Rules, 1934, does not tyrannically foreclose doors to a complainant to voice his / her grievance nor dogmatically empowers an officer incharge to terminate a prosecution before its inception on his subjective belief of it being false--- Application of R. 24.4 of Police Rules, 1934, is subservient to the scheme laid down in Part V, Cr.P.C. and has to be essentially read in conjunction with S. 169, Cr.P.C.---Officer incharge can possibly invoke R. 24.4 of Police Rules, 1934, for reason strong and manifest after registration of First Information Report.

Rana Asif Saeed for Petitioner.

Muhammad Shahid Riaz, Assistant Advocate General for Respondents.

2021 P Cr. L J 1545

[Lahore]

Before Muhammad Amjad Rafiq, J

Haji BASHIR AHMAD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 1136 of 2011, heard on 10th June, 2021.

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

----Art. 76---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Appeal on what matters admissible---Secondary evidence---Impleading of complainant in appeal---Scope---Appellant assailed order passed by appellate court whereby accused was acquitted of the charge framed under S. 489-F, P.P.C., inter alia, on the ground that original cheque was not brought on record---Accused had not impleaded the complainant as respondent in his appeal---Appellate court was under obligation to direct the accused to implead the complainant as party and then issue notice to him---Hearing the other side was based upon the principle of natural justice which was embodied and inherent in every statute sans express provisions---No adverse order could be made detrimental to the party without giving him a notice---Appellate court while deciding the appeal was under obligation to direct the complainant to produce original cheque and must have allowed him to bring on the record the original cheque and to prove the circumstances for non-production thereof as per the provisions of Qanun-e-Shahadat, 1984, but such opportunity was not provided---Appeal was allowed, case was remanded to the appellate court and it was directed to allow the parties to adduce additional evidence.

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

----Arts. 76, 158 & 161---Civil Procedure Code (V of 1908), O. XIII, R. 10---Criminal Procedure Code (V of 1898), S. 94---Summons to produce document or other thing---Court may send for papers from its own records or from other Courts---Cases in which secondary evidence relating to documents may be given---Production of documents---Judge's power to put questions or order production---Scope---Trial Court is empowered to call for any document for the purpose of trial under S. 94 of Cr.P.C. read with Arts. 158 & 161 of Qanun-e-Shahadat, 1984, but any document does not include judicial record of a court---On the analogy of O. XIII, R. 10, C.P.C., there is no provision in the Criminal Procedure Code, 1898, for summoning of judicial record by the court; only certified copies can be produced as secondary evidence as ordained in Art. 76 of the Qanun-e-Shahadat, 1984.

Fawad Ahmad Sufi for Appellant.

Ms. Noshi Malik, Deputy Prosecutor General for the State.

Aitabar Ahmad Khan for the Complainant.

2021 P Cr. L J 1563

[Lahore]

Before Muhammad Shan Gul, J

SHEHZADAN MAYI---Petitioner

Versus

AREA MAGISTRATE and others---Respondents

Writ Petition No. 30913 of 2021, decided on 28th May, 2021.

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

----S. 169---Police Rules, 1934, R. 24.7---Cancellation of cases---Release of accused when evidence deficient---Change of investigation before cancellation of case---Scope---Petitioner assailed order passed by Magistrate whereby he had ordered cancellation of FIR while agreeing with the discharge report prepared by Investigating Officer---Contention of petitioner was that prior to filing the discharge report by the Investigating Officer, DPO (District Police Officer) had changed the investigation---Validity---Discharge report did not carry any endorsement about the first change of investigation and was absolutely criminally silent in that respect---Even the order passed by the Magistrate was lop-sided and in favour of the accused and appeared to have been passed in a mechanical manner without having regard to the allegations contained in the FIR---Order passed by Magistrate was set aside, in circumstances---District Police Officer was directed to re-investigate the matter---Constitutional petition was allowed, in circumstances.

Mst. Shamim Bibi v. Judicial Magistrate, Police Station Sahooka and 8 others 2008 YLR 1695 and Zafarul Haq Khan v. Muhammad Amin and others PLD 2005 Kar. 375 rel.

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

----Ss. 154 & 173---Information in cognizable cases---Report of police officer---Information regarding development in investigation---Scope---Complainant of a crime report is at least entitled to be informed about the developments occurring with respect to the crime report that he has lodged.

Bhagwant Singh v. Commissioner of Police and another AIR 1985 SC 1285 rel.

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

----Ss. 154 & 173---Constitution of Pakistan, Arts. 4, 9, 10-A, 14 & 19-A---Information in cognizable cases---Report of police officer---Information regarding development in investigation---Scope---Combined reading of Arts. 4, 9, 10-A, 14 & 19-A of the Constitution of Pakistan suggest that the complainant of a case ought to be informed about all and any developments in relation to a crime report that he has lodged.

Bhagwant Singh v. Commissioner of Police and another AIR 1985 SC 1285 rel.

Mehar Gulzar Ahmad Nanga for Petitioner.

Muhammad Pervaiz Akhtar Kamoka for Respondent No. 6.

Barrister Syed Ali Nouman, A.A.G. with Abdullah, Inspector and Mazhar, ASI.

2021 P Cr. L J 1586

[Lahore]

Before Shehram Sarwar Ch. And Muhammad Tariq Nadeem, JJ

NAEEM GULZAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 74601-J and Murder Reference No. 473 of 2017, heard on 25th May, 2021.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of twenty six hours in lodging the FIR---Effect---Accused were charged for committing murder of the father of complainant by inflicting iron rods blows---Record showed that the occurrence in the case, as per prosecution story, took place at 11.45 a.m.---Matter was reported to the police on the following day at 01.40 p.m. i.e. after delay of twenty-six hours of the occurrence---Distance between the place of occurrence and the police station was 1-1/2 kilometre---First Information Report was not lodged at Police Station rather the complainant submitted a written application for the registration of case before Police Official at a Chowk, near the crime spot---Had the Complainant or witness been present at the place of occurrence, matter could have been reported within no time, in view of nearby location of police station---Said fact indicated that the occurrence was un-witnessed one and whole story had been concocted after preliminary investigation by joining fake witnesses---True that, in each and every case, if the FIR was lodged at the crime spot,the entire case of the prosecution could not be thrown away but there must be some plausible reasons for such omission---In absence of said reasons, many suspicions and doubts arose and an adverse inference against prosecution had to be drawn---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Abdul Jabbar alias Jabbari v. The State 2017 SCMR 1155 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of about three days in conducting post-mortem---Effect---Accused were charged for committing murder of the father of complainant by inflicting iron rods blows---In the present case, Post-mortem on the dead body of deceased was conducted after about three days of the occurrence---No explanation, whatsoever, had been given by the prosecution qua the delay in conducting the post mortem examination of the deceased which was obviously suggestive of the fact that time was consumed to fabricate the whole proceedings---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068; Safdar Mehmood and others v. Tanveer Hussain and others 2019 SCMR 1978 and Ibrar Hussain and another v. The State 2020 SCMR 1850 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Presence of eye-witnesses at the spot was doubtful---Chance witnesses---Scope---Accused were charged for committing murder of the father of complainant by inflicting iron rods blows---Record showed that the ocular account of the occurrence had been furnished by son and son-in-law of the deceased---Presence of both the said prosecution witnesses at the spot was found highly doubtful---Complainant had admitted that he was working at other place---Working hours of complainant were 9.00 a.m. to 05.00 p.m.---Inter se distance between place of occurrence to working place could be covered within twenty minutes---Complainant admitted that eye-witness/son-in-law of deceased was residing at a distance of 1¼ hour's drive from the place of occurrence---Said fact had also been endorsed by the eye-witness---Said eye-witness was labourer by profession and his working hours were from 08.00 am to 06.00 pm---From said depositions, it was vivid that they were chance witnesses as no plausible reason had been given qua their availability with the deceased at the relevant time---Undeniably,complainant was son of deceased, whereas, other eye-witnesses were son-in-laws of the deceased---Had they been present at the spot at the relevant time, why they did not try to rescue the deceased or to catch hold of the accused and his co accused, who admittedly, were not armed with any firearm---What refrained the said eye-witnesses to keep them away at the time of incident---In that backdrop, presence of the witnesses and participation of the assailant in the occurrence both become doubtful---Eye-witness stated that deceased was lying on the ground when they escorted him---Clothes of said witness were not stained with blood when he escorted the deceased---Deposition of said witness negated the natural phenomena because when an injured person was handled by a person then his clothes ought to have stained with blood---Complainant had, however, admitted in his cross examination that when he escorted his father, his clothes were stained with blood and he did not produce blood stained clothes before the police---Ocular account produced by prosecution was not worthy of credence in circumstances---Prosecution was established to have failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Anil Phukan v. State of Assam 1993 SCMR 2236 and Mst. Mir Zalai v. Ghazi Khan and others 2020 SCMR 319 rel.

(d) Criminal trial---

----Witness---Chance witness---Scope---Chance witness was 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, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resided, carried on business or run day to day life affairs---Testimony of chance witness, in that context, ordinarily, was not accepted unless justifiable reasons were shown to establish his presence on the crime scene at the relevant time.

Muhammad Irshad v. Allah Ditta and others 2017 SCMR 142; Muhammad Ilyas v. Muhammad Abid alias Billa and others 2017 SCMR 54; Mst. Rukhsand Begum and others v. Sajjad and others 2017 SCMR 596; Mst Shazia Parveen v. The State 2014 SCMR 1197 and Muhammad Rafique v. The State 2014 SCMR 1698 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Motive was not proved---Scope---Accused were charged for committing murder of the father of complainant by inflicting iron rods blows---Motive behind the occurrence was that seven months prior to the occurrence brother of complainant contracted runaway marriage with the sister of accused persons and due to that grudge accused persons committed murder of the father of complainant---No iota of evidence with regard to motive alleged was available---Complainant admitted in his cross-examination that no FIR regarding the abduction was registered by the accused party against complainant party---Accused persons never quarrelled with complainant party before---Complainant party never reported the matter of threats against the accused persons in any police station---Accused persons never demanded to complainant party for return of their sister---From the said admissions of complainant, it was crystal clear that the motive set up by the prosecution was vague and had not been proved by any convincing and plausible evidence---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

(f) Criminal trial---

----Motive---Scope---If the prosecution asserted a motive but failed to prove the same, then such failure on the part of the prosecution might react against a sentence of death on the charge of murder.

Qaddan and others v. The State 2017 SCMR 148; Qurban Hussain v. The State 2017 SCMR 880 and Haq Nawaz v. The State 2018 SCMR 21 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of iron rod on the pointation of accused---Reliance---Scope---Accused were charged for committing murder of the father of complainant by inflicting iron rods blows---Record showed that iron rod was recovered at the instance of accused---Accused got recovered the alleged iron rod (weapon of offence) almost about two months after the incident, however, the iron rod was received in the office of Forensic Science Agency with the delay of nineteen days---Even otherwise, the report of Forensic Science Agency was not helpful to the prosecution which indicated that no human blood was identified on the allegedly recovered iron rod---Police Officer, who effected recovery of iron rod at the pointation of accused had not joined any witness from the vicinity, thus, violated the express provisions of S. 103, Cr.P.C.---Not believable that a person would retain weapon of offence with him just to facilitate the prosecution, thus, it was not safe to rely on that piece of evidence---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Ismail and others v. The State 2017 SCMR 898 and Muhammad Farooq and another v. The State 2006 SCMR 1707 rel.

(h) Criminal trial---

----Recovery of weapon of offence---Conviction---Scope---Recovery of weapon of offence was a corroborative piece of evidence---Conviction could not be based merely on the corroborative piece of evidence.

Noor Muhammad v. The State 2010 SCMR 97 rel.

(i) Criminal trial---

----Medical evidence---Scope---Medical evidence by its nature and character could not recognize a culprit in case of an unobserved incident---Conviction could not be upheld on the basis of medical evidence alone.

Hashim Qasim and another v. The State 2017 SCMR 986 rel.

(j) Criminal trial---

----Benefit of doubt---Principle---Even a single circumstance which created reasonable doubt in the mind of a prudent person would entitle the accused to acquittal.

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 and Mst. Asia Bibi v. The State PLD 2019 SC 64 rel.

Aiyan Tariq Bhutta and Nadeem Abrar Shah for Appellant.

Ghulam Mustafa, D.P.G. for the State.

Muhammad Aqeel Wahid and Noman Abid for the Complainant.

2021 P Cr. L J 1624

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh and Farooq Haider, JJ

ABDUL GHAFOOR---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 814 of 2019, heard on 18th February, 2021.

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

----Ss. 9(a) & 9(c)---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotic substances/drugs---Sentence, reduction in---Safe custody and transmission of parcel containing recovered narcotic---Scope---Accused impugned order of Trial Court whereby he was convicted and sentenced under S. 9(c) of Control of Narcotic Substances Act, 1997, inter alia, on ground that prosecution witnesses were not credible and safe custody and transmission of alleged recovered narcotic was not proved---Validity---Accused could not impeach credibility of police complainants and such police witnesses were as good as any other witness unless proved otherwise and S. 25 of Control of Narcotic Substances Act, 1997 excluded application of S. 103, Cr.P.C.---Contention of police witnesses was that 78 grams of recovered narcotic was segregated for chemical analysis and the rest of 1472 grams recovered narcotic was secured separately however, prosecution witnesses could not prove as to who transmitted parcel containing said 1472 grams and no evidence was presented to show how such parcel was retrieved and brought to court to be exhibited as evidence ---Courier and moharrar were material witnesses to establish that case property was not tampered with while it was with them---Prosecution, in present case, only proved safe custody and transmission of parcel containing sample of 78 grams ; and therefore accused could only be sentenced and convicted to extent of quantity of the sample parcel---High Court after converting conviction of accused from Ss. 9(c) to 9(a) of Control of Narcotic Substances Act, 1997, reduced his sentence---Appeal was allowed.

Abdul Qayyum v. Station House Officer, Police Station Shalimar, Lahore 1993 PCr.LJ 91; Muhammad Zakaria v. The State 1999 SCMR 944; The State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408; Fida Jan v. The State 2001 SCMR 36; Muhammad Hanif v. The State 2003 SCMR 1237; Naseer Ahmad v. The State 2004 SCMR 1361; Riaz Ahmad alias Raju v. The State 2004 SCMR 988; Aala Muhammad and another v. The State 2008 SCMR 649; Muhammad Khan v. The State 2008 SCMR 1616; Zafar v. The State 2008 SCMR 1254; The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039; Abdul Ghani and others v. The State and others 2019 SCMR 608; Kamran Shah and others v. The State and others 2019 SCMR 1217; Zahir Shah alias Shat v. The State through Advocate-General, Khyber Pakhtunkhwa 2019 SCMR 2004; Faizan Ali v. The State 2019 SCMR 1649; Ghulam Murtaza and another v. The State PLD 2009 Lah. 362 and Ameer Zeb v. The State PLD 2012 SC 380 rel.

(b) Criminal trial---

----Investigation---Criminal trial was not vitiated even if the case was investigated by an officer who was not authorized by law, provided that accused was not prejudiced.

The State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408 rel.

Munir Ahmad Shahid for Appellant.

Ch. Muhammad Akbar, Additional Prosecutor General for the State.

2021 P Cr. L J 1643

[Lahore (Rawalpindi Bench)]

Before Sadiq Mahmud Khurram, J

KAMRAN KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 1196-B/2020/RWP, decided on 8th September, 2020.

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

----S. 497--- Penal Code (XLV of 1860), Ss. 302, 324, 337-F(iii), 337-F(iv), 337-H(2), 148,149 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah, mutalahimah,mudihah, hurt by rash or negligent act, rioting, armed with deadly weapon, common object and common intention---Bail, grant of---Case of cross-versions---Scope---Accused was alleged to have fired at the deceased whereas case of accused was that the complainant party fired at him and his witnesses---High Court observed that there was no mention of the injuries received by accused and his witnesses in the FIR and on the other hand, in the cross-version, there was no explanation regarding the death of deceased---Trial Court had to see, after recording of evidence, as to which party was the aggressor---Both the parties had given their own versions qua the manner in which the incident had taken place and possibility of suppression of real facts by both the parties could not be ruled out---Cases of counter-version arising from the same incident were covered for grant of bail on the ground of further inquiry as contemplated under S. 497(2), Cr.P.C.---Petitions for grant of post-arrest bail were allowed, in circumstances.

Ali Sheharyar v. The State 2008 SCMR 1448; Noor Muhammad v. The State 2009 SCMR 324; Fazal Muhammad v. Ali Ahmad and 3 others 1976 SCMR 391; Mithoo v. The State 1978 SCMR 231; Mst. Shafiqan v. Hashim and another 1972 SCMR 682 and Ghulam Abbas v. The State and others 2016 SCMR 2048 ref.

Shoaib Mehmood Butt v. Ifiikhar ul Haq and 3 others 1996 SCMR 1845; Muhammad Zahid Umar v. The State and others 2016 SCMR 1246 and Ghulam Abbas alias Gaman and others v. The State and others 2017 SCMR 1730 rel.

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

----S. 497--- Bail--- Heinous nature of offence--- Scope--- Mere involvement in a heinous offence is no ground for refusing bail to an accused, who otherwise becomes entitled for the concession of bail.

Muhammad Bashir Paracha for Petitioner (in Criminal Miscellaneous No. 1196-B of 2020 and for the Complainant/Respondent No. 2 in Criminal Miscellaneous No. 1482-B of 2020).

Sheikh Ahsan ud Din for Petitioner (in Criminal Miscellaneous No. 1482-B of 2020 and for the Complainant/Respondent No. 2 in Criminal Miscellaneous No. 1196-B of 2020).

2021 P Cr. L J 1664

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi and Sadiq Mahmud Khurram, JJ

SHARAAF KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 1129-J and Murder Reference No. 94 of 2017, heard on 13th October, 2020.

(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---Benefit of doubt---Accused was charged that he along with co-accused made firing upon the complainant party, due to which son of complainant died while complainant sustained firearm injuries---Record showed that the whole prosecution case revolved around the statements of complainant and his wife---Said witnesses did not appear before the Trial Court as they had died before their statements could be recorded by the Trial Court during the trial of the accused---Statements of said witnesses had been recorded on 07.12.1999, in the proceedings under S. 512, Cr.P.C., against the accused, therefore, their testimony was transposed to the trial of the accused and their statements recorded during the proceedings under S. 512, Cr.P.C., were brought on record after the Trial Court allowed the application with regard to transposing the evidence of the said witnesses---Statements of said witnesses were transposed from the file of the proceedings under S. 512, Cr.P.C., to the file of the trial of the accused---Statements of said witnesses recorded in the proceedings conducted under S. 512, Cr.P.C., were placed on record of the case vide order dated 14.09.2017 passed by the Trial Court and the Trial Court directed that their statements shall be read as witnesses of the case---Order passed by the Trial Court qua transposing the statements of those witnesses had attained finality, as the said order was not questioned before any competent forum---Statements of eye-witnesses recorded during the proceedings under S. 512, Cr.P.C. were admissible and relevant to prove the facts in issue---Appeal against conviction was dismissed, however, the sentence of death awarded to the accused under S. 302(b), P.P.C. was altered to imprisonment for life, in circumstances.

Ibrahim alias Ibro alias Khalifa v. The State 1968 PCr.LJ 1844 and Arbab Tasleem v. The State PLD 2010 SC 642 rel.

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

----Art. 47---Transposition of statement in subsequent trial---Scope---By virtue of Art. 47 of the Qanun-e-Shahadat, 1984, evidence given by a witness in a judicial proceeding or before any person authorized by law to take it is relevant for the purpose of proving the same in a subsequent judicial proceeding or at a later stage of the same judicial proceeding, the truth of the facts which it states when the witness is dead or could not be found or is incapable of giving evidence.

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

----S. 512---Record of evidence in absence of accused---Object and scope---Basic object of the S. 512, Cr.P.C. was to exclude the possibility of loss of evidence at the time the accused was arrested---Such statements recorded during the proceedings under S. 512, Cr.P.C. were considered as substantive evidence.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Presence of eye-witnesses at the spot was justifiable---Scope---Accused was charged that he along with co-accused made firing upon the complainant party, due to which son of complainant died while complainant sustained firearm injuries---Statements of eye-witnesses showed that the said witnesses were related to each other and the deceased---Relationship of said witnesses was also on record---Deceased was son of both the eye-witnesses---Said witnesses explained their presence at the place of occurrence at the time of occurrence categorically---Place of occurrence was the house of both the witnesses and their presence in their house at the time of occurrence was only but natural---Complainant was also injured during the occurrence---Both the rough site plane and the scaled site plan of the place of occurrence found that the place of occurrence had been identified as the house of both the eye-witnesses---During the course of investigation, Investigating Officer of the case also collected the blood stained piece of quilt from the place of occurrence---Report of the Chemical Examiner established that the said blood stained piece of quilt collected from the place of occurrence was indeed stained with human blood---Evidence also established the place of occurrence as deposed by the witnesses being their house---Eye-witnesses fairly succeeded in proving their presence at the spot and witnessing the occurrence---No crashes in their deposition and the veracity of their statements were borne out from the record---Eye-witnesses being the residents of the place of occurrence, were the natural witnesses---Appeal against conviction was dismissed, however, the sentence of death awarded to the accused under S. 302(b), P.P.C., was altered to imprisonment for life, in circumstances.

Abid Ali v. The State 2017 SCMR 662; Muhammad Arshad v. The State 2006 SCMR 89; Sultan Mahmood v. The State 2006 SCMR 1387 and Sajid v. The State PLD 2006 SC 292 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---Related witnesses---Phenomenon of substitution---Record showed that the eye-witnesses being parents of the deceased had no reason to falsely implicate the accused in the commission of the offence substituting him, letting off the real culprits---No such material was available on record, which would indicate substitution of the accused in the case with the real culprit---Substitution is a phenomenon of a rare occurrence because even the interested witnesses would not normally let off real culprits for the murder of their relations by involving innocent persons---Appeal against conviction was dismissed, however, the sentence of death awarded to the accused under S. 302(b), P.P.C. was altered to imprisonment for life, in circumstances.

(f) Criminal trial---

----Witness---Related witness---Reliance---Scope---Mere relationship of the prosecution witnesses with the deceased and inter-se is not sufficient to discredit their testimony.

Ijaz Ahmad v. The State 2009 SCMR 99 rel.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Delay of three hours and ten minutes in lodging the FIR---Scope---Accused was charged that he along with co-accused made firing upon the complainant party, due to which son of complainant died while complainant sustained firearm injuries---Record showed that the occurrence was reported by the complainant at 2.45 a.m. (night) when the occurrence had taken place at 12.30 a.m. (night)---On the basis of the recorded oral statement of the complainant, the formal FIR was registered at 3.40 a.m. by Head Constable, when the police station was at a distance of twenty six kilometres from the place of occurrence, thus, it was apparent that the FIR was got lodged within a short duration and the complainant not only named the accused, but also mentioned each and every minor as well as material fact of the incident therein, which of course excluded the possibility of deliberation or consultation regarding false implication of the accused in the case---Promptitude in lodging of the FIR, in circumstances, when the complainant had seen his son (deceased) being attacked and murdered also corroborated the case of the prosecution as against the accused---Details of the occurrence had been elaborately narrated in the oral statement of the complainant---Appeal against conviction was dismissed, however, the sentence of death awarded to the accused under S. 302(b), P.P.C. was altered to imprisonment for life, in circumstances.

Muhammad Waris v. The State 2008 SCMR 784 rel.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Medical evidence and ocular account---Corroboration---Accused was charged for committing murder of the son of the complainant by firing---Medical evidence produced by the prosecution in the case proved that the deceased had received the fatal injuries on the vital parts of his body with a firearm weapon and he succumbed to the said injuries---Medical evidence fully supported the ocular account---Probable time between death of deceased and post-mortem examination as noted by the Medical Officer coincided with the ocular account---Medical Officer opined that the injuries were sufficient to cause death in a very short period of time in ordinary course of life under ordinary circumstances and was caused by a firearm weapon---Accused had been saddled with the responsibility of causing the said fatal injury---Ocular account was fully corroborated by the medical evidence available on record---Said circumstances ascertained that the intent of the accused was to cause death and that he was guilty of qatl-i-amd---Appeal against conviction was dismissed, however, the sentence of death awarded to the accused under S. 302(b), P.P.C. was altered to imprisonment for life, in circumstances.

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

----Ss. 302(b), 324 & 34---Qanun-e-Shahadat (10 of 1984), Art. 21---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Conduct of accused, relevancy of---Accused was charged for committing murder of the son of the complainant by firing---Record showed that the occurrence in the case took place on 02.01.1998, whereas the accused was arrested on 01.02.2015, meaning thereby that accused evaded the process of law for as many as seventeen years and one month---Article 21 of the Qanun-e-Shahadat, 1984 provided that the fact that any person/accused of a crime absconded after the same is a relevant fact to prove the fact in issue---Said conduct of the accused to evade the law after the occurrence was a further indicator pointing towards his guilt when considered in conjunction with the ocular evidence in the case---Appeal against conviction was dismissed, however, the sentence of death awarded to the accused under S. 302(b), P.P.C. was altered to imprisonment for life, in circumstances.

Mst. Roheeda v. Khan Bahadur and another 1992 SCM R 1036; Ashiq Hussain v. The State 2017 SCMR 188; Muhammad Latif alias Tifa v. The State 2008 SCMR 1106 and Saif-ul-Islam v. The State 2008 SCMR 1236 rel.

(j) 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 weapon of offence from the accused---Reliance---Scope---Accused was charged for committing murder of the son of complainant by firing---Record showed that rifle was recovered from the accused, however, the said recovery could not be relied upon as the fact remained that the recovery of the rifle was effected from the house of the accused in his absence---Recovery of the rifle from the accused, therefore, did not further the case of prosecution in any manner---In view of the said facts, the alleged recovery of the rifle was not proved and the same could not be used as a circumstance against the accused---Appeal against conviction was dismissed, however, the sentence of death awarded to the accused under S. 302(b), P.P.C. was altered to imprisonment for life, in circumstances.

(k) 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 was not proved---Accused was charged for committing murder of the son of the complainant by firing---Motive of the occurrence, as mentioned by complainant in his oral statement was that the accused had some nefarious motive for entering the house of complainant---No further details of the motive were mentioned in the oral statement or in the statements of complainant and his wife---Haunting silence was noticed with regard to the particulars of motive alleged---Consequently, it was not determinable in the case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence which had resulted into the death of deceased---Prosecution had failed to prove the motive of the occurrence---Appeal against conviction was dismissed, however, the sentence of death awarded to the accused under S. 302(b), P.P.C. was altered to imprisonment for life, in circumstances.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Quantum of sentence---Mitigating circumstances---Accused was charged for committing murder of the son of complainant by firing---Record showed that firstly, the evidence of recovery of the rifle from the possession of the accused had been disbelieved; secondly, the prosecution had alleged a motive in the case but failed to prove the same and it was not determinable in the case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence which had resulted into the death of deceased, therefore, the death sentence awarded to the accused was quite harsh---Sentence of death awarded to the accused under S. 302(b), P.P.C. was altered to imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Sentence, quantum of---Scope---Quantum of the sentence requires utmost attention and thoughtfulness on the part of the court.

Mir Muhammad alias Miro v. The State 2009 SCMR 1188 and Ansar Ahmad Khan Barki v. The State and another 1993 SCMR 1660 rel.

(n) Criminal trial---

----Motive---Scope---If a specific motive has been alleged by the prosecution then it is the duty of the prosecution to establish the said motive through cogent and confidence inspiring evidence---Non-proof of motive may be considered a mitigating circumstance in favour of the accused.

Ahmad Nawaz and another v. The State 2011 SCMR 593; Mst. Nazia Anwar v. The State and others 2018 SCMR 911; Nawab Ali v. The State 2019 SCMR 2009; Muhammad Akram alias Akrai v. The State 2019 SCMR 610; Iftikhar Mehmood and another v. Qaiser Iftikhar and others 2011 SCMR 1165; Muhammad Mumtaz v. The State and another 2012 SCMR 267; Muhammad Imran alias Asif v. The State 2013 SCMR 782; Sabir Hussain alias Sabri v. The State 2013 SCMR 1554; Zeeshan Afzal alias Shani and another v. The State and another 2013 SCMR 1602; Naveed alias Needu and others v. The State and others 2014 SCMR 1464; Muhammad Nadeem Waqas and another v. The State 2014 SCMR 1658; Muhammad Asif v. Muhammad Akhtar and others 2016 SCMR 2035 and Qaddan and others v. The State 2017 SCMR 148 rel.

Raja Ghaneem Aabir for Appellant.

Sajjad Hussain Bhatti, Deputy Prosecutor General for the State.

2021 P Cr. L J 1719

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi and Sohail Nasir, JJ

AQIB JAVED and 3 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 952 of 2019, heard on 28th June, 2021.

Penal Code (XLV of 1860)---

----S. 365-A--- Anti-Terrorism Act (XXVII of 1997), S. 7-E---Qanun-e-Shahadat (10 of 1984), Arts. 22 & 164---Kidnapping for ransom---Appreciation of evidence--- Test Identification Report--- Evidence through modern devices---Proof---Benefit of doubt---Prosecution relied upon Test Identification Parade and Call Data Report to prove its case---Accused persons were convicted by Trial Court for abduction---Validity---During identification parade of one accused who was of 24 years age, dummies placed with him were 33 years of age---Though all dummies were of similar features but there was difference of ages among them---High Court declined to rely upon identification parade as one of the conditions was that all dummies must be similarly dressed up, was missing in the proceedings---Call Data Reports were taken into possession during investigation pertaining to all accused persons but were not proved by prosecution in accordance with law as the same were computer generated papers secured from system available with police department---Principle to prove evidence through modern device was not followed---Prosecution in all circumstances was under obligation to prove its case at all stages of criminal trial---No license could be given to prosecution to take advantage of weakness of defence as it had to stand on its own legs---Heinousness of offence alone could not be considered to record conviction---Before an accused was sent to gallows, Court required evidence and that too of qualitative nature---Benefit of doubt in all situations was to be extended to accused not as a matter of right but as a privilege---High Court set aside conviction and sentence awarded to accused persons and they were acquitted of the charge--- Appeal was allowed in circumstances.

Gohar Khan and another v. The State 2020 YLR 195 rel.

Muhammad Naveed Abbas Raja for Appellants.

Ms. Maimoona Ehsan-ul-Haq, DDPP for the State.

Muhammad Razzaq for the Complainant.

2021 P Cr. L J 1768

[Lahore]

Before Asjad Javaid Ghural, J

Mst. GHULAM SAKINA---Petitioner

Versus

DEPUTY COMMISSIONER (DC) SARGODHA and 4 others---Respondents

Writ Petition No. 20421 of 2021, decided on 2nd April, 2021.

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

----S. 3---Arrest and detention of suspected persons---Non-availability of material evidence---Effect---Petitioner questioned the legality and validity of order passed by Deputy Commissioner whereby her husband was directed to be arrested and detained for a period of 30 days in the interest of peace and tranquility of the concerned district---Report and comments furnished by the Deputy Commissioner demonstrated that there was a dispute of construction of mosques belonging to two sects and the detainee being an activist was playing an active role in sectarian tension---No material prejudicial to the public peace and tranquility was brought on record while forming that opinion, which was sine qua non for issuance of detention order---Neither the detainee was earlier booked in any case of provoking sectarian sentiments nor even a single criminal case was ever registered against him and even, he had no nexus with the dispute of construction of mosque in any capacity whatsoever--- If, it was presumed that the detainee participated in any such dispute the local police had ample authority to lock him up under the relevant provisions as provided in the Code of Criminal Procedure Code, 1898 but curtailing the liberty of a citizen merely on the presumption that he being a member of specific sect was interested in creating law and order situation, was not appreciable--- Constitutional petition was allowed, in circumstances.

Mrs. Arshad Ali Khan v. Government of Punjab through Secretary Home 1994 SCMR 1532 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Habeas corpus---Alternate remedy, availability of---Scope---Freedom and liberty of every citizen is a fundamental right guaranteed under Arts. 4 & 9 of the Constitution of Islamic Republic of Pakistan, and its infringement tantamount to violation of fundamental rights enshrined in Arts. 2-A, 3, 4, 9, 14 & 18 of the Constitution---When a person is detained without any just cause, he may invoke jurisdiction of the High Court directly under Art. 199 of the Constitution without having recourse to alternate remedy.

Abdul Latif Shamshad Ahmad v. District Magistrate, Kasur 1999 PCr.LJ 20 rel.

Mst. Sana Jamil v. Government of the Punjab through Secretary and 5 others 2016 PCr.LJ 424 and Syed Mubbashar Raza v. Government of Punjab through Secretary Home Department and 2 others PLD 2015 Lah. 20 ref.

Rana Muhammad Ishaque for Petitioner.

2021 P Cr. L J 1779

[Lahore]

Before Muhammad Amjad Rafiq, J

ZULFIQAR---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE/EX-OFFICIO JUSTICE OF PEACE, LAHORE and 2 others---Respondents

Writ Petition No. 1200 of 2015, decided on 26th May, 2021.

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

----Ss. 22-A & 22-B---Police Order (22 of 2002), Art. 4(1)(m)---Ex-Officio Justice of Peace, jurisdiction of ---Ex-Officio Justice of Peace passed directions to Regional Police Officer to ensure implementation of its earlier order passed under Ss. 22-A & 22-B, Cr.P.C. and proceed against the concerned Station House Officer (SHO), for his said non-compliance, under the provisions of Police Order, 2002---Not only a direction issued by the Ex-Officio Justice of Peace under S. 22-A(6), Cr.P.C., was grounded in lawful authority conferred upon him by the said provision; but also by virtue of provisions of Art. 4(1)(m) of the Police Order, 2002, every police officer was under a duty to obey and promptly execute all legal orders---Constitutional petition was dismissed.

PLD 2005 Lah. 470 ref.

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

----Ss. 22-A & 22-B---Police Order (22 of 2002), Art. 155(1)(C)(D)---Penal Code (XLV of 1860), S. 166---Ex-Officio Justice of Peace, jurisdiction of---Ex-Officio Justice of Peace did not carry out, manage or deal with things mechanically and every lis before him demanded directions and judgment---Functions so performed could not be termed as executive, administrative or ministerial on any account--- Direction of Ex-Officio Justice of Peace was termed as direction issued by a competent authority ; order of competent authority to the Police to act in accordance with law or follow direction of law, could not be deflected in any way; therefore, any violation or disobedience on the part of the Police would render them liable to penal action---Such penal action was couched as offences under Art. 155(1)(C) & D of the Police Order, 2002 and S. 166 of P.P.C.

