PCRLJ 2022 Judgments

2022 P Cr. L J 332

[Federal Shariat Court]

Before Muhammad Noor Meskanzai, C.J. and Dr. Syed Muhammad Anwer, J

AAMIR ULLAH---Petitioner

Versus

GHAZI GUL and another---Respondents

Criminal Revision No. 2/P of 2021, decided on 11th October, 2021.

Criminal Procedure Code (V of 1898)---

----S. 367(5)---Contents of judgment---De-novo trial---Scope---Accused challenged the legality of his conviction whereas complainant sought enhancement of his sentence---Matter was remanded to the Trial Court with the direction to adhere the mandatory provisions of S. 367, Cr.P.C. and conclude the proceedings after providing fair opportunity of addressing arguments to all the parties---Trial Court on a mere cursory view of record and a look at accused concluded that the accused was a teen-ager and charge did not commensurate with the facts of case and ordered for de novo trial---Validity---Record showed that the Presiding Officer was bent upon to intentionally linger on the proceedings on one or the other pretext---First attempt was to get the accused declared juvenile by a Medical Board and thereby started a de novo trial; second effort was made by altering the charge without adhering to respective provisions of Cr.P.C.; thirdly, to create a jurisdictional dispute, the Trial Court found the argument of defence counsel reasonable i.e. expressed his opinion that by altering the charge forum of appeal was changed---Trial Court by ignoring the command of the order of Appellate Court, adopted a unique course, thereby exceeding its jurisdiction, transgressed legal limits, flouted the order and thus, left no stone unturned to get the proceedings lingered on by increasing the miseries, difficulties and problems of an under-trial prisoner---Revision petition was allowed with direction to Sessions Judge to hear the matter himself or transfer the same to any Court of competent jurisdiction.

Talal Ahmed Chaudhry v. The State 2019 SCMR 542; M. Younus Habib v. The State PLD 2006 SC 153 and S.A.K. Rehmani v. The State 2005 SCMR 364 rel.

Muhammad Usman Khan Turlandi for Petitioner.

Qaiser Zaman for Respondents.

Miss Abida Safdar, Assistant Advocate-General, Khyber Pakhtunkhwa for the State.

2022 P Cr. L J 235

[High Court (AJ&K)]

Before Sadaqat Hussain Raja, J

MUHAMMAD TARIQ and 2 others---Petitioners

Versus

JUSTICE OF PEACE/SESSIONS JUDGE, MUZAFFARABAD and 3 others---Respondents

Writ Petition No. 1653 of 2017, decided on 10th March, 2021.

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

----Ss. 154 & 161---Information in cognizable cases---Examination of witnesses by police---Second FIR---Scope---Language employed by the Legislature in S. 154, Cr.P.C. indicates that a police officer on receiving such information, relating to the commission of a cognizable offence, is bound to enter the substance thereof in the book maintained for such purpose at the police station---Only one FIR in respect of an occurrence wherein a cognizable offence has been committed and any other version of the same incident advanced by any person during the investigation of the case is to be recorded under S. 161, Cr.P.C.---Aggrieved person also has an alternate remedy by way of a private complaint.

Mansur Ali and 2 others v. The State 1970 PCr.LJ 287; Kaura v. The State 1979 PCr.LJ 521; Mushtaq Ahmed v. The SHO Police Station, Munawan 1984 PCr.LJ 1454; Atta Muhammad v. Inspector-General of Police PLD 1965 Lah. 734 and Sadiq Masih v. Station House Officer and others 1994 PCr.LJ 295 rel.

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

----Ss. 154 & 173---Information in cognizable cases---Report of police officer---Duty of Investigating Officer---Second FIR---Scope---Matter of registration of multiple FIRs in respect of the same offence stems from a misunderstanding that an FIR is the version of the incident reported to the police whereas the legal position is that an FIR registered under S. 154, Cr.P.C. is only an information about commission of a cognizable offence and not an information about the circumstances in which such offence was committed or by whom it was committed---Investigating Officer is to collect every possible information about the facts and circumstances of the case, he is to receive or record any information in that regard becoming available from any source, whatsoever, he is not to prematurely commit himself to any particular version of the incident and after finding out the actual facts the final report under S. 173, Cr.P.C. is to be submitted.

Syed Zulqarnain Raza Naqvi for the Petitioners.

Saqib Javed, Legal Advisor for Police Department.

2022 P Cr. L J 484

[High Court (AJ&K)]

Before Sadaqat Hussain Raja, C.J.

MISBAH and another---Petitioners

Versus

SENIOR SUPERINTENDENT OF POLICE, DISTRICT MUZAFFARABAD and 4 others---Respondents

Writ Petition No. 1622 of 2020, decided on 2nd December, 2021.

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

----Art. 44---Writ petition---Quashing of FIR---Runaway marriage---Scope---Petitioners being sui juris had got married---Offences alleged in the FIR were not made out against them and the continuance of investigation by the police and dragging the petitioners in the court would be a futile exercise, which would amount to unnecessary harassment to the petitioners---Writ petition was accepted and the FIR was quashed.

Syed Azad Hussain Shah v. Syeda Saba Asghar and others (Civil PLA No.86 of 2012 decided on 19.06.2012) rel.

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

----Art. 44---Writ petition---Quashing of FIR---Scope---High Court in exercise of writ jurisdiction is not competent to assume the role of investigating agency or the Trial Court to give verdict as to whether an accused person has committed an offence or not.

Khadim Hussain v. Abdul Basit and 6 others 2002 MLD 1250 rel.

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

----S. 561-A---Inherent powers of High Court---Scope---High Court while acting under S. 561-A, Cr.P.C., has no power to take the role of investigating agency and declare that the FIR was not correctly registered; however, it has power to interfere under the S. 561-A, Cr.P.C. for implementation of order of the Court and to secure the ends of justice.

Shan Muhammad v. Muhammad Younis and 4 others 2014 SCR 183 rel.

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

----S. 561-A---Inherent powers of High Court---Scope---Inherent jurisdiction of High Court under S. 561-A, Cr.P.C. is neither alternative nor additional in its character and is to be rarely invoked only in the interest of justice so as to seek redressal of grievance for which no other procedure is available and that the provision could not be used to obstruct or divert the ordinary course of criminal procedure---Section 561-A, Cr.P.C., confers inherent powers upon High Court to make such orders as may be necessary to give effect to any other order under Criminal Procedure Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice---Such powers are very wide and can be exercised by High Court at any time.

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

----Art. 44---Writ petition---Quashing of FIR---Runaway marriage---Scope---Normally FIRs are not quashed; however, in the cases where it is found that a sui juris lady contracted Nikah with her free consent and FIR has been registered against such couple on account of revenge, then such like FIRs ought to be quashed in order to secure the ends of justice because marriage is a civil contract and every Muslim of sound mind, who has attained puberty, can enter into contract of marriage and according to the Injunctions of Islam, the consent of adult sane couple is sufficient for proving a valid Nikah and according to principle of Islamic Law the presumption of valid marriage can be ascertained from the fact of acknowledgment by a man or a woman as husband and wife; however, it is void only when it is solemnized without his/her consent.

Muhammad Pervaiz Mughal for Petitioners.

A.A.G. for Respondents Nos. 1 - 4.

2022 P Cr. L J 1047

[High Court (AJ&K)]

Before Sardar Liaqat Hussain, J

AURANGZAIB---Petitioner

Versus

MUHAMMAD YAQOOB and 3 others---Respondents

Revision Petition No. 149-A of 2021, decided on 24th January, 2022.

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

----S. 497---Bail---Scope---Only a tentative assessment of the available record can be made and deeper appreciation of evidence is not warranted under law.

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

----S. 497(5)--- Bail--- Cancellation of bail--- Scope--- Strong and exceptional grounds are required for cancellation of bail granted by a court of competent jurisdiction.

2008 PCr.LJ 1565 rel.

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

----S. 497(5)--- Bail--- Cancellation of bail--- Scope--- Bail can be cancelled only when solid grounds are shown for cancellation of the same i.e. misuse of concession of bail or if there is allegation against the accused that he is putting influence on the prosecution's witnesses or it is shown that the bail order has been passed in gross violation of any rule or against the principle governing the bail matter.

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

----S. 497(5)---Bail---Cancellation of bail---Scope---Merely on the ground that the accused has committed a heinous offence, concession of bail, already granted to the accused cannot be recalled.

Mushtaq Ahmed Janjua for Petitioner.

Mir Ghazanfar Gul for Respondent No. 1

2022 P Cr. L J 1652

[High Court (AJ&K)]

Before Mian Arif Hussain and Sardar Muhammad Ejaz Khan, JJ

MAZHAR IQBAL and another---Applicants

Versus

The STATE through Police Station Thothal and another---Respondents

Criminal Miscellaneous No. 42 of 2020, decided on 10th May, 2022.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Prohibition (Enforcement of Hadd) Act (IV of 1985), Ss. 11, 14 & 16---Allegation of using intoxicant---Petition for quashing of FIR---Scope---Petitioners sought quashing of FIR lodged against them, for being intoxicated at the relevant time, but for searching the car of petitioners, no search warrant was obtained by the police from the Judicial Magistrate---Medical report had not been prepared and issued as per procedure, thus the FIR was liable to be quashed---Validity---Section 16 of the Prohibition (Enforcement of Hadd) Act, 1985 was self-explanatory, which made it clear that the offences under Ss. 4, 8 & 11 of the Prohibition (Enforcement of Hadd) Act, 1985, shall be cognizable only if those were committed at a public place---During patrol, when the police apprehended the accused-petitioners, they were riding a car and raiding police party found smell of alcohol coming from their mouths and no intoxicant liquid was recovered from their possession during search---Admitted fact that when the offence was stated to have been committed, accused-petitioners were riding a car, which did not fall within the definition of "public place" as such the police was not competent to take cognizance of the offences---Cognizance in offences under Ss. 11/14 of the Prohibition (Enforcement of Hadd) Act, 1985 taken by the police was violation of S. 16 read with S. 2(l) of the Act, Ibid---Action by the police in registration of criminal case against the accused-applicants in offences mentioned above appeared to have been found without jurisdiction and without lawful authority---Petition was allowed and FIR was quashed, in circumstances.

Muhammad Yameen v. The State 1987 PCr.LJ 1576 and Bheeloo v. The State 1990 PCr.LJ 186 rel.

Raja Munir Ahmed Thakar for Applicants.

2022 P Cr. L J 26

[Islamabad]

Before Tariq Mehmood Jahangiri, J

MASOOD JILLANI and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Miscellaneous Nos. 503-B and 476-B of 2021, decided on 27th May, 2021.