PLD 2016 SC 581 ref.

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

----Ss. 22-A & 22-B---Police Order (22 of 2002), Art. 155(1)(C)(D)---Penal Code (XLV of 1860), S. 166---Offence under Art. 155 of Police Order, 2002, was punishable with three years; therefore, the same would be cognizable because as per second Schedule of Cr.P.C under the head "offences against other laws" an offence punishable with three years shall be cognizable---Similarly, S. 166, P.P.C being a scheduled offence could validly be investigated by Anti-Corruption Establishment.

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

----Ss. 22-A & 22-B---Police Order (22 of 2002), Chapts.XVI & XVII---Offences, cognizance of---Contention was that as per Art. 153 of Police Order, 2002, only offences under Arts. 148 to 152 of Police Order, 2002 were cognizable and none others---Held, that contention was repelled with the clarification that Arts. 148 to 152 of the Police Order, 2002, fell in Chapter XVI whereas Art. 155 was part of Chapt. XVII of Police Order, 2002 which specifically dealt with the offences committed by the police officers; and Chapter XVI had no overriding effect on any other provisions of Police Order, 2002.

(e) Police Order (22 of 2002)---

----Arts. 155 & 183---Criminal Procedure Code (V of 1898), Ss. 154, 155, 190 & 200---Registration of FIR under Art. 155 of the Police Order, 2002---Prosecution---Scope---Held, that though prosecution under Art. 155 of the Police Order, 2002 would require a report in writing by an officer authorized in said behalf under the rules made by the Government, yet registration of FIR and prosecution of offence were different phenomena---Article 155(2) of Police Order, 2002 did not require report of an authorized officer for initiation of prosecution only; therefore, initiation could be in many ways as understood through combined reading of Ss. 154, 155, 190 & 200 of Cr.P.C.---In the context of Art. 155(2) of Police Order, 2002, prosecution would mean institution and continuance of a criminal proceedings after framing of a formal charge before a competent Court and pursuing said proceedings until final judgment of acquittal or conviction---Merely registration of FIR could not be construed as "Prosecution" in terms of Art. 155(2) of Police Order, 2002.

PLD 1978 SC 121; PLD 1981 SC 642 and 2006 PCr.LJ 1564 ref.

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

----Ss. 22-A, 22-B & 551---Police Order (22 of 2002), Arts.155 & 183---Ex-Officio Justice of Peace, jurisdiction of---Registration of FIR against delinquent police officials---Ex-Officio Justice of Peace passed directions to Regional Police Officer to ensure implementation of its earlier order passed under Ss. 22-A & 22-B, Cr.P.C. and to proceed against the concerned SHO for his said non-compliance, under the provisions of Police Order, 2002---Held, that FIR under Art. 155 of Police Order, 2002 was not barred; even powers to prosecute under any other law was not affected as guaranteed through Art. 183 of Police Order, 2002---Delinquent police officers could be prosecuted under other laws for their derelictions or misdemeanors---Ex-Officio Justice of Peace was authorized to deal with violations or disobedience to his orders at his own level by issuing appropriate direction to the higher police officers---On receipt of information and after inquiry, if Ex-Officio Justice of Peace found that an offence had been committed or any wrong persisted, he could order for registration of FIR under Art. 155(1)(C) of Police Order, 2002, which was a cognizable offence---Moment SHO/respondent received the complaint under S. 22-A, Cr.P.C. through a specific order passed by Ex-Officio Justice of Peace, he should have acted in accordance with law to comply with the said order---Ex-Officio Justice of Peace, in the present case, was justified in passing order observing that SHO/respondent had failed to comply with the direction earlier issued to him and, thus, had rightly directed the C.C.P.O/respondent to ensure the implementation of said order through SHO/respondent or to himself proceed under S. 551, Cr.P.C. and also to proceed against SHO/respondent under the Police Order, 2002 for non-compliance of earlier order---Constitutional petition was dismissed, in circumstances.

KLR 2015 Criminal cases 211; PLJ 2014 Lahore 161; 2012 PCr.L.J 1526; 2006 MLD 855; PLD 2005 Lah. 470 and PLD 2005 Kar. 285 ref.

(g) Police Order (22 of 2002)---

----Art. 2(v-a) [as amended by Police Order (Amendment) Ordinance (XLI of 2007)]---"Direct"---Scope---In terms of Art. 2(v-a) of the Police Order, 2002, "direct" meant a written order or instruction to a police officer issued by an authority empowered to direct under the Police Order and such directing authority shall be deemed to be an officer authorized under cl. (2) of Art. 155.

(h) Police Order (22 of 2002)---

----Arts. 10, 11, 15 & 155---Registration of FIR under Art. 155 of Police Order, 2002---Administration of police---As per Art. 10 of the Police Order, 2002, Administration of police in general area vested on different authorities posted under Arts. 11 & 15 of the Police Order, 2002, which included City Police Officer or District Police Officer; therefore, all said authorities could direct prosecution under Art. 155 of Police Order, 2002.

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

----Ss. 22-A, 22-B & 154---Police Rules, 1934, R. 24.4---Registration of FIR---Powers of SHO---Scope---Although the SHO, on receiving the petition under S. 22-A, Cr.P.C., was under obligation to proceed further under S. 154, Cr.P.C., to register FIR if a cognizable offence was made out; he (SHO) was also empowered under R. 24.4 of the Police Rules, 1934 to enter the substance of the information or intelligence in the police station diary and to record his reasons for suspecting that the alleged offence had not been committed and thereafter, notify the same to the informant that he was not inclined to investigate the case or cause to be investigated.

Abdul Rehman Malik v. Synthia D. Ritchie Americans National and others 2020 SCMR 2037 ref.

Muhammad Afzal Maan for Petitioner.

Zafar Hussain Ahmad Ch., Additional Advocate General with Abdul Razzaq/ASI.

2021 P Cr. L J 1801

[Lahore (Bahawalpur Bench)]

Before Sadiq Mahmud Khurram, J

WALEED HASSAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 1498-B of 2020/BWP, decided on 8th July, 2020.

(a) Interpretation of statutes---

----Retrospectivity of statute---Scope---If object of an Act, which is to be gathered from the words of the enactment, itself requires that the Act should apply to pending proceedings it should be so applied unless there was a saving clause in the Act itself to the effect that it would not apply to pending proceedings.

Interpretation of Statutes by Sir Peter Benson Maxwell; Craies on Statute Law by William Feilden Craies; Duke of Devonshire v. Barrow, etc. ((1877) 2 Q B D 286, 289); Gardner v. Lucas ((1878) 3 A C 582) and Rex v. Southampton Income-tax Commissioners (1916) 2 K B 249 rel.

(b) Criminal trial---

----Procedure---Applicability---Procedure to be followed in trial of an offender must be in accordance with the law of procedure in force on the date of inception of trial and not on the date of commission of offence.

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

----S. 497---Penal Code (XLV of 1860), Ss. 324, 334, 336, 337-A(i), 337-F(i), 337-L(1), 148 & 149---Juvenile Justice System Act (XXII of 2018), S. 4 (5)---Attempt to Qatl-i-amd, Shajjah-i-Khaffifa, Itlaf-i-Salahiyyat-i-Udw, Ghayr-Jaifah Damiyah, other hurts, rioting armed with deadly weapons---Bail, grant of---Juvenile offender---Delay in trial---Determining age of accused---Effect---Only ground raised by accused was that he was a juvenile and there was an unexplained delay in conclusion of his trial---Plea raised by injured witness was that the delay was caused on the part of accused in having himself declared as juvenile offender and if he had not made that application, delay could not have been caused in conclusion of trail---Validity---Making of application for being declared juvenile could not be termed a factor that caused delay in conclusion of trial rendering accused disentitled to bail---Such act or omission was to be pregnant with mala fide on the part of accused/juvenile offender and such factor was not available against accused---Delay in conclusion of trial was neither caused nor occasioned by an act or omission of accused or any person acting on his behalf---Accused was entitled to concession of bail on account of delay in conclusion of trial---Bail was allowed in circumstances.

Saleem Khan v. The State and others PLD 2020 SC 356; Zahid Hussain Shah v. The State PLD 1995 SC 49 and Adnan Prince v. The State through P.G., Punjab and another PLD 2017 SC 147 rel.

Muhammad Umair Mohsin for Petitioner.

Ameer Ajam Malik on behalf of the father of the injured witness.

2021 P Cr. L J 1822

[Lahore]

Before Muhammad Waheed Khan, J

KHALIL AKHTAR---Petitioner

Versus

MAGISTRATE IST CLASS, DISTRICT MIANWALI and another---Respondents

Writ Petition No. 28118 of 2021, heard on 26th May, 2021.

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

----S. 30---Qanun-e-Shahadat (10 of 1984), Art. 129(e)---Constitution of Pakistan, Art. 150---Powers of Magistrate---Constitution of Medical Board---Scope---Petitioner challenged the vires of order passed by Magistrate whereby the direction for re-examination of injured through second Medical Board was made---Held; there was no point to reconstitute the Medical Board as the injured had already been re-examined by a Medical Board---Declaration of injury by the Medical Board as "possibility of fabrication cannot be ruled out" was not of much significance---First medical examination was protected by statutory presumption of being genuine under Art. 129(e) of Qanun-e-Shahadat, 1984 as well as under Art. 150 of the Constitution---Such formidable statutory protection could not be summarily dismantled on whims of either party of a criminal case---Unless and until very strong grounds were available in a case qua the mala fide attributed to a Medical Officer who had initially examined the injured, no direction could be given for the constitution of Medical Board---Issuing the direction for constitution of Medical Board for second time was alien to the criminal justice system prevailing in the country---Magistrate while passing the impugned order had swayed beyond its realm, as such it was set aside---Constitutional petition was allowed, in circumstances.

Muhammad Ejaz v. The State and another 2021 SCMR 387; Saif Ullah Saleem Arshad v. The State and 2 others 2014 PCr.LJ 850 and The Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others PLD 1974 SC 151 ref.

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

----S. 510---Report of Chemical Examiner, Serologist, etc.---Medico Legal Certificate--- Presumption--- Scope--- Neither Medico Legal Certificate (MLC) nor the report issued by the Medical Board on re-examination of the injured is per se admissible in evidence as the same is not protected under S. 510 of the Code of Criminal Procedure and in either case the Medical Officer has to appear before the Trial Court as a witness to verify the contents of the MLC.

Irfan Mehmood Ranjha for Petitioner.

Malik Zafar Iqbal for Respondent No. 2.

Mudassir Elahi Warraich, Assistant Advocate General with Inayat, SI for the State.

2021 P Cr. L J 1857

[Lahore (Multan Bench)]

Before Sadaqat Ali Khan and Shehram Sarwar Ch., JJ

ZAFAR IQBAL and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 8 of 2018, 447 of 2016 and Murder Reference No. 80 of 2016, heard on 17th March, 2021.

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

----Ss. 302, 460, 436, 201 & 34---Qatl-i-amd, person jointly concerned in lurking house-trespass or house-breaking by night, mischief by fire and explosive substance, causing disappearance of evidence or offence, common intention---Appreciation of evidence---Benefit of doubt---Delay of about six hours in lodging the FIR---Effect---Accused were charged for committing murder of father, maternal grandmother and sister of complainant and then set the house on fire with dead bodies inside---Motive behind the occurrence was that the accused demanded the hand of sister of complainant for the marriage of his brother, but his father refused, occurrence took place due to that grudge---Record showed that FIR was lodged by the complainant with the delay of six hours, consultation and deliberation in that respect thus could not be ruled out---Circumstances established that serious doubts were found regarding participation of accused in the case---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 460, 436, 201 & 34---Qatl-i-amd, person jointly concerned in lurking house-trespass or house-breaking by night, mischief by fire and explosive substance, causing disappearance of evidence or offence, common intention---Appreciation of evidence---Benefit of doubt---Dishonest improvements made by complainant---Effect---Accused were charged for committing murder of father, maternal grandmother and sister of complainant and then set the house on fire with dead bodies inside---Complainant making improvement stated that accused made firing hitting his father, which was not mentioned in the FIR---Complainant further stated that fire shot of accused also hit the person of his maternal grandmother---Said witness also stated while making improvement that co-accused, since acquitted, made fire shot which hit his sister, whereas no firing was attributed to co-accused, since acquitted on the person of deceased in the FIR---Said improvements shattered his credibility---Even otherwise, Medical Officer did not observe any firearm injury on the persons of maternal grandmother and sister of the complainant and stated in her opinion that death occurred due to asphyxia and 100% thermal burn---Said confliction between the ocular account and medical evidence was not ignorable rather created doubt in the prosecution story---Circumstances established that serious doubts were found regarding participation of accused in the case---Appeal against conviction was allowed, in circumstances.

Akhtar Ali and others v. The State 2008 SCMR 06 rel.

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

----Ss. 302, 460, 436, 201 & 34---Qatl-i-amd, person jointly concerned in lurking house-trespass or house-breaking by night, mischief by fire and explosive substance, causing disappearance of evidence or offence, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence from accused and crime empties from the spot---Scope---Accused were charged for committing murder of father, maternal grandmother and sister of complainant and then set the house on fire with dead bodies inside---Record showed that accused was arrested on 28.12.2012 and during his personal search pistol was recovered---Report of Forensic Science Agency showed that crime empties were received after the arrest of the accused and recovery of pistol---Possibility of manufacturing of the crime empties before their dispatch to obtain positive report could not be ruled out, hence, positive report of Forensic Science Agency in that respect was not believable which was discarded---Circumstances established that serious doubts were found regarding participation of accused in the present case---Appeal against conviction was allowed, in circumstances.

(d) Criminal trial---

----Benefit of doubt---Principle---For giving benefit of doubt, it is not necessary that there should be many circumstances creating doubt---If there is a circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then accused would be entitled to its benefit not as a matter of grace or concession, but as of right. [p. 1861] E

Prince Rehan Iftikhar Sheikh, Javed Abbas Sial, and Ch. Muhammad Shahid Ansari for Appellants.

Nadeem Haider Rizvi, DDPP for the State/Complainant.

2021 P Cr. L J 1870

[Lahore]

Before Muhammad Ameer Bhatti, C.J. and Tariq Saleem Sheikh, J

YASIR AURANGZAIB---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 3873-ATA of 2015, heard on 20th September, 2021.

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

----Ss. 4(b) & 5---Anti-Terrorism Act (XXVII of 1997) S. 7(ff)---Criminal Procedure Code (V of 1898) S. 342---Attempt to cause explosion, making or keeping explosive with intent to endanger life or property--- Possession of explosive materials--- Appreciation of evidence---Material contradictions in ocular accounts---Unlawful detention of accused---Scope---Accused impugned his conviction under Ss. 4(b) & 5 of Explosive Substances Act, 1908 and under S. 7(ff) of Anti-Terrorism Act, 1997---Validity---Prosecution case revolved around ocular accounts of two witnesses, who did not agree on time, distance and defusing of the explosive recovered allegedly from accused and material contradictions existed in their statements which made prosecution story doubtful---Material reading of the FIR and other documents revealed that said FIR was false and was an effort legalize detention of accused, who was illegally and unlawfully abducted and detained by the authorities---Statement of accused under S. 342, Cr.P.C. ought to have been accepted in its entirely, as on basis of evidence produced, prosecution failed to establish guilt of accused---High Court set aside conviction and sentence of accused was set aside, and acquitted him of the charges ---Appeal was allowed accordingly.

Intekhab Ahmad Abbasi and others v. The State and others 2018 SCMR 495 and Ali Ahmad and another v. The State and others PLD 2020 SC 201 rel.

(b) Criminal trial---

----Benefit of doubt---Prosecution remained under heavy burden to prove any charge against an accused beyond reasonable doubt ---For giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubt and a single circumstance creating reasonable doubt in a prudent mind about guilt of accused, made such accused entitled to its benefit as a matter of right and not as grace.

Tariq Pervez v. The State 1995 SCMR 1345; Muhammad Akram v. The State 2009 SCMR 230; Nadeem Hussain v. The State 2019 SCMR 1290 and Muhammad Mansha v. The State 2018 SCMR 772 rel.

Rana Maqsood-ul-Haq and Ch. Salman Zahoor for Appellant.

Ch. Sarfraz Ahmad Khatana, Deputy Prosecutor General, Abid Baig, IO/SHO and Kamran Ghulam Nabi, CPL/ASI, Police Station CTD, Lahore for Respondents.

2021 P Cr. L J 1882

[Lahore]

Before Ch. Abdul Aziz, J

DA YONG WU---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 25040-B of 2021, decided on 22nd June, 2021.

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

---S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9, 6 & 2(za)---Recovery of ketamine---Psychotropic substance---Scope---Accused was alleged to have been found in possession of 5100 grams of ketamine---Acceptance of post arrest bail was mainly urged on the ground that the recovered substance was neither declared narcotic drug nor psychotropic or controlled substance thus no case under S. 9 of Control of Narcotic Substances Act, 1997 could be registered---Held; ketamine hydrochloride was declared as psychotropic substance hence was added at Sr. No. 39-A of the schedule annexed with Control of Narcotic Substances Act, 1997 vide SRO No. 446(I)/2020 dated 6.4.2020 issued by Government of Pakistan---Ketamine was generally used for medical purposes and even on occasions as an anesthesia medicine thus probably it was felt that it came within the exceptions mentioned in S. 6 of Control of Narcotic Substances Act, 1997---As a necessary consequence, the SRO 446(I)/2020 was later withdrawn on 21.8.2020 and as a necessary corollary, the entry at Sr.No. 39-A in schedule of Control of Narcotic Substances Act, 1997 was omitted---Recovery of ketamine could in no manner entail consequences of a criminal case registered under S. 9 of Control of Narcotic Substances Act, 1997---Petition for grant of bail was accepted, in circumstances.

Lin Zhiwei v. The State and others 2020 PTD 1095 rel.

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

----Ss. 9, 6 & 7---Prohibition of possession of narcotic drugs---Prohibition of import or export of narcotic drugs---Scope---Mischief of S. 9 of Control of Narcotic Substances Act, 1997 is attracted if a person is found to have contravened the provision of Ss. 6, 7 & 8 of the Act---According to S. 6 of the Act production, manufacturing, extraction, possession, sale and purchase of any narcotic drug, psychotropic substance or controlled substance is prohibited---Eloquent examination of S. 6 of the Act unfolds that said prohibition is not absolute in nature rather is subject to certain exceptions and there is no bar to possess, produce, manufacture such substances for medical, scientific or industrial purposes but in accordance with law for the time being in force---For entailing consequences of S. 9 of the Act the recovered substance must be declared as narcotic drug, psychotropic or controlled substance---Under S. 7(2) of the Act, Federal Government can make rules to permit and regulate the import, export and transshipment of narcotic drugs, psychotropic or controlled substance under a license or permit.

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

----Ss. 2(s), 2(k) & 2(za)---Controlled substance---Narcotic drug---Psychotropic substances---Scope---Terms Controlled Substance, Narcotic Drug and Psychotropic Substances are defined in Ss. 2(s), 2(k) & 2(za) respectively of Control of Narcotic Substances Act, 1997---According to S. 2(k) Controlled substance means any substance which may be used for the production or manufacture of narcotic drug or psychotropic substance---Whereas, the term narcotic drug, according to S. 2(s), stands for coca leaf, cannabis, heroin, opium, poppy straws and all manufactured drugs---So far as the psychotropic substance is concerned, as per S. 2(za) it means the substances specified in the Sched. annexed with Control of Narcotic Substances Act, 1997 and such substances as the Federal Government may by notification in the official gazette declare to be the psychotropic substance.

(d) Criminal trial---

----Scope---Every wrong does not necessarily give rise to the commission of crime---In order to bring act of an accused within the ambit of some penal law, it must primarily be proved that such wrong was made punishable under some express provision of law.

Salleh Umer Awan and Syed Farhad Shah for Petitioner.

2021 P Cr. L J 66

[Peshawar (Abbottabad Bench)]

Before Ahmad Ali, J

Mst. GUL SANGA and others---Petitioners

Versus

The STATE and others---Respondents

Criminal M. Q. No. 29-A of 2017, decided on 27th February, 2020.

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

----Ss. 561-A, 22-A & 155---Inherent powers of High Court under S. 561-A, Cr.P.C.---Scope---Powers of Ex-officio Justice of Peace---Information and investigation into non-cognizable cases---Scope---Petitioner assailed order passed by Ex-officio Justice of Peace and sought quashing of criminal proceedings---Complainant had alleged that she and another was injured by the accused persons; that police had referred the injured for medical examination, however, the medical reports revealed that no cognizable offence was made out as such the complainant filed application under S. 22-A, Cr.P.C., which was accepted by the Ex-officio Justice of Peace vide impugned order---High Court observed that when the offence reported was non-cognizable, the procedure provided under S. 155, Cr.P.C. was required to have been adopted---Police was bound to enter the report in a specific register and refer the complaint to Magistrate and only the Magistrate was empowered to order for investigation or otherwise in the case, while the Ex-officio Justice of Peace was not empowered to direct the local police to proceed against the accused---When the police investigated a case of non-cognizable offence without permission of a Magistrate, such act of the police amounted to violation of mandatory direction of law and its continuation was an abuse of process of law---Petition for quashment was allowed, impugned order was set aside and proceedings carried out thereupon were quashed, in circumstances.

Mst. Malka Jan v. IGP NWFP Peshawar and 2 others 2000 PCr.LJ 320; Haji Rehman SHO and 3 others v. Provincial Police Officer, Government of KPK Peshawar and 3 others 2012 PCr.LJ 1526; Muhammad Ashiq and 2 others v. SHO, PS Northern Cantt. Lahore and 3 others 2005 YLR 1879 and Muhammad Shafiq v. SHO and others 2012 YLR 828 ref.

Muhammad Ali v. Additional I.G. Faisalabad PLD 2014 SC 753 distinguished.

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

---S. 22-A---Powers of Ex-officio Justice of Peace---Scope---Bare perusal of S. 22-A, Cr.P.C. clarifies that the Ex-officio Justice of Peace can be approached in cases where the local police is reluctant to register a criminal case when the matter reported constitutes a cognizable offence, or transfer of investigation from one investigating officer to another is required or where the police neglects, fails or exceeds the authority vested in it.

Ajmal Khan Tahirkheli for Petitioners.

Sardar Muhammad Asif, AAG for the State.

Asad Iftikhar Sheikh for Respondents.

2021 P Cr. L J 115

[Peshawar (Abbottabad Bench)]

Before Shakeel Ahmad, J

AON ALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous (B.A.) No. 245-A of 2020, decided on 1st April, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 377, 511 & 34---Unnatural offences, attempt to commit offence and common intention---Bail, refusal of---Scope---Prosecution case against accused was that he took the complainant to his house and facilitated co-accused to commit sodomy upon him---Accused was not charged for committing sodomy upon the minor victim but it could not be said that he neither aided or facilitated co-accused in committing an unnatural offence---Accused was alleged to have taken away the victim in his house in a pre-planned manner on the pretext of imparting knowledge of computer---Accused was also alleged to have put Rs. 50 in the pocket of complainant, asked him to leave the premises and not to disclose the crime to anyone else---Accused appeared to have shared common intention with his co-accused and could be saddled with constructive or vicarious liability as provided in S. 34, P.P.C.---Petition for grant of bail was dismissed, in circumstances.

Muhammad Riaz v. Federal Government PLD 1980 FSC 1 and Mulo Ahmed v. The State 2011 MLD 1171 rel.

Maqbool Hussain for the Petitioner.

Raja Muhammad Zubair, AAG for the State.

Khurshid Azhar for the Complainant.

2021 P Cr. L J 165

[Peshawar]

Before Lal Jan Khattak and Muhammad Ibrahim Khan, JJ

MUHAMMAD ALI WAZIR (MNA) and another---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Law and Justice

and 7 others---Respondent

Writ Petition No. 3839-P of 2019, decided on 31st October, 2019.

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

----S. 15---Place of sitting of Anti-Terrorism Court---Scope---Petitioners assailed notifications whereby their trials were ordered to be held within jail premises---Government, under S. 15(2) of Anti-Terrorism Act, 1997, could direct that for the trial of a particular case, the court would sit at such place as it might specify but noticeable aspect of the case was that the impugned notifications were issued at a time when both the petitioners were detained at jail, they had been released on bail, therefore in the changed circumstances of the case, it would not make a sense to proceed with their trial within the jail premises---Constitutional petition was accepted and the impugned notifications were declared to be null and void.

Abdul Latif Afridi for Petitioners.

Qazi Babar Irshad, Assistant Attorney General for the Federation.

Arshad Ahmad, additional Advocate General for the Provincial Government.

2021 P Cr. L J 195

[Peshawar (D.I. Khan Bench)]

Before Sahibzada Asadullah, J

MUHAMMAD IRFAN---Petitioner

Versus

The STATE and another---Respondents

Criminal M.B. No. 128-D of 2020, decided on 15th April, 2020.

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

----S. 497---Penal Code (XLV of 1860), Ss. 376 & 34---Khyber Pakhtunkhwa Child Protection and Welfare Act (XIII of 2010), S. 53---Rape, sexual abuse and common intention---Bail, refusal of---Delayed FIR---Compromise with co-accused---Effect---Accused along with his co-accused was alleged to have committed zina-bil-jabr with the complainant---Accused was directly charged for commission of the offence---Delay in reporting the matter was not beneficial for the accused as delay in such like matters was nothing but natural---Hymen of the victim was found ruptured during medical examination---Co-accused was admitted to bail by Trial Court on the basis of compromise but the accused did not deserve alike treatment for the reason that no compromise was effected with the accused---Accused was prima facie connected with the commission of offence and had failed to make out a case for grant of bail---Bail petition was dismissed.

Aamir Bashir and another v. The State and another 2017 SCMR 2060 ref.

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

----S. 497---Bail---Deeper appreciation of evidence---Scope---Deeper appreciation of evidence is not warranted at bail stage as it may prejudice the case of either side, rather the Court should adhere to tentative assessment of the material brought before it.

Salimullah Khan Ranazai for Petitioner.

Adnan Ali, Assistant A.G. and Muhammad Waheed Anjum for Respondents.

2021 P Cr. L J 232

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J

ANWAR SYED---Appellant

Versus

The STATE through Additional Advocate General, Khyber Pakhtunkhwa and another---Respondents

Criminal Appeal No. 15-M of 2019, decided on 16th October, 2019.

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

----S. 334---Causing itlaf-i-udw---Appreciation of evidence---Sentence, reduction in---Prosecution case was that the accused had caught left ear of complainant, cut it with a knife and fled away along with severed ear of the complainant---Perusal of record revealed that the injured/complainant was examined in support of the case of prosecution, wherein he had narrated the episode of the occurrence in his examination-in-chief---Complainant was extensively cross-examined but nothing substantial could be extracted from his mouth---Same was the case with the other eye-witness, who had also stood the test of cross-examination successfully---Both the witnesses had also stood consistent and no contradiction could be pointed out in the two statements on the material aspects of the case---Nothing was brought in evidence as to how the severed ear was retrieved from the accused---Medical Officer was examined, who had given the detail of injuries caused to the victim---Statement of Medical Officer had fully supported the version of complainant vis-a-vis cutting his left ear---Offence was completed with cutting of the ear which stand proved from the statements of eyewitnesses as well as Medical Officer and other corroboratory pieces of evidence---Defence objected that the entire hearing system had not been amputated, therefore, the same did not amount to an offence under S. 334, P.P.C., was difficult to be agreed with---Undoubtedly, the outer part of the organ of ear was a component of the entire system of hearing gifted to humankind by Almighty Allah, but for constitution of an offence of Itlaf-i-udw under S. 334, P.P.C., it was not required that the entire system of hearing was to be rooted out---As per S. 333, P.P.C., cutting of an ear, which would also mean the outer and visible part of the system of hearing, was sufficient to constitute offence under S. 334, P.P.C.---Accused could not be alleged as habitual or hardened, desperate or dangerous offender---Sentence of four years imprisonment awarded to him was not found justified, in circumstances---Appeal against conviction was partially allowed to the effect that the accused was found liable to payment of half of the amount of diyat as Arsh amounting to Rs. 10,27,968 and the sentence of imprisonment of four years awarded to him was set aside.

Saifullah v. The State 2003 SCMR 496 and Abdul Wahab and others v. The State and others 2019 SCMR 516 rel.

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

----S. 334---Causing itlaf-i-udw---Appreciation of evidence---Sentence, reduction in---Motive was not proved---Scope---Prosecution case was that the accused had caught left ear of complainant, cut it with a knife and fled away along with severed ear of the complainant---Complainant had stated in his first report as well as his testimony in the court that motive for the occurrence was momentous verbal altercation---Complainant had stated that the accused had brought the knife with him before coming to the spot and thus whatever motive had been existing, it was prior to the occurrence and was not developed at the time of occurrence---Said motive remained hidden but non-existence and non-disclosure of motive had been held to be digestible and not fatal to the case of prosecution---Prosecution had failed to bring on record any previous involvement of the accused in any offence, whatsoever---Accused was a man of 60 years old---Real motive had not been disclosed by the prosecution as well---Accused could not be alleged to be habitual or hardened, desperate or dangerous offender, in circumstances---Appeal was partially allowed to the effect that the accused was found liable to payment of half of the amount of diyat as Arsh amounting to Rs. 10,27,968 and the sentence of imprisonment of four years awarded to him was set aside.

Nawaz Ali and another v. The State 2001 SCMR 726; Talib Hussain and others v. The State 1995 SCMR 1776; Muhammad Akbar and another v. The State PLD 2004 SC 44 and Khurram Malik and others v. The State and others PLD 2006 SC 354 rel.

Ayaz Muhammad for Appellant.

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

Syed Aziz-ud-Din Kaka Khel for the Complainant.

2021 P Cr. L J 323

[Peshawar]

Before Ahmad Ali, J

BILAL JAN---Petitioner

Versus

The STATE---Respondent

Criminal M. B.A. No. 3796-P of 2019, decided on 1st January, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 371-A & 371-B---Selling person for purposes of prostitution, buying person for purposes of prostitution---Bail, grant of---Scope---Prosecution case was that the police officials including a lady constable, pursuant to general complaints regarding prostitution and selling/buying of girls for the purpose thereof, raided the place of occurrence, apprehended two girls and two boys, including the accused, in objectionable condition with certain incriminating articles---Story of prosecution was that there were general complaints regarding prostitution in the said building but record was silent about such complaints---No statement of the owner of the building was recorded so as to substantiate the stance of the complainant---Section 371-A & 371-B, P.P.C. provided selling/buying persons for the purpose of prostitution while the accused was shown merely present in objectionable condition along with a girl---No medical report of accused was available on record to support the version of complainant--- Co-accused had already been granted bail by the Trial Court---No search warrant was obtained from the Judicial Magistrate, and having not done so, the case of accused required further inquiry as required by subsection (2) of S. 497, Cr.P.C.--- Petition for grant of bail was allowed, in circumstances.

Mst. Kainat v. State 2016 YLR 974 and Salman Ghazanfar v. The State 2018 MLD 1446 ref.

Niaz Ali Khan for Petitioner.

Malik Akhtar Hussain Awan, AAG for the State.

2021 P Cr. L J 348

[Peshawar (Bannu Bench)]

Before Rooh-ul-Amin Khan and Syed Muhammad Attique Shah, JJ

ABDUL BASIT---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 130-B of 2014 with Murder Reference No.11-B of 2018, decided on 16th June, 2020.

(a) Criminal trial---

----Witness---Testimony of close relative---Scope---Conviction could be recorded on the basis of evidence of close relatives provided their testimony was trustworthy, confidence inspiring and corroborated by strong independent circumstances of the case.

(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---Benefit of doubt---Ocular and medical evidence---Contradiction---Effect---Accused was charged that he and co-accused committed murder of the son of complainant by firing---Motive behind the incident was stated to be dispute between the parties due to strained relations of accused with his wife---Ocular account of the occurrence had been furnished by father, brother and sister of the deceased---Complainant reiterated the same version as set forth by him in the initial report and introduced a lot of innovations about mode of occurrence, citing sister of deceased as eyewitness, arrangement of vehicle for shifting the deceased to the hospital coupled with addition of attributing two fire shots to each accused---Complainant in the initial report, had categorically and in unequivocal words mentioned that after receiving fire shot, the deceased succumbed to injury and died at the spot, whereas, according to Medical Officer, probable time elapsed between injury and death was 20 to 25 minutes, in that backdrop, complainant, in order to bring his testimony in line with the medical evidence, by making dishonest improvement in his court statement---Brother of deceased/witness deposed that after receiving injury deceased expired at the spot---Version of the complainant in the initial report about death of the deceased at the spot and that of witness was belied by the medical evidence---Circumstances established that the prosecution had failed to prove the guilt of the accused through cogent and confidence inspiring direct or circumstantial evidence---Appeal against conviction was allowed, 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---Benefit of doubt---Contradictions in the statements of witnesses---Scope---Accused was charged that he and co-accused committed murder of the son of complainant by firing---Eye-witness in cross-examination deposed that wound of the deceased did not bleed on the ground and a very small quantity of blood besmeared the shirt of the deceased---Witness deposed that he had not noticed any blood fallen on the ground from the wound of the deceased---Said version of witness not only contradicted and negated the site plan and the testimony of Investigating Officer, who during spot inspection secured bloodstained earth from the place of the deceased which was sent to Forensic Science Laboratory along with last worn bloodstained clothes of the deceased and report whereof was positive, but also made the alleged place of occurrence highly doubtful and controversial---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Unnatural conduct of witness---Scope---Accused was charged that he and co-accused committed murder of the son of complainant by firing---Record showed that the conduct of eye-witness was extremely against the natural human conduct and beyond the comprehension of a prudent mind as he being real brother of the deceased put corpse of his brother in the vehicle and let his aged father shift it to the hospital---Brother in such circumstances, could not be expected to leave the dead body of his deceased brother at the mercy of his old father and opt to go to an abandoned house---Neither complainant nor eyewitness was verifier of dead body of the deceased, rather uncles of deceased had been mentioned as verifier of the dead body in the inquest report---Circumstances established that the prosecution had failed to prove the guilt of the accused through cogent and confidence inspiring direct or circumstantial evidence---Appeal against conviction was allowed, in circumstances.