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

----S. 497---Penal Code (XLV of 1860), Ss. 420, 468, 471 & 477-A---Prevention of Corruption Act (II of 1947), S. 5---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, falsification of accounts---Criminal misconduct---Bail, grant of---Scope---Accused persons were alleged to have been involved in the fraudulent allotment of plots of the Development Authority---Offences under Ss. 420, 471 & 477-A, P.P.C. were bailable---As far as S. 468, P.P.C. and S. 5(2) of Prevention of Corruption Act, 1947, were concerned, it was confirmed by the Investigating Officer that there was no evidence available on record which depicted that the accused persons themselves had prepared any forged document or had received illegal gratification from any person---Only allegation against the accused persons was that during their posting in the Accountants Directorate they had forwarded the Pay Orders for encashment to the Bank and the amount was credited in the account of Development Authority---Investigating Officer had stated that the accused persons had admitted that they had changed the dates on the Pay Orders---Confession made before a person in authority and confession made against co-accused was inadmissible and such a confession was hit by Art. 38 of Qanun-e-Shahadat, 1984---Documentary evidence had already been collected by the Investigating Officer---Investigation in the case was complete and the accused persons were not required to the police for further investigation---Petition for grant of bail was accepted, in circumstances.

Muhammad Aqeel alias Tapla v. The State 2014 MLD 316 ref.

Tariq Bashir and others v. The State PLD 1995 SC 34; Muhammad Tanveer v. The State and another PLD 2017 SC 733 and Saeed Ahmed v. The State 1996 SCMR 1132 rel.

Abdul Qadir Motiwala v. State 2000 PCr.LJ 1734 fol.

(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 punishment and there is no legal or moral compulsion to keep a person in jail---Ultimate conviction and incarceration of a guilty person can repair the wrong caused by mistaken relief of bail after arrest but no satisfactory reparation can be offered to the accused for his unjustified incarceration if he is acquitted ultimately.

Abdul Rehman Sheikh for the Petitioner/accused (in Criminal Misc. No. 503-B of 2021).

Kamran Murtaza, Advocate for the Petitioner/accused (in Criminal Misc. No. 476-B of 2021).

Saqlain Haider, Assistant Attorney General for the State.

Qaiser Masood, Additional Director Law/Deputy Legal Advisor, FIA.

2022 P Cr. L J 198

[Islamabad]

Before Aamer Farooq and Tariq Mehmood Jahangiri, JJ

ARSHAD alias GOGA---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 407-B of 2021, decided on 6th May, 2021.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 21---Possession of narcotics---Power to enter, search, seizure and arrest without warrant---Bail, grant of---Borderline case---Proceedings conducted by an Assistant Sub-Inspector---Non-availability of report of Forensic Laboratory---Scope---Accused was alleged to have been found in possession of 1285 grams of charas---Material investigation in the case regarding seizure, weighing, packing and sealing of charas into parcel, separation of some quantity of it for chemical analysis through Forensic Laboratory was carried out by an ASI (Assistant Sub-Inspector)---Contention of accused that the entire action taken by the ASI by way of registration of a case under the provisions of Control of Narcotic Substances Act, 1997 and its investigation by him from its inception to the end was violative of the law on the subject, seemed forceful---Report of Chemical Examiner was still awaited---Recovered substance had marginally exceeded 01 kilogram, so the accused was not likely to be awarded maximum sentence provided by the statute---Accused was in jail and his trial was not likely to be concluded in near future---Petition for grant of bail was accepted, in circumstances.

PLD 2001 Pesh. 152; Wajid alias Waji v. State 2016 PCr.LJ 831; Ali Hassan alias Hasan v. State 2014 YLR 188; Asif Ali v. State 2013 YLR 1241 and Ayaz v. State 2011 PCr.LJ 177 ref.

Saeed Ahmed v. State through P.G. Punjab and another PLJ 2018 SC 812; Abbas Raza v. The State through P.G. Punjab and others 2020 SCMR 1859 and Aya Khan and another v. The State 2020 SCMR 350 rel.

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

----S. 497---Bail---Involvement in other cases---Scope---Mere involvement in other criminal cases donot disentitle an accused from the relief of bail if he otherwise succeeds in bringing his case within the meaning of further inquiry---Liberty of a person is a precious right that has been guaranteed by the Constitution---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.

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---Tentative assessment---Scope---While deciding bail application before recording of evidence in the trial court only tentative assessment is to be made by the Court and it is not permissible to go into details of evidence in one way or the other that might prejudice the case of either party.

PLD 1994 SC 65; PLD 1994 SC 88; 2021 SCMR 111 and 2020 SCMR 937 ref.

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

----S. 497--- Bail--- Scope--- Ultimate conviction and incarceration of guilty accused can repair the wrong caused by mistaken relief of bail after arrest but no satisfactory reparation can be offered to the accused for his unjustified incarceration if he is acquitted ultimately.

Ajmal Khan Khattak for Petitioner/accused.

Ms. Khadija Ali, State Counsel.

2022 P Cr. L J 245

[Islamabad]

Before Tariq Mehmood Jahangiri, J

Messrs SHIFA INTERNATIONAL HOSPITAL, ISLAMABAD---Petitioner

Versus

DIRECTOR GENERAL, FIA, ISLAMABAD and another---Respondents

Writ Petition No. 2989 of 2015, decided on 16th February, 2021.

Criminal Procedure Code (V of 1898)---

----S. 160--- Constitution of Pakistan, Art. 199---Constitutional petition---Police-officer's power to require attendance of witnesses---Interference in investigation---Scope---Petitioner (hospital) was aggrieved of initiation of inquiry against it and a notice issued under S. 160 of Cr.P.C. by the FIA (Federal Investigation Agency)---Validity---High Court, under Art. 199 of the Constitution, could interfere or stop/restrain any person from doing any act without lawful authority and could declare the same to be of no legal effect but the FIA and the Development Authority were performing their duties in accordance with law, so no interference in constitutional jurisdiction was warranted---No interference was to be made in the course of investigation/inquiry being conducted by the law enforcing agencies---Constitutional petition was dismissed.

Zaheer Bashir Ansari for Petitioner.

Saqlain Haider, Assistant Attorney General.

Tahir Khan, Assistant Director-FIA, on behalf of Respondent No.1.

Raheel Ahmad, Deputy Director-CDA, on behalf of Respondent No.2.

2022 P Cr. L J 366

[Islamabad]

Before Athar Minallah, C.J.

Ch. ASGHAR ALI---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE/EX-OFFICIO JUSTICE OF PEACE (WEST) ISLAMABAD and 14 others---Respondents

Writ Petition No. 2311 of 2018, decided on 14th January, 2021.

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

----S. 145---Procedure where dispute concerning land, etc., is likely to cause breach of peace---Scope---Petitioner assailed order passed by Magistrate while disposing of proceedings initiated under S. 145, Cr.P.C., whereby possession of the suit property was handed over to the respondent---Held; petitioner, at the relevant time, was relying on an agreement to sell---Petitioner could not produce any document in order to establish his title---Order showed that the Magistrate after taking the relevant matters into consideration had formed a tentative opinion as to who was in possession---Magistrate had not given any finding which could be treated as declaratory in nature---Magistrate was only required to ascertain which of the parties before it was entitled to possession and that was exactly what had happened---No legal infirmity was pointed out to justify interference with the well-reasoned order---Constitutional petition was dismissed.

Muhammad Boota and 12 others v. Ch. Faiz Muhammad and 8 others 1970 SCMR 592; Shera and others v. Mst. Fatima and another 1971 SCMR 449 and Mst. Asma Khursheed and another v. Station Housing Officer, Police Station Aabpara and others 2018 PCr.LJ 674 ref.

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

----S. 145---Procedure where dispute concerning land, etc., is likely to cause breach of peace---Scope---Primary object in relation to the proceedings under S. 145, Cr.P.C., is to prevent breach of peace arising out of a dispute concerning land and it does not empower the Magistrate to adjudicate the rights of the parties---Resolution of such rights exclusively fall within the realm of a civil court.

Mirza Abdul Razzaq v. Barkat Ali and others 1985 SCMR 1235 ref.

Shah Muhammad v. Haq Nawaz and another PLD 1970 SC 470 rel.

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

----S. 154---Information in cognizable cases---Second FIR---Scope---Law does not allow registration of another FIR in the same matter---Investigating Officer is not precluded from recording a cross-version during the course of investigation relating to already registered criminal case.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 rel.

Arif Chaudhry for Petitioner.

Ashtar Ausaf Ali, Raja Zahoor ul Hassan and M. Usama Rauf for Respondents.

Ansar Ali Kiyani for Respondents (in C.Ms. Nos. 5303 and 5275 filed in W.P. No. 2336 of 2018).

Zohaib Hassan Gondal, State Counsel and Noor Islam, Inspector.

2022 P Cr. L J 439

[Islamabad]

Before Athar Minallah, C.J.

MASOOD UR RAHMAN ABBASI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 1296-B of 2021, heard on 16th December, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 500, 505, 506 & 109---Prevention of Electronic Crimes Act (XL of 2016), Ss. 10, 11 & 20---Criminal intimidation, criminal conspiracy, cyber crime, hate speech and offence against dignity of a natural person---Bail, grant of---Criticizing a judge---Accused was arrested for criticizing Chief Justice of Pakistan using strong and undesirable language---Validity---Independent judge, despite harshness or tone of criticism, cannot be provoked to react in such a manner that results in his or her becoming the subject matter of a criminal case because of the profound consequences in context of due process and fair trial---Magnanimity, empathy and compassion, are the essential attributes of an impartial and independent judge---Extension of concession of bail becomes essential to ensure the right to due process and fair trial of an accused when the latter is alleged to have committed an offence directly or indirectly, involving interest of a judicial officer---Such was a legitimate ground unless there were compelling reasons to refuse grant of bail---Bail was allowed, in circumstances.

Muhammad Shafique Butt and another v. The State and others 2015 YLR 877 fol.

Syed Adnan Abbas Shah for Petitioner.

Syed Muhammad Tayyab, Dy. Attorney General, Ayaz, Deputy Director, FIA, Inam, A.D/I.O. FIA with record for the State.

Complainant in person.

2022 P Cr. L J 534

[Islamabad]

Before Tariq Mehmood Jahangiri, J

MUHAMMAD ASHAR HALIM QURAISHI---Petitioner

Versus

EX-OFFICIO JUSTICE OF PEACE/ADDITIONAL SESSIONS JUDGE, EAST ISLAMABAD and 3 others---Respondents

Writ Petition No. 4041 of 2021, decided on 19th January, 2022.

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

----Ss. 22-A, 22-B & 154---Petition under Ss. 22-A & 22-B, Cr.P.C.---Police report requisitioned by Justice of Peace---Where a Justice of Peace calls for a police report, he cannot ordinarily brush aside the same---In case he proposes to give his opinion contrary to the police report he is supposed to furnish tangible reasons for not relying upon the said report.

Petitioner (accused) was the purchaser of the subject plot and the sellers and their legal heirs had no dispute with the petitioner. The petitioner got an FIR registered against persons "A" and "I" who allegedly tried to raise illegal construction and forcibly occupied the petitioner's plot. The respondent, who was an employee of "A" and "I" filed a petition under sections 22-A and 22-B, Cr.P.C. before the Justice of Peace for lodging an FIR against the petitioner. The Justice of Peace sought a report from Superintended of Police, and in pursuance thereto, a report was submitted, wherein it was mentioned that just in order to counter the case registered against persons "A" and "I", their employee i.e. the respondent had filed the application under sections 22-A and 22-B, Cr.P.C. against the petitioner; that the police had thoroughly enquired into the matter and no cognizable offence had been made out and thus prayed for dismissal of the application filed under sections 22-A and 22-B, Cr.P.C.