(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---Benefit of doubt---Medical evidence---Scope---Accused was charged that he and co-accused committed murder of the son of complainant by firing---In the present case, the direction of the firearm injury on the person of the deceased was from upward to downward, as opined by the Medical Officer, which was yet another disturbing aspect of the case, as the accused had not been shown on some high level than the deceased in the site plan or in the initial report of the complainant---Question would arise as to how the deceased received injury from upward to downward had not been answered by the prosecution witnesses---Said aspect created doubt in the prosecution case---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Motive not proved---Scope---Accused was charged that he and co-accused committed murder of the son of complainant by firing---Motive behind the incident was stated to be a dispute between the parties due to strained relations of accused with his wife---Record showed that no evidence either oral or documentary had been brought on record by the prosecution to prove the motive as alleged by the complainant---If relations between accused and his wife were considered to be strained then she should have been the first target of the accused and not the deceased--- Evidence available on record was not sufficient to prove the motive---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of crime empties from the spot---Scope---Accused was charged that he and co-accused committed murder of the son of complainant by firing---Record showed that two crime empties of .30-bore were recovered---Report of Forensic Science Laboratory showed that said empties had been fired from one .30-bore pistol---No crime pistol had been shown recovered from the accused, therefore, mere recovery of empties would not advance the prosecution case---If the direct evidence had been disbelieved then mere such piece of circumstantial evidence, which was always taken along with direct evidence, would not be sufficient to sustain conviction of the accused---Appeal against conviction was allowed, in circumstances.

Ijaz Ahmed's case 1997 SCMR 1279; Asadullah's case PLD 1971 SC 541 and Saifullah v. The State 1985 SCMR 410 rel.

(h) Criminal trial---

----Absconsion---Scope---Mere absconsion of the accused could not be a substitute of real evidence---Abscondence by itself would be of no avail to the prosecution in absence of any other evidence against the absconding accused---Mere abscondence of accused would not be enough to sustain conviction.

Muhammad v. Pasham Khan 1986 SCMR 823 rel.

(i) Criminal trial---

----Benefit of doubt--- Principle--- One substantial doubt would be enough for acquittal of the accused.

(j) Criminal trial---

----Benefit of doubt--- Principle--- Conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in prosecution case must be resolved in favour of the accused.

Muhammad Khan and another v. The State 1999 SCMR 1220 and Muhammad Ikram v. The State 2009 SCMR 230 rel.

Syed Abdul Fayaz and Zahir Shah Marwat for Appellant.

Arshad Ahmad, AAG for the State.

Ghulam Mohyuddin Malik for the Complainant.

2021 P Cr. L J 408

[Peshawar]

Before Ahmad Ali, J

Haji TURAB---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Application No. 3751-P of 2019, decided on 1st January, 2020.

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

----S. 497---Anti-Terrorism Act (XXVII of 1997), Ss. 11-N & 11-F---Fund raising, use and possession, funding arrangements, money laundering, membership, support and meetings relating to a Proscribed Organization---Bail, grant of---Further inquiry---Scope---Accused was apprehended by the police with certain sum of amount along with a book on which "TTA" (Tehreek-e-Taliban Afghanistan) was written, and when he was found busy in collecting subscription in the shape of cash amount from the people in the bazaar in the name of Jehad and was also instigating the people to join "jehadi outfits"---Punishment for Ss. 11-N & 11-F of Anti-Terrorism Act, 1997 did not fall within the prohibitory clause of S. 497, Cr.P.C.---Except solitary statement of complainant, no other incriminating evidence was available on file to prima facie connect the accused with the commission of offence---Case of accused required further probe as provided under subsection (2) of S. 497, Cr.P.C.---Petition for grant of bail was allowed.

1996 SCMR 1845 ref.

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

----S. 497---Bail---Scope---Bail does not mean acquittal of accused but only change of custody from Government agencies to the sureties, who on furnishing bonds take responsibility to produce the accused whenever and wherever required to be produced.

Haji Muhammad Nazir v. State 2008 SCMR 807 ref.

Farhan Tariq for Petitioner.

Umar Farooq, AAG for the State.

Farman Ali for the Complainant.

2021 P Cr. L J 446

[Peshawar (D.I. Khan Bench)]

Before Abdul Shakoor and Sahibzada Asadullah, JJ

ZAHOOR KHAN---Petitioner

Versus

The STATE and 5 others---Respondents

W.P. No. 01-D of 2020 with C.M. No. 01-D of 2020, decided on 21st April, 2020.

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

----Ss. 154, 156, 169, 173, 249-A, 265-K & 561-A---Inherent powers of High Court---Quashing of FIR---Information in cognizable cases---Investigation into cognizable cases---Release of accused when evidence deficient---Report of police officer---Power of Magistrate/Court to acquit accused at any stage---Scope---Police has statutory duty to register FIR regarding commission of any cognizable offence under S. 154, Cr.P.C. and its purpose is only to set the criminal law in motion---Provisions of S. 154, Cr.P.C. are mandatory in nature and when FIR is registered, then the local police under S. 156, Cr.P.C., has the statutory right to investigate the case and interference by the court with duties of police is not permissible under the law---First Information Report is not an encyclopedia of all the relevant facts, therefore, the image presented by the FIR will be clarified when all the incriminating material is brought on record during investigation---If the accused is found blameless during investigation, he can be dealt with in accordance with the provisions of Ss. 169 & 173(3), Cr.P.C., read with Ss. 249-A & 265-K, Cr.P.C., besides pressing into service the punitive proceedings by sending a complaint under S. 182, P.P.C., against informant/ complainant of the FIR---High Court observed that it would be injustice, if, before the real facts are collected by the investigating agency, the FIR alleging the commission of cognizable offence is quashed.

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

----S. 561-A---Inherent powers of High Court---Quashing of FIR---Scope---High Court has the power to quash FIR but in exceptional cases, i.e. where the allegations made in the FIR, on the face of it, do not constitute a cognizable offence, or the allegations made in the FIR are so illogical on the basis of which no prudent person can ever reach to a conclusion that there is sufficient ground for proceeding against the accused, or where there is an express legal bar in any provisions of the Code or the relevant Act, under which a criminal proceeding is instituted.

Dr. Ghulam Mustafa v. State and others 2008 SCMR 76 rel.

Siddiq Ullah Kundi for Petitioner.

Nemo (being in motion) for Respondents.

2021 P Cr. L J 469

[Peshawar (Mingora Bench)]

Before Syed Arshad Ali and Wiqar Ahmed, JJ

TANDIMAND and another---Appellants

Versus

QASIM JAN and another---Respondents

Criminal Appeal No. 94-M and Criminal R. No. 26-M of 2019, decided on 28th April, 2020.

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

----S. 302(b)---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Criminal Procedure Code (V of 1898), Ss. 164 & 345(7)---Qatl-i-amd, possession of unlicensed arms---Appreciation of evidence---Confessional statement of the accused---Scope---Waiver or compounding of offence---Scope---Accused was charged for committing murder of the daughter of complainant through axe blows---No eye-witness of the occurrence was on record, however, the accused had recorded his confessional statement before the competent court---Said statement was promptly recorded wherein the accused had narrated all the events of the occurrence in the manner which was corroborated by the circumstantial evidence---Accused had admitted that he had killed his wife with axe blows on seeing her in a compromising position with his friend---Confessional statement, being fully corroborated by evidence on record, could rightly be termed as true and voluntary confession---Prosecution, therefore, had established its case against the accused through confidence inspiring evidence beyond shadow of any reasonable doubt---Appeal was accepted on the basis of compromise by setting aside conviction and sentences recorded by the Trial Court and accused was acquitted accordingly.

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

----S. 302(b)---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Criminal Procedure Code (V of 1898), S. 345(7)---Qatl-i-amd, possession of unlicensed arms---Appreciation of evidence---Grave and sudden provocation---Waiver or compounding of offence---Scope---Accused was charged for committing murder of the daughter of complainant through axe blows---Motive of the occurrence was stated to be illicit relation of deceased lady with someone and accused committed her murder under the pretext of honour---Scope---No ocular evidence being available on file and the accused had confessed his guilt then the contents of the confession were to be accepted as a whole---Motive narrated in the confessional statement of the accused, therefore, could not be disbelieved---Question arose that when a person killed his wife after having found her in compromising/unacceptable position with a person stranger to her his case would fall within the mischief of murder on the pretext of honour and same would not be compoundable due to restrictions as provided under S. 345(7), Cr.P.C.---If said murder fell under the category of grave and sudden provocation, then the case would be out of the purview of honour killing---In the present case, the accused had killed his wife when he had seen her in a compromising position with a stranger---Mode and manner as mentioned by accused in his confessional statement did not suggest any pre-planning or premeditation on his part before killing his wife, therefore, his case squarely would fall within the definition of S. 302(c), P.P.C.---In such state of affairs, the murder of deceased by the accused was not an honour killing (pretext of honour)---Incident was result of grave and sudden provocation, which had erupted at the spur of the moment, therefore, the prohibition contained in S. 311, P.P.C. read with S. 345(7), Cr.P.C. was not attracted to the case---Appeal against conviction was accepted on the basis of compromise, in circumstances.

Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 and Muhammad Qasim v. The State PLD 2018 SC 840 rel.

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

----S. 302(b)---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Criminal Procedure Code (V of 1898), S. 345(7)---Qatl-i-amd, possession of unlicensed arms---Appreciation of evidence---Waiver or compounding of offence---Scope and competence---Accused was charged for committing murder of the daughter of complainant through axe blows---Report of the Trial Court revealed that the deceased was survived by her parents, three brothers and two sisters; however, according to Hanafi law of inheritance, in the present case only parents of the deceased were her legal heirs as they only could directly inherit from the deceased at the exclusion of brothers and sisters; therefore, only the parents had the right to compound the offence under S. 345(2), Cr.P.C.---Report of Trial Court further revealed that parents of the deceased had patched up the matter through compromise deed in support of which they had recorded their joint statement whereby they had waived their right of Qisas and Diyat against the accused---Report of the Trial Court was satisfactory that the parties had effected a genuine compromise and parents of the deceased had pardoned the accused in the name of Almighty Allah without duress or pressure---Appeal against conviction was accepted on the basis of compromise, in circumstances.

Muhammad Yousaf v. The State and others PLD 2019 SC 461 rel.

Saeed Ahmad for Appellant (in Criminal Appeal No. 94-M of 2019).

Haq Nawaz Khan, Assistant A.G. for the State (in Criminal Appeal No. 94-M of 2019).

Complainant in person (in Criminal Appeal No. 94-M of 2019).

Petitioner/Complainant in person (in Criminal Revision No. 26-M of 2019).

Haq Nawaz Khan, Assistant A.G. for the State (in Criminal Revision No. 26 M of 2019).

Saeed Ahmad for Respondent/convict (in Criminal Revision No. 26-M of 2019).

2021 P Cr. L J 506

[Peshawar]

Before Ahmad Ali, J

Professor AKHTAR KHAN---Petitioner

Versus

The STATE---Respondent

Criminal M. B.A. No. 3745-P of 2019, decided on 1st January, 2020.

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

----S. 497---Prevention of Electronic Crimes Act (XL of 2016), Ss. 10 & 11---Penal Code (XLV of 1860), S. 109---Cyber terrorism, hate speech and abetment--- Bail, grant of---Delayed FIR---Further inquiry---Scope---Accused was alleged to have been found involved in sharing hate speech and fake information against Government institutions through his Facebook/Twitter accounts---Sections 10 & 11 of Prevention of Electronic Crimes Act, 2016, were punishable with imprisonment or fine or both---If at trial, the accused was only sentenced with fine then his period as under trial prisoner due to refusal of bail would amount to double jeopardy---Lesser sentence had to be taken into consideration for the purpose of grant of bail---Complaint was made after four months of the occurrence---Identity created on Social Media was purportedly of the accused but actual usage by the accused was a question of evidence which could only be determined at trial---Case of accused was one of further inquiry---Accused was not required for the purpose of investigation---Petition for grant of bail was allowed.

Sher Ahmad v. State PLD 1993 Pesh. 104; Ameer Ullah v. The State 2012 PCr.LJ 1858; 2012 SCMR 573 and 1996 SCMR 1845 ref.

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

----S. 497---Bail---Lesser sentence has to be taken into consideration for the purpose of grant of bail.

Mustafa Ali v. State 2014 PCr.LJ 1464; Tariq Bashir v. The State PLD 1995 SC 34 and Muhammad Hayat Khan v. The State and another 2019 PCr.LJ 472 ref.

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

----S. 497---Bail---Scope---Grant of bail does not mean acquittal of accused but only change of custody from Government agencies to the sureties, who on furnishing bonds take responsibility to produce the accused whenever and wherever required to be produced.

Haji Muhammad Nazir v. State 2008 SCMR 807 ref.

Shahab Khattak for Petitioner.

Jawad Ali Khan, Assistant Attorney General for the State.

2021 P Cr. L J 567

[Peshawar]

Before Lal Jan Khattak and Ahmad Ali, JJ

Qazi LAIQUE AHMAD and 3 others---Petitioners

Versus

CHAIRMAN NAB and 2 others---Respondents

Writ Petition No. 2929-P of 2019, decided on 21st November, 2019.

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

----S. 540---Material witness, summoning of---Principle---Court has discretion under first part of S. 540, Cr.P.C. to summon or recall any witness at any stage of the case.

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

----S. 540---Material witness, summoning of---Duty of Court---Statutory duty has been imposed under second part of S. 540, Cr.P.C. on a Court to summon, examine, recall or re-examine any person if conditions are satisfied to the effect that (a) if evidence is essential and (b) it is essential to the just decision of the case--- Legislature by using word `essential' and by qualifying the word 'decision' by an adjective 'just' in Cr.P.C. has indicated that the powers should be exercised very cautiously and only where Court thinks the evidence to be necessary for the interest of justice.

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

----S. 17(c)---Criminal Procedure Code (V of 1898), S. 540---Powers of court to take any evidence--­Scope---Interpretation and scope of words "just decision" occurring in S. 540, Cr.P.C.---Provisions of S. 17(c), National Accountability Ordinance, 1999 and S. 540, Cr.P.C., armed the court with powers to take any evidence it likes---Words "just decision" used in S. 540, Cr.P.C., do not necessarily imply that the decision should be either in favour of the prosecution or defence---Principles. [p. 572] B

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

----S. 17(c)---Criminal Procedure Code (V of 1898), S. 540---Laches, principle of---Applicability---Essential evidence---Petitioner was facing trial before Accountability Court and during recording of evidence of investigating officer, he objected to de-exhibit certain documents---Validity---Discretion conferred on Accountability Court was not to enable one party or the other to fill up the gaps in his case and to improve it by new matter at a later stage but to enable the Court to act in the interest of justice, when it would consider such action necessary---Court could not come to rescue of persons who were not vigilant regarding their rights---High Court declined to give petitioners a remedy where, by their conduct, they had done which could be regarded as equivalent to a waiver---Principle of laches was applicable as the petitioner failed to assail the order within reasonable time--- Constitutional petition was dismissed in circumstances.

Muhammad Nazir v. The State and 2 others 2005 SCMR 1653; Ansar Mehmood v. Abdul Khaliq and another 2011 SCMR 713; Abdul Razzaq v. The State and 3 others 2012 YLR 1192 and Khizar Hayat v. Judicial Magistrate and 2 others 2015 PCr.LJ 1566 ref.

Park View Enclave (Pvt.) Ltd. through Chief Financial Officer v. Capital Development Authority through Chairman and 2 others 2018 CLC 947; Settlement Authority through Chief Settlement Commissioner, Lahore and another v. Mst. Akhtar Sultana PLD 1976 SC 410 and Muhammad Sarwar v. Additional District Judge Faisalabad and 5 others 2019 CLC 1361 rel.

Amir Javed for Petitioners.

Muhammad Riaz Momand for Respondents.

2021 P Cr. L J 608

[Peshawar]

Before Lal Jan Khattak and Muhammad Naeem Anwar, JJ

STATE through Advocate General, Khyber Pakhtunkhwa, Peshawar---Petitioner

Versus

SAEED KHAN and 6 others---Respondents

Writ Petition No. 2030-P of 2020, decided on 3rd September, 2020.

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

----Ss. 227, 233, 234, 235 & 239---Alteration of charge---Separate charge for distinct offences---Three offences of same kind within year may be charged together---Trial for more than one offence---Prosecution assailed order passed by Trial Court whereby its application under S. 227, Cr.P.C. for alteration of the consolidated charge in two different criminal cases was dismissed---Incidents in two different FIR were neither of the same kind nor had been committed during the course of same transaction, therefore, the same could not be tried jointly---Trial Court while passing the order of joint trial of both the cases and framing a consolidated/joint charge had committed an illegality which could not be countenanced---Section 233, Cr.P.C., provided that for every distinct offence of which any person was accused, there would be a separate charge and every such charge would be tried separately except in the cases mentioned in Ss. 234, 235 & 239, Cr.P.C.--- Impugned order was set aside and the Trial Court was directed to try the cases separately on separate charges.

PLD 2003 SC 891 ref.

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

----Ss. 234 & 239---Three offences of same kind within year may be charged together---Offences must be of the same kind in order to attract the provisions of Ss. 234 & 239 of the Criminal Procedure Code, 1898 for conducting joint trial.

PLD 2003 SC 891 ref.

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

----Ss. 234 & 239---Three offences of same kind within year may be charged together---Section 234, Cr.P.C. provided that when a person was accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, he might be charged with and tried at one trial and according to S. 239(d), Cr.P.C.---Persons accused of different offences committed in the course of same transaction would be charged and tried together but when both the incidents were neither of the same kind nor had been committed during the course of same transaction, they could not be tried jointly.

PLD 2003 SC 891 ref.

Muhammad Nisar Khan, A.A.G. for the State.

Abdul Lateef Afridi for Respondents Nos. 1, 3 and 4.

Farmanullah Sailab for Respondent No. 2.

Muhammad Saeed Khan for Respondent No. 5.

Barrister Amir Khan Chamkani, amicus curiae.

2021 P Cr. L J 638

[Peshawar (D. I. Khan Bench)]

Before Abdul Shakoor and Sahibzada Asadullah, JJ

QUTAB KHAN and another---Petitioners

Versus

DISTRICT POLICE OFFICER, D.I. KHAN and 7 others---Respondents

Writ Petition No. 347-D of 2018 (M) and C.M. No. 286-D of 2018 (N), decided on 7th October, 2020.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Constitution of Pakistan, Art. 199 ---Constitutional petition---Ex-Officio Justice of Peace, powers of---Direction to investigating officer---Petitioners were accused facing proceedings under S. 9(c) of Control of Narcotic Substances Act, 1997---Petitioners were aggrieved of order passed by Ex-Officio Justice of Peace declining to issue direction to investigating officer for arraying respondent as accused and recording statement under S. 164, Cr.P.C.---Validity--- Powers conferred on Ex-Officio Justice of Peace were not judicial, rather were ministerial--- While dealing with applications under S. 22-A(6), Cr.P.C. Ex-Officio Justice of Peace could issue directions to concerned police officials for observance of all legal requisite formalities but he could not step into the shoes of investigating agency, which was independent in all respects, such matter related to investigating agency and not with Ex-Officio Justice of Peace---High Court declined to interfere in judgment/order passed by Ex-Officio Justice of Peace as the same was well reasoned and based on proper appreciation of facts and circumstances of the case---Constitutional petition was dismissed in circumstances.

Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lah. 470 rel.

Ahmad Ali Khan for Petitioners.

2021 P Cr. L J 668

[Peshawar (Abbottabad Bench)]

Before Shakeel Ahmad, J

Mst. SAFEENA SHAH---Petitioner

Versus

The STATE and others---Respondents

Criminal M. No. 974-A/2020 in Criminal M. (B.A.) No. 884-A/2020, decided on 22nd October, 2020.

Criminal Procedure Code (V of 1898)---

----S. 513---Bond---Cash deposit of security---Scope---Petitioner sought permission to deposit the surety amount in cash---Prosecution raised objection that S. 513, Cr.P.C. did not authorize the Court to demand cash security---Held; S. 513, Cr.P.C., did not authorize a Court to demand cash security, however, the same could be permitted only if required by the accused---Words "permit him to deposit" used in S. 513, Cr.P.C., were not without significance and suggested of a situation where something was permitted upon the request of the accused but never ordered by the Court of its own---Object of S. 513, Cr.P.C., was to enable an accused to deposit cash security in case if he was unable to find out sureties---Accused did not belong to District 'H', she was a permanent resident of District 'R' and did not seem to have sufficient link at District 'H'---Request of accused, being genuine, was accepted, in circumstances.

Amir Sattar Tanoli for Petitioner.

2021 P Cr. L J 705

[Peshawar]

Before Waqar Ahmad Seth, C.J. and Muhammad Naeem Anwar, JJ

AFSAR ALI---Appellant

Versus

MAJID KHAN and another---Respondents

Criminal Appeal No. 372-P of 2015, decided on 22nd September, 2020.

(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---Delay of about one hour in lodging the FIR---Scope---Accused were charged for the killing of brother of the complainant and ineffective firing at him as well as witness---Record showed that complainant reported the matter after one hour of the occurrence---Facts remained that the place of occurrence was situated at a distance of 6/7 kilometres from the Police Station, thus, the report had promptly been lodged.

(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----Ocular account supported by medical evidence---Scope---Accused were charged for the killing of brother of the complainant and ineffective firing at him as well as witness---Complainant, in his report had assigned role of indiscriminate firing to the present accused as well as to the convicted accused---During the trial of present accused, both complainant and eye-witness appeared as witnesses respectively---Testimony of said witnesses was consistent on material points---Presence of complainant and eye-witness on the spot was established---Witnesses had deposed the ocular testimony and supported the prosecution version---Witness was subjected to lengthy cross-examinations but nothing material could be brought out nor any dent could be created in their evidence---Witnesses stood firm and their veracity could not be shaken---Both the eye-witnesses, no doubt, were related to the deceased but mere relationship was no ground to discard their straightforward and confidence inspiring evidence especially when their presence on the spot had been established---Facts showed that statement of said witnesses was not tainted or they had no motive to falsely implicate the accused---No plausible reason had been established by the defence to indicate why the complainant would substitute the accused by leaving real culprits---Testimony of complainant and eye-witness were convincing one hence, the evidence produced by the prosecution was rightly believed by the Trial Court---Unnatural death of deceased had also been proved---Perusal of post-mortem report revealed that the injury on the person of the deceased was of firearm, therefore, medical evidence also supported the ocular account---Not only the occurrence was of day light but the parties were already known to each other, therefore, question of misidentification did not arise---Appeal against conviction was dismissed, in circumstances.

(c) Criminal trial---

----Witness---Related witness---Scope---Statement of a witness could not be disbelieved solely on the plea that he was related to the deceased.

(d) Criminal trial---

----Witness---Interested witness---Scope---Interested witness was a person who had a motive to falsely implicate a person.

Sharafat Ali v. The State 1999 SCMR 329; Muhammad Afzal and 3 others v. The State 1999 SCMR 1991 and Abdur Rauf v. The State 2003 SCMR 522 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----Absconsion of accused---Scope---Accused were charged for the killing of brother of the complainant and ineffective firing at him as well as witness---Record showed that the accused just after the occurrence went into hiding with no plausible explanation---Abscondence per se was not sufficient to prove the guilt, but when it would go for a long time for which no reasonable explanation was given by an accused person coupled with other evidence on record, would be the criteria to determine his guilt or innocence and, thus, was a corroborative piece of evidence, therefore, his conduct after the occurrence was indicative of his guilt when considered in juxtaposition with the other evidence produced by the prosecution---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence----Vicarious liabilities---Scope---Accused were charged for the killing of brother of the complainant and ineffective firing at him as well as witness---Record showed that there was a single entry wound on the person of the deceased for which two persons were charged and there was no definite opinion as to whose shot proved fatal but that doubt was not sufficient for acquittal of the accused---Bare reading of S. 34, P.P.C. revealed that when a criminal act was done by several persons in furtherance of common intention of all, each of such person was liable for that act in the same manner as if it was done by him alone---Appeal against conviction was dismissed, in circumstances.

Sh. Muhammad Abid's case 2011 SCMR 1148 rel.

(g) 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 place of occurrence---Reliance---Scope---Accused were charged for the killing of brother of the complainant and ineffective firing at him as well as witness---In the present case, accused had arrived at the scene of occurrence with deadly weapon along with convicted co-accused and made firing at the deceased---Said fact had also been supported by the recovery of two empties of 8-mm from place of occurrence as shown in the site plan, thus, the actus reus "guilty act," and mens rea, "a guilty mind", which were the prerequisite for the constitution of criminal behaviour, were proved against him---Circumstances established that the prosecution had been successful in proving its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Ishfaq Afridi for Appellant.

Muhammad Riaz, A.A.G. for the State.

Astaghfirullah for the Complainant.

2021 P Cr. L J 779

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

NASEEB KHAN---Appellant

Versus

The STATE through A.A.G. and another---Respondents

Criminal Appeal No. 68-M and Criminal Revision No. 18-M of 2018, decided on 15th October, 2020.

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

----Ss. 302(b), 341, 427 & 34---Qatl-i-amd, wrongful restraint, mischief causing damage to the amount of fifty rupees, common intention---Appreciation of evidence---Benefit of doubt---Delay of about four hours and fifteen minutes in lodging the FIR---Effect---Accused was charged that he and co-accused committed murder of father of the complainant by firing---Previous blood feud was stated to be the motive for the commission of offence---Record showed that the time of occurrence had been mentioned as 11:30 a.m. while the time of report had been shown as 03:45 p.m. on the same day---First Information Report had then been registered on the basis of 'Murasila' at 06:20 p.m.---Distance of the place of occurrence from police station had been shown as 12/13 kilometres---First report of the occurrence had been lodged with delay of four hours and fifteen minutes---Such a delay had been tried to be explained by the complainant in the Murasila by stating that spot of occurrence had been a far of place from the police station as well as less acquaintance with the legal know-how---None of the given explanations appeared to be correct---Record showed that the police had arrived on the spot at 01:30 p.m., then why the complainant had failed in lodging report of the occurrence---Delay would naturally be fatal to the case of prosecution, in circumstances, as it was not only delay simplicitor but preliminary investigations had also been taken before lodging of first report of the occurrence---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

1995 SCMR 1345; 2012 SCMR 428; PLD 2019 SC 64; 2003 YLR 927; 2013 YLR 543; 2019 YLR 1073; 2019 YLR 2082; 2020 PCr.LJ 202; 2001 SCMR 177; 2002 SCMR 334; 2003 SCMR 522; 2004 SCMR 1185; 2006 SCMR 161; PLD 2007 SC 71; 2007 SCMR 1014; 2017 SCMR 1976 and 2010 YLR 1125 ref.

Ifiikhar Hussain and others v. The State 2004 SCMR 1185 rel.

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

----Ss. 302(b), 341, 427 & 34---Qatl-i-amd, wrongful restraint, mischief causing damage to the amount of fifty rupees, common intention---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of eye-witnesses---Scope---Accused was charged that he and co-accused committed murder of father of the complainant by firing---Record showed that the eye-witness had stated in his examination-in-chief that he had been driving the vehicle carrying the deceased then alive as a passenger along with other passengers---Said witness had stated in his cross-examination that he had left the spot of occurrence for his own house after the occurrence---Witness also stated that two persons including eyewitness had also gone with him in his vehicle to their village---Other eye-witness had however, stated, in his cross-examination, that dead body of the deceased had been dispatched from the spot of occurrence towards home at 12:00 p.m. (noon) and that he along with the other eyewitness and other persons had accompanied the dead body---Witness also added that they had been carrying the dead body in a cot on foot---Witness had also stated, further ahead in his cross-examination, that the dead body of deceased had been taken by police from the spot to police station, however, in earlier part of his cross-examination, he had stated that the dead body had been taken by people of the village to house of the deceased---All the said contradictions were material in nature and had been regarding such aspects of the case, which in normal circumstances, were not supposed to be forgotten by a witness who had seen the occurrence or was present there---Said contradictions had created doubt regarding presence of both the said eye-witnesses on the spot to have seen the occurrence---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Imran v. The State 2020 SCMR 857 rel.

(c) Criminal trial---

----Benefit of doubt---Principle---Benefit of even a single doubt was to be extended to the accused wherever reasonably found in case of prosecution.

Mst. Asia, Bibi v. The State and others PLD 2019 SC 64 rel.

Sher Muhammad Khan for Appellant (in Criminal Appeal No. 68-M of 2018).

Inayat Ullah Khatir, State Counsel (in Criminal Appeal No. 68-M of 2018 and Criminal Revision No. 18-M of 2018).

Muhammad Rashid and Sabir Shah for Respondent (in Criminal Appeal No. 68-M of 2018).

Muhammad Rashid and Sabir Shah for Petitioner (in Criminal Revision No. 18-M of 2018).

Inayat Ullah Khatir, State Counsel (in Criminal Revision No. 18-M of 2018).

Sher Muhammad Khan for Respondent No. 2 (in Criminal Revision No. 18-M of 2018).

2021 P Cr. L J 799

[Peshawar]

Before Lal Jan Khattak and Ahmad Ali, JJ

STATE through Prosecutor General Accountability---Appellant

Versus

ADEEL BUTT and another---Respondents

Ehtesab Criminal Appeal No. 42-P of 2018, decided on 7th November, 2019.\

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(ix) & 32---Cheating members of public at large---Appreciation of evidence---Appeal against acquittal---Accused persons were alleged to have cheated members of public at large by luring them to invest in real estate hence caused a total loss of Rs.9,863,000/- to the claimants---Trial Court after trial acquitted the accused persons---Validity---Elements of cheating, fraud and embezzlement of amount with criminal intent were squarely missing against accused persons---Evidence produced by prosecution was scanty and fell short of required standard to establish charges against accused persons---No direct or circumstantial evidence was available to bring accused persons to the book and prosecution had tried to make bricks without straw---Depositions of prosecution witnesses were totally inconsistent with safe administration of justice---Rule of benefit of doubt was essentially a rule of prudence which could not be ignored while dispensing justice---High Court declined to interfere in the judgment passed by Trial Court as prosecution evidence was properly evaluated and benefit of doubt was rightly extended to accused persons---Charges levelled against accused persons only constituted civil liabilities---Appeal was dismissed in circumstances.

2009 SCMR 230; 2011 SCMR 664; 2011 SCMR 646; PLD 1984 SC 433; 2012 MLD 1358; 2007 SCMR 1825; 2008 PCr.LJ 376; PLD 1994 Pesh. 114; 2012 PLD Pesh. 1; 1999 PCr.LJ 1087; 1997 SCMR 449; 2011 SCMR 820 and 2006 PCr.LJ 1002 rel.

Muhammad Riaz Mohmand, Special Prosecutor for Appellant/NAB.

Shahid Naseem Khan Chamkani for Respondents.

2021 P Cr. L J 816

[Peshawar]

Before Qaiser Rashid Khan, J

ABDULLAH alias RAAJO---Petitioner

Versus

The STATE and another---Respondents

Bail Application No. 2513-P of 2017, decided on 15th December, 2017.\

Criminal Procedure Code (V of 1898)---

----S. 497(1), third proviso--- Penal Code (XLV of 1860), Ss. 302, 324, 427, 392, 411, 404, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment of any offence, mischief, robbery, dishonest misappropriation of property, dishonestly receiving stolen property, rioting armed with deadly weapon, unlawful assembly---Statutory delay in conclusion of trial---Scope---Petitioners were behind the bars for the last over three years and the delay in conclusion of trial was not attributable to them---Held, petitioners though were entitled for the concession of bail, however, there was another development in the case, that some accused persons had been arrested from a remote city---Recovery of substantial amount of looted money from said arrested persons had been made and recording of the statements prosecution witnesses was essential by the estimate of the prosecution to enable the Trial Court to arrive at just decision---Little room was to be given to the prosecution to produce its witnesses---Previously, bail application of one the petitioners, on ground of statutory delay in conclusion of trial, was dismissed from the Supreme Court ---High Court directed the Trial Court, the prosecution and the complainant to ensure that the remaining witnesses be examined at the earliest---High Court also directed the Trial Court to record the presence of counsel of the parties as well as witnesses on each and every date of hearing---Time-frame of two and half months was given to the Trial Court for the conclusion of trial---In case of failure in conclusion of trial within said given specified period, when the delay would not occasion on the part of the defence, then bail petition of the petitioners on the ground of statutory delay in conclusion of trial would be favorably considered for which they might apply to the High Court afresh---Bail petitions were disposed of.

Hassan U.K. Afridi for Petitioner.

Syed Sikandar Hayat Shah, Additional A.G. for the State.

Astaghfirullah for the Complainant.

2021 P Cr. L J 849

[Peshawar (Abbottabad Bench)]

Before Ahmad Ali, J

MUJAHID---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Application No. 171-A of 2020, decided on 9th April, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 377 & 355---Khyber Pakhtunkhwa Child Protection and Welfare Act (XIII of 2010), Ss. 53 & 2(e)---Unnatural offences, assault or criminal force with intent to dishonour person otherwise than on grave provocation---Sexual abuse---Child at risk---Bail, refusal of---Prompt FIR---Scope---Complainant alleged that his son aged about 10/11 years disclosed that he went to the house of accused to take his pigeon, who took him inside and committed unnatural act with him; recorded his video; give him a currency note of rupees hundred and threatened him not to disclose the occurrence to anyone otherwise the accused would kill him and would upload the video on the internet---Accused was directly charged in the promptly lodged FIR---Victim and the accused, being co-villagers were known to each other and there was no question of misidentification---No ill-will existed between the parties which could prompt the complainant to falsely charge the accused in the offence---Report of Forensic Laboratory supported the prosecution version---Victim in his statement recorded under S. 164, Cr.P.C. had charged the accused, endorsing the contents of FIR---Alleged victim fell within the definition of "child at risk" and S. 53 of Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010 was applicable to the case of accused, which was non-bailable---Petition for grant of bail was dismissed.

Sultan Muhammad Khan Tanoli for Petitioner.

Raja Muhammad Zubair, A.A.G. for the State.