Justice of Peace while passing the impugned order for recording statement of respondent under section 154, Cr.P.C. had not mentioned any plausible reasons for not relying on the report, submitted by Superintendent of Police rather passed the impugned order in a mechanical manner. Once Justice of Peace called for the police report, he could not ordinarily brush aside the same. In case he proposed to give his opinion contrary to the police report he was supposed to furnish tangible reasons for not relying upon the said report.

During pendency of the present Constitutional petition, the concerned Sub-Divisional Police Officer (SDPO) was directed to personally conduct an inquiry, visit the site, call both the parties, record statements of the witnesses and submit his detailed report whether the offence as alleged by the respondent against the petitioner had been committed or not. Subsequent thereto the SDPO informed the Court that he personally conducted an inquiry into the matter and also produced detailed inquiry report containing statements of the witnesses of locality and the parties, pictures of the plot and the alleged crime scene had also been enclosed with the inquiry report. Said report stated that person "A" nominated in the FIR of the petitioner had filed different applications in such regard before different forums; that the respondent, who was an employee of "A" had failed to produce any independent, legal, cogent and convincing evidence in support of his contentions against the petitioner, and that no such occurrence as alleged by the respondent took place.

Constitutional petition was allowed, and the impugned order passed by Justice of Peace was set-aside with the directions that the respondent was at liberty to file a private complaint, if so advised, before the competent forum.

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

----Ss. 22-A & 22-B---Proceedings before the Justice of Peace---Nature---Proceedings before Justice of Peace are quasi-judicial and not executive, administrative or ministerial which could be dealt mechanically---Justice of Peace exercises quasi-judicial powers, and every case before him demands discretion and judicial observations.

Younas Abbass and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581 ref.

Barrister Afzal Hussain and Waheed Ur Rehman for Petitioner.

Muhammad Ejaz for Respondent No. 4.

Fahad Ali, State Counsel.

Abid Hussain, D.S.P./SDPO, Sihala Circle, Islamabad.

2022 P Cr. L J 638

[Islamabad]

Before Tariq Mehmood Jahangiri, J

INAYATULLAH and others---Petitioners

Versus

STATION HOUSE OFFICER, FIA CORPORATE CRIME CIRCLE, ISLAMABAD and others---Respondents

Writ Petitions Nos. 2078, 3109 and 3162 of 2021, decided on 23rd November, 2021.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Quashing of FIR---Alternate and efficacious remedy---Investigation report (Challan), filing of---Petitioners sought quashing of FIR registered against them on the plea of mala fide---Validity---Challan/report under S. 173, Cr.P.C. was submitted in Trial Court---Petitioners had alternate and efficacious remedy of filing petition under S. 265-K, Cr.P.C. for their acquittal at any stage in Trial Court---Constitutional petition was dismissed, in circumstances.

Federation of Pakistan through Secretary Ministry of Law, Justice and Parliamentary Affairs Government of Pakistan, Islamabad v. Zafar Awan PLD 2005 SC 19; Federation of Pakistan through Secretary Ministry of Law, Justice and Parliamentary Affairs Government of Pakistan, Islamabad v. Zafar Awan, Advocate, High Court PLD 1992 SC 72; Zafar Awan v. The Islamic Republic of Pakistan PLD 1989 FSC 84; Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276; Director General, Anti Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others PLD 2013 SC 401; Mst. Kaniz Fatima v. Muhammad Salim 2001 SCMR 1493; Muhammad Abbasi v. Station House Officer, BharaKahu and 7 others PLD 2010 SC 969 and Rana Aftab Ahmad Khan v. Muhammad Ajmal and another PLD 2010 SC 1066 rel.

Adil Aziz Qazi and Abdul Rehman Sheikh for the Petitioners in their respective writ petitions.

Nazar Hussain Shah, Assistant Attorney General.

2022 P Cr. L J 762

[Islamabad]

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

Malik SARFRAZ---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 80 of 2013, decided on 10th August, 2021.

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

----Ss. 302(b), 337-A(ii) & 34---Qatl-i-amd, shajjah mudihah, common intention--- Appreciation of evidence--- Benefit of doubt--- Medical evidence---Scope---Accused was charged that he along with co-accused persons committed murder of the son of complainant and also caused injuries to his relative---Motive behind the occurrence was dispute over landed property---Complainant had alleged in the complaint that co-accused had hit the deceased with a club---However, during his cross-examination he had deposed otherwise and the assertion was also not supported by the post-mortem report because no such injury was indicated therein---Prosecution had failed to prove beyond a reasonable doubt that the injury on the forehead of injured described in the Medico-Legal Report was caused by the butt of a rifle---Testimony of Medico-Legal Officer did not support the version of the prosecution---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Dr. Waqar Hameed v. The State and another 2020 SCMR 321; Lal Mast v. The State 2006 MLD 104; Musa v. The State 2008 SCMR 997; Mst. Nazakat v. Hazrat Jamal and another PLD 2007 SC 453; State and another v. Muhammad Ali and another 2011 MLD 1686; Abdur Rehman v. State 1998 SCMR 1778; Shoukat Ali v. The State PLD 2007 SC 93; Muhammad Arif and others v. The State and others 2008 YLR 580; The State v. Moula Bakhsh alias Moulak 2005 PCr.LJ 794; Ranmal Samat and others v. State of Gujarat 1993 SCMR 2227; Muhammad Yahya v. The State PLD 1987 Lah. 155; Shafqat Ali and others v. The State PLD 2005 SC 288; Yasin and 3 others v. The State 2017 PCr.LJ 1550; Imran v. The State and others 1998 PCr.LJ 1022; Ghulam Mustafa and another v. State and others PLJ 2010 Sh. C. (AJ&K) 34; Muhammad Siddique v. The State 1993 SCMR 2114 and Pandurang and others v. State of Hyderabad AIR 1955 SC 216 ref.

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

----Ss. 302(b), 337-A(ii) & 34---Qatl-i-amd, shajjah mudihah, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence from the accused---Reliance---Scope---Accused was charged that he along with co-accused persons committed murder of the son of complainant and also caused injuries to his relative---Investigating Officer had candidly conceded during his cross-examination that the firearm weapon which had been recovered was in a rusted condition---Investigating Officer also admitted that no spent cartridge was recovered from the crime scene---Recovered firearm weapon was neither sealed nor sent to an expert for forensic examination---Investigating Officer had also conceded that he had not collected any evidence to prove the motive---Neither blood nor any spent cartridge was found by the Investigating Officer at the crime scene---Justification given by the latter in his deposition was that the crime scene was on a busy road and that it had ruined---However, no other witness had stated that it had ruined on the day of occurrence---Complainant, during cross-examination, had deposed that the spent cartridge might have fallen in the watercourse near the crime scene---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 337-A(ii) & 34---Qatl-i-amd, shajjah mudihah, common intention---Appreciation of evidence---Benefit of doubt---Ocular account---Scope---Accused was charged that he along with co-accused persons committed murder of the son of complainant and also caused injuries to his relative---Ocular account was deposed by the complainant and an eye-witness--- Testimonies of said witnesses were not consistent nor supported by the evidence brought on record---Complainant had deposed that the motive was a dispute relating to land which was in possession of father of eye-witness---Eye-witness in his testimony, did not corroborate the stance---Question was as to why the deceased alone was targeted because the evidence did not indicate that he had attempted to take possession of the disputed land---According to the deposition of the complainant, the dispute was with him---Testimonies of said witnesses were not consistent with the scaled plan---Distance shown between the place where the deceased had received the firearm injury and where he fell was about 46 ft---Depositions regarding the ocular account were silent in that regard---Testimonies of witnesses who had claimed that they had witnessed the commission of the offence were not confidence inspiring in order to uphold the conviction---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 337-A(ii) & 34---Qatl-i-amd, shajjah mudihah, common intention---Appreciation of evidence---Benefit of doubt---Vicarious liability---Scope---Accused was charged that he along with co-accused persons committed murder of the son of complainant and also caused injuries to his relative---Role and participation of the accused according to the prosecution story was an attempt to fire at the injured with the firearm weapon he was carrying and when it misfired, hit the latter with its butt---No allegation that the accused had made an attempt to harm the deceased---Prosecution was also not able to prove beyond a reasonable doubt that the injury on the forehead of the injured had been caused by hitting him with the butt of a firearm weapon---According to the testimony of Investigating Officer, when the firearm weapon was recovered it was rusted and not in working condition---Accused had neither come to the crime scene with the common intention to kill the deceased nor did the facts and circumstances raise an inference of an intent to commit the crime of taking an innocent life in furtherance of common intention---Prosecution was not even successful in establishing beyond a reasonable doubt the exact location of the crime scene and the presence of injured when the offence was committed---Conviction on the basis of acts done in furtherance of common intention was not sustainable---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Khushi Muhammad and others v. The Crown 1969 SCMR 599; Muhammad Akram v. The State and others 2007 SCMR 1539; Muhammad Arshad and 2 others v. The State PLD 1996 SC 122; Shoukat Ali v. The State PLD 2007 SC 93; Hayat v. The State PLD 1957 SC 204; Muhammad Akbar v. The State PLD 1991 SC 923 and Muhammad Yaqoob, Sub-Inspector v. The State PLD 2001 SC 378 rel.

Basharat Ullah Khan, Advocate Supreme Court for Appellant.

Majid Rashid Khan, State Counsel.

Rao Abdul Raheem for the Complainant.

2022 P Cr. L J 810

[Islamabad]

Before Tariq Mehmood Jahangiri, J

WALEED ARFAQAT---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 597-B of 2021, decided on 12th July, 2021.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 337-F(iii), 337-D, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, mutalahimah, jaifah, rioting, armed with deadly weapon, common object---Bail, grant of---Delay in recovery of empties---Rule of consistency---Non-availability of report of Forensic Laboratory---Completion of investigation---Further inquiry---Scope---Allegation against accused was that he along with co-accused while armed with weapons attacked upon the complainant party due to which two of them got injured and another succumbed to the injuries---Complainant had initially mentioned that the accused along with other co-accused while standing in front of the market was raising abuses etc. and again the complainant had mentioned that the accused came out from his car along with co-accused and raised lalkara, the question of two different versions regarding the accused would be resolved by the trial court during the course of trial---Accused was not alleged to have caused any injury to the deceased---Police had not visited the place of incident on the same day rather had inspected the site on the next day and had recovered six empties of 30 bore pistol which made the recovery of empties doubtful---One of the co-accused had been released on bail after arrest by the High Court and the accused was also entitled to grant of bail on the principle of consistency---Report of Forensic Laboratory regarding pistol and empties recovered from the spot was still awaited---From the contents of the FIR, it could not be outrightly said that there was common intention to commit crime, it prima facie appeared that PUBG (Player Unknown's Battle grounds) game was the reason that provoked the accused---Investigation in the case was complete and the accused was not required for the purpose of further investigation---Accused had made out a case of further inquiry---Petition for grant of post-arrest bail was allowed, in circumstances.