Naseer Ahmed Khan for the Complainant.

2021 P Cr. L J 943

[Peshawar]

Before Rooh ul Amin Khan and Muhammad Nasir Mehfooz, JJ

KALEEM ULLAH---Petitioner

Versus

The STATE and 5 others---Respondents

Writ Petition No. 4586-P of 2020, decided on 17th February, 2020.

Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), S. 561-A---Penal Code (XLV of 1860), Ss. 324, 337-F(ii), 337-F(iii) & 34---Constitutional petition---Quashing/Cancellation of FIR---Scope---First Information Report was registered by petitioner against the respondents with the charge of murder, attempt to commit murder and causing injuries to him as well as prosecution witnesses---Report about the same incident by respondents/accused, daily diary report had been registered against the present petitioner with the charge of attempt to commit murder and causing injuries to him and witnesses---Complainant requested the local police for registration of separate FIR, but his request was turned down, resultantly, he filed an application under S. 22-A(6) Cr.P.C. before the Justice of Peace, which was allowed, on the basis whereof, the impugned FIR was registered against the present petitioner and his co-accused---Validity---Record showed that in both the FIRs, the day, date, time and place of occurrence coupled with the parties were one and the same---In that view of the matter, the two versions of the rival complainants were about one and the same incident accusing each other---Admittedly, during the investigation conducted after registration of a FIR, the Investigating Officer could record any number of versions of the same incident brought to his notice by different persons under S. 161, Cr.P.C.---No separate FIR was to be recorded for any new version of the same incident brought to the notice of the Investigating Officer during the investigation of the case---Justice of Peace reached to an erroneous conclusion directing the police to register separate FIR---Constitutional petition was allowed by setting aside the order of Justice of Peace and the consequential FIR was quashed, in circumstances.

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

Furqan Ahmad for Petitioner.

Umar Farooq, A.A.G. for the State.

Amir Ajam Khattak for Respondents Nos. 1 to 5.

2021 P Cr. L J 998

[Peshawar]

Before Miss Musarrat Hilali and Muhammad Ayub Khan, JJ

DILAWAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 621-P of 2016, decided on 25th September, 2018.\

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

----S. 9(c)--- Transportation of narcotics--- Safe custody--- Non-production of sample-bearer---Scope---Delay in sending samples to Laboratory---Scope---Accused was alleged to have been found driving a vehicle search whereof led to recovery of 12 kgs of charas---Seizing Officer did not remember the order/line in which the contraband was lying---No receipt or abstract of Malkhana Register was placed on record---Sample-bearer was not examined---Contraband was taken into possession on 22-02-2015 whereas the samples reached the Forensic Laboratory on 10-03-2015 and there was nothing on record to show as to where the samples remained during the period---Investigating Officer, in his cross-examination, had admitted that he had not investigated the factum of delay in sending of alleged samples to Forensic Laboratory and its safe custody---Trial Court had not analyzed the prosecution evidence in its true perspective and in accordance with the settled principles for dispensation of criminal justice---Appeal against conviction was accepted, in circumstances.

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

----Art. 8---Information as to commission of offences---Scope---Informer is immune from appearing before the Court to record his statement.

(c) Criminal trial---

----Benefit of doubt---Scope---Single doubt in the prosecution case is sufficient to record acquittal of an accused.

Noor Alam Khan for Appellant.

Miss Zarmina Gul for the State.

2021 P Cr. L J 1018

[Peshawar]

Before Ikramullah Khan and Ijaz Anwar, JJ

ASLAM KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 137-P of 2019, decided on 17th November, 2020.

(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 18 kgs. of charas was recovered from the fuel tank of motorcar driven by accused---Inspector along with Sub-Inspector (S.I.) as well as other excise personnel while present on the spot intercepted a motorcar driven by accused and 18 Kgs. of charas was recovered from the empty fuel tank of the same, however, neither the names of other personnel present on the spot with seizing officer had been mentioned in the murasila nor the said empty fuel tank from which the alleged contraband were recovered, had been taken into custody by the Inspector, however, the SI in his cross-examination stated that the tank of motorcar was taken vide recovery memo but perusal of contents of recovery memo revealed that no fuel tank had been taken into possession---Alleged fuel tank had not been produced before the court for exhibition of the same in support of prosecution case---When the fuel tank from which the contraband was recovered had not been produced, how it could be proved that the contraband was recovered from the same---Nowhere it was mentioned as to how and through which tool, the said fuel tank was opened as according to SI, the contraband was in shape of slabs, so how it was recovered from the fuel tank having a small hole---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Scope---Prosecution case was that 18 kgs of charas was recovered from the fuel tank of motorcar driven by accused---Prosecution examined seizing officer/complainant and marginal witness to prove its case---Said witnesses did not corroborate each other on material points rather contradicted each other---Complainant stated that he affixed 3/3 seals of monogram "AK" on the parcels of samples separated from recovered contraband but the said detail of number of seals had not been mentioned in the murasila---Likewise, as per complainant, there was no seal monogram in the abbreviation of his name in his department while marginal witness asserted in his cross-examination that the monogram of "AK" was the personal monogram of complainant, however, other Police Official deposed in his cross-examination that the said monogram of "AK" was of a Police Station---Complainant stated that the local police of that Police Station were not present with him on the spot at the time of sealing the parcels and affixation of monogram over the parcels, however, the marginal witness denied the version of complainant by stating in his cross-examination that police was around them but the whole proceedings was carried out by the Excise Department because they had conducted the whole proceedings, therefore, the local police of that Police Station had no concern at that very time---Complainant deposed that after sealing of case property on the spot, he along with other contingents of Excise Department went to that Police Station but marginal witness deposed that he did not remember that they visited that Police Station or not, however, one Assistant Sub-Inspector (ASI) came to the spot and spent some 20 minutes and thereafter went away---Said assertion was further contradicted by marginal witness that after arrival of Investigation Officer to the spot for spot inspection, preparation of site plan, recording of statements of witnesses under S. 161, Cr.P.C., he along with other contingents of Excise Department went to that Police Station, meaning thereby that none of the said witnesses were telling the truth---Had they been present on the spot at relevant time and the mode and manner of the occurrence was correct then they would have not contradicted each other on material points---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Contradictions in the murasila and recovery memo---Scope---Prosecution case was that 18 Kgs of charas was recovered from the fuel tank of motorcar driven by accused---Record showed that the murasila and recovery memo as well as statements of witnesses were drafted by complainant but during trial on the request of defence, in order to verify the same, the handwriting of complainant was obtained and placed on file as Mark-A---Mark-A and murasila as well as recovery memo, showed on comparison that there was much difference in the same, meaning thereby that the murasila and recovery memo were not in the handwriting of complainant---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.6---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Delay in sending recovered samples to the Forensic Science Laboratory---Chain of safe custody---Prosecution case was that 18 Kgs. of charas was recovered from the fuel tank of motorcar driven by accused---Record showed that the samples separated from the alleged contraband were received in the Forensic Science Laboratory, after delay of two days, which had not been plausibly explained---Witness, who had taken the samples to the Forensic Science Laboratory, had stated that it was handed over to him by Moharrir of the Police Station but the said Moharrir had not been examined by prosecution in order to explain the delay in sending samples to the Forensic Science Laboratory as well as its safe custody---Even the prosecution had also not produced extract from the relevant Register, which was kept at Police Malkhana for entering therein the recovered and sent contraband---Production of extract from the relevant Register was material so that it could be ascertained that the prosecution version regarding safe custody of the case contraband was corroborated by the relevant record---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----R. 6---Control of Narcotic Substances Act (XXV of 1997), S. 36---Report of Government Analyst---Essential requirements---Forensic Science Laboratory Report revealed that the same was without protocol as the Office of Chemical Examiner Forensic Science Laboratory also after chemical analysis had submitted a consolidated report declaring all the 18 samples to be "Charas" instead of independent test details regarding each sample as required by law---Report of Chemical Examiner did not show that each sample pertaining to narcotic, allegedly recovered from the accused, had actually been analyzed separately---Evidentiary value of the report of Chemical Examiner had been evaluated in the light of Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6 of which made it imperative on an analyst to separately mention result of each sample analyzed with full protocols applied thereon along with other details in the certificate issued for test/analysis by laboratory---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances.

Noor Alam Khan and Shabina Noor for Appellant.

Mujahid Ali Khan, A.A.G. for the State.

2021 P Cr. L J 1114

[Peshawar]

Before Rooh-ul-Amin Khan and Ijaz Anwar, JJ

MUJAHID---Appellant

Versus

The STATE---Respondent

Jail Criminal Appeal No. 759-P of 2019, decided on 26th January, 2021.

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

----Ss. 302(b) & 392---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15--- Qatl-i-amd, robbery, possessing unlicensed weapon---Appreciation of evidence---Benefit of doubt---Accused was charged for committing murder of the son of complainant and his companion by firing after robbery---Record showed that it was a case of no eye-witness because no one had come forward to furnish ocular account of the occurrence---As per Murasila, the dead bodies of deceased were lying at the bank of River in the fields of which were shifted by police witness/SI to hospital on 09.12.2014---On the same day, fathers of deceased, respectively, identified the dead bodies before the police---Site-plan totally negated the version of police witness/SI and contradicted the place of occurrence shown in the Murasila---In the site plan, prepared by the Investigating Officer on the pointation of police witness/SI, the crime scene had been shown in the courtyard of a Rest House situated near Indus River---Owner of said Rest House was an important witness to explain about visit of the deceased to his Rest House and events occurred on the day of occurrence, but he had neither been made as an accused nor examined by the Investigating Officer under S. 161, Cr.P.C., nor cited as a prosecution witness---Said circumstances created serious doubt about the place of occurrence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 392---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15--- Qatl-i-amd, robbery, possessing unlicensed weapon---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence, crime empties and other articles on the pointation of accused---Scope---Accused was charged for committing murder of the son of complainant and his companion by firing after robbery---In the present case, 06 empties of .30 bore were shown recovered from the spot and .30 bore pistol, Nokia mobile set and Rs. 1,19,000/- in cash were shown recovered on the pointation/discovery of the accused from a hay dump (Bosarra)---Said hay dump (Bosara), had been shown situated in the fields of someone---Said person had neither been cited as a witness to the recovery proceedings nor his statement with regard to existence of the hay dump (Bosarra) had been recorded to substantiate that the alleged Bossara was his ownership and whether it was open and in use or sealed (not yet opened)---Similarly, the Investigating Officer had also not clarified in the pointation memo as to whether the hay dump was open (in use) or sealed---Even otherwise, cash amount and mobile set which could easily be accommodated and adjusted in pockets, its concealment in a hay dump of a stranger did not appeal to a prudent mind---Besides, the place of alleged discovery was situated in an open field surrounded by fields of different people, hence, easily approachable---Thus, it would not be safe that such piece of evidence be made a basis for conviction of an accused in a capital charge, that too, in a case of no ocular account---Testimony of police witness/SI, who reached the spot at first instance, totally shattered the evidentiary value of the alleged crime empties---In cross-examination, said witness deposed that he had not seen any empty shell in the surroundings of the spot---In that view of the matter, recovery of 06 empties by the Investigating Officer, who visited the spot at 6.00 a.m. in the month of December, when there remained complete dark at such time, seemed to be planted and manoeuvred evidence---Complainant, in his statement under S. 164, Cr.P.C., had neither given any description and features of Nokia mobile set of his deceased son nor had disclosed about denomination of the currency worth Rs.2,50,000/- allegedly taken by deceased to purchase arms from the accused---Complainant, in cross-examination, admitted that he had not brought any evidence that his son took Rs.2,50,000/- with him---Motorcycle recovered from the spot was without number and complainant had not given any registration of the same to the police---Complainant had identified the cell phone Nokia set and cash amount on 22.12.2014, however, no other mobile phones or currency notes were placed with the recovered one at the time of identification, it would be unsafe to rely on such weak piece of evidence for sustaining conviction in a capital charge---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 392---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, robbery, possessing unlicensed weapon---Appreciation of evidence---Benefit of doubt---Delay in sending the weapon of offence and crime empties for analysis---Scope---Accused was charged for committing murder of the son of complainant and his companion by firing after robbery---06 crime empties had been shown recovered from the spot on 09.12.2014, but were sent to the Forensic Science Laboratory on 23.12.2014 along with the .30 bore pistol shown recovered on the pointation of the accused on 17.12.2014---As to where the empties remained since 09.12.2014 till 23.12.2014 and whether those were in safe hands had not been explained by the prosecution in its evidence---No explanation had been furnished by the prosecution regarding safe custody of the pistol since 17.12.2014 till its sending to the Forensic Science Laboratory on 23.12.2014---Record showed that it was asserted in the evidence that a witness was running arms and ammunitions shop, therefore, the possibility remained that the pistol and empties might have been provided by said witness to the police and thereafter were sent together to Forensic Science Laboratory for analysis, report of which definitely be positive---Circumstances established that the prosecution had failed to prove its case beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Jehangir v. Nazar Farid and another 2002 SCMR 1986 and Hamid Nadeem v. The State 2011 SCMR 1233 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---If single doubt is created, benefit of the same must go to the accused.

Tariq Pervaiz v. The State 1995 SCMR 1345; Muhammad Akram v. The State 2009 SCMR 230 and Faryad Ali's case 2008 SCMR 1086 rel.

Astaghfirullah Khan for Appellant.

Mujahid Ali Khan for the State.

Muhammad Khan and Aftab ud Din for the Complainant.

2021 P Cr. L J 1152

[Peshawar (Bannu Bench)]

Before Ms.Musarrat Hilali and Sahibzada Asadullah, JJ

ZAFAR IQBAL---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 32-B and Criminal Revision No. 16-B of 2019, decided on 21st December, 2020.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---"Substitution"---Principle---Substitution of single accused in a murder charge was a rare phenomenon, but at the same time to put the rope around the neck of an accused charged singly, there must be ocular account of unimpeachable character, trustworthy and confidence inspiring, corroborated by circumstantial evidence.

Arshad Beg v. The State 2017 SCMR 1727 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Accused was charged for committing murder of the father of complainant by firing---Motive for the offence was stated to be friendship of father of complainant with father of the accused upon which accused was annoyed---Prosecution in support of its claim apart from other witnesses produced and examined the complainant and an eye-witness, who stated that both the deceased and father of the accused were enjoying cordial relations since long and were on constant visiting terms and that on the day of incident all the three went to the house of the accused to purchase woods, as his father was running the business---Said stance was not rebutted by the defence---Witnesses remained consistent regarding their leaving for the spot village on motorcycle at 04:00 p.m., their reaching to the spot house and parking the motorbike at a distance of 30 feet from the house---Both the witnesses were put to the test of searching cross-examination, but their testimony could not be shattered, they remained consistent regarding the approach of the accused and his calling the deceased---Complainant stated that after receiving fire shots, the deceased fell on the cot he was sitting and thereafter, was shifted to another cot with the help of the co-villagers---Said fact was confirmed by witness, who witnessed the incident---Circumstances established that the prosecution had succeeded in bringing home charges against the accused, through confidence inspiring evidence---Appeal against conviction was dismissed accordingly.

Akhtar Ali v. The State and another 2016 PCr.LJ. Note 3 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Accused was charged for committing murder of the father of complainant by firing---Delay of about one hour and fifty five minutes in lodging the FIR---Scope---Record showed that the incident occurred at 05:00 p.m., whereas the report was made at 06:55 p.m., but that could not be taken to hold that the report was made after preliminary investigation or that the accused was charged after consultation and deliberation, as it could not be forgotten that the incident occurred in a remote village with no cellular facilities---Absence of such facility excluded the possibility that someone from the village might have informed the complainant---Absence of cellular facility in the village was confirmed by the witnesses who stated that after putting the dead-body in a vehicle for Police Station, when they reached the city, they received signals and informed the relatives who reached to the Police Station after the registration of FIR---Said fact was also confirmed by the Investigating Officer---Delay was nothing but natural as the incident occurred in a remote village---Circumstances established that the prosecution had succeeded in bringing home charges against the accused, through confidence inspiring evidence---Appeal against conviction was dismissed accordingly.

Auranszeb v. The State 2020 SCMR 612 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence and crime empties---Scope---Accused was charged for committing murder of the father of complainant by firing---In the present case, the Investigating Officer recovered six empties of 7.62 bore from the spot along with two spent bullets from the southern and also blood-stained earth from beneath the charpoy, where the deceased received firearm injuries---Said collected empties along with the spent bullets were received by the Forensic Science Laboratory on 18.4.2016, where those were found to have been fired from one and the same weapon---Laboratory report confirmed the involvement of a single accused and so was the claim of prosecution---Circumstances established that the prosecution had succeeded in bringing home charges against the accused, through confidence inspiring evidence---Appeal against conviction was dismissed accordingly.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd---Appreciation of evidence---Confessional statement of witness---Scope---Accused was charged for committing murder of the father of complainant by firing---Record showed that on 15.4.2016, father of the accused recorded his statement under S. 164, Cr.P.C., where on one hand, he admitted presence of all the three in his house and on the other, he charged the accused for the murder of deceased---Matter did not end here, rather a specific question was put to the accused regarding the statement under S. 164, Cr.P.C. recorded by his father, to which he replied that the statement was the result of pressure and physical torture---Defence objected that statement under S. 164, Cr.P.C. had no evidentiary value, as on one hand, it was recorded in absence of the accused and on the other, the Judicial Magistrate who recorded the same had not been produced---True that the matter was not cross-examined and equally true that the Judicial Magistrate who recorded the same had not been produced, but it could not be ignored that the accused while recording his statement under S. 342, Cr.P.C. did not deny the document, but questioned the manner it was executed by terming it to be the outcome of threat, pressure and coercion and his that stance was reiterated by his father, who appeared as a defence witnesses to favour his son---Statement in such eventuality, was accepted to have been recorded, but stress was on its voluntariness, when so, the non-examination of the concerned Judicial Magistrate would not help---Circumstances established that the prosecution had succeeded in bringing home charges against the accused, through confidence inspiring evidence---Appeal against conviction was dismissed accordingly.

Danyal Khan Chamkani and Haroon-ur-Rasheed Khattak for Appellant.

Qudratullah Khan Gandapur, Assistant A.G. for the State.

Haji Malak Rahman for Respondent.

2021 P Cr. L J 1194

[Peshawar (Abbotabad Bench)]

Before Ahmad Ali, J

Qari MUHAMMAD ARSHAD and 2 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous (Bail) No. 352-A of 2020, decided on 8th May, 2020.

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

----S. 497---Anti-Terrorism Act (XXVII of 1997), Ss. 11-F, 11-H, 11-I, 11-J & 11-N---Membership, support and meetings relating to a proscribed organization, fund raising, funding arrangements---Bail, grant of---Confession to police officer---Scope---Accused persons were alleged to have been involved in providing assistance to terrorists and collecting funds for banned organization---Confessional statements were recorded during police custody---All the statements were written down in the same pattern and only 10 minutes time was provided to the accused persons to think over and make confessional statements---Confessional statements nowhere revealed that when, how and by whom the accused persons used to get aid/donations, etc and through what source same were being transferred to the banned organizations and used for terrorist activities---Except confessional statements, no other incriminating material was available on file which could prima facie connect the accused persons with the commission of offence---Petition for grant of bail was allowed, in circumstances.

Zafar Iqbal's case 2009 SCMR 1488; Riaz Jafar Natiq's case 2011 SCMR 1708 and Muhammad Tanveer's case PLD 2017 SC 733 rel.

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

----S. 497---Bail---Scope---Bail does not mean acquittal of accused but only change of custody from Government agencies to the sureties, who on furnishing bonds take responsibility to produce the accused whenever and wherever required to be produced.

Haji Muhammad Nazir v. State 2008 SCMR 807 ref.

Asjad Parvez Abbasi for Petitioners.

Muhammad Muslim, State Counsel.

2021 P Cr. L J 1216

[Peshawar (Abbottabad Bench)]

Before Qaiser Rashid Khan, C.J. and Shakeel Ahmad, J

Sardar ATTIQUE UR REHMAN---Petitioner

Versus

The STATE and 5 others---Respondents

Writ Petition No. 510-A of 2019, decided on 2nd February, 2021.

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

----S. 173---Report of police officer---Cancellation of FIR---Scope---Petitioner assailed order passed by Magistrate whereby he had cancelled the FIR on the recommendation of the police---Validity---Magistrate had simply agreed with the opinion of the police officer and had failed to record his own reasons for agreeing with the police---Constitutional petition was allowed; impugned order was set aside and case was remanded to the Magistrate to pass a speaking order by way of recording his own reasons on the police report, but after providing an opportunity of hearing to the petitioner.

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

----S. 173---Report of police officer---Cancellation of FIR---Scope---Magistrate, while exercising power under S. 173(3), Cr.P.C. is not to act as pawn in the hands of the police and pass mechanical order without application of his conscious mind to the facts and material placed before him because the opinion expressed by the police is not binding on him.

Mir Hassan v. Tariq Saeed and 2 others PLD 1977 SC 451; Shibli v. The State PLD 1981 SC 617 and Abdul Ghaffar and 2 others v. lshtiaq Ahmad Judicial Magistrate-I, Tank and 2 others 2012 PCr.LJ 1451 ref.

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

----S. 173---Report of police officer---Cancellation of FIR---Scope---Power to cancel a police case is of wide amplitude which has the effect of bringing a halt to the criminal prosecution which otherwise would entail a detailed process---Such a power, therefore, by its very nature, cannot be designed to be exercised on mere ipse dixit of the police otherwise the very purpose for conferring this power on the Magistrate on responsible level in supervisory capacity would stand defeated.

Bahader and another v. The State and another PLD 1985 SC 62; Arif Ali Khan's case 1993 SCMR 187; Muhammad Sharif and 8 others v. The State and another 1997 SCMR 304 and Hussain Ahmad v. Mst. lrshad Bibi and others 1997 SCMR 1503 ref.

(d) Administration of justice---

----One cannot be a judge in his own cause.

(e) Administration of justice---

----No party is to be condemned unheard.

(f) Administration of justice---

----Party must in good time know the precise case he is to meet.

(g) Administration of justice---

----Party is entitled to know why a matter has been decided against him.

(h) Maxim---

----"Audi alteram partem"---Scope---Principle of audi atleram partem i.e. a person cannot be condemned unheard is a time honoured principle--- Principle was that no one would be condemned unheard and justice should not only be done, but should be manifestly done to the satisfaction of all including who is later condemned.

(i) Maxim---

----"Audi alteram partem"---Scope---All proceedings by whatsoever held, whether judicial or administrative, the principles of natural justice have to be observed, if the proceedings might result in consequences affecting "the person or property or other right of the parties concerned" this rule applies even though there may be no positive words in the statute or legal document whereby the power is vested to take such proceedings, for, in such cases this requirement is to be implied into it as the minimum requirement of fairness.

Chief Commissioner Karachi v. Mrs. Dina Sohrab Katrak PLD 1959 SC 45; Faridoon Limited v. Government of Pakistan PLD 1961 SC 537 and Abdur Rehman v. Collector and Deputy Commissioner Bahawalnagar and others PLD 1964 SC 461 ref.

Kiran Ayub Tanoli and Tipu Muhammad Sultan for Petitioner.

Sardar Muhammad Asif, Assistant Advocate General for Respondents Nos. 1 and 3.

Hamid Faraz Abbasi for Respondents Nos. 4 to 6.

2021 P Cr. L J 1250

[Peshawar]

Before Rooh ul Amin Khan and Syed Muhammad Attique Shah, JJ

IFTIKHAR HUSSAIN---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman NAB and 5 others---Respondents

Ehtesab Criminal Appeal No. 41-P of 2019, decided on 13th October, 2020.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 25 (b) & 32---Appeal---Limitation---Plea bargain, assailing of---Frivolous litigation--- Effect--- Accused immediately after his arrest by National Accountability Bureau (NAB) entered into plea bargain and was released on deposit of amount---Accused assailed his plea bargain on the ground that the same was not voluntary---Validity---Statement of accused was recorded on the same day wherein he voluntarily and without any objection recorded his statement in the Court---Entire amount of plea bargain was deposited by accused in favour of Chairman NAB---Accused was having fifteen days' time during which period he did not retract from his plea---During entire proceedings accused remained present before Trial Court but never objected over the same---Such plea bargain was based on free consent of accused, in circumstances--- No material was available on file to remotely show any pressure, coercion or duress on accused to make plea bargain---High Court declined to interfere in plea bargain as the appeal was time barred and imposed cost upon accused following the principle that wrong doer should not be allowed to get benefit out of frivolous litigation--- Appeal was dismissed in circumstances.

Gen.(R) Parvez Musharraf v. Nadeem Ahmed (Advocate) and another PLD 2014 SC 585 and Haji Wajdad v. Provincial Government through Secretary Board of Revenue Government of Balochistan Quetta and others C.A. No.1522 of 2013 ref.

Abdur Rahim Jadoon for Petitioner.

Hashmat Jahangir, ADPG for Respondents.

2021 P Cr. L J 1274

[Peshawar]

Before Syed Arshad Ali and Muhammad Naeem Anwar, JJ

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

Versus

SHAHID HUSSAIN---Respondent

Criminal Appeal No. 594-P of 2020, decided on 16th November, 2020.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Prosecution case was that 3600 grams of charas was recovered from the plastic envelop along with mobile belonging to accused---Admittedly, neither the alleged illegal stuff had been recovered from the direct possession of the accused nor he was shown arrested on the spot---Name of accused was not mentioned in the FIR nor his features were mentioned therein---Prosecution case was that SIM recovered from the spot was registered in the name of accused, therefore, he was arrested in the case---Seizing Officer and marginal witness to the recovery memo in their cross examinations categorically stated that they were unable to see the face of accused as his back was towards them, therefore, his description and feature was not given in the Murasilla, thus, the entire case of the prosecution is based on the CDR data of recovered SIM---Nothing was available on record to show that the SIM relied by the prosecution was registered in the name of the accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt, thus Trial Court had rightly acquitted the accused--- Appeal against acquittal was dismissed accordingly.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Appeal against acquittal---Call Data Record---Scope---Prosecution case was that 3600 grams of charas was recovered from the plastic envelop along with mobile belonging to accused---CDR data mentioned particulars, i.e., SIM number, name of accused with CNIC number coupled with FIR number of the case but it had neither been attested, endorsed, stamped and signed by the responsible official of the concerned Cellular Company nor the official, who had prepared/taken out the same from the Computer, had been associated or produced before the court to testify that it was issued by him---No explanation as to how the Investigating Officer obtained the CDR data from the concerned Cellular Company as there was no application for obtaining the requisite data from the Company, except the recovery memo, in which process too official of the concerned company had not been associated---CDR data also bore the FIR number and name of the Police Station, question arose as to how FIR number and police station were mentioned in it as the present case was registered on 03.08.2017 while the CDR data was of 30.07.2017, therefore, such type of secondary evidence could not be relied upon---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt, thus trial court had rightly acquitted the accused---Appeal against acquittal was dismissed accordingly.

Muhammad Parvaiz v. The State 2019 YLR 2213 rel.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.6---Possession of narcotics---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Delay of about five days in sending recovered samples to the Forensic Science Laboratory---Chain of safe custody---Record showed that the occurrence, as per record, took place on 03.08.2017 while the Forensic Science Laboratory Report revealed that the samples were received by the Laboratory after the delay of five days---Moharrir of the concerned police station, in cross examination stated that parcels were handed over to Investigating Officer---Said witness further stated that he did not know as to when the Investigating Officer sent the parcels to the Forensic Science Laboratory---Prosecution had also failed to produce the official, who had taken the samples to the Laboratory, therefore, safe custody of the samples and delay in sending it to the Laboratory, besides lack of the requisite protocol of the test applied, was yet another uncertainty which further made cracks in the prosecution story as the separated, samples ought to have been received by the Forensic Science Laboratory within 72 hours of the seizure as required by R. 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt, thus trial court had rightly acquitted the accused---Appeal against acquittal was dismissed accordingly.

State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039; Khair-ul-Bashar v. The State 2019 SCMR 930 and Qaiser Javed Khan v. The State through Prosecutor General Punjab, Lahore and another PLD 2020 SC 57 rel.

(d) Criminal trial---

----Burden of proof---Scope---Prosecution is to prove its case against the accused beyond shadow of a doubt---If there is any doubt in the prosecution case, the benefit of such doubt must go to the accused.

Tariq Pervez v. The State 1995 SCMR 1345; Riaz Masih alias Mithoo v. The State 1995 SCMR 1730; Faheem Ahmed Farooqui v. The State 2008 SCMR 1572 and Hashim Qasim v. The State 2017 SCMR 986 rel.

(e) Appeal against acquittal---

----Double presumption of innocence---Interference---Scope---If after regular trial, accused is acquitted, he earns a double presumption of innocence, heavy onus lie on the prosecution to rebut such presumption.

Mst. Jallan v. Muhammad Riaz and others PLD 2003 SC 644; Zaheer-ud-Din v. The State 1993 SCMR-1628; Khan v. Sajjad and 2 others 2004 SCMR 215; Barkat Ali v. Shaukat Ali and others 2004 SCMR 249; Farhat Azeem v. Asmat Ullah and 6 others 2008 SCMR 1285; Haji Payo Khan v. Sher Baz and others 2009 SCMR 803 and Muhammad Aslam v. Sabir Hussain and others 2009 SCMR 985 rel.

Rab Nawaz Khan, A.A.G. for Appellant.

Nemo for Respondent.

2021 P Cr. L J 1323

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

KHAISTA MUHAMMAD---Appellant

Versus

The STATE through A.A.G. and others---Respondents

Criminal Appeal No. 359-M of 2019 with Murder Reference No. 9-M of 2019, decided on 19th November, 2020.

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

----Ss. 302(b) & 109---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, abetment, possessing unlicensed weapon---Appreciation of evidence---Sentence, reduction in---Dying declaration supported by medical evidence---Scope---Accused was charged for committing murder of his daughter/complainant by firing---Lady/complainant in her dying declaration, had named her real father and brother for causing her the injuries---Certificate showing that the lady had been conscious and capable of giving her statement had also been obtained from the lady doctor which was exhibited in evidence---Medical Officer had been examined in support thereof---Medical Officer had been cross-examined by the defence side but nowhere had they disputed the fact that the lady had been conscious and able to give her statement to the police officer---Medical Officer who had examined the complainant had given her certificate that the lady had been conscious and in senses at the time of recording of her statement, and she had stood by said certificate during the course of her examination before the Court---No reason existed to disbelieve her statement in that respect---Article 46 of the Qanun-e-Shahadat, 1984 had made dying declaration as admissible in evidence and same could therefore be safely relied upon---Circumstances established that the prosecution had proved its case against the accused, however due to some compelling circumstances, death sentence was reduced to life imprisonment---Appeal was partially allowed.

2016 SCMR 274; 2017 SCMR 898; 2019 SCMR 129; 2019 SCMR 274; 1999 PCr.LJ 1087; 2011 PCr.LJ 470; PLD 2012 Pesh. 22; 2018 YLR 1629; 2019 YLR 516 and 2019 PCr.LJ 1014 ref.

Farmanullah v. Qadeem Khan and another 2001 SCMR 1474 and Mehtab Khan v. The State 1996 SCMR 1137 rel.

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

----Ss. 302(b) & 109---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, abetment, possessing unlicensed weapon---Appreciation of evidence---Ocular account---Scope---Accused was charged for committing murder of his daughter/complainant by firing---Ocular account of the occurrence had been furnished by two ladies---Record showed that the occurrence had taken place inside the house---One of the eye-witnesses had been a minor daughter of the deceased lady while the other woman had been the lady hosting the deceased---In the given circumstances, their presence at the scene of occurrence had been very much natural and confidence inspiring---Said fact that the deceased lady while recording her dying declaration could not name them as eye-witnesses might not be taken as a reason for excluding their testimonies---Circumstances established that the prosecution had proved its case against the accused, however due to some compelling circumstances, death sentence was reduced to life imprisonment---Appeal was partially allowed.

Yousaf v. The State PLD 1981 Kar. 672 and Waheed alias Siraj v. The State 1990 MLD 1536 rel.

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

----Ss. 302(b) & 109---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, abetment, possessing unlicensed weapon---Appreciation of evidence---Delay in recording confessional statement of accused---Scope---Accused was charged for committing murder of his daughter/complainant by firing---In the present case, the confessional statement of the accused had been recorded on 4th day of his arrest---Accused had though stated that such a confession could not be believed once it had been recorded after three days of his arrest, but High Court found the confession in the case to have been voluntarily recorded---Not a rule of law that delayed confession must be discarded in all circumstances---Confessional statement was not only true and voluntary in nature but had also been supported by sufficient corroboratory evidence in the shape of statements of the eye-witnesses as well as recovery of weapon of offence i.e. 30 bore pistol on pointation of the accused---Circumstances established that the prosecution had proved its case against the accused, however due to some compelling circumstances, death sentence was reduced to life imprisonment---Appeal was partially allowed.

2018 YLR 1629; 2019 PCr.LJ 1014; Majeed v. The State 2010 SCMR 55 and Jumaraz v. The State J. Cr. A., No. 96-M of 2018 rel.

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

----Ss. 302(b) & 109---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, abetment, possessing unlicensed weapon---Appreciation of evidence---Recovery of weapon of offence on the pointation of accused---Reliance---Scope---Accused was charged for committing murder of his daughter/complainant by firing---Evidence of recovery of pistol on pointation of the accused could not be disbelieved for the mere reason that the witness while recording his statement had given certain concessional statement in favour of the accused---Other evidence was also available in support thereof in the shape of statements of Police Constable and the Investigating Officer, who had stood consistent in respect of recovery of weapon of offence on pointation of the accused---Circumstances established that the prosecution had proved its case against the accused, however due to some compelling circumstances, death sentence was reduced to life imprisonment---Appeal was partially allowed.

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

----Ss. 302(b) & 109---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, abetment, possessing unlicensed weapon---Appreciation of evidence---Sentence, reduction in---Accused was charged for committing murder of his daughter/complainant by firing---Record showed that deceased was real daughter of the accused and the motive stated by accused in his confessional statement was of such a nature that the accused might have felt himself compelled due to existing norms in the society to commit the offence---Besides, minor weaknesses in the evidence of prosecution might not be taken as a justification for the outright acquittal of the accused, but such weaknesses might be considered for reduction of the sentence---Accused was a person of 68 years of age at the time of commission of the offence---All such circumstances were taken as sufficient justification for reduction of the sentence from normal penalty of death to life imprisonment---Appeal was partially allowed to the extent that the sentence of death awarded to the accused was reduced to life imprisonment.

Mst. Bevi v. Ghulam Shabbir and another 1980 SCMR 859; Mir Muhammad alias Miro v. The State 2009 SCMR 1188; Muhammad Ayaz Khan v. Murtaza and others 2008 SCMR 984 and Kamran Ullah v. The State and another 2020 SCMR 1214 rel.

Syed Sultanat Khan for Appellant.

Sohail Sultan, Assistant A.G. for the State.

Nemo for Legal Heirs of the deceased.

2021 P Cr. L J 1362

[Peshawar (D.I. Khan Bench)]

Before Abdul Shakoor and Sahibzada Asadullah, JJ

MUHAMMAD RAMZAN---Appellant

Versus

The STATE and 2 others---Respondents

Criminal Appeal No. 65-D of 2019, decided on 26th January, 2021.

(a) Appeal against acquittal---

----Double presumption of innocence---Interference---Double presumption of innocence is attached to order of acquittal from the charge by a court of competent jurisdiction, with which no interference could be made, unless the impugned order is arbitrary, capricious, fanciful and against the record.

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

----Ss. 302, 324, 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Witnesses not present at the spot at the time of incident---Effect---Accused were charged for committing murder of the son of the complainant by firing---Motive for the offence was love marriage of deceased---Accused was maternal cousin of the lady with whom marriage was performed---Ocular account of the incident had been furnished by complainant and another witness---Complainant stated that on the day of incident when he along with his deceased son reached to the petrol pump, the accused duly armed approached the petrol pump and started firing at the deceased which resulted into his death---Complainant further stated that the incident was witnessed by another witness as well---Statement of the complainant when placedin juxtaposition with the statement of other eye-witness, which he recorded before the court of Judicial Magistrate under S. 164, Cr.P.C., both the statements did not support each other rather the statement of the complainant was in glaring contradiction with that of eye-witness---Eye-witness categorically stated that the deceased at the time of incident was all alone and that it was only the accused who fired at the deceased---Said witness remained silent on the presence of complainant at the time of incident and even he did not mention the presence of any other witness at the time of incident---Impression could be gathered that the complainant alongwith two others reached to the spot after 15/20 minutes of the occurrence---Statement so recorded by eye-witness was further strengthened from the fact that the matter was reported by the complainant after 30 minutes of arrival of the local police---If the complainant was present on the spot at the time of incident why he did not shift the deceased to the hospital or police station to report the matter---Complainant kept on waiting till arrival of the local police to report the matter despite the fact that the vehicles were available to shift the dead body---Delay caused in reporting the matter left no ambiguity that the complainant was not present at the time of incident and that it was after the deceased was done to death his attendance was procured---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against acquittal was dismissed, in circumstances.

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

----Ss. 302, 324, 109 & 34---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Withholding best evidence---Effect---Accused were charged for committing murder of the son of the complainant by firing---Prosecution was to explain as to why two most important witnesses were not examined, as they were the first, who rushed towards the deceased when he received the firearm injuries---Undisputedly, both the said witnesses were independent and were not related to the complainant---Importance of eye-witness could not be ignored as he was the witness whose presence was admitted by the complainant as an eye-witness---If a best available evidence was not produced an inference could be drawn that had he been produced he would have not supported the case of prosecution---Such situation was guided and controlled by Art. 129(g) of the Qanun-e-Shahadat, 1984---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against acquittal was dismissed, in circumstances.

Tahir Khan v. The State 2011 SCMR 646 rel.

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

----Ss. 302, 324, 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Crime empties were recovered from the spot---Scope---Accused were charged for committing murder of the son of the complainant by firing---Record showed that the recovered empties were sent to Forensic Science Laboratory by the Investigating Officer to ascertain as to whether those were fired from one or different weapons---Empties were received in the Laboratory, where, after chemical analysis, it transpired that the same were fired from one and the same weapon---Laboratory report discredited the integrity of the complainant as the complainant had thrown the net wide by implicating two real brothers in the episode---No denial to the fact that the Laboratory report was corroborative piece of evidence and could not be used to discredit the trustworthy eye-witness account but in the present case, the eye-witnesses failed to establish their presence on the spot and that their statements were in conflict with each other that too with dishonest improvements---Laboratory report confirmed that it was doing of one person---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against acquittal was dismissed, in circumstances.

The State through A.G Khyber Pakhtunkhwa v. Subhan Ali and another 2020 MLD 1901 rel.

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

----Ss. 302, 324, 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Medical and ocular evidence---Conflict---Accused were charged for committing murder of the son of the complainant by firing---Record showed that the medical evidence was in conflict with the ocular account---Site plan was prepared at the instance of the complainant where the deceased and the assailants were shown at a distance of three paces from each other---Fact could not be ignored that the weapon used was stated to be 9mm pistol and that the charring and blackening marks occurred only when a pistol was fired from a distance of nine inches or less---In the present case all the entry wounds were surrounded by blackening, which was not possible from the distance given by the complainant, which also indicated that the complainant was not present at the time of incident---Said conflict between the medical evidence and ocular account had crept deep into the roots of the prosecution case---Medical evidence though was confirmatory in nature but when direct ocular account was available on file, then in that eventuality it was the ocular account which was to be preferred and taken into consideration, provided it was confidence inspiring, however, in the present case, the presence of the witnesses at the time and at the place of incident was shrouded in mystery, so the conflict between the two could not be ignored and it was for the prosecution to prove otherwise---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against acquittal was dismissed, in circumstances.

Akhter Saleem and another v. The State and another 2019 MLD 1107 rel.

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

----Ss. 302, 324, 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Motive was not proved---Effect---Accused were charged for committing murder of the son of the complainant by firing---Motive for the offence was given as the deceased had contracted love marriage with a lady and the accused being maternal cousin of said lady committed the offence---Record showed that it was the complainant who stated that the matter between the parties had already been patched up---If the matter had already been patched up then what was the need for the respondents to kill the deceased---Prosecution, in circumstances, failed to establish the motive; even otherwise the Investigating Officer did not collect any independent evidence in that respect---Investigating Officer did not take pains to record the statement of widow of deceased to confirm the motive---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against acquittal was dismissed, in circumstances.

(g) Criminal trial---

----Motive---Scope---Once the prosecution alleged a motive then it was its duty to prove the same failing which it was the prosecution to suffer.

Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 rel.

Muhammad Ismail Alizai for Appellant.

Nemo for Respondent (Being in motion).

2021 P Cr. L J 1407

[Peshawar]

Before Syed Arshad Ali, J

AQIB ALI---Petitioner

Versus

The STATE---Respondent

Criminal M. (QP) No. 71-P of 2020, decided on 21st December, 2020.

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

----Ss.9(c), 22 & 23---Criminal Procedure Code (V of 1898), S.561-A---Inherent jurisdiction of High Court---System of trial---Role of Trial Court---Further samples, taking of---Accused persons were facing trial on the charge of possessing narcotic substance---Trial Court allowed investigating officer to take further samples of recovered articles---Validity---Judicial dispensation in Pakistan is adversarial in its nature and character---Court acts as a neutral arbiter and has to dispassionately apprise, appreciate, examine and weigh the evidence placed before it rather than by ignoring the evidence and embarking on a probing journey---High Court set aside the order of Trial Court as the same was contrary to law laid down by Supreme Court--- Petition was allowed in circumstances.

Muhammad Naeem's case PLD 2019 SC 669; Qaiser Javed Khan's case PLD 2020 SC 57 and Hussain Shah's case PLD 2020 SC 132 ref.

Qaiser Javed Khan v. The State PLD 2020 SC 57 fol.

Noor Alam Khan and Ms. Shabbina Noor for Petitioner.

Tariq Kakar, Special Prosecutor ANF for the State.

2021 P Cr. L J 1439

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

AKHTAR ALI and 2 others---Appellants

Versus

AMIR HATAM and another---Respondents

Criminal Appeal No. 351-M of 2019, decided on 28th January, 2021.

(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---Accused were charged for making firing on complainant party, one person was hit and died whereas another person was seriously wounded and had later succumbed to the injuries---Motive behind the occurrence was mentioned as an altercation took place between accused, deceased and injured---Record depicted that examination-in-chief of a witness was recorded on 14.06.2017 but he was abandoned by ADPP and counsel for the complainant on 25.04.2018 on the ground that other eye witnesses had already been examined---Even his statement was relied upon by Trial Court at the time of passing the impugned judgment---High Court observed that view of the Trial Court that mere production of a witness and recording his examination-in-chief would not take away from prosecution the right to abandon a witness save in exceptional cases, were misconceived---No doubt, prosecution or a party to a lis was at liberty to abandon a witness but once a witness came into the dock and he opened his mouth with regard to facts of the case then in that eventuality he could not be abandoned by prosecution rather it was the duty of the court to take the proceedings into its own hands---Court had prime duty to steer, control and regulate the course of examination of a witness on proper lines and to strike a fair balance between the parties before it for bringing uniformity and consistency in process of examination---Courts were also required to act vigilantly and not to remain oblivious of their duty in controlling and regulating the process of examination of a witness---In the present case, the court had not discharged its duty and had acted as a silent spectator by allowing the prosecution to deal with the witnesses according to their own whims---Nothing was on record to show that the defence had ever given up its right of cross-examination rather the defence counsel had time and again requested the Trial Court for re-summoning of the witness for cross-examination---Appeal was allowed and the matter was remanded the Trial Court with directions to summon the witness for his cross-examination and thereafter decide the case after hearing the parties.

Ghulam Muhammad v. The State PLD 1989 Kar. 144 rel.

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

----Art. 133---Cross-examination---Scope---Cross-examination of a witness was not just a formality but was a valuable right of accused, however, it was a different matter if the accused waived off his right to cross-examine a witness who appeared in support of the prosecution case.

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

----Ss. 302(b), 324 & 34---Criminal Procedure Code (V of 1898), S. 232---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Material error in charge---Effect---Accused were charged for making firing on complainant party, as a result one person was hit and died whereas another person became seriously wounded and had later succumbed to the injuries---Record showed that charge was framed against the accused wherein they were indicted under S. 302, P.P.C., only for murder of one deceased and under S. 324, P.P.C., for causing firearm injuries to the injured, though he had already succumbed to the injuries on the same day---High Court, while deciding the bail petition observed that said error in the formal charge---Trial Court was required to revisit the charge and alter/add the same in accordance with law, if needed---Controversy in question mainly cropped up due to the reason that the initial charge was defective which not only caused delay in conclusion of trial but also spawned numerous complications in the case---Trial Court had framed the initial charge in an oblivious and stereotyped manner and against the record---Said practice could not be left unattended---Appeal was allowed and the matter was remanded to the Trial Court with directions to summon the witness for his cross-examination and thereafter decide the case after hearing the parties.

Hafiz Ashfaq Ahmad and Hamayoon Khan Toorwali for Appellants.

Haq Nawaz, Assistant A.G. for the State.

Malak Shouban Khan for the Complainant.

2021 P Cr. L J 1461

[Peshawar]

Before Lal Jan Khattak and Syed Muhammad Attique Shah, JJ

NIAZ AHMAD---Appellant

Versus

The STATE---Respondent

Jail Criminal Appeal No. 1558-P of 2019, decided on 24th September, 2020.

(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 74 kilograms of Charas Garda was recovered from the secret cavities of vehicle driven by co-accused in the company of accused---Record showed that during search of the vehicle in question, the complainant noted that there was double floor beneath the seats thus, he opened the rear bumper beneath the grill with the help of tools and found double floor having secret cavity, in which 74 packets of Charas Garda were lying---Complainant separated 5/5 grams Charas Garda from each packet as sample for Forensic Science Laboratory analysis and sealed the same in parcels whereas the remaining quantity was sealed in one Parcel---Complainant affixed 3/3 seals of monogram SM over the parcels, however, the said monogram did not signify the name of the Seizing Officer---No explanation was offered as to why the said parcels did not contain the monogram of Seizing Officer, which had created a serious doubt regarding the seizure of contraband---Complainant had alleged that he had used tools for opening the secret cavity of the vehicle but he had neither specifically mentioned in the murasila nor stated in his examination-in-chief as to what kind of tools he had used and from where he had arranged said tools---Said fact of using tools by the complainant had remained unspecified during the course of investigation---After conducting the alleged recovery proceedings, the complainant sent Murasila to Police Station for registration of case, which was received by Moharrar, who stated that he received Murasila only---If only Murasila was brought to Police Station, then after registration of case, how the recovery memo, card of arrest were handedover to the Investigating Officer of the case in the Police Station, was a question, which made the preparation of said documents by the complainant highly doubtful---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Akhtar Iqbal v. The State 2015 SCMR 291 rel.

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

----S. 9(c)---Control of Narcotic Substances (Government Analyst) Rules, 2001, Rr. 4, 5 & 6---Possession of Narcotics---Appreciation of evidence---Benefit of doubt---Chemical analysis---Delay of thirteen days in sending the narcotic for analysis---Effect---Prosecution case was that 74 kilograms Charas Garda was recovered from the secret cavities of a vehicle driven by co-accused in the company of accused---Samples of contraband separated the refrom were sent to Forensic Science Laboratory with an unexplained delay of about thirteen days, which was required to be transmitted to the Forensic Science Laboratory within 72 hours of its seizure under S. 4 of the Control of Narcotic Substances (Government Analysts) Rules, 2001---Record showed that report of Forensic Science Laboratory did not signify the test protocols that were applied to carry out the test, therefore, the mandatory requirement of law provided by R. 6 had not been complied with in its letter and spirit---Non-compliance of the said Rule would render the report in question inconclusive, suspicious and untrustworthy, thus, the same could not be relied upon qua maintaining the conviction and sentence of the accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Aslam v. The State 2011 SCMR 820; Said Zareen-v. The State 2012 PCr.LJ 886; Imtiaz Ali v. The State 2018 YLR 1067; Shan-v. The State 2018 MLD 702; Khair-ul-Bashar v. The State 2019 SCMR 930; Muhammad Boota v. The State and another 2020 SCMR 196 and Qaiser Javed Khan's case PLD 2020 SC 57 rel.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 164---Possession of Narcotics--- Appreciation of evidence--- Benefit of doubt---Confessional statement of accused---Scope---Prosecution case was that 74 kilograms of Charas Garda was recovered from the secret cavities of vehicle driven by co-accused in the company of accused---Record showed that the accused allegedly made an application on 17.01.2017 for recording his statement and his alleged confessional statement was recorded on 20.01.2017---Application dated 17.01.2017 available on record of the case nowhere suggested that the accused intended to record his confessional statement, rather he showed his desire to record his statement---Alleged confessional statement could not be used for his conviction---Accused subsequently retracted from his confessional statement and alleged the same to be illegal, recorded without observing codal formalities i.e. without warning or opportunity for pondering over his confession---In order to properly assess intrinsic worth of the said confessional statement that whether the same was voluntarily, true and recorded after observance of due and codal formalities, High Court had thoroughly perused the same---In reply to Question No.7" Do you want to engage the counsel?", the accused replied that;＂Might be but not at present as I had no contact with my family." which clearly suggested that no proper opportunity was provided to the accused to contact his family members or to engage his counsel, thus, the alleged confessional statement was not sufficientfor maintaining the conviction of the accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt--- Appeal against conviction was allowed, in circumstances.

Ali Gohar Durrani for Appellant.

Arshad Ahmad, A.A.G. for the State.

2021 P Cr. L J 1549

[Peshawar]

Before Syed Muhammad Attique Shah, J

SHAH ZAIN and 2 others---Petitioners

Versus

JAMEEL-UR-REHMAN and another---Respondents

Criminal Miscellaneous (BBA) No. 609-P of 2021, decided on 2nd July, 2021.

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

----S. 498---Penal Code (XLV of 1860), Ss. 489-F & 406---Dishonestly issuing a cheque, criminal breach of trust---Pre-arrest bail, grant of---Scope---Accused persons sought pre-arrest bail in an FIR registered against them under Ss. 489-F & 406, P.P.C.---Allegation of complainant was that he had a mobile phone business with the accused persons; that they after getting the mobile phones worth Rs.83,65,000/- disappeared; that subsequently, they handed over two cheques to the complainant which were issued by the subsequent purchaser of the mobile phones and that the cheques, on presentation, were bounced being blocked by the drawer---Held; complainant had alleged a huge business transaction with the accused persons, however, the record was silent in that respect, as nothing was available on record which could support the contention of the complainant---Subsequent purchaser of mobile phones who had issued the cheques had already been released on post-arrest bail---Involvement of accused persons in the circumstances was not free from mala fide and ulterior motives---Applicability of S. 406, P.P.C. would be seen by the Trial Court at the time of trial---Accused persons had no criminal history of involvement in such like offences---Investigation was complete and the accused persons were not required for further investigation---Petition for grant of pre-arrest bail was allowed, in circumstances.

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

----S. 498---Pre-arrest bail---Scope---Grant of pre-arrest bail is an exceptional and extra-ordinary relief and as such restricted to the cases; which are the result of trumped up charges---Accused, in order to get the relief has to establish that the registration of case is the outcome of mala fide and ulterior motives and if the desired relief is not extended to him, he would certainly suffer irreparable loss to his reputation---Relief of pre-arrest bail is a shield to protect innocent persons qua highhandedness of individuals or authorities through false, motivated and malicious prosecution, therefore, while granting pre-arrest bail; apart from the element of mala fide and ulterior motives, the merits of the case can also be touched upon.

Khair Muhammad and another v. The State through P.G. Punjab and another 2021 SCMR 130 and Meeran Bux v. The State and another PLD 1989 SC 347 ref.

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

----S. 489-F---Dishonestly issuing a cheque---Scope---Section 489-F, P.P.C., has laid main emphasis on the dishonouring of a cheque, upon its presentation, which was issued towards repayment of a loan or fulfillment of an obligation.

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

----S. 498---Pre-arrest bail---Directly approaching the High Court---Scope---High Court shares concurrent jurisdiction with the Trial Court, while dealing with the matter of bail before arrest under S. 498, Cr.P.C.---Albeit, propriety demands that the trial court be approached at the first instance, however, in an appropriate case, where there is a threat to life or an element of undue harassment and humiliation at the hands of local police or complainant; then, High Court can be directly approached.

Rais Wazir Ahmad v. The State 2004 SCMR 1167 and The State v. Malik Mukhtar Ahmad Awan 1991 SCMR 322 ref.

Altaf Samad for Petitioners.

Saqib Raza, A.A.G. for the State.

Qaisar Zaman for the Complainant.

Date of hearing: 2nd July, 2021.

JUDGMENT

SYED MUHAMMAD ATTIQUE SHAH, J.---Petitioners, Shah Zain, Ahmad Hassan and Farhan Mughal, seek pre-arrest bail in case FIR No.340 dated 20.02.2021 under sections 489- F/406, P.P.C. of Police Station City, District Mardan.

1. Jamil-ur-Rahman, the complainant moved written application to the SHO concerned for taking legal action against the accused by alleging that he had a mobile business with the accused/petitioners; but, was unaware of their being thieves as, by getting the mobiles worth Rs.83,65,000/- they disappeared; subsequently, they handed over two cheques to him by informing him that the said mobiles were sold out to Muhammad Ashfaq and in consideration thereto, cheques in question were given to him. On prmentation, the ibid cheques were bounced. being blocked by the drawer, hence, instant case.

2. Heard. Record gone through.

3. Indeed, grant of pre-arrest bail is an exceptional and extra-ordinary relief and as such restricted to the cases; which are the result of trumped-up charges. In order to get the relief, petitioner has to establish that the registration of case is the outcome of mala fide and ulterior motives, and if the desired relief is not extended to him, he would certainly suffer irreparable loss to his reputation. Certainly, the relief of pre-arrest bail is a shield to protect innocent persons qua highhandedness of individuals or authorities through false, motivated and malicious prosecution. Therefore, while granting pre-arrest bail; apart from the element of mala fide and ulterior motives, the merits of case could also be touched upon 2021 SCMR 130 Khair Muhammad and another v. The State through P.G. Punjab and another, PLD 1989 SC 347 Meeran Bux v. The State and another.

4. Coming to the facts of case in hand, perusal of the record suggests that though the complainant has alleged a huge business transaction with the accused/petitioners; however, the record is silent in this respect, as nothing as such is available on record; which could support the contention of the complainant. The accused/petitioners are mainly charged under section 489-F, P.P.C.; therefore, for sake of convenience, the same is reproduced below:-

"489-F. Dishonestly issuing a cheque.---Whoever dishonestly issues a cheque towards re-payment of a loan or fulfilment of an obligation which is dishonoured on presentation, shall be punishable with imprisonment which may extend to three years, or with fine, or with both, unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque."

1. The ibid provision has laid main emphasis on the dishonoring of a cheque, upon its presentation, which was issued towards repayment of a loan or fulfillment of an obligation. In the case in hand, the cheques in question have admittedly been issued by the co-accused Muhammad Ashfaq; who has already been released by this Court, while accepting his post arrest bail application. The record further suggests that the cheques in question were stopped/blocked by the said Muhammad Ashfaq for the reason that subsequently, cash amount was paid to the accused Hassan; however, in turn, he failed to return the cheques and; in this regard, a statement of one Atif Awan was also recorded under section 164, Cr.P.C. on 08.3.2021. Albeit, perusal of the cheques in question shows that the same had been issued in the name of the complainant. Thus, in the given circumstances, there is no direct or indirect evidence available on the record of the case, which could prima facie connect the accused/petitioners with the commission of offence. The involvement of the accused/petitioners in the circumstances is not free from mala fide and; ulterior motives. As far as, applicability of section 406, P.P.C. is concerned, the same would be seen by the learned lower Court at the time of trial. Further, there is no criminal history of the involvement of the accused/petitioners in such like offences. The investigation is complete and; the accused/petitioners are no more required for further interrogation.

2. So far as, the contention of learned counsel representing the complainant regarding the jurisdiction of this Court, while directly entertaining bail before arrest application is concerned, suffice it to say that this Court shares concurrent jurisdiction with the learned trial Court, while dealing with the matter of bail before arrest under section 498, Cr.P.C. Albeit, propriety demands that the learned trial Court be approached at the first instance. However, in an appropriate case, where there is a threat to life or an element of undue harassment and humiliation at the hands of local police or complainant; then, High Court could be approached directly. 2004 SCMR 1167 "Rais Wazir Ahmad v. The State", 1991 SCMR 322 "The State v. Malik Mukhtar Ahmad Awan". In the case in hand the accused/petitioners have shown their apprehension of harassment and humiliation at the hands of complainant, who happens to be the brother of a practicing lawyer. Though no such plea has been taken by them in their application; however, at the time of arguments they vehemently agitated the same at the bar. Therefore, in view of its peculiar facts and circumstances, the instant petition is allowed, ad-interim bail already granted to the accused/petitioners is hereby confirmed on their existing bail bonds.

3. The ibid observations are the tentative assessment of the material available on the record of the case, which shall not influence the mind of the learned Trial Court in any manner at the time of trial.

SA/128/P Pre-arrest bail granted.

2021 P Cr. L J 1582

[Peshawar (Bannu Bench)]

Before Sahibzada Asadullah, J

NAUMAN KHAN---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal M.B. No. 17-B of 2021, decided on 4th February, 2021.

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

----S. 497---Penal Code (XLV of 1860), S. 324---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Attempt to commit qatl-i-amd---Unlicensed possession of arms---Bail, grant of---Case of cross-versions---Scope---Further inquiry---Record revealed that the incident in issue occurred in front of the shop of complainant, which was across the road where the accused being a rickshaw driver was waiting for passengers---Complainant wanted the accused to vacate the occupied place which resulted in an altercation---Complainant along with his sons was running a barber shop and on hearing altercation between the two they also joined hands with their father and entered into a scuffle---Complainant received a firearm injury on his body whereas the accused sustained incised wounds at the hands of the complainant party---Both parties reported the matter to the police in the hospital where on the strength of the report of complainant the FIR was registered whereas version of the accused was penned down in the shape of a report charging the complainant along with his sons for commission of the offence---Moot question for the High Court was to determine as to who was the aggressor and who was aggressed upon, which at present juncture was not possible rather the same could better be determined after recording pro and contra evidence---Accused had succeeded in making out a case of further inquiry---Petition for grant of bail was allowed, in circumstances.

Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845 rel.

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

----S. 497---Bail---Tentative assessment---Scope---Courts of law while seized of bail matters are to tentatively assess the material brought before it and deeper appreciation is not warranted, but bail applications cannot be heard and decided in vacuum, rather the courts seized of bail matters were to apply their judicial mind to the material available on file, so as to avoid miscarriage of justice.

Zaigham Ashraf v. The State and others 2016 SCMR 18 rel.

Noor Zada Khan Ahmadzai for Petitioner.

Qudratullah Khan Gandapur, Assistant A.G. for the State.

Asghar Nawaz Khan for Respondents.

2021 P Cr. L J 1706

[Peshawar (Bannu Bench)]

Before Musarrat Hilali and Sahibzada Asadullah, JJ

WAHIDULLAH---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 350-B with Murder Reference No. 9-B of 2019, decided on 18th January, 2021.

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

----Ss. 302(b), 338-C & 449---Criminal Procedure Code (V of 1898), S. 225---Qatl-i-amd, isqat-i-janin, house trespass---Appreciation of evidence---Defective charge---Failure to specify proper provision of law---Accused was charged for committing murder of the daughter of the complainant as well as cephalic foetus of 39 weeks, who was found in her womb, by firing---No denial to the fact that the Trial Court convicted the accused under S. 338-C, P.P.C. instead S. 302, P.P.C., but failed to advance any plausible reason---Trial Court while framing the charge did not take pains to apply its judicial mind to the facts and circumstances of the case to apply the correct section of law, despite the fact that the post mortem report was present before him---In order to ascertain that what should be the correct law on the subject i.e. S. 338-C or S. 302, P.P.C.---Language of S. 338-B, P.P.C. was very much clear which referred to a child, some of whose limbs or organs had been formed---However, in the present case, the child was cephalic foetus of 39 weeks---No controversy in holding that an unborn child whose existence in the mother's womb exceeded five months till its birth was treated no other but a child in existence---Present case was no exception, such a child could be called a person---Section 300, P.P.C. described that whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with-the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit qatl-i-amd---Section 338-C, P.P.C., referred to foetus whose some organs were developed and some to develop, so in that eventuality, the exact section of law should have been S. 302, P.P.C. and not S. 338-C, P.P.C.---Thus, Trial Court fell in error while framing the charge under S. 338-C, P.P.C., instead S. 302 P.P.C., as a cephalic child comes within the definition of a person---Needless to mention that framing of the charge under S. 338-C, P.P.C. was a material error and the accused was thereby misled by such omission to defend himself, hence the accused had been prejudiced---Conviction awarded to the accused under S. 338-C, P.P.C., was not maintainable, therefore, appeal was allowed by setting aside the impugned conviction and sentence awarded to the accused and the case was remanded back to the Trial Court for de novo trial after framing charge under S. 302, P.P.C., instead of S. 338-C, P.P.C., to meet the ends of justice.

Hakim Ali v. The State 2013 YLR 2169 and Zaman Shah v. The State 2015 MLD 795 rel.

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

----S. 222---Framing of charge---Object, purpose and scope---Charge shall contain such particulars as to the time and place of the alleged offence and the person (if any) against whom or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter under which he is charged.

S.A.K. Rehmani v. The State 2005 SCMR 364 rel.

Sawal Nazir Khan for Appellant.

Shahid Hameed Qureshi, Additional A.G. for the State.

2021 P Cr. L J 1758

[Peshawar (Bannu Bench)]

Before Muhammad Nasir Mahfooz and Sahibzada Asadullah, JJ

NOOR MUHAMMAD KHAN through Legal Heirs---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 208-B of 2019, decided on 14th April, 2021.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Presence of complainant at the spot was doubted---Scope---Accused were charged for committing murder of the grandson of complainant by firing---Motive for the offence was stated to be exchange of firing between the parties few days prior to the occurrence---Record was silent regarding presence of the deceased with the complainant prior to the occurrence---Complainant stated his presence in the hujra before the incident but the site plan was silent in that respect---Even the Investigating Officer did not mention the same---Complainant failed to establish his presence in hujra a little before the occurrence---Complainant did not produce anyone to confirm his presence---Complainant was cross-examined on that particular aspect of the case who replied that his presence in the hujra was not in routine---Complainant did not utter a single word regarding presence of the deceased in the village hujra before they left for their house---In the site plan, the deceased had been shown at one point, whereas the complainant at the second point with no occasion to talk, but the complainant stated that prior to the occurrence it was the deceased who disclosed the time as 7.00 p.m.---Complainant stated that he did not know how to read a watch, but to cure the defect he introduced the deceased who disclosed the time---If it was admitted what the complainant stated regarding the stated time, then it was for the complainant to show that they were together in the hujra and so on their way to home, but he could not and the entire record was silent in that respect---Circumstances established that the prosecution failed to establish its case beyond doubt---Appeal against acquittal was dismissed, in circumstances.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Medical evidence---Scope---Accused were charged for committing murder of the grandson of complainant by firing---Record showed that the deceased received two fire shots on his back i.e. lumber region with its exit on his front---Site plan showed that the deceased was shown at one point with his right exposed to the assailants, the seat of injuries run counter to the claim of the complainant---Situation in the site plan suggested that had the accused present at other point and fired at the deceased, the bullet would have landed on his chest as the deceased was still to approach the accused---Another circumstance which troubled hard was the recovery of empties---If it was correct that accused fired then the empties must have been recovered from the street as the Kalashnikov ejects its empties to right front---Empties showed the recovered, were lying at the back of the accused, possibility could not be excluded that the deceased was fired from his back and the locale of injuries further told that it was the doing of a single person---Circumstances established that the prosecution failed to establish its case beyond doubt---Appeal against acquittal was dismissed, in circumstances.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal--- Recovery of crime empties from the spot---Reliance---Scope---Accused were charged for committing murder of the grandson of complainant by firing---Investigating Officer visited the spot and recovered six empties of 7.62 bore with blood stained earth from the place of deceased---Investigating Officer stated that he visited the spot on the night of incident but could not inspect the spot as the complainant was not present---Investigating Officer further stated that he deputed two Police Constables to preserve the spot---If Investigating Officer spoke the truth, then why he did not mention the names of the deputed constables and why their statements were not recorded---Another circumstance that would go against the prosecution was that the empties were not collected on his first visit to the spot---Collected empties were sent to the Firearm Expert and the result received was in positive i.e. the collected six empties were shown to have been fired from different weapons---In such eventuality, it had left no ambiguity to hold that it was the act of more than one person---Circumstances established that the prosecution had failed to establish its case beyond doubt--- Appeal against acquittal was dismissed, in circumstances.

----Medical evidence---Scope---Medical evidence is confirmatory in nature and it can not exclude the ocular account, provided the same inspire confidence.

Akhter Saleem and another v. The State and another 2019 MLD 1107 rel.

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

----Ss. 302, 324 & 34--- Qatl-i-amd, attempt to commit qatl-i-amd, common intention--- Appreciation of evidence---Appeal against acquittal---Delay in sending the empties for analysis---Scope---Accused were charged for committing murder of the grandson of complainant by firing---Collected empties were received to the Forensic Science Laboratory, after a considerable delay, but the Investigating Officer did not mention that where those empties were lying in the intervening period---Neither the Moharrir of the concerned police station was examined nor the Police Official who took the same to the laboratory---Investigating Officer could not prove that the empties were lying in safe custody---In such eventuality, the prosecution could not establish the safe custody of the collected empties and its onward dispatch to the Forensic Science Laboratory, as such, that piece of evidence could not be taken into consideration, that too, for awarding capital punishment---Circumstances established that the prosecution failed to establish its case beyond doubt---Appeal against acquittal was dismissed, in circumstances.

Hayat Ullah v. The State 2018 SCMR 2092 rel.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Motive was not proved---Scope---Accused were charged for committing murder of the grandson of complainant by firing---Motive was stated to be an early exchange of firing between the parties which was allegedly compromised---Investigating Officer did not collect anything to explain that who out of the sides was involved in the said episode and that what role the deceased played therein,as the deceased was hardly eighteen years of age---Even the complainant did not produce independent witnesses in that respect, more particularly,the people who patched up the matter between them---Circumstances established that the prosecution failed to establish its case beyond doubt--- Appeal against acquittal was dismissed, in circumstances.

(g) Criminal trial---

----Motive---Scope---Absence or weakness of motive does not play a decisive role in believing or disbelieving the prosecution case---Once the motive is alleged, the prosecution is under the bounden duty to prove the same failing which none else but the prosecution will suffer.

Hakim Ali v. The State 1971 SCMR 432 and Amin Ullah v. The State PLD 1976 SC 629 rel.

(h) Criminal trial---

----Abscondence---Scope---Abscondence alone is not sufficient for awarding conviction, rather it can a circumstance that can be taken into consideration, provided the prosecution succeeds in building its case against the accused.

Inam Ullah Khan Marwat for Appellant.

Shahid Hameed Qureshi, Additional A.G. for the State.

Marghoob Hassan Khan for Respondents.

2021 P Cr. L J 1772

[Peshawar]

Before Muhammad Naeem Anwar, J

HAMID IQBAL---Petitioner

Versus

ADDITIONAL ASSISTANT COMMISSIONER REVENUE through Advocate General, Khyberpakhwa and another---Respondents

Criminal Miscellaneous (Q) Petitioner No. 22 of 2020, decided on 17th November, 2020.