Ghulab Khan v. Chairman NAB and another 2020 SCMR 285; Muhammad Daud and another v. The State and another 2008 SCMR 173; Sheraz v. The State 2021 MLD 292 and Muhammad Azam v. The State 2008 SCMR 249 ref.

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

----S. 497---Bail---Involvement in criminal cases---Scope---Mere involvement in other cases does not disentitle an accused from relief of bail if he otherwise succeeds in bringing his case within the meaning of further inquiry---Liberty of person is a precious right guaranteed by the Constitution---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.

Moundar and others v. The State PLD 1990 SC 934; Babar Hussain v. State 2020 SCMR 871; Muhammad Rafique v. State 1997 SCMR 412 and Muhammad Abid Farooq v. The State and another 2015 PCr.LJ 224 ref.

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

----S. 498---Bail---Principles---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 reparation 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.

Zaigham Ashraf v. The State and others 2016 SCMR 18 rel.

Haroon Ur Rashid and Raja Gul Nawaz for Petitioner/accused.

Jan Muhammad for the Complainant.

Syed Shahbaz Shah, State Counsel.

2022 P Cr. L J 838

[Islamabad]

Before Aamer Farooq and Tariq Mehmood Jahangiri, JJ

TAHA RAZA and others---Petitioners

Versus

The STATE and others---Respondents

W.Ps. Nos. 1585, 1584 and 1553 of 2021, decided on 8th June, 2021.

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

----S. 9---Constitution of Pakistan, Art. 199---Penal Code (XLV of 1860), Ss. 419, 420, 468, 471 & 109---Prevention of Corruption Act (II of 1947), S. 5---Anti-Money Laundering Act (VII of 2010), Ss. 3 & 4---Qanun-e-Shahadat (10 of 1984), Art. 38---Corruption and corrupt practices, cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment, criminal misconduct, offence of money laundering and confession to police officer not to be proved---Bail, grant of---Rule of consistency---Delay in conclusion of trial---Scope---Allegation against accused persons was that they, being corporate head and unit corporate head of a Bank, had referred fake documents to the Operations Manager, Relationship Manager and Bank Manager for opening a fake account, which account was used for money laundering---Prosecution had cited 69 witnesses and the reference comprised of 72 volumes, however, statements of only three witnesses were recorded and there was no chance of conclusion of trial in the near future---No independent evidence was collected against one of the accused persons and only evidence against him was the statement of co-accused which statement was inadmissible under Art. 38 of the Qanun-e-Shahadat, 1984---Both the accused persons were suffering from several diseases---All the accused persons arrested in the case had been released on bail after arrest, hence, the accused persons were also entitled for the grant of bail after arrest on the principle of consistency---Entire case depended on documentary evidence which had already been collected by the investigating agency---Prosecution had failed to satisfy the Court that the inordinate delay in conclusion of trial was not partly attributed to it---Constitutional petitions were allowed and the accused persons were admitted to post-arrest bail, in circumstances.

Ghulab Khan v. Chairman NAB and another 2020 SCMR 285; Muhammad Daud and another v. The State and another 2008 SCMR 173; Sheraz v. The State 2021 MLD 292; Muhammad Azam v. The State 2008 SCMR 249; 2017 SCMR 1194; 2016 SCMR 1225; Muhammad Saeed Mehdi v. The State and 2 others 2002 SCMR 282; Himesh Khan v. The National Accountability Bureau (NAB), Lahore and others 2015 SCMR 1092; Khawaja Salman Rafique and another v. National Accountability Bureau through Chairman and others PLD 2020 SC 456; Nazir Ahmed Shaikh and others v. National Accountability Bureau and others 2020 SCMR 297 and Muhammad Jawed Hanif Khan and another v. National Accountability Bureau Sindh and others 2020 SCMR 185 ref.

Khawaja Anwer Majid v. National Accountability Bureau through Chairman NAB and another PLD 2020 SC 635; Saeed Ahmed v. The State 1996 SCMR 1132; Dinshaw Hoshang Anklesaria v. National Accountability Bureau (NAB) through Chairman and others 2021 SCMR 699; Talat Ishaq v. NAB PLD 2019 SC 11; Muhammad Jahangir Badar v. The State and others PLD 2003 SC 525 and Himesh Khan v. The National Accountability Bureau (NAB), Lahore and others 2015 SCMR 1092 rel.

(b) Constitution of Pakistan---

----Art. 199--- National Accountability Ordinance (XVIII of 1999), S. 9---Penal Code (XLV of 1860), Ss. 419, 420, 468, 471 & 109---Prevention of Corruption Act (II of 1947), S. 5---Anti-Money Laundering Act (VII of 2010), Ss. 3 & 4---Corruption and corrupt practices---Cheating by personation---Cheating and dishonestly inducing delivery of property---Forgery for purpose of cheating---Using as genuine a forged document---Abetment---Criminal misconduct---Offence of money laundering---Bail, grant of---Rule of consistency---Delay in conclusion of trial---Scope---Allegation against accused was that he was beneficiary of receiving huge amounts from a fake bank account---Accused was behind the bars for the last more than two years---Prima facie no incriminating evidence was collected by the investigating agency against him---Accused was allegedly an office boy and someone had misused his credentials and had opened an account in his name---All the allegations were to be examined by the Trial Court during the course of trial---All the accused persons arrested in the case had been released on bail after arrest hence the accused was also entitled for the grant of bail after arrest on the principle of consistency---Entire case depended on documentary evidence which had already been collected by the investigating agency---Prosecution had failed to satisfy the Court that the inordinate delay in conclusion of trial was not partly attributable to it---Writ petition was allowed and the accused was admitted to post-arrest bail, in circumstances.