Price Control Prevention of Profiting and Hoarding Act (1977)---

----Ss. 3, 6 & 10---Khyber Pakhtunkhwa Food Stuffs Control Act (XX of 1958), Ss. 6 & 9---Constitution of Pakistan, Art. 199---Criminal Procedure Code (V of 1898), S. 561-A--- Constitutional petition---Quashing of proceedings---Scope---Petitioners had challenged their convictions and sentences awarded by Special Magistrate whereby they were sentenced for simple imprisonment for three months and 100,000/ fine under Ss. 6 & 9 of Khyber Pakhtunkhwa Food Stuffs Control Act, 1958---Letter dated 27th March 2020 issued by the Section Officer (security-II) of Government of Khyber Pakhtunkhwa Home and Tribal Affairs Department with the Subject, Shopkeepers purportedly involved in hoarding of essential items with name address of the shopkeeper/store owner---Neither the petitioners were named in the list nor any separate application/complaint was made against them---Petitions were produced before Special Magistrate, but when the petitioners were not named in the report/letter issued by the government and when no evidence was available on record against them then how they were entangled was a question mark on the part of authorities---Prosecution could not explain the same candidly conceded that the petitioners were not named in the report, however, added that during the course of investigation/inquiry their names were surfaced---Although, prosecution agitated the issue of involvement of petitioners in the commission of offence yet the analysis of record showed that nothing was brought on record to connect the petitioners with the commission of offence---Petitions were allowed by quashing the impugned orders along with the proceedings against the petitioners, in circumstances.

Barrister Ameer Ullah Khan for Petitioner.

Miss Sofia Noreen, A.A.G. and Noor Muhammad, ASI for Respondents.

2021 P Cr. L J 1811

[Peshawar (Bannu Bench)]

Before Sahibzada Asadullah, J

MUHAMMAD SHER KHAN---Petitioner

Versus

The STATE and another---Respondents

B.A. No. 266-B of 2021, decided on 29th June, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd and common intention---Bail, refusal of---Prompt FIR---Scope---Accused and his brother were alleged to have murdered the deceased in front of complainant---Events narrated by the complainant depicted that the incident occurred in the baitak of the deceased duly witnessed by the complainant---Investigating Officer had prepared the site plan and had recovered 07 empties of 7.62 bore from the place of incident along with the blood stained earth---Matter was promptly reported with no chance of consultation and deliberation, that too when the parties were known to each other---High Court observed that although some of the injuries were bearing charring marks and some were lacerated in nature, but that aspect of the case could not be dealt with as it would amount to deeper appreciation of evidence---Accused prima facie seemed to be connected with the commission of the offence and did not deserve the concession of bail---Petition for grant of bail was dismissed, in circumstances.

Sultan Mehmood Khan for Petitioner.

Haji Hameedullah Khan Maidad Khel for Respondent.

Arshad Hussain Yousafzai, Assistant A.G. for the State.

2021 P Cr. L J 1878

[Peshawar]

Before Musarrat Hilali, J

AHMAD ALI---Petitioner

Versus

EBRAR KHAN and another---Respondents

Criminal Revision No. 07-P of 2021, decided on 31st May, 2021.

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

----S. 512---Qanun-e-Shahadat (10 of 1984), Art. 47---Recording of evidence in absence of accused---Relevance of certain evidence for proving, in subsequent proceeding, the truth of facts therein---Scope---Complainant assailed the acceptance of an application moved from defence side for transposition of the entire evidence earlier recorded in previous trial of the acquitted co-accused---Bare reading of S. 512, Cr.P.C. showed that when a person had absconded and there was no immediate prospect of his arrest and the offence for which he was charged was punishable with death or imprisonment for life, the Court could examine the witness produced by the prosecution and record his deposition and when the accused was arrested, then at the stage of trial, if any of such witnesses was not available being dead or could not be found or was incapable of giving evidence or his attendance could not be obtained without an amount of delay, expense or inconvenience and when the matter between the same parties, then the statements recorded under S. 512, Cr.P.C., could be accepted in the evidence---Plain reading of the Art. 47 of the Qanun-e-Shahadat, 1984, indicated that the evidence given by any witness in an earlier judicial proceedings was relevant for the purpose of its proving in proceedings at a later stage provided that (a) witness was dead; or (b) could not be found; or (c) incapable of giving evidence; or (d) was kept out of the way by the adverse party; or (e) his presence could not be obtained without any amount of delay or expenses---None of the conditions mentioned in the Art. 47 of the Qanun-e-Shahadat, 1984, was satisfied before transposition of the statements recorded under S. 512, Cr.P.C.---While allowing the application of the accused, only the acquittal of co-accused was taken into consideration---If the decision was to be based on previous evidence without satisfying the conditions mentioned in Art. 47 of the Qanun-e-Shahadat, 1984, then accused should not have been arrested and should have been acquitted in absentia---Impugned order was queer and made in haste, therefore, the same was set aside.

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

----Art. 47---Relevance of certain evidence for proving, in subsequent proceeding, the truth of facts therein---Scope---In the absence of any evidence, the mere declaration that "delay and unnecessary adjournment" would be involved in procuring the appearance of witness was not sufficient for satisfying the relevant condition of Art. 47 of the Qanun-e-Shahadat, 1984.

Shabbir Hussain Gigyani for Petitioner.

Mujahid Ali Khan, Additional A.G. for Respondents.

2021 P Cr. L J 43

[Balochistan]

Before Muhammad Kamran Khan Mulakhail, J

SARDAR KHAN and another---Petitioners

Versus

The STATE---Respondent

Criminal Miscellaneous Quashment No. 328 of 2018, decided on 21st December, 2019.

Coal Mines Regulations, 1926---

----S. 15---Criminal Procedure Code (V of 1898), Ss. 249-A & 561-A---Inherent powers of High Court---Quashing of order---Trial Court, after taking cognizance of the case, issued summons to the petitioners but the petitioners did not appear before the court---Later, non-bailable warrants were issued with the direction that in case of non-execution of warrant, the Naib Tehsildar to appear in person---Application for cancellation of warrant was filed, which was accepted and warrants were withdrawn---Accused again did not appear and his non-bailable warrants were issued---Application for the cancellation of warrants was again filed, which was accepted and warrants were again withdrawn---Application under S. 249-A, Cr.P.C. was filed on the next date of hearing, for the acquittal of the accused, which was dismissed---Validity---Record showed that Judicial Magistrate, in the present case, issued several non-bailable warrants of arrest against the petitioners, but on each occasion the Trial Court was approached by the counsel for the petitioners, with assurance that the petitioners would appear before the court, while the application filed for exemption of the personal appearance of one of the petitioners was also declined---Admittedly, a competent court of law had been repeatedly issuing the warrants of arrest against the petitioners for their appearance and it was also on record that the petitioners were avoiding appearance and also their lawful arrest---If the quashment petition was entertained for its decision on merit without the petitioner's surrender in obedience to the warrants under S. 204, Cr.P.C., issued by a competent court of law, then it would tantamount to abuse of the process of the court, as a person who fled or escaped from law lost some of his normal rights available to him under the law, therefore, the present petition could not be entertained as the petitioners were fugitive from law---Petition was dismissed, in circumstances.

PLD 1956 FC 43; 1999 SCMR 1619; PLD 2002 Lah. 74 and 1999 PCr.LJ 1381 rel.

Mujeeb Ahmed Hashmi for Petitioners.

Muhammad Yunus Mengal, APG for the State.

2021 P Cr. L J 90

[Balochistan (Sibi Bench)]

Before Abdul Hameed Baloch, J

UBAIDULLAH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.(s) 9 of 2020, decided on 13th February, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Anti-Terrorism Act (XXVII of 1997), Ss. 11-F(2)(5) & 6---Proscribed organization, terrorism---Bail, grant of---Further inquiry---Allegation against the accused was that he was collecting donation from the people for proscribed organization but none from the locality from whom the donation was collected was associated as a witness---Maximum punishment provided under the relevant provision was not more than five years, as such the offence did not fall within the prohibitory clause of S. 497, Cr.P.C.---Grant of bail in offence not falling within the prohibition clause of S. 497, Cr.P.C. was a rule and refusal an exception---Accused was admitted to bail, in circumstances.

Syed Saleem Akhtar for Applicant.

Ms. Noor Jehan, APG for the State.

2021 P Cr. L J 186

[Balochistan]

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

The STATE through Prosecutor General Balochistan---Appellant

Versus

MUHAMMAD ASHFAQ---Respondent

Criminal Acquittal Appeal No. 72 of 2018, decided on 18th December, 2019.

(a) Pakistan Arms Act (XX of 1965)---

----S. 13(d)--- Possessing unlicensed weapon---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Accused was charged that a T.T. pistol with magazine and two live rounds were recovered on his pointation while in custody in connected FIR registered under Ss. 302 & 34, P.P.C., for which he failed to produce any valid license---Record transpired that the alleged murder of the deceased took place on 03.07.2016 and the pistol was recovered along with empty after the delay of twenty five days from a drain with running water on the pointation of accused---Said drain was a running water drain, in such state of affairs how was it possible that the empty which was otherwise weighing very little remained in a drain of running water and was recovered after twenty five days of the occurrence---Said fact did not appeal to a prudent mind that the accused after alleged commission of offence would throw the crime weapon in the drain, which would remain in the drain, which was admittedly a running water drain---Place of recovery was a populated area wherefrom private witnesses could have been picked up and associated with the prosecution's case but was not done---Said fact had also been admitted by the complainant and the Investigation Officer of the case that they did not make any attempt to record statements of any private witnesses at the time of alleged recovery---Said recovery was not effected from exclusive possession of the accused and the place of recovery was also not in custody of the accused---Even otherwise the accused was acquitted from the charge in the main case under Ss. 302 & 34, P.P.C. and the present case was an offshoot of the main case wherein the evidence produced by the prosecution had been disbelieved and benefit of doubt had been extended to the accused, therefore the accused was also entitled to benefit of doubt in the present case--- Appeal against acquittal was dismissed, in circumstances.

(b) 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 giving benefit not as a matter of grace rather as a matter of right.

(c) Appeal against acquittal---

----Double presumption of innocence---Interference---Accused, after acquittal, earned double presumption of innocence in his favour---To disturb such findings, strong and cogent evidence was required.

Muhammad Mehmood Sadiq Khokhar for Appellant.

Abdul Mateen, DPG for the State.

2021 P Cr. L J 261

[Balochistan]

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

BILAL AHMED and 2 others---Petitioners

Versus

The STATE---Respondent

Crl. Quashment No. 151 of 2016, decided on 15th July, 2020.

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

----S.173---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotics---Report of police officer---Discharge of accused---Scope---Petitioners assailed the order passed by Magistrate whereby the accused was discharged from the charges after the Investigating Officer had found him innocent---Accused was alleged to have been found in possession of 60 kilograms of charas and 20 kilograms of opium---Report of Investigating Officer revealed that the signature of first witness of recovery memo were not available on the recovery memo; that the said witness had also denied recovery of contraband in his presence; that the earlier Investigating Officer of the case had stated that he was neither appointed as the Investigating Officer nor had he gone to the place of occurrence; that neither the contraband was sealed nor any parcel was made and it was found to be laying open in the police station and that one of the petitioner had arranged the charas and opium just to save himself and others from the consequences of the FIR which was registered against them under Ss. 365-A, 342, 416 & 34, P.P.C., by the brother of accused---Two of the petitioners were DSPs and one of them was SP at CID police station at the relevant time and after departmental inquiry they were dismissed from service on the basis of said allegations---No illegality or irregularity was committed by the Magistrate in discharging the accused---Petition was dismissed, in circumstances.

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

----S. 173---Report of police officer---Scope---Investigating Officer is not bound to base his conclusion on version of informant or defence but on 'actual facts', discovered during the course of investigation---Such conclusion shall be submitted in shape of prescribed form, as required by S. 173, Cr.P.C.

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

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

----S. 173---Report of police officer---Scope---Section 173, Cr.P.C., nowhere describes as to how the Magistrate shall deal with such report, it, however, empowers the Magistrate to agree or disagree with the act of Investigating Officer in releasing an accused during investigation under S.173, Cr.P.C. which too, to the extent of discharge of bonds.

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

----S. 173---Report of police officer---Powers of Magistrate---Scope---Magistrate in cancelling a registered criminal case is required to act judicially, in that he has to act fairly, justly and honestly, a duty common to the exercise of all state powers, there is no lis before him, there is no duty to hear the parties, there is no decision given, no finality or irrevocability attaching to the order---Party is left free to institute a complaint on the same facts and the same Magistrate does not even after passing such an order render himself to be funtcus officio---Magistrate, on the contrary, is quite competent to entertain and deal with such a complaint on material presented to him---Such peculiarities establish beyond doubt that in so concurring with a report submitted under S. 173, Cr.P.C. Magistrate does not function as a criminal court.

Bahadur v. State PLD 1985 SC 62 ref.

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

----Ss. 173, 561-A, 435 & 439---Report of police officer---Inherent powers of High Court---Scope---Magistrate while concurring with a police report submitted under S.173, Cr.P.C. does not act as a criminal court inferior to the Court of Session and the High Court, his order cannot be revised and modified under the provisions of Ss.435 & 439, Cr.P.C. but in that case it is amenable to the inherent jurisdiction of the High Court under S. 561-A, Cr.P.C., provided the order amounts to abuse of process of court.

Arif Ali Khan v. State 1993 SCMR 187; Muhammad Sharif v. State 1997 SCMR 304 and Hussain Ahmed v. Irshad Bibi 1997 SCMR 1503 ref.

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

----Ss. 173 & 190---Report of police officer---Cognizance of offence by Magistrates---Discharge of accused---Scope---Discharge of accused by a Magistrate is not legally possible after taking cognizance of the case---After taking cognizance by the Trial Court only three results are possible in a criminal case, firstly conviction of the accused either upon admission of guilt by him or on the basis of the evidence led by the prosecution; secondly, acquittal of the accused either under S. 249-A or 265-K, Cr.P.C. or on the basis of failure of the prosecution to prove its case on merits beyond reasonable doubt and thirdly, withdrawal from prosecution by a Public Prosecutor under S.494, Cr.P.C.

Muhammad Alam and another v. Additional Secretary to Government of NWFP Home and Tribal Affairs Department and 4 others PLD 1987 SC 103 and Nasira Surriya v. Muhammad Aslam and 7 others 1990 SCMR 12 ref.

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

----Ss. 173 & 190---Report of police officer---Cognizance of offence by Magistrate---Scope---Even in cases triable exclusively by a Court of Sessions, the Magistrate's power under the Code of Criminal Procedure, 1898 remains intact till such time the case is formally sent by him to the Court of Sessions for trial.

Mehar Khan v. Yaqub Khan and another 1981 SCMR 267 ref.

Manzoor Ahmed Rehmani for Petitioner.

Mushtaq Ahmed Qazi, A.P.G. for the State.

2021 P Cr. L J 337

[Balochistan]

Before Abdul Hameed Baloch and Naeem Akhtar Afghan, JJ

RAHID GUL---Appellant

Versus

The STATE and others---Respondents

C.P. No. 1170 of 2019, decided on 12th December, 2019.

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

----Ss. 265-K & 249-A--- Constitution of Pakistan, Art. 199---Constitutional petition--- Quashing of FIR---Alternate remedy, availability of--- Effect--- Petitioner invoked the constitutional jurisdiction of High Court for quashing of FIR lodged against him---Validity---Challan of the case had been submitted before the Trial Court---Remedy of quashing of proceedings was not available when alternate remedy in the shape of Ss. 265-K & 249-A, Cr.P.C. was available---Quashing of proceedings at early stage was neither permissible nor preferred and every criminal case must be allowed to proceed on its merits---High Court observed that interference at such stage, while exercising its inherent jurisdiction, would amount to pre-empting the powers of Trial Court---Constitutional petition, in the presence of alternate remedy, was dismissed.

Akbar Hussain v M.M.K.A. Zai 1968 SCMR 386 and Nasir Ali v. Munshi Mehar Khan PLD 1981 SC 607 ref.

Ubaidullah v. The State 2014 YLR 753; Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317 and Bashir Ahmed v. Zafar-ul-Islam and others PLD 2004 SC 298 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Alternate remedy---Scope---High Court before exercising its extraordinary jurisdiction must be satisfied about the non-availability or inefficacy of alternate remedy provided under the law and once it is shown to the satisfaction of the High Court that alternate remedy is expedient and effective then High Court would be reluctant to exercise writ jurisdiction.

KSB Pumps Company Ltd. v. Government of Sindh 2011 MLD 1876 ref.

Abdul Raheem Kakar for Petitioner.

2021 P Cr. L J 373

[Balochistan (Sibi Bench)]

Before Muhammad Hashim Khan Kakar and Abdul Hameed Baloch, JJ

MUHAMMAD ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. (s) 189 of 2018, decided on 29th October, 2019.

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

----Ss. 302(c) & 34---Qatl-i-amd, common intention---Appreciation of evidence--- Benefit of doubt---Un-natural conduct---Motive, not proved---Chance witnesses--- Contradictory statements--- Dishonest improvements---Scope---Accused was alleged to have murdered the deceased within the presence of his relatives---Firing had continued for 5-10 minutes but no bullet had hit the eye-witnesses---Complainant had failed to substantiate the motive through confidence inspiring evidence---Eye-witnesses were residents of another district but they had failed to explain the reason of their presence on the scene of occurrence---Eye-witnesses had made dishonest improvements in their statements by narrating the facts which were in exclusive knowledge of the complainant---Statements of eye-witnesses were contradictory to each other regarding the time of the arrival of the Investigating Officer at the place of occurrence---Investigating Officer had stated that the mouth of deceased was open whereas the eye-witnesses had narrated otherwise---Conduct of the eye-witnesses was un-natural and did not appeal to a prudent mind---Appeal against conviction was accepted, in circumstances.

Dohlu v. The State 2002 PCr.LJ 690; Muhammad Farooq v. The State 2006 SCMR 1707 and Muhammad Rafique v. The State 2019 SCMR 1068 ref.

Atta Muhammad v. The State 1999 SCMR 594 rel.

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

----S. 302 & 34---Qatl-i-amd, common intention---Motive---Scope---Conviction can be awarded in a case where no motive is alleged but once motive is alleged by the complainant, it must be proved and in case of failure, the accused would be entitled to the benefit of doubt.

Qudrat Sher v Mst. Mumtaz 2016 YLR 787 ref.

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

----Ss. 302 & 34---Qanun-e-Shahadat (10 of 1984), Art. 40---Qatl-i-amd, common intention---How much of information received from accused may be proved---Recovery of weapon---Open place---Sending of empties along with crime weapon to Forensic Laboratory---Delay in sending recovered articles to Forensic Laboratory---Scope---Accused was alleged to have got recovered the crime weapon---Place of recovery was not in exclusive possession of the accused---Empties and crime weapon were dispatched together to the Forensic Laboratory and that too after twenty days of the arrest of the accused---Article 40 of the Qanun-e-Shahadat, 1984 was not applicable to the case, in circumstances.

Abdul Manan v. The State 2017 PCr.LJ 1198 ref.

(d) Criminal trial---

----Witness---Dishonest improvement---Scope---Statement of witness loses its evidentiary value if he makes any improvement during trial.

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

Ahsan Rafiq Rana for Appellant.

Jamil Akhtar Gajani, Additional Prosecutor General for the State.

2021 P Cr. L J 412

[Balochistan]

Before Abdullah Baloch, J

MUHAMMAD IBRAHIM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 29 of 2019, decided on 15th July, 2020.

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

----Ss. 462-K & 462-O---Interference, improper use or tampering with electric meter by industrial or commercial consumer---Cognizance---Scope---Sub-Division Officer (SDO) lodged FIR with the FIA containing allegations of theft of electricity by the accused from near boshes of transformer for running his tube-well and service station---Offences relating to Chapt. XVII-B of P.P.C. were covered by the provisions of S. 462-O, P.P.C. which ousted the applicability of the Code of Criminal Procedure, 1898 or any other law for the time being in force relating the assumption of jurisdiction by the Court---Court could not take cognizance of any offence under Chapter XVII-B, P.P.C., except on a complaint made with reasons to be recorded in writing along with full particulars of the offence committed under the chapter, by duly authorized officer (not below Grade 17) of the Government or the distribution company---Proceedings were carried out in violation of the provisions of S. 462-O, P.P.C.---Appeal against conviction was accepted, in circumstances.

Muhammad Mohsin Ghaman and others v. Government of Punjab through Home Secretary Lahore and others 2013 SCMR 85 rel.

(b) Administration of justice---

----When the law requires a thing to be done in a particular manner it must be done in the same manner as provided under the law, as deviation from the prescribed procedure amounts to violation of law.

(c) Administration of justice---

----Mandatory pre-requisites of law, if not followed, then the entire proceedings would be nullified in the eyes of law.

Rehmatullah Barech for Appellant.

Nadeem Akhtar Afghan, Assistant Attorney General for the State.

2021 P Cr. L J 438

[Balochistan]

Before Muhammad Ejaz Swati and Muhammad Hashim Khan Kakar, JJ

GHULAM ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 261 of 2019, decided on 21st May, 2020.

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

----Ss. 32 & 33---Articles connected with narcotics---Procedure for confiscation---Scope---Appellant assailed the judgment passed by Trial Court to the extent of confiscation of vehicle used in transportation of narcotics---Sections 32 & 33 of Control of Narcotic Substances Act, 1997, empowered the Trial Court to order confiscation of vehicle used in trafficking of narcotic---Vehicle could not be confiscated unless it was proved that owner was aware that his vehicle was being used in the crime and in that respect burden was placed on the prosecution---Record of the case was silent as to whether any query or probe was made during investigation or during trial or any substantial proof was brought on record by the prosecution about involvement of the owner of the vehicle or his knowledge of transportation of narcotics---Appeal was allowed, impugned judgment to the extent of confiscation of vehicle was set aside and the case was remanded to the Trial Court for release of vehicle subject to verification of ownership from Registration Authority.

2010 SCMR 1181 and 2011 SCMR 1471 ref.

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

----Ss. 520 & 517---Order for disposal of property regarding which offence committed---Stay of order under Ss. 517, 518 or 519, Cr.P.C.---Scope---Where the case in which an order under S. 517, Cr.P.C. was passed in itself is pending before a Court of appeal or revision, that Court can modify, annul or alter such an order under S. 520, Cr.P.C.---Section 520, Cr.P.C., empowers superior Court to interfere with an order passed by a lower Court under Ss. 517, 518 or 519, Cr.P.C., but it does not in any way restrict the Trial Court from passing an order consequent to and in compliance with the order of Superior Court, but where no such case is pending then an application under said section lies to the Court to which appeals or revisions ordinarily lie from the order of subordinate Court under S. 517, Cr.P.C.

AIR 1942 Sindh 1; Sardara v. Boota PLD 1950 Lah. 97; Ghulam Akbar v. The State and another PLD 1958 Lah. 212; Ahmad Bakhsh v. The State and another PLD 1966 Lah. 918; Jalal Khan alias Jalley Khan v. The State and another PLD 1975 Lah. 45 and Manzoor Hussain Jatoi v. The State 1997 PCr.LJ 500 ref.

Khalid Ahmad Kubdani for Appellant.

Habibullah Gul, Additional Prosecutor General for the State.

2021 P Cr. L J 502

[Balochistan (Sibi Bench)]

Before Abdul Hameed Baloch, J

HADI BAKHSH---Applicant

Versus

MUHAMMAD ARIF and 2 others---Respondents

Cancellation of Bail Application No. (s) 2 of 2020, decided on 29th February, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 337-F (i), 147 & 149---Ghayr-jaifah, rioting, unlawful assembly---Bail cancellation of---Principles---Where the court of competent jurisdiction had granted bail, strong grounds were required for its cancellation---For cancellation of bail the court had to see whether the accused after release on bail was creating hindrance for the complainant party or tempering with the prosecution evidence or misusing the concession of bail---Once accused was granted bail on the basis of tentative assessment of evidence available on the record then for its cancellation, exceptional strong reasons were required---Ingredients for the cancellation of bail were lacking---Where the offence did not fall within the ambit of prohibitory clause of S. 497, Cr.P.C., grant of bail was a rule and refusal an exception--- Deeper appreciation of evidence was not permissible in bail matter---Petition being meritless was dismissed, in circumstances.

Zahoor Ahmed Baloch for Applicant.

Jameel Akhtar, Additional Prosecutor General for the State.

2021 P Cr. L J 586

[Balochistan]

Before Rozi Khan Barrech, J

MUHAMMAD ASHRAF---Petitioner

Versus

The STATE---Respondent

Criminal Revision No. 33 of 2020, decided on 18th June, 2020.

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

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

Allah Ditta v. The State 2013 SCMR 51 and Muhammad Sultan v. The State 2010 SCMR 806 rel.

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

----S. 489-F--- Dishonestly issuing a cheque---Appreciation of evidence---Benefit of doubt---Accused issued cheques, which were dishonoured on presentation, due to insufficient balance in the account---Record showed that the entire case was based on the testimony of the complainant being star witness of the case---Complainant stated in his statement that in the month of March 2017, the accused started partnership with a Trading Company and was doing business with him of Rs.30000000/----In the meanwhile, Rs. 1,48,000,00/- was outstanding against him---On demand of the same, the accused first lingered on the matter but consequently issued cheques---On presentation, the same were dishonoured due to insufficient balance in the account---Complainant did not produce any agreement in respect of business partnership, which was the basic document to establish the relationship between the complainant and accused---Statement of complainant was silent with regard to place where such transaction took place---Furthermore, complainant had failed to produce a single document to establish the existence of any partnership allegedly carried out between him and the accused---Complainant had also failed to give the full particulars of the said partnership---Complainant could not establish on record that there had been any transaction between him and the accused for which the cheques had been issued and subsequently were declared dishonoured---Complainant stated during cross-examination that he himself filled the cheque at the instance of the accused, meaning thereby that the cheque was filled/written by the complainant himself and he also mentioned the amount in the said cheque---Said fact proved that the accused did not issue the cheque wilfully and intentionally---Similarly witness/representative of the Bank stated during cross-examination that there was cutting on the cheque of Rs.600000/=---Said aspect of the matter casted serious doubt in the prosecution case which was not considered by the Trial Court as well as appellate court---Criminal revision was allowed and accused was acquitted by setting aside the impugned judgments passed by the Trial Court and appellate court.

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

----S. 489-F--- Dishonestly issuing a cheque---Appreciation of evidence---Delay of about six months in lodging the FIR---Effect---Accused issued cheques, which were dishonoured on presentation, due to insufficient balance in the account---Record showed that the alleged cheques were issued on 18.08.2017 and 28.9.2017, but the application for registration of the FIR was submitted on 17.03.2018 and FIR was lodged on 26.08.2018 with delay of six months without an explanation, however, complainant stated during cross-examination that the application for registration of the FIR was written by an Advocate in his office on 17.03.2018, meaning thereby that the complainant lodged the FIR after deliberation and consultation, which created serious doubt in the prosecution case---Criminal revision was allowed and accused was acquitted by setting aside the impugned judgments passed by the Trial Court and appellate court.

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

----S. 489-F--- Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Dishonestly issuing a cheque---Appreciation of evidence---Withholding material evidence---Effect---Accused issued cheques, which were dishonoured on presentation, due to insufficient balance in the account---Complainant stated in his report as well as in his statement before the court that he was Manager of the Trading Company, meaning thereby that complainant was not the owner of the said Trading Company---In such view of the fact, the question arose that in what capacity the accused had given the cheques to him---Moreso, prosecution neither cited the owner of the Trading Company as well as his brother as witnesses in the challan nor produced them before the Trial Court---In order to establish the version put forth by the complainant, the presence of said important witnesses would have further strengthened the prosecution version---Non-production of such important witnesses, as provided under Art. 129(g) of Qanun-e-Shahadat, 1984 would cast adverse inference, that if the said witnesses had been produced they would not have supported the prosecution version---Criminal revision was allowed and accused was acquitted by setting aside the impugned judgments passed by the Trial Court and appellate court.

Lal Khan v The State 2004 SCMR 1847 rel.

Sohail Ahmed Rajpoot for Petitioner.

Muhammad Qazzafi Khan for the Complainant.

Ameer Hamza Mengal, D.P.G. for the State.

2021 P Cr. L J 719

[Balochistan (Sibi Bench)]

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

WAHEED and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. (s) 186 of 2019 and Criminal Revision Petition No. (s) 01 of 2020, decided on 22nd October, 2020.

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

----Ss.302, 392, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, robbery, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Accused were charged that they murdered the Police Official/brother of the complainant after committing robbery---Case was registered on the information given by deceased, then injured to the complainant---If it was presumed that the deceased told about the accused at the place of occurrence, then why on the oral report of the deceased FIR was not lodged---Statement of SHO was not recorded by the Investigation Officer under S. 161, Cr.P.C.---Investigating Officer died natural death and the SHO appeared on behalf of the late Investigating Officer and produced site plan, challan of the case, memo of the place of occurrence---Had SHO been present at the place of occurrence in whose presence the deceased allegedly made dying declaration, his statement would have been recorded by the Investigating Officer, but the same had not been done which created a reasonable doubt in the prosecution case---Appeal against conviction was allowed, in circumstances.

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

----Ss.302, 392, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, robbery, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Medical evidence---Scope---Accused were charged that they murdered the Police Official/brother of the complainant after committing robbery---Case was registered on the information given by deceased, then injured to the complainant---Record showed that dead body of the deceased was received at hospital at 9:00 p.m.---Alleged occurrence took place at 8:45 p.m. and complainant stated during cross-examination that after receiving a telephone call he reached the place of occurrence within 7/10 minutes---Possibility that within a period of 5 or 6 minutes the deceased allegedly told about the occurrence to the complainant and within said 5 or 6 minutes the dead body of the deceased also reached to the hospital could not be believed---Said aspect of the matter also casted reasonable doubt on the prosecution case---Appeal against conviction was allowed, in circumstances.

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

----Art. 46---Dying declaration---Evidentiary value---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, 392, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qanun-e-Shahadat (10 of 1984), Art. 46--- Qatl-i-amd, robbery, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Dying declaration not supported by medical evidence---Scope---Accused were charged that they murdered the Police Official/brother of the complainant after committing robbery---Case was registered on the information given by deceased, then injured, to the complainant---Record showed that the deceased received injuries by means of a firearm on occipital area of skull margin inverted i.e. 1 x 1 cm wound of entrance and exit wound of bullet were 2 x 2 cm on the left side of the skull of the deceased---Second injury was firearm entrance wound on the backside lumber region 1 x 1 cm margin inverted (Rt. side) and the exit wound was on abdomen of right side 2 x 2 cm---In view of the said injuries on most vital parts, capability and ability of the deceased, then injured, to make statement/talk was beyond the comprehension of a prudent mind---Alleged dying declaration of the deceased, then injured, had not been corroborated by any circumstantial evidence to prove the participation of the accused in the commission of the offence---Appeal against conviction was allowed, in circumstances.

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

----Ss.302, 392, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, robbery, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Recovery of motorbike used in the commission of offence---Reliance---Scope---Accused were charged that they murdered the Police Official/brother of the complainant after committing robbery---Case was registered on the information given by deceased, then injured, to the complainant---Record showed that a motorbike Honda 125 CC was recovered with the bloodstained seat cover---Prosecution produced Head Constable as a witness who stated in his statement that on the night of occurrence on the source of search light the bloodstains were found on the ground which led to the metal road and continued till the house of the accused---About 2:30 p.m., a raid was conducted at the house of accused and one motorcycle which was used at the time of occurrence with a bloodstained seat cover was recovered and the same was taken into possession through a recovery memo---Said witness stated that they did not collect information about the house from the neighbours---Neither any document of the house nor any witness of the locality was produced by the prosecution to establish that the said house belonged to the accused---Accused was also not found in the house wherefrom the alleged motorcycle was recovered---Prosecution did not produce any other witness to corroborate the statement of said witness---Appeal against conviction was allowed, in circumstances.

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

----Ss.302, 392, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, robbery, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Recovery of crime empties from the place of occurrence---Scope---Accused were charged that they murdered the Police Official/brother of the complainant after committing robbery---Case was registered on the information given by deceased, then injured, to the complainant---Record showed that only three crime empties of TT pistol were recovered from the place of occurrence but the deceased received two entrance wounds---No weapon had been shown or recovered from the deceased and the same was also not sent to the firearm expert to match the same with the crime empties---Alleged recovered crime empties were not sent to Forensic Science Laboratory so as to ascertain the number of accused--- Appeal against conviction was allowed, in circumstances.

(g) Criminal trial---

----Benefit of doubt---Principle---For extending the benefit of the doubt in favour of the accused so many circumstances were not required rather one circumstance, which created a reasonable dent in the veracity of the prosecution version could be taken into consideration for the purpose, not as a matter of grace but as a matter of right.

Ahsan Rafique Rana for Appellant (in Criminal Appeal No. (s) 186 of 2019).

Jamil Akhtar Gajani, Assistant Prosecutor General (APG) for the State (in Criminal Appeal No. (s) 186 of 2019).

Muhammad Ashraf Abro for Petitioner (in Criminal Revision Petition No. (s) 01 of 2020).

Ahsan Rafique Rana for Respondent No. 1 (in Criminal Revision Petition No. (s) 01 of 2020).

Jamil Akhtar Gajani, Assistant Prosecutor General (APG) for the State (in Criminal Revision Petition No. (s) 01 of 2020).

2021 P Cr. L J 804

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Abdul Hameed Baloch, JJ

MUHAMMAD IMRAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 433 of 2017, decided on 6th July, 2020.

(a) Drugs Act (XXXI of 1976)---

----Ss. 23, 27, 34 & 18---Criminal Procedure Code (V of 1898), S. 103---Sale of drug not registered or not in accordance with the conditions of registration---Offences by companies, etc.---Search to be made in presence of witnesses---Scope---Prosecution case was that the Drug Inspector inspected a medical store; took unregistered drugs for the purpose of test and analysis; sent samples to the Drug Testing Laboratory; Laboratory declared the sample to be of unregistered quality; Secretary Quality Control Board granted approval for sanction of prosecution of the manufacturer and distributor, as such, complaint was forwarded to the Drug Court---Trial Court vide impugned judgment convicted the accused under Ss. 23(1)(a)(vii), 27 & 34 of Drugs Act, 1976---Contention of accused was that the Drug Inspector was bound to produce the notification to the effect that at the time of seizure he was posted in the relevant zone---Drug Inspector had conducted the proceedings as Drug Inspector Zone F while at the relevant time he was posted as Drug Inspector Zone D---Prosecution had neither recorded statement of owner or employee of the medical store nor recorded statements of nearby shopkeepers---Provisions of S. 103, Cr.P.C. were applicable to the search---Drug Inspector was bound to associate/call respectable inhabitants of the locality to become a witness--- Appeal against conviction was allowed, in circumstances.

Saddam Hussain v. The State 2018 PCr.LJ 1443 ref.

Drug Inspector v. Muhammad Ashiq Mirza NLR 1993 Cr.LJ 102 rel.

(b) Criminal trial---

----Evidence---Mere placing a document on record cannot be considered as evidence.

Shaukat Hayat v. The State 1982 PCr.LJ 48 and The State through Advocate General High Court of Sindh v. Iqbal Ahmed Khan 1996 SCMR 767 rel.

(c) Administration of justice---

----Where law provides for doing a thing in a particular manner it should be done in that manner.

Mst. Perveen Kousar v. Shakil Ahmed 2012 PCr.LJ 614 rel.

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

----S. 103---Search to be made in presence of witnesses---Scope---Where freedom and liberty of a citizen is involved, the prosecution has to comply with the requirement of search and seizure as contemplated in S. 103, Cr.P.C

Muhammad Shabbir Rajpoot for Appellant.

Tahir Iqbal Khattak, Assistant Attorney General for the State.

2021 P Cr. L J 839

[Balochistan]

Before Muhammad Hashim Khan Kakar and Muhammad Ejaz Swati, JJ

MUHAMMAD DIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 246 of 2019, decided on 3rd April, 2020.

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

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), Ss. 164 & 364---Qatl-i-amd and common intention---Appreciation of evidence---Benefit of doubt---Delayed FIR---Un-witnessed incident---Retracted juridical confession---Motive, not proved---Failure of prosecution to send crime weapon to Forensic Laboratory---Scope---Accused was alleged to have murdered two of his wives in the backdrop of a motive based upon the allegation of "siyakari"---First Information Report was lodged with a delay of 12 hours and that too by a person who had not witnessed the occurrence---Ocular account furnished by third wife of accused was not straightforward as she had only seen the dead bodies, who were slaughtered by unknown persons---Judicial confession of the accused was recorded 9 days after his arrest and which was retracted---Magistrate had neither informed the accused that he would not be handed over to the levies authorities nor had he physically examined the accused nor had he provided time to the accused for reflection before recording his confessional statement---Medical evidence was not in line with the prosecution version---Prosecution had failed to prove the motive---Recovery of crime weapon was of no avail as the same was neither effected from the possession of accused nor was it sent to the Forensic Laboratory---No case was made out against the accused nor conviction recorded by the trial court was sustainable---Appeal was accepted.

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

----S. 302(b)---Qatl-i-amd---Wife/vulnerable dependent of accused (husband) dying within confines of his house---Burden of proof---Scope---Shifting of some part of the onus to the accused might not be relevant in a case where the entire case of the prosecution was not reliable and where the prosecution failed to produce any believable evidence.

Asad Khan v. The State PLD 2017 SC 681 rel.

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

----S. 164--- Confessional statement, requirements of--- Scope---Requirement of confessional statement is that it shall be free from inducement, threat, coercion and the same shall be true and voluntary.

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

----S. 164--- Retracted judicial confession--- Independent corroboration---Scope---Retracted judicial confession recorded under S. 164, Cr.P.C. in the absence of any independent corroboration cannot suffice all by itself for recording or upholding the accused persons' conviction.

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

----S. 302---Qatl-i-amd---Failure to prove motive---Effect---Absence or weakness of motive does not render case of prosecution false or fabricated and it is not requirement of law to prove the same by all means, however, if the prosecution asserts a motive but fails to prove the same then such failure on the part of prosecution may react against its case.

Jameel Ramzan and Jameela Kakar for Appellant.

Muhammad Younas Baloch, Deputy Prosecutor General for the State.

2021 P Cr. L J 889

[Balochistan]

Before Abdullah Baloch, J

ASMATULLAH---Petitioner

Versus

The STATE---Respondent

Criminal Revision (Jail) No. 22 of 2020, decided on 11th August, 2020.

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

----Ss. 35, 397 & 561-A---Conviction for several offences at one trial---Concurrent commutation of sentence---Accused faced trial in two separate FIRs---First FIR was lodged under S. 392, P.P.C., said case was tried and accused was convicted and sentenced to suffer three years imprisonment---Second FIR was lodged under S. 380, P.P.C., said case was tried and accused was convicted and sentenced to suffer one year' imprisonment---Accused assailed his conviction and sentence in both the cases in appeals which were dismissed---Accused filed present petition for concurrence of his sentences awarded in both the cases---Scope---Record showed that both the cases were tried separately by the same court side by side but on conclusion of trial the petitioner was convicted and sentenced in both the cases separately---Appeals preferred but were dismissed---Undoubtedly S. 35 Cr.P.C., empowered not only the Trial Court but also the appellate as well as the revisional courts to direct for running concurrently of the several sentences awarded to a person charged for multiple offences, but in the same transaction, trial or FIR---Provisions of S. 397, Cr.P.C., empowered the trial as well as the appellate and revisional courts to direct for the consolidation of multiple sentences awarded in earlier or subsequent trials though tried separately by the different courts on different dates and such powers could be exercised at any stage---Court had ample powers under S. 561-A, Cr.P.C. read with Ss. 35 & 397, Cr.P.C. to direct for concurrence and consideration of sentences awarded to an accused in multiple offences in one transaction/trial or in multiple trials either awarded by the same court at the same time or on different occasions---Revision petition was accepted and sentences awarded in both the trials were ordered to run concurrently.

(b) Criminal trial---

----Beneficial construction---Scope---If two equal interpretations are possible then the one favourable to the accused and his liberty must be adopted and preferred.

Rahib Ali v. The State 2018 SCMR 418 and Mst. Shahista Bibi and another v. Superintendent Central Jail Mach and 2 others PLD 2015 SC 15 rel.

Abdul Malik Mengal for Petitioner.

Saeed Ahmed Kakar, State Counsel.

2021 P Cr. L J 969

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Abdul Hameed Baloch, JJ

FATEH KHAN and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos.18 of 2018, 35 of 2020, Criminal Revision Petitions Nos. 2 of 2018 and 2 of 2020, decided on 23rd June, 2020.

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

----Ss. 302, 324, 147 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, unlawful assembly---Appreciation of evidence---Delay of about one hour and forty five minutes in lodging the FIR---Effect---Accused were charged for making indiscriminate firing upon sons and grandson of complainant, due to which, they were seriously injured but one son succumbed to the injuries---Allegedly, the FIR was lodged with delay of one hour and forty five minutes with consultation and premeditation---Said contention of defence had no force---First Information Report showed that distance of place of occurrence from police station was eight (08) kilometres---Complainant, though was not an ocular witness, however he reached the venue of occurrence immediately and then submitted Fard-e-Biyan---Each and every detail was not necessary to be mentioned in the FIR---Concept of FIR was to set the prosecution in motion---Such delay was not fatal to the case of prosecution.

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

----S. 154---First Information Report---Delay in lodging FIR---Scope---Delay by itself in registering the FIR was immaterial---Delay would only be material when there is doubt regarding identity of accused.

Muhammad Nadeem alias Deemi v. The State 2011 SCMR 872 rel.

(c) Criminal trial---

----Witness---Statement of witness not named in the FIR---Scope---If the eye-witness was not named in the FIR, his statement could not be discarded on such score alone.

Muhammad Mushtaq v. The State PLD 2001 SC 107 rel.

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

----Ss. 302, 324, 147 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, unlawful assembly---Appreciation of evidence---Ocular account was in line with the medical evidence---Accused were charged for making indiscriminate firing upon sons and grandson of complainant, due to which, they were seriously injured but his one son succumbed to injuries---Motive was alleged that accused used to restrain the injured persons and deceased from passing the road and existence of previous enmity---Ocular account of the incident had been furnished by witnesses including injured persons---Prosecution had not disputed the presence of ocular witnesses at the scene of occurrence---Three persons sustained injuries due to heavy/indiscriminate firing---Prosecution had recorded statement of two injured witnesses---Circumstances suggested that it could not be believed that the injured had let the real culprits and implicated the accused---Eye-witnesses were natural witnesses of the occurrence and their testimony inspired confidence---Record depicted that the occurrence had taken place in broad day light---Parties were well conversant to each other and there was no chance of mistaken identity---Eye-witnesses had made consistent statement before the Trial Court---Statement of ocular account had received support from medical evidence---Evidence furnished by Medical Officer was also in line with the statements of witnesses---Defence had contended that the nature of allegation was general, no specific role had been attributed to each accused---Witnesses could not possibly attribute each person's role individually during indiscriminate firing by so many persons---Evidence of eye-witnesses proved assault by the accused upon the deceased and injured---Witnesses had undergone the test of lengthy cross-examination, but their presence at the spot and credibility could not be shattered by the defence except relationship---Eye-witnesses were natural and were as good as other independent witnesses---Circumstances established that the prosecution had proved the charges against the accused persons beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Jalat Khan alias Jalo v. The State 2020 PCr.LJ 503; Muhammad Zaman v. Muhammad Afzal 2005 SCMR 1679; Faryad Ali v. The State 2008 SCMR 1086; Nasrullah alias Nasro v. The State 2017 SCMR 724; Saleh Muhammad v. The State 2017 PCr.LJ 1391 and G. M. Niaz v. The State 2018 SCMR 506 ref.

Muhammad Waris v The State 2008 SCMR 784 and Muhammad Khan v. The State PLD 1977 SC 446 rel.

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

----Ss. 302, 324, 337-A, 337-D, 337-F, 147 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, unlawful assembly---Appreciation of evidence---Motive was proved---Scope---Accused were charged for making indiscriminate firing upon sons and grandson of complainant, due to which, they were seriously injured but his one son succumbed to the injuries---Motive was alleged that accused used to restrain the injured persons and deceased from passing from road and existence of previous enmity---In the present case, the prosecution witness had produced criminal record of accused i.e. FIRs, got registered by the complainant party, meaning thereby that the motive set up by the prosecution had duly been proved---Defence had not denied motive rather it was admitted that previously several FIRs were registered against each other---Circumstances established that the prosecution had proved the charges against the accused persons beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

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

----S. 149---Unlawful assembly, members of---Culpability---Scope---Proof of specific overt act is not necessary while determining the guilt of accused being member of unlawful assembly---If the prosecution is able to establish that the accused being member of unlawful assembly shared with common object of the assembly, it would be sufficient to determine the guilt of accused being member of unlawful assembly---Each member of unlawful assembly was responsible of the act of every member.

Ashfaq Asghar v Hafeez 2013 YLR 2620 rel.

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

----Ss. 302, 324, 147 & 149---Criminal Procedure Code (V of 1898), S. 161---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, unlawful assembly---Appreciation of evidence---Delay of about two days in recording the statements of injured witnesses by police---Effect---Accused were charged for making indiscriminate firing upon sons and grandson of complainant, due to which, they were seriously injured but his one son succumbed to the injuries---In the present case, the defence had objected that the statements of injured witnesses were recorded with delay of two days---Prosecution failed to explain such delay---Admittedly, the injured witnesses were hospitalized---Investigating Officer visited the hospital, but did not record statement of injured witnesses under S. 161, Cr.P.C., for the reasons best known to him---Belated recording statement of witnesses under S. 161, Cr.P.C. was no ground to brush aside the statement of injured/ocular witnesses---Circumstances established that the prosecution had proved the charges against the accused persons beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Qaisar Hussain alias Kashi alias Kashif v. The State 2011 PCr.LJ 1126 rel.

(h) Criminal trial---

----Witness---Related and interested witness---Testimony of related and interested witness---Reliance---Scope---Mere relationship of witness with deceased is no ground to discredit the evidence.

Umerzad v. The State 1990 SCMR 571; Bashir Khan v. The State 1995 SCMR 900; Roshan v. The State PLD 1977 SC 557; Niaz v. The State PLD 1960 SC 387 and Shihab Din v. The State PLD 1964 SC 177 rel.

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

----Ss. 302, 324, 147 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, unlawful assembly---Appreciation of evidence---Contradictions in the statement of witnesses---Scope---Accused were charged for making indiscriminate firing upon sons and grandson of complainant, due to which, they were seriously injured but his one son succumbed to the injuries---In the present case, defence objected that the statements of prosecution witnesses was contradictory to each other on material point---Said version of defence had no force---Record showed that the statements of witnesses were recorded by the Trial Court in considerable lapse of time---Variation might be due to lapse of memory or confusion caused in the mind of witness by lengthy cross-examination---Mere discrepancies or minor contradictions did not lead to the result that the ocular witnesses had lost credibility---Statements of injured witnesses could not be brushed aside merely on the ground of some minor contradictions, which did creep in with the passage of time---Circumstances established that the prosecution had proved the charges against the accused persons beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Mawas Khan v. The State PLD 2004 SC 330 rel.

(j) Criminal trial---

----Witness---Witnesses, number of---Scope---Conviction could not be based on quantity rather quality of statement of witness---Conviction could be based on lone statement of truthful witness.

Riaz Hussain v. The State 2001 SCMR 177 rel.

(k) Criminal trial---

----Recovery---Recovery of crime weapon and casing---Scope---Recovery of crime weapon and casing is not mandatory requirement of law same being corroborative piece of evidence.

Imran Ashraf v. The State 2001 SCMR 424 and Asadullah v. Muhammad Ali PLD 1971 SC 541 rel.

(l) Criminal trial---

----Site plan---Scope---Site plan is not substantive piece of evidence---Mere omission of the position of eye-witnesses in the site plan will not taint the prosecution case.

Ali Sher v. The State PLD 1980 SC 317; Mehr Ali v. The State 1968 SCMR 161 and Sardar Khan v. The State 1998 SCMR 1823 rel.

Mujeeb Ahmed Hashmi, Naseebullah Kasi, Manzoor Shah, Abdul Jabbar and Ajmal Khan Lawang for Appellant.

Muhammad Younas Mengal, Additional Prosecutor General for the State.

Masoom Khan Kakar and Samad Khan Mandokhail for the Complainant (Petitioner Ghulam Shah).

2021 P Cr. L J 1032

[Balochistan]

Before Rozi Khan Barrech, J

MIRWISE---Petitioner

Versus

MOHIB-UR-REHMAN, SI/SHO POLICE STATION SADDAR, LORALAI and another---Respondents

Criminal Miscellaneous Quashment Petition No. 330 of 2019, decided on 23rd August, 2019.

(a) Juvenile Justice System Act (XXII of 2018)---

----S. 8--- Age, determination of--- Contradictory documents---Constitution of Medical Board---Scope---Accused assailed the dismissal of his application whereby he had sought determination of his age through Medical Board---Birth certificate of accused showed his age to be less than 18 years whereas the record of NADRA showed his age more than 18 years---Court was required to hold an inquiry into the matter whenever a question arose with regard to age of accused---Petition was accepted and the case was remanded to the Trial Court with direction to conduct the inquiry for determination of the age of accused in view of S. 8 of the Juvenile Justice System Act, 2018.

(b) Juvenile Justice System Act (XXII of 2018)---

----S. 8---Determination of age---Scope---When controversy regarding the age of an accused cannot be settled through documentary evidence and the medical opinion due to difference in opinion then preference is always to be given to the medical opinion.

2012 SCMR 1400 ref.

(c) Juvenile Justice System Act (XXII of 2018)---

----S. 8---Determination of age---Scope---Section 8 of the Juvenile Justice System Act, 2018 provides that the court should hold an inquiry when it is confronted with a question about the age of an accused person---Purpose of an inquiry is to find out the truth, therefore, it was to be spreaded over a fairly broad spectrum---Court was to not only take into consideration the documents produced by the parties, but where necessary, it should also record statements of the witnesses---Court was to also requisition medical report, which means clinical and radiological examination of the accused or what is called his ossification test---Plain reading of S. 8 of Juvenile Justice System Act, 2018, shows that determination of age is mandatory unless there are strong reasons to dispense with the same.

Raja Jawad for Petitioner.

Abdul Karim Malghani, State counsel along with Wajahat Ghaznavi, State counsel for the State.

2021 P Cr. L J 1079

[Balochistan]

Before Rozi Khan Barrech, J

HAYATULLAH---Petitioner

Versus

DEPUTY INSPECTOR GENERAL OF BALOCHISTAN POLICE, QUETTA and 3 others---Respondents

Criminal Miscellaneous Quashment No. 13 of 2020, decided on 10th August, 2020.

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

----S. 154---Information in cognizable cases---Scope---Section 154, Cr.P.C., casts a statutory duty upon the Officer-in-Charge of Police Station to enter information regarding commission of any cognizable offence---If the information is given orally to an Officer-in-Charge of the Police Station he shall reduce it into writing and read it over to the informant and every such information shall be signed by the person giving it and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe--- Section 154, Cr.P.C. is mandatory and leaves no scope for exercise of any discretion by the police officer concerned in recording the First Information Report or in refusing to record the same.

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

----Ss. 157 & 154---Information in cognizable cases---Procedure where cognizable offence suspected---Scope---Section 157, Cr.P.C. comes into play when the matter has been initiated under S. 154, Cr.P.C.

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

----Ss. 157, 156 & 154---Information in cognizable cases---Investigation into cognizable cases---Procedure where cognizable cases suspected---Scope---Procedure to be adopted by the police officer where he suspects commission of any cognizable offence is provided in S. 157, Cr.P.C.---Section 157, Cr.P.C., has to be read along with the provisions of S. 156, Cr.P.C.---Section 157, Cr.P.C., is subject to two provisos: first proviso authorizes the Officer-in-Charge to proceed in person or depute a subordinate officer to make investigation on the spot when the information as to commission of any offence is given against any person by name and the case is not of serious nature; second proviso authorizes him not to investigate the case if there is no sufficient ground for entering into an investigation.

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

----Ss. 157, 156 & 154---Information in cognizable cases---Investigation into cognizable cases---Procedure where cognizable cases suspected---Scope---Provisions of S. 157, Cr.P.C. indicate that the powers exercisable by the officer-in-charge of a police station cannot be resorted to unless report made to him in respect of commission of a cognizable offence is reduced into writing and be read over to the informant duly entered in a book to be kept by such officer as described within the meaning of S. 154, Cr.P.C.---Mere incorporating contents or substance of the report in the roznamcha of police station made to the officer-in-charge of the police station by the informant in respect of commission of a cognizable offence would not be a compliance of the mandate of the law as envisaged by S. 154, Cr.P.C., therefore, before resorting to any of the provisions of S. 157, Cr.P.C., the Officer-in-Charge of the Police Station is duty bound to register the report as provided by S. 154, Cr.P.C. and thereafter, proceed under S. 156, Cr.P.C. or under any of the provisions of S. 157, Cr.P.C. as the facts and circumstances of the case may admit or warrant.

Muhammad Bashir v. Station House Officer, Okara Cantt and others PLD 2007 SC 539; Abida Parveen v. Deputy Superintendent of Police and others 2012 PCr.LJ 1861 and Mst. Shehnaz v. Station House Officer Sariab Police Station, Quetta and 2 others 2003 YLR 1941 ref.

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

----S. 561-A---Inherent powers of High Court---Quashing of FIR---Eventualities mentioned.

FIR can be quashed only in the following eventualities:

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

ii) If FIR has been registered without lawful authority and jurisdiction; and

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

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

----S. 561-A---Constitution of Pakistan, Art. 199---Constitutional jurisdiction and inherent powers of High Court---Scope---Quashing of FIR---Scope---High Court does not interfere in the case when it is at investigation stage, either by exercising constitutional jurisdiction or its inherent powers under S. 561-A, Cr.P.C.---Idea behind the principle is that the police should be allowed to perform its duty in its own sphere to reach at a definite conclusion with regard to complicity or innocence of the accused---Investigating Officer and incharge of the police station have been invested with powers under Ss. 169 & 173, Cr.P.C. to submit their report with their opinion, if evidence in the case is found deficient or there are no reasonable grounds to justify the forwarding of accused for trial---Accused, on submission of report under S. 173, Cr.P.C., for trial, may seek his acquittal under S. 249-A or 265-K, Cr.P.C., at any stage from the Trial Court---If the proceedings are pending before any court and it appears that there is abuse of process of court, only then it can make an order for quashing of proceedings---Quashing of FIR is ordered only in exceptional cases when the same is registered without lawful authority.

Jamil Ramzan and Jameela Panezai for Petitioner.

Nemo for the Complainant.

Ms. Shumaila Iftikhar, State Counsel for the State.

2021 P Cr. L J 1169

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Abdul Hameed Baloch, JJ

QADIR BAKHSH---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 57 of 2014 and Murder Reference No. 12 of 2014, decided on 20th May, 2020.

(a) Criminal trial---

----Witness---Improvement statement---Effect---If a witness had made improvement to strengthen the case of prosecution, which is found to be deliberate and dishonest, the same would cause serious doubt on the veracity of said witness.

Jehan Bahadur v. The State 2013 YLR 2772 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused was charged that he and co-accused committed murder of the son of the complainant and his friend by firing---Record revealed that the complainant was not an ocular witness---Complainant had nominated the accused in fard-e-biyan, but failed to disclose the source who had disclosed the name of accused to him---Disclosure of name of the accused became mystery---Medical reports only confirmed injuries on the body of the deceased, which was supportive piece of evidence and not corroborative---Appeal against conviction was allowed, in circumstances.

Sajjan Solangi v. The State 2019 SCMR 872 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon, casing, dead bodies and motor cycle were made on the disclosure of accused---Reliance---Scope---Accused was charged that he and co-accused committed murder of the son of the complainant and his friend by firing---Record showed that recovery of alleged crime weapon and casing was made on the pointation of accused after seven days of his arrest---Prosecution had made an attempt to prove that the recovery of alleged TT pistol .30 bore had been made voluntarily---Accused was arrested on 5th February, 2012, while on 12th February, 2012, the recovery of alleged crime weapon, casing and motorcycles of deceased was made---Record transpired that the prosecution discovered the dead bodies on 2nd February, 2012, but failed to recover the motorcycle of the deceased and alleged crime weapon from the place where the dead bodies were earlier recovered---Record of prosecution showed that the alleged recovery of crime weapon and casing were made on disclosure and pointation of the accused from an open place which was not in exclusive possession of the accused and everyone had access to the place of recovery---Conviction on the basis of such recovery was unsafe--- Appeal against conviction was allowed, in circumstances.

Abdul Manan v. The State 2017 PCr.LJ 1198 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay in sending the weapon and casing for analysis---Scope---Accused was charged that he and co-accused committed murder of the son of the complainant and his friend by firing---Recovery of alleged crime weapon and casing were made from the place of occurrence on the pointation of accused on 12th February, 2012 and was dispatched to Fire Arms Unit for analysis, which was received on 14th May, 2012 after more than three months---Crime weapon and casing, were kept for such a long period in Levies Station without any plausible reason---Record showed that the alleged weapon and casing were sent together to Fire Arms Expert---Although, casing/empty shell matched with the weapon, but the same evidence lost its significance in circumstances---Prosecution had not recorded the statement of Police Official in whose custody the alleged weapon and casing were kept---Appeal against conviction was allowed, in circumstances.

Asad Rehmat v. The State 2019 SCMR 1156; Hashim Qasim v. The State 2017 SCMR 986; Muhammad Saleem v. Shabbir Ahmed 2016 SCMR 1605; Ali Sher v. The State 2008 SCMR 707 and Mushtaq v. The State PLD 2008 SC 1 rel.

(e) Criminal trial---

----Recovery of weapon/empties from place of occurrence on pointation of the accused---Scope---Mere recovery of weapon/empties from place of occurrence on pointation of the accused alone was not sufficient for conviction.

Hayatullah v. The State 2018 SCMR 2092 rel.

(f) Criminal trial---

----Chemical Examiner, report of---Scope---Mere sending of blood-stained material to Chemical Examiner would not serve the purpose of prosecution unless the report indicated that it was human blood and was of the same group.

Muhammad Asif v. The State 2017 SCMR 486 rel.

(g) Criminal trial---

----Judicial confession---Retraction---Scope---Retracted confession, if corroborated by independent evidence of reliable nature, could be made basis for conviction.

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

----S. 164---Confessional statement---Delay in recording confessional statement---Effect---Confessional statement recorded with a delay of thirteen days of arrest of the accused---Such delay would have no legal consequence.

Mahmood Ahmed v. The State 2012 YLR 2314; Muhammad Ismail v. The State 2017 SCMR 898 and Mah Gul v. The State 2009 SCMR 4 rel.

(i) Criminal trial---

----Circumstantial evidence---Scope---Conviction could be based on circumstantial evidence, if the same was corroborated by other piece of evidence which maintained complete chain of circumstances directly relatable to each other---If any link in the chain was missing in the case of circumstantial evidence, it would not be safe to uphold conviction.

Nasir Javed v. The State 2016 SCMR 1144 rel.

(j) Criminal trial---

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

Muhammad Ali v. The State 2005 PCr.LJ 830 rel.

(k) Criminal trial---

----Benefit of doubt---Principle---If there is a single circumstance which creates reasonable doubt in the prosecution case, the benefit of the same will go to the accused---Mistake in releasing a criminal is better than punishing an innocent person.

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

Ahsan Rafiq Rana for Appellant.

Ms. Noor Jehan Kahoor, Additional Prosecutor General for the State.

2021 P Cr. L J 1230

[Balochistan (Sibi Bench)]

Before Abdul Hameed Baloch, J

MUHAMMAD SIDDIQUE alias QURBAN ALI---Applicant

Versus

The STATE---Respondent

Criminal Miscellaneous Jail Application No. (s) 10 of 2020, decided on 21st March, 2020.

Criminal Procedure Code (V of 1898)---

----Ss. 397 & 561-A---Sentence on offender already sentenced for another offence---Inherent powers of High Court---Scope---Applicant prayed that three years' sentence awarded to him be ordered to run concurrently with the one year's sentence warded to him in another FIR---Applicant along with his companion was chased by the police, whereupon the applicant made firing but he was apprehended and pistol was recovered from his possession for which he failed to produce any licence or permit, as such a separate FIR was also lodged against him---Applicant was ultimately convicted in both FIRs---High Court in terms of S. 561-A, Cr.P.C. had inherent power to order the sentence of different transactions to be run concurrently---Application was accepted.

Mukhtar Ahmed v. The State PLD 2011 Lah. 29 rel.

Jameel Akhtar Gajwani, Additional P.G. for the State.

2021 P Cr. L J 1342

[Balochistan]

Before Rozi Khan Barrech, J

MUHAMMAD ESSA ROOSHAN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Quashment No. 275 of 2019, decided on 10th July, 2019.

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

----S. 561-A---Penal Code (XLV of 1860), Ss. 196, 153-A, 123-A & 124-A---Inherent powers of High Court---Quashing of FIR---Scope---Prosecution for offences against the State---Condemnation of the creation of the State, and advocacy of abolition of its sovereignty, sedition, promoting enmity between different groups---Scope---Petitioner sought quashing of FIR registered with the allegation of hateful speeches and promoting feelings of hatred amongst different racial, regional groups and communities---First Information Report was registered under Ss. 123-A, 153-A & 124-A, P.P.C. which were non-cognizable---Cognizance could only be taken on the complaint instituted by the Federal Government or Provincial Government concerned---Provisions of section 196, CrPC were couched in negative language which were mandatory in nature as opposed to being merely directory---Competent authority had not initiated the process, thus, jurisdiction under S. 561-A, Cr.P.C., could be invoked to prevent abuse of process of the court---Petition under S. 561-A, Cr.P.C. was allowed and the FIR was quashed.

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

----S. 561-A---Inherent powers of High Court---Scope---Inherent powers under S. 561-A, Cr.P.C. are rarely and sparingly invoked, only in the interest of justice, so as to redress grievances for which, considering the facts and circumstances of the case, no other procedure or remedy is available---Jurisdiction under S. 561-A, Cr.P.C., is an extraordinary jurisdiction, which cannot over-ride provisions of the Code, but cases may arise where demands of justice require immediate, real and substantial justice---Court, in such circumstances, would be justified to exercise its jurisdiction to save a party from harassment and abuse of the process of court---Section 561-A, Cr.P.C., may be used sparingly, but it confers wide powers on the court to meet such eventualities and pass any order, which the ends of justice may require.

(c) Administration of justice---

----Where a particular thing is required to be done in a particular manner then it should be done in that manner or it should not be done at all.

Naseebullah Tareen for Petitioner.

Muhammad Naeem Kakar, APG for the State.

2021 P Cr. L J 1390

[Balochistan]

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

GHULAM DASTAGIR alias DODO---Petitioner

Versus

The STATE and another---Respondents

C.P. No. 635 of 2019, decided on 25th August, 2020.

Constitution of Pakistan---

----Art. 45---President's power to grant pardon---Special remissions in sentence---Notification providing that remissions were not available to prisoners convicted of heinous crimes (murder, espionage, etc.)---Constitutionality---Accused/petitioner was charged for murder and was awarded death sentence by Trial Court, however, in appeal, the death sentence was converted into life imprisonment, which was upheld by the Supreme Court and attained finality---Petitioner sought remission in his sentence on account of his educational qualification acquired in jail---Scope---Notification through which special remissions had been granted itself categorized the applicability of the remissions to a particular class of prisoners---Since, there was an intelligible differentia and substantial distinction between the two classes of convicted prisoners, as the President of Pakistan had excluded the applicability of remissions to those convicted prisoners who were involved in heinious crimes, therefore, petitioners was not at par with the ordinary prisoners---Presidential remission under Art. 45 of the Constitution would not be applicable to the prisoners who had been specifically excluded by the Notifications granting remissions---Constitutional petition having no merits was dismissed, in circumstances.

Nazar Hussair's case PLD 2010 SC 1021 rel.

Abdul Rasheed Awan for Petitioner.

Abdul Latif Kakar, Additional Prosecutor General and Zahoor Ahmed Baloch, Assistant Advocate General ("AAG") for Respondents.

2021 P Cr. L J 1420

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ

CHAIRMAN NAB through Prosecutor General Accountability, NAB HQ Shahrah-e-Jumhuriat, G-5/I, Islamabad---Appellant

Versus

ZAHOOR TAJ and another---Respondents

Criminal (Acquittal) Ehtesab Appeal No. 28 of 2019, decided on 26th October, 2020.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(vi)---Criminal Procedure Code (V of 1898), Ss. 245, 249-A & 265-K---Misuse of authority---Appeal against acquittal---Evidence, non-recording of---Right to produce evidence---Accused persons were acquitted by Trial Court in exercise of S. 265-K, Cr.P.C. prior to recording of any prosecution evidence---Validity---No bar of limitation existed to trial or stage of proceedings for filing an application for acquittal of accused but propriety required that fair opportunity should be provided to prosecution to prove its case by producing evidence---Matter was to be decided on merits as envisaged under S. 245, Cr.P.C. after providing proper opportunity to prosecution for producing its evidence and recording statements of accused persons under S. 342, Cr.P.C.---High Court directed that in cases of corruption and misappropriation of public money, Courts were required to act with extreme care and caution in deciding such cases and should not proceeded hastily in acquitting accused persons involved therein either under S. 248-A or 265-K, Cr.P.C. as the case could---Trial Court was to provide prosecution every possible opportunity to prove its case and establish guilt of accused after full-fledged trial---High Court set aside judgment of acquittal and remanded the matter to Trial Court for decision afresh after recording of evidence---Appeal was allowed accordingly.

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

Jaffar Raza, Special Prosecutor NAB for the State.

Muhammad Ali Kanrani for Respondents.

2021 P Cr. L J 1455

[Balochistan]

Before Abdul Hameed Baloch, J

Syed YASEEN SHAH---Petitioner

Versus

The STATE---Respondent

C. P. No. 99 of 2020, decided on 14th February, 2020.

(a) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), S. 561-A---Constitutional petition---Quashing of FIR---Alternate remedy, availability of---Submission of challan---Effect---Petitioner sought quashing of FIR wherein he, along with others, was alleged to have committed murder of two persons by means of axes and dandas---Contentions of petitioner were that the High Court had acquitted a co-accused person by disbelieving the prosecution case and that his case stood on the same footing---Challan of the case had been submitted before the Trial Court wherein the petitioner was implicated---High Court observed that it would be appropriate to afford opportunity to the prosecution to produce evidence and establish its case---Petitioner firstly had to approach the Trial Court and avail the remedy provided under the law---Constitutional petition was dismissed, in circumstances.

Gulab Khan v. The State PLJ 2008 FSC 87; Miraj Khan v. Gul Ahmed and others 2000 SCMR 122; Allah Rakhio and others v. The State 2001 PCr.LJ 551 and Maritime Security Agency, Karachi v. Muhammad Saleem Khan and others PLD 1994 SC 486 distinguished.

Dr. Sher Afgan Khan Niazi v. Ali S. Habib 2011 SCMR 1813 ref.

Chaudhary Munir v. Mst Surriya PLD 2007 SC 189 rel.

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

----S. 561-A--- Inherent powers of High Court--- Quashing of proceedings---Scope---Exercise of powers under S. 561-A, Cr.P.C. amounts to depriving the prosecution an opportunity to prove guilt of the accused---Section 561-A, Cr.P.C. cannot ordinarily be used---Power conferred under S. 561-A, Cr.P.C. is neither alternative nor additional.

Chaudhary Munir v. Mst Surriya PLD 2007 SC 189 rel.

Manzoor Ahmed Rehmani for Petitioner.

2021 P Cr. L J 1476

[Balochistan]

Before Abdullah Baloch, J

MUHAMMAD IBRAHIM---Petitioner

Versus

MERA JAN and 3 others---Respondents

Criminal Revision No. 29 of 2017, decided on 10th March, 2020.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 4 & 5---Prevention of illegal possession of property---Cognizance of offence---Investigation and procedure---Scope---Petitioner filed a complaint under Ss. 3, 4 & 5 of Illegal Dispossession Act, 2005, with the claim that the respondent along with his companions, in his absence, broke the locks of his house and illegally occupied the same---Report of Station House Officer (SHO) of Police Station revealed that house in question was in possession of another person who had further rented it out to another---Trial Court dismissed the complaint on the ground that the matter pertained to civil dispute---Validity---Petitioner had failed to make the said two persons as party in his complaint---Matter pertained to factual controversy which could be resolved after thorough inquiry and recording of evidence in a civil court---Revision petition was dismissed, in circumstances.

Secretary to the Government of Punjab v. Ghulam Nabi PLD 2001 SC 415 rel.

Syed Ikhlaq Ahmed Shah for Petitioner.

Respondent No. 1 present in person.

Lakhmi Chand Khurana for Respondent No. 2.

Abdul Kareem Mulghani, State Counsel for the State.

2021 P Cr. L J 1729

[Balochistan (Sibi Bench)]

Before Nazeer Ahmed Langove and Rozi Khan Barrech, JJ

NOZO---Appellant

Versus

The STATE---Respondent

ATA Criminal Appeal No. (s) 105 of 2020, decided on 16th February, 2021.

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

----S. 7---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, act of terrorism---Appreciation of evidence---Benefit of doubt---Delay of eight hours in lodging the FIR---Effect---Improvised explosive device and other explosive substances were recovered from the accused---Record showed that the alleged occurrence took place on 10.02.2020 at 2.00 a.m. and the FIR was lodged on the said date after a delay of eight hours without any explanation, despite the fact that the distance between the place of occurrence and the police station was only 30/36 kilometres---No explanation, whatsoever, had been tendered by the prosecution as to why the complainant waited for more than eight hours for lodging the FIR and nominating the accused person---Element of deliberation and consultation could not be ruled out of consideration---Circumstances established that the prosecution had failed to prove its case against the accused without any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 154---First Information Report---Prompt registration of FIR---Object--- Main object of prompt registration of the FIR is to rule out the possibility of deliberation and consultation and inquiry---Element of delay in lodging the crime report is treated with caution because there is a tendency to involve innocent people during the interval.

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

----S. 7---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, act of terrorism---Appreciation of evidence---Benefit of doubt---Improvised explosive device and other explosive substances were recovered from the accused---Neither Recovery memo was prepared on the spot nor recovered material was sealed at the spot rather the same was sealed after six hours of the occurrence, as such the prosecution case was highly doubtful---Lapse on the part of the police was clear and admitted---Wisdom behind sealing the weapon at the place of incident was to eliminate the possibility of manipulation of evidence after the recovery of alleged material---Other material aspect of the case was that neither the complainant stated a single word in his report about weighing of the explosive substance nor that fact was mentioned in the recovery memo that how much explosive was recovered from the accused---None of the witnesses stated a single word as to how much explosive substance was recovered from the accused---Record transpired that four grams of explosive were separated for analysis---Said aspect of the matter also caused reasonable doubt in the prosecution case--- Circumstances established that the prosecution had failed to prove its case against the accused without any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Rahim Bakhsh v. The State 2010 PCr.LJ 642 rel.

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

----S. 7---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, act of terrorism---Appreciation of evidence---Benefit of doubt---Delay in sending samples of explosive substance for analysis---Effect---Improvised explosive device and other explosive substances were recovered from the accused---Alleged recovery was effected on 10.02.2020 while the sample was received by the Forensic Science Agency with a delay of eighteen days, for which no explanation was offered by the prosecution's witnesses---Delay in transmission of sample to the Forensic Science Agency created serious doubts about safe custody of the alleged recovered explosive substance and its safe transmission to the Forensic Science Agency---Alleged Recovered substance was delivered to the Forensic Science Agency by one Police Official/ASI, however, the said Police Official/ASI was not produced as a prosecution witness at the trial about the receipt of case property, its safe custody and safe transmission to the Forensic Science Agency---Custody of the recovered explosive substances at the police station had not been established by the prosecution during the trial---Moharir of the police station had not been produced by the prosecution to establish the receipt of the case property to the office of examiner---Circumstances established that the prosecution had failed to prove its case against the accused without any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 7---Explosive Substances Act (VI of 1908), Ss. 4, 5 & 7---Keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, act of terrorism---Appreciation of evidence---Benefit of doubt---Restriction on trial of offences---Failure to get permission from the competent authority for prosecution---Effect---Scope---Improvised explosive device and other explosive substances were recovered from the accused---Accused was charged under S. 5 of the Explosive Substances Act, 1908, but according to S. 7 of the said Act, prior permission for prosecution of the competent authority was required---Sanction for prosecution for holding trial under Explosive Substances Act was mandatory and a condition precedent for prosecution under S. 5 of the said Act---In the absence of the requisite sanction/permission, entire proceedings would be void and without jurisdiction---Word "shall" used in S. 7 of Explosive Substances Act, 1908, left no room for any departure therefrom---Although, S. 19(8-B), Anti-Terrorism Act, 1997, made a relaxation to the effect that if a sanction was applied but not granted by the competent authority within 30 days then the due proceedings towards initiation of the trial might be carried on---Admittedly, no such request had been made and as such under S. 7 of Explosive Substances Act, 1908, as well as S. 19(8-B) of Anti-Terrorism Act, 1997, prosecution and trial was not competent---Circumstances established that the prosecution had failed to prove its case against the accused without any shadow of doubt---Appeal against conviction was allowed, in circumstances.

(f) Criminal trial---

----Benefit of doubt---Principle---If evidence created doubt about the truthfulness of prosecution story, its benefit had to be given to the accused without any reservation and there was no alternative but to acquit the accused by giving him benefit of the doubt.

Ali Hassan Bugti for Appellant (absent).

Jameel Akhtar Gajani, A.P.G. for the State.

2021 P Cr. L J 1788

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Abdul Hameed Baloch, JJ

ALLAH MUHAMMAD and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 318 of 2018, Criminal Revisions Nos. 33, 34 of 2018 and Criminal Jail Appeal No. 45 of 2017, 318 of 2018, decided on 29th June, 2020.

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

----Art.46---Dying declaration---Scope---Maker of dying declaration was not subjected to cross-examination---For considering dying declaration first to see that the dying declaration inspired confidence and secondly that there was no possibility of tuitoring---Dying declaration was accepted on the theory that the person on death bed would not tell lie, however, caution must be exercised in considering of such kind of evidence.

Farman Ahmed v. Muhammad Inayat 2007 SCMR 1825 rel.

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

----Art. 46---Dying declaration---Requirements---To accord the statement of deceased the status of dying declaration, it was to be proved that at the time of making statement the deceased was fully in senses and capable to record his statement.

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

----Ss. 302(b), 337-A(i), 337-F(i) & 34---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, shajjah-i- khafifah, ghayr-jaifah-mudihah, common intention--- Appreciation of evidence---Sentence, reduction in---Dying declaration, reliance on---Scope---Prosecution case was that the accused persons attacked on complainant with dandas, due to which he received injuries on his head, wife of the complainant came after him to rescue, but co-accused made fire which hit his wife and she fell on the ground and succumbed to injuries---Record depicted that while recording the statement of the deceased under S. 161, Cr.P.C., neither doctor nor the prosecution submitted any certificate in regard of capability of the deceased for making statement---Preferably, dying declaration was to be recorded by Magistrate---If there was no Magistrate available or no time to call the Magistrate due to deteriorating condition of the victim, his statement could be recorded in presence of doctor or two witnesses---Record revealed that no such condition was fulfilled by the Investigating Officer---Trial Court had wrongly relied on such dying declaration of the victim---Appeal against conviction was disposed of with modification in sentence.

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

----Ss. 302(b), 337-A(i), 337-F(i) & 34---Qatl-i-amd, shajjah-i- khafifah, ghayr-jaifah-mudihah, common intention---Appreciation of evidence---Sentence, reduction in---Vicarious liability---Scope---Prosecution case was that the accused persons attacked on complainant with dandas, due to which he received injuries on his head, wife of the complainant came after him to rescue, but co-accused made fire which hit his wife and she succumbed of the injuries---Admittedly, accused were present at the time of occurrence along with absconding accused---Injured witness and ocular witness categorically stated in their statements that fire was made by absconding co-accused---Admittedly, accused had not caused any injury to deceased---Role ascribed to the accused was that they assaulted on complainant with sticks, due to which, he sustained lacerated wounds---Not necessary that joint action by number of persons might be with common object---Mere presence of an accused at the venue of occurrence with co-accused might not be sufficient for vicarious liability---Common intention was to be inferred from the entire conduct of the accused---Evidence on the record was not sufficient to come to a conclusion that the accused had at any stage common intention with the principal accused to commit murder---In absence of evidence of common intention the accused would be liable for their individual act which they committed in the episode---Prosecution had not been able to prove beyond shadow of doubt the common intention of accused along with absconding co-accused to commit murder of deceased in furtherance of pre-planned design---Appeal against conviction was disposed of with modification in sentence.

Maqsood Pervez alias Billa v The State 2000 SCMR 1859 rel.

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

----Ss. 302(b), 337-A(i), 337-F(i) & 34---Qatl-i-amd, shajjah-i- khafifah, ghayr-jaifah-mudihah, common intention---Appreciation of evidence---Sentence, reduction in---Prosecution case was that the accused persons attacked on complainant with dandas, due to which he received injuries on his head, wife of the complainant came after him to rescue, but co-accused made fire which hit his wife she did---Record showed that injured witness and ocular witness stated that the accused caused stick blows to complainant due to which he sustained injuries---Medical Officer had issued Medico Legal Certificate---Sticks were not recovered---Mere non recovery of sticks could not absolve the accused from the act committed by them---Circumstances established that the prosecution had proved its case to the extent of injuries caused by accused persons to complainant---Record depicted that the accused neither fired any bullet nor shown with any arm, benefit of doubt was extended to the accused persons and offence under Ss. 302 & 324, P.P.C. to the extent of accused persons were not made out, therefore their conviction to the extent of Ss. 302 & 324, P.P.C. were set aside and they were acquitted of the charge, however, there was sufficient evidence on the record to prove charge under Ss. 337-A(i) & 337-F(i), P.P.C. against the accused persons, which conviction and sentence were maintained, in circumstances---With said modifications in the conviction and sentence, appeal against conviction was disposed of accordingly.

Liaquat Ali for the Appellant No. 1.

Shoaib Ahmed Mengal for Appellant No. 2.

Ms. Noor Jehan Kahoor, Additional Prosecutor General for the State.

Saleem Akhtar for Petitioner/Complainant.

2021 P Cr. L J 1598

[Balochistan]

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

RAKHSHANDA JAMAL---Petitioner

Versus

SHAHID-UL-HASSAN and 2 others---Respondents

Constitutional Petition No. 767 of 2020, decided on 28th August, 2020.

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

----Ss. 22-A & 22-B---Powers of Ex-officio Justice of Peace---Scope---Change of investigation---Scope---Petitioner assailed the dismissal of her application under S. 22-A(6)(ii), Cr.P.C., for transfer of investigation---Said application was made when Investigation had already been completed, the challan whereof had been submitted before the Trial Court and the case was pending adjudication at final stage---Provisions of Ss. 22-A & 22-B, Cr.P.C. were not meant to interfere in the judicial functions of the courts, if after investigation the challan was submitted and cognizance was taken by the court of competent jurisdiction---Petitioner had not raised any new point in her application for re-investigation of the case i.e. discovery of new facts---Constitutional petition, being devoid of merits, was dismissed, in circumstances.

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

----Ss. 22-A & 22-B---Powers of Ex-officio Justice of Peace---Scope---Sections 22-A & 22-B, Cr.P.C. provide a remedy to the citizens at their door steps against the highhandedness of the police, if they failed to perform their duties regarding registration of the criminal case, proper investigation or excess is committed by them about their functions and duties.

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

----S. 173---Report of police officer---Re-investigation---Scope---No bar exists for re-investigation of a criminal case even after submission of a final report under S. 173, Cr.P.C.; however, re-investigation cannot be allowed when a criminal case has finally been disposed of by the Trial Court.

Riaz Hussain and others v. The State 1986 SCMR 1934; Raja Khurshid Ahmad v. Muhammad Bilal and others 2014 SCMR 474 and Bahadur Khan v. Muhammad Azam and 8 others 2006 SCMR 373 rel.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Discretionary and equitable relief---Scope---Jurisdiction under Art. 199 of the Constitution is not only discretionary but also equitable---Such exercise of discretionary and equitable relief is governed by the maxim; "he who seeks equity must come to the Court with clean hands".

Atiq Ahmed Khan for Petitioner.

2021 P Cr. L J 1638

[Balochistan]

Before Rozi Khan Barrech, J

MUHAMMAD OWAIS---Petitioner

Versus

AAWAL KHAN and another---Respondents

Criminal Miscellaneous Quashment No. 107 of 2020, decided on 7th September, 2020.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 156(3), 174 & 176---Order for exhumation of dead body---Quashing of order, petition for---Petitioner, who was brother of the deceased, had sought quashing of order passed by the Judicial Magistrate, ordering exhumation of dead body of the deceased for post-mortem examination---Scope---Record showed that petitioner/ complainant lodged a case against accused/respondent under S. 302, P.P.C. with the allegation and he along with two other companions made firing on his brother who received injuries and later on died---During the investigation, respondent/accused was arrested, who moved an application for digging the grave of deceased for confirmation of the cause of his death and the same was accepted---Being aggrieved from the said order, complainant/petitioner filed revision petition, but was dismissed---Validity---In the present case, there was a way open for the accused/respondent that the evidence of the doctors, who examined the deceased, could be demolished by cross-examining them, in case they nourished strong doubts about the nature of injuries or cause of death of the deceased or crime weapon used in the commission of the offence---Accused in his defense could not ask the court for disinterment---Only right available to accused was to inquire the doctor's opinion by way of cross-examination or cross-examining another expert witness to challenge the opinion expressed by the expert on whose report the prosecution relied or rebut the said opinion with the aid of authoritative textbooks---View taken by the courts below that the disinterment was inevitable was not sustainable---All that was being said because the accused/respondent had agitated that question after a delay of six months based on the injuries received by the deceased on his skull---No time limit had been provided for disinterment of the dead body, however, in circumstances, disinterment would certainly serve no fruitful purpose and the accused/respondent was not justified for making such request---Cause of death of the deceased could only be gathered safely through conducting a post-mortem examination---Dead body was examined by two Medical Officers, who had categorically stated regarding the crime weapon and cause of death in their Medico-Legal Certificates---FIR was lodged by the complainant promptly with the allegation that the accused and his companions made firing upon the deceased with pistols, who received injuries and later on succumbed to the injuries---Medical Officers who examined the deceased also gave the same opinion that the deceased received injuries by means of firearms and the cause of death were also mentioned as receiving injuries on the skull---Investigating Officer also conducted an inquiry under S. 174, Cr.P.C., who also gave the cause of death of the deceased in his report---Exhumation of the dead body was not inevitable, in circumstances---Application against exhumation of dead body was allowed.

Attaullah Langov for Petitioner.

Saeed Ahmed Kakar, State Counsel.

2021 P Cr. L J 1700

[Balochistan]

Before Muhammad Kamran Khan Mulakhail, J

TARIQ AZIZ---Petitioner

Versus

The STATE---Respondent

Criminal Revision No. 74 of 2019, decided on 18th July, 2019.\

Criminal Procedure Code (V of 1898)---

----S. 345---Penal Code (XLV of 1860), Ss. 302 & 305---Qatl-i-amd and Wali---Compounding of offence---Muslim personal law---Wali of unmarried deceased---Scope---Petitioner/convict assailed order passed by Sessions Judge whereby an application under S. 345, Cr.P.C. jointly filed by petitioner and his mother/complainant was dismissed---Facts of the case were that the petitioner and his father were convicted under Ss. 302(b) & 34, P.P.C. for the murder of complainant's daughter who happened to be their sister and daughter respectively---Application for compromise was rejected mainly on the strength that all the legal heirs of deceased were not associated in the compromise---Validity---Section 305, P.P.C. clearly depicted that in case of a Qatl, the Wali shall be the heir of the victim, according to his personal law, but shall not include the accused or convict in case of qatl-i-amd, if committed in the name or on the pretext of honour---Under the Islamic law only father and mother of an unmarried deceased possessed all rights of compromise with the accused on any of the terms permitted by law---Father being convict of murder of his daughter was excluded from the array of legal heirs, and thus, the complainant being mother of the deceased was only surviving legal heir---Compromise was accepted and the petitioner was directed to be released.

Bashir Ahmed v. The State PLD 1995 Kar. 5 and Niaz Muhammad v. The State PLD 1997 Quetta 17 ref.

Sartaj and others v. Mushtaq Ahmed and others 2006 SCMR 1916 and Ahmed Nawaz alias Gogi v. The State PLD 2007 Lah. 121 rel.

Ajmal Khan Lawon for Petitioner.

Naeem Khan Kakar, A.P.G. for the State.

Complainant in person.

2021 P Cr. L J 1729

[Balochistan (Sibi Bench)]

Before Nazeer Ahmed Langove and Rozi Khan Barrech, JJ

NOZO---Appellant

Versus

The STATE---Respondent

ATA Criminal Appeal No. (s) 105 of 2020, decided on 16th February, 2021.

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

----S. 7---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, act of terrorism---Appreciation of evidence---Benefit of doubt---Delay of eight hours in lodging the FIR---Effect---Improvised explosive device and other explosive substances were recovered from the accused---Record showed that the alleged occurrence took place on 10.02.2020 at 2.00 a.m. and the FIR was lodged on the said date after a delay of eight hours without any explanation, despite the fact that the distance between the place of occurrence and the police station was only 30/36 kilometres---No explanation, whatsoever, had been tendered by the prosecution as to why the complainant waited for more than eight hours for lodging the FIR and nominating the accused person---Element of deliberation and consultation could not be ruled out of consideration---Circumstances established that the prosecution had failed to prove its case against the accused without any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 154---First Information Report---Prompt registration of FIR---Object--- Main object of prompt registration of the FIR is to rule out the possibility of deliberation and consultation and inquiry---Element of delay in lodging the crime report is treated with caution because there is a tendency to involve innocent people during the interval.

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

----S. 7---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, act of terrorism---Appreciation of evidence---Benefit of doubt---Improvised explosive device and other explosive substances were recovered from the accused---Neither Recovery memo was prepared on the spot nor recovered material was sealed at the spot rather the same was sealed after six hours of the occurrence, as such the prosecution case was highly doubtful---Lapse on the part of the police was clear and admitted---Wisdom behind sealing the weapon at the place of incident was to eliminate the possibility of manipulation of evidence after the recovery of alleged material---Other material aspect of the case was that neither the complainant stated a single word in his report about weighing of the explosive substance nor that fact was mentioned in the recovery memo that how much explosive was recovered from the accused---None of the witnesses stated a single word as to how much explosive substance was recovered from the accused---Record transpired that four grams of explosive were separated for analysis---Said aspect of the matter also caused reasonable doubt in the prosecution case--- Circumstances established that the prosecution had failed to prove its case against the accused without any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Rahim Bakhsh v. The State 2010 PCr.LJ 642 rel.

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

----S. 7---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, act of terrorism---Appreciation of evidence---Benefit of doubt---Delay in sending samples of explosive substance for analysis---Effect---Improvised explosive device and other explosive substances were recovered from the accused---Alleged recovery was effected on 10.02.2020 while the sample was received by the Forensic Science Agency with a delay of eighteen days, for which no explanation was offered by the prosecution's witnesses---Delay in transmission of sample to the Forensic Science Agency created serious doubts about safe custody of the alleged recovered explosive substance and its safe transmission to the Forensic Science Agency---Alleged Recovered substance was delivered to the Forensic Science Agency by one Police Official/ASI, however, the said Police Official/ASI was not produced as a prosecution witness at the trial about the receipt of case property, its safe custody and safe transmission to the Forensic Science Agency---Custody of the recovered explosive substances at the police station had not been established by the prosecution during the trial---Moharir of the police station had not been produced by the prosecution to establish the receipt of the case property to the office of examiner---Circumstances established that the prosecution had failed to prove its case against the accused without any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 7---Explosive Substances Act (VI of 1908), Ss. 4, 5 & 7---Keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, act of terrorism---Appreciation of evidence---Benefit of doubt---Restriction on trial of offences---Failure to get permission from the competent authority for prosecution---Effect---Scope---Improvised explosive device and other explosive substances were recovered from the accused---Accused was charged under S. 5 of the Explosive Substances Act, 1908, but according to S. 7 of the said Act, prior permission for prosecution of the competent authority was required---Sanction for prosecution for holding trial under Explosive Substances Act was mandatory and a condition precedent for prosecution under S. 5 of the said Act---In the absence of the requisite sanction/permission, entire proceedings would be void and without jurisdiction---Word "shall" used in S. 7 of Explosive Substances Act, 1908, left no room for any departure therefrom---Although, S. 19(8-B), Anti-Terrorism Act, 1997, made a relaxation to the effect that if a sanction was applied but not granted by the competent authority within 30 days then the due proceedings towards initiation of the trial might be carried on---Admittedly, no such request had been made and as such under S. 7 of Explosive Substances Act, 1908, as well as S. 19(8-B) of Anti-Terrorism Act, 1997, prosecution and trial was not competent---Circumstances established that the prosecution had failed to prove its case against the accused without any shadow of doubt---Appeal against conviction was allowed, in circumstances.

(f) Criminal trial---

----Benefit of doubt---Principle---If evidence created doubt about the truthfulness of prosecution story, its benefit had to be given to the accused without any reservation and there was no alternative but to acquit the accused by giving him benefit of the doubt.

Ali Hassan Bugti for Appellant (absent).

Jameel Akhtar Gajani, A.P.G. for the State.

2021 P Cr. L J 1788

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Abdul Hameed Baloch, JJ

ALLAH MUHAMMAD and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 318 of 2018, Criminal Revisions Nos. 33, 34 of 2018 and Criminal Jail Appeal No. 45 of 2017, 318 of 2018, decided on 29th June, 2020.

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

----Art.46---Dying declaration---Scope---Maker of dying declaration was not subjected to cross-examination---For considering dying declaration first to see that the dying declaration inspired confidence and secondly that there was no possibility of tuitoring---Dying declaration was accepted on the theory that the person on death bed would not tell lie, however, caution must be exercised in considering of such kind of evidence.

Farman Ahmed v. Muhammad Inayat 2007 SCMR 1825 rel.

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

----Art. 46---Dying declaration---Requirements---To accord the statement of deceased the status of dying declaration, it was to be proved that at the time of making statement the deceased was fully in senses and capable to record his statement.

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

----Ss. 302(b), 337-A(i), 337-F(i) & 34---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, shajjah-i- khafifah, ghayr-jaifah-mudihah, common intention--- Appreciation of evidence---Sentence, reduction in---Dying declaration, reliance on---Scope---Prosecution case was that the accused persons attacked on complainant with dandas, due to which he received injuries on his head, wife of the complainant came after him to rescue, but co-accused made fire which hit his wife and she fell on the ground and succumbed to injuries---Record depicted that while recording the statement of the deceased under S. 161, Cr.P.C., neither doctor nor the prosecution submitted any certificate in regard of capability of the deceased for making statement---Preferably, dying declaration was to be recorded by Magistrate---If there was no Magistrate available or no time to call the Magistrate due to deteriorating condition of the victim, his statement could be recorded in presence of doctor or two witnesses---Record revealed that no such condition was fulfilled by the Investigating Officer---Trial Court had wrongly relied on such dying declaration of the victim---Appeal against conviction was disposed of with modification in sentence.

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

----Ss. 302(b), 337-A(i), 337-F(i) & 34---Qatl-i-amd, shajjah-i- khafifah, ghayr-jaifah-mudihah, common intention---Appreciation of evidence---Sentence, reduction in---Vicarious liability---Scope---Prosecution case was that the accused persons attacked on complainant with dandas, due to which he received injuries on his head, wife of the complainant came after him to rescue, but co-accused made fire which hit his wife and she succumbed of the injuries---Admittedly, accused were present at the time of occurrence along with absconding accused---Injured witness and ocular witness categorically stated in their statements that fire was made by absconding co-accused---Admittedly, accused had not caused any injury to deceased---Role ascribed to the accused was that they assaulted on complainant with sticks, due to which, he sustained lacerated wounds---Not necessary that joint action by number of persons might be with common object---Mere presence of an accused at the venue of occurrence with co-accused might not be sufficient for vicarious liability---Common intention was to be inferred from the entire conduct of the accused---Evidence on the record was not sufficient to come to a conclusion that the accused had at any stage common intention with the principal accused to commit murder---In absence of evidence of common intention the accused would be liable for their individual act which they committed in the episode---Prosecution had not been able to prove beyond shadow of doubt the common intention of accused along with absconding co-accused to commit murder of deceased in furtherance of pre-planned design---Appeal against conviction was disposed of with modification in sentence.

Maqsood Pervez alias Billa v The State 2000 SCMR 1859 rel.

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

----Ss. 302(b), 337-A(i), 337-F(i) & 34---Qatl-i-amd, shajjah-i- khafifah, ghayr-jaifah-mudihah, common intention---Appreciation of evidence---Sentence, reduction in---Prosecution case was that the accused persons attacked on complainant with dandas, due to which he received injuries on his head, wife of the complainant came after him to rescue, but co-accused made fire which hit his wife she did---Record showed that injured witness and ocular witness stated that the accused caused stick blows to complainant due to which he sustained injuries---Medical Officer had issued Medico Legal Certificate---Sticks were not recovered---Mere non recovery of sticks could not absolve the accused from the act committed by them---Circumstances established that the prosecution had proved its case to the extent of injuries caused by accused persons to complainant---Record depicted that the accused neither fired any bullet nor shown with any arm, benefit of doubt was extended to the accused persons and offence under Ss. 302 & 324, P.P.C. to the extent of accused persons were not made out, therefore their conviction to the extent of Ss. 302 & 324, P.P.C. were set aside and they were acquitted of the charge, however, there was sufficient evidence on the record to prove charge under Ss. 337-A(i) & 337-F(i), P.P.C. against the accused persons, which conviction and sentence were maintained, in circumstances---With said modifications in the conviction and sentence, appeal against conviction was disposed of accordingly.

Liaquat Ali for the Appellant No. 1.

Shoaib Ahmed Mengal for Appellant No. 2.

Ms. Noor Jehan Kahoor, Additional Prosecutor General for the State.

Saleem Akhtar for Petitioner/Complainant.

2021 P Cr. L J 126

[Supreme Court (AJ&K)]

Present: Saeed Akram Khan, ACJ and Ghulam Mustafa Mughal, J

ASAD MUNEER KHAN and others---Appellants

Versus

The STATE OF AZAD JAMMU AND KASHMIR through Advocate-General and others---Respondents

Criminal Appeals Nos. 18, 19, 20, 21, 22, 23 of 2020 and Criminal Miscellaneous Nos. 19, 21, 23 of 2020, decided on 5th May, 2020.

(On appeal from the order of the High Court dated 27.03.2020 in Criminal Miscellaneous Nos. 50, 51, 53, 54, 55 and 56 of 2020)

Criminal Procedure Code (V of 1898)---

----S. 561-A---Prisoners from all the Central and District Jails were released on bail by the High Court on the ground that their lives were in danger due to spread of COVID-19---Validity---Jurisdiction of the High Court under S. 561-A, Cr.P.C., could only be exercised in respect of orders or proceedings of a court, executive or administrative orders had nothing to do with such powers---Powers vested under S. 561-A, Cr.P.C. could only be exercised with relevance to judicial proceedings---Words used in S. 561-A, Cr.P.C. i.e. "otherwise to secure the ends of justice", had to be read along with the earlier objects mentioned in S. 561-A, Cr.P.C. and must have some co-relation with them---Said words could not be interpreted to allow the High Court to pass any order in non-judicial proceedings---Words 'ends of justice' means justice administered by the courts and not the justice in abstract sense---Inherent jurisdiction of the High Court could not be invoked where alternate remedy was available---Powers were meant to meet the lacuna in extraordinary cases and not to vest the High Court with powers to make any order considering the same to be in the interest of justice---Such powers were to be invoked when gross injustice on the face of it seemed to be caused to a party and no other efficacious or alternative remedy was provided to the aggrieved party under law---Supreme Court observed that normal course provided under law, in exercise of the inherent powers, could not be skipped over or diverted from, as had been done in the present case---Such powers could not be extended to uncalled for and unwarranted interference with the procedure prescribed by law, which must be followed---High Court had exercised the powers suo motu while passing the impugned order, whereas, there was no occasion for the High Court to itself register the petitions---Framers of the Constitution had not conferred any such power to the High Court---Had the same been conferred upon, it would have been mentioned in clear terms---Action taken by the High Court was without jurisdiction and totally alien to law, hence, could not be assented to---High Court was equipped with no such powers---Law had provided a detailed mechanism for dealing with bail matters---No person could be released on bail save in accordance with law---Said statutory mechanism could not be neglected or bypassed in the garb of declaration of health emergency---Precautionary measures must be taken to keep the prisoners safe from being vulnerable to the disease but the fact was also there that all those steps should have legal backing---Impugned order of the High Court was also against the basic principle of administration of justice---Before passing the impugned order, the High Court had issued unconcerned notices to a number of parties, however, it had forgotten to hear the legal heirs of the victims---In the offences, punishable with Qisas or Diyat, the legal heirs of the victims were necessary parties to be heard but the High Court had passed the order adverse to them without issuance of any notice to them---Supreme Court further observed that said fact amounted to mockery of law and was very unhealthy practice---Impugned order being without any jurisdiction or lawful authority was set-at-naught, in circumstances---Operation of the impugned order having already been suspended by the High Court, the concerned were directed to re-arrest the released prisoners---Appeals were disposed of accordingly.

Muhammad Ali v. Additional IG Faisalabad PLD 2014 SC 753 and Dr. Imran Khattak and another v. Mst. Sofia Waqar Khattak and others 2014 SCMR 122 rel.

Tahir Aziz Khan for Appellant (in Criminal Appeals Nos. 18, 19, 20, 22, 23 of 2020 and Criminal Miscellaneous Nos. 19, 21, 23 of 2020).

Ch. Shaukat Aziz for Appellants (in Criminal Appeal No. 21 of 2020).

Raja Inamullah Khan, Advocate-General for the State (in all cases).

2021 P Cr. L J 171

[Supreme Court (AJ&K)]

Present: Raja Saeed Akram Khan, ACJ and Ghulam Mustafa Mughal, J

Sardar ALI SHAN---Petitioner

Versus

MATHER NIAZ RANA, CHIEF SECRETARY AZAD JAMMU AND KASHMIR, MUZAFFARBAD and 2 others---Respondents

Criminal Revision No. 2 of 2020, decided on 1st July, 2020.

(In the matter of review of judgment of this Court dated 13.02.2020 in Criminal Original No. 17 of 2019)

Azad Jammu and Kashmir Supreme Court Rules, 1978---

----O. XLVI, Rr. 4, 6 & O. XLIII, R. 4---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 42-A(1)---Review of Supreme Court Judgment---Procedure---Petition had been filed for review of the judgment whereby application for initiation of contempt proceedings had been consigned to record for the reason that the judgment of the Court had been implemented---Scope---Petitioner had himself filed the review petition, whereas, under R. 6, O. XLVI of the Azad Jammu and Kashmir Supreme Court Rules, 1978, except with the special leave of the Court, no advocate other than the advocate, who appeared and argued the case at the time of hearing in which the judgment or order sought to be reviewed had been delivered, could draw the application for review---Under R. 4, O. XLVI, Azad Jammu and Kashmir Supreme Court Rules, 1978 filing of the certificate in support of the review petition was also mandatory---Petitioner had failed to fulfil the mandatory requirements of law, hence, that review petition entailed dismissal---Review petition was dismissed, in circumstances.

Mst. Kaneez Akhtar v. Azad Jammu and Kashmir Government and others 2016 PLC (C.S.) 376 rel.

Petitioner in person.

Ch. M. Manzoor and Sajjad Ahmed Khan, Advocates for Respondents.

2021 P Cr. L J 488

[Supreme Court (AJ&K)]

Present: Raja Saeed Akram Khan and Ghulam Mustafa Mughal, JJ

UMAIR ARIF and 6 others---Appellants

Versus

SESSIONS JUDGE MUZAFFARABAD/JUDGE ANTI-TERRORISM COURT, MUZAFFARABAD and 5 others---Respondents

Civil Appeal No. 98 of 2019, decided on 20th February, 2020.

(On appeal from the judgment of the High Court dated 17.12.2018 in Writ Petition No. 1527 of 2018)

(a) Azad Jammu and Kashmir Anti-Terrorism Act, 2014---

----Ss. 6 & 5---"Terrorism"---Act done in furtherance of previous enmity---Scope---Question before Court was whether the provisions of S. 6 of Azad Jammu and Kashmir Anti-Terrorism Act, 2014, were attracted to the case of appellants or not---Section 6 of Azad Jammu and Kashmir Anti-Terrorism Act, 2014, could not be read in isolation rather the same had to be read together with S. 5---Allegation against accused persons was that they murdered a person in a brutal manner at a public place in furtherance of previous enmity---Details of previous enmity were mentioned in the challan---Nothing was mentioned in the challan that the accused did the act of murder to achieve any object/purpose enumerated in S. 5(1)(b) of Azad Jammu and Kashmir Anti-Terrorism Act, 2014---Appeal was allowed and while accepting the writ petition the case was transferred from the Court of Anti-Terrorism to District Court of Criminal Jurisdiction.

Ghulam Hussain and others v. The State and others Criminal Appeals Nos. 95, 96 of 2019 Civil Appeal No. 10-L of 2017 and Criminal Appeal No. 63 of 2013 rel.

(b) Azad Jammu and Kashmir Anti-Terrorism Act, 2014---

----S. 5---"Terrorism"---Scope---If any act which causes death, grievous violence against a person or grievous bodily injury or harm to a person, grievous damage to property, kidnapping, hijacking, etc (contained in other subsections of S. 5 of the Azad Jammu and Kashmir Anti-Terrorism Act, 2014), is designed/done with the object/purpose to coerce and threat or scare the Government or the public or a section of the public or community or sect or a foreign Government or population or an international organization or creates a sense of fear or insecurity in society; then the provisions of Azad Jammu and Kashmir Anti-Terrorism Act, 2014, shall be attracted.

(c) Azad Jammu and Kashmir Anti-Terrorism Act, 2014---

----S. 5---"Terrorism"---Acts done in furtherance of personal enmity---Scope---Act done in furtherance of personal enmity or private vendetta, even if the same is heinous in nature but the object of the same is not as has been mentioned in S. 5(1)(b) of Azad Jammu and Kashmir Anti-Terrorism Act, 2014, then such cases do not come within the ambit of Azad Jammu and Kashmir Anti-Terrorism Act, 2014.

Ghulam Hussain and others v. The State and others Criminal Appeals Nos. 95, 96 of 2019 Civil Appeal No. 10-L of 2017 and Criminal Appeal No. 63 of 2013 rel.

Raja Shujaat Ali Khan, Advocate for Appellants.

Tahir Aziz Khan, Advocate for Respondents.

Raja Inamullah Khan, Advocate-General for the State.