Ghulab Khan v. Chairman N.A.B and another 2020 SCMR 285; Muhammad Daud and another v. The State and another 2008 SCMR 173; Sheraz v. The State 2021 MLD 292; Muhammad Azam v. The State 2008 SCMR 249; 2017 SCMR 1194; 2016 SCMR 1225; Muhammad Saeed Mehdi v. The State and 2 others 2002 SCMR 282; Himesh Khan v. The National Accountability Bureau (NAB), Lahore and others 2015 SCMR 1092; Khawaja Salman Rafique and another v. National Accountability Bureau through Chairman and others PLD 2020 SC 456; Nazir Ahmed Shaikh and others v. National Accountability Bureau and others 2020 SCMR 297 and Muhammad Jawed Hanif Khan and another v. National Accountability Bureau Sindh and others 2020 SCMR 185 ref.

Khawaja Anwer Majid v. National Accountability Bureau through Chairman NAB and another PLD 2020 SC 635; Saeed Ahmed v. The State 1996 SCMR 1132; Dinshaw Hoshang Anklesaria v. National Accountability Bureau (NAB) through Chairman and others 2021 SCMR 699; Talat Ishaq v. NAB PLD 2019 SC 11; Muhammad Jahangir Badar v. The State and others PLD 2003 SC 525 and Himesh Khan v. The National Accountability Bureau (NAB), Lahore and others 2015 SCMR 1092 rel.

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

----S. 497---Bail---Scope---Bail is not to be withheld as punishment---No legal or moral compulsion exists to keep the 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 reparation 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.

Zaigham Ashraf v. The State and others 2016 SCMR 18 rel.

Syed Hamid Ali Shah for Petitioners/accused (in W.Ps. Nos. 1585 and 1584 of 2021).

Barrister Umer Aslam Khan for Petitioner/accused (in W.P. No. 1553 of 2021).

2022 P Cr. L J 878

[Islamabad]

Before Mohsin Akhtar Kayani and Fiaz Ahmad Anjum Jandran, JJ

ATTA UR REHMAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 148 of 2020, decided on 27th January, 2021.

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

----S. 412---No appeal in certain cases where accused pleads guilty---Scope---Convict after pleading guilty assailed the quantum of sentence by filing an appeal under S. 412, Cr.P.C.---Held; nothing was available on record to show that the convict retained criminal record---Convict was a first offender and appeared to be a carrier---Convict had already undergone 90% of the sentence awarded by the Trial Court, therefore, deserved remission in sentence---Chances of rehabilitation of the convict outside the prison seemed to be better than the probability of sending him behind the bars and being exposed to undesirable elements in jail---Conviction of the accused was maintained and his sentence was reduced to the one already undergone---Appeal was dismissed with modification.

2019 MLD 2053; 2017 MLD 1508 and 1992 MLD 193 ref.

Niaz-ud-Din v. The State 2007 SCMR 206; 2012 YLR 1630; 2010 YLR 3240 and 2010 YLR 2170 rel.

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

----S. 412---No appeal in certain cases where accused pleads guilty---Scope---Although appeal against conviction on the basis of plead guilty is barred by the statute but appeal can be filed within the parameters of exception as provided in S. 412, Cr.P.C.

(c) Criminal trial---

----Procedure---When someone puts himself upon the discretion of the court, in that eventually the parameters for consideration for the court would become different---Although court has to exercise its all powers within the framework of law but maximum benefit can be extended to the appellant who puts himself at the mercy of the court.

(d) Criminal trial---

----Punishment, theory of---Scope---Every sentence has a purpose though the way in which it is to be accomplished might vary or differ---Case of a repeater or habitual offender where the probability of reformation is little and the case of a first time novice offender, where he regrets his wrongdoing, the two cases cannot be measured on same yardstick and the latter case deserves a lenient view.

PLD 2017 Sindh 592 rel.

Ch. Muhammad Fahad Shabbir and Syeda Maria Nasir for Appellant.

Ishtiaq Ahmad, State Counsel, Muhammad Amin Feroz Khan and Ch. Talib Hussain for Respondent.

2022 P Cr. L J 953

[Islamabad]

Before Aamer Farooq, J

ABDUL RAZAQ---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 1269-B of 2021, decided on 13th January, 2022.

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

----S. 497---Penal Code (XLV of 1860), S. 365-B---Child Marriage Restraint Act (XIX of 1929), S. 4---Kidnapping, abducting and inducing woman to compel for marriage---Punishment for male above twenty-one years of age marrying a child---Bail, grant of---Scope---Accused sought bail after arrest in an FIR lodged under S. 365-B, P.P.C.---Alleged victim was 16 years and 05 months at the relevant time, hence the Child Marriage Restraint Act, 1929 was not attracted, however, she did not qualify to enter into contract in accordance with Hanafi School of Thought which was applicable under Art. 227 of the Constitution---Victim was not sui juris at the relevant time, hence the requirement of Wali would be applicable---Presence of Nikahnama and an affidavit sworn by victim in contrast to her statement under S. 164, Cr.P.C., where she had alleged coercion, made the case of accused one of further inquiry---Petition for grant of bail was allowed, in circumstances.

Hafiz Abdul Waheed v. Mrs. Asma Jehangir and another PLD 2004 SC 219 ref.

(b) Islamic jurisprudence---

----Sura. 4, Verse. 6---Age limit for nikah---Scope---It is not only balughat/puberty but also rushd, which is the second important criteria for a person to enter into nikah---Word rushd has been explained/defined as integrity of (one's) actions, proper, sensible conduct; reason, good sense, senses; consciousness; maturity (of the mind)---Meaning thereby a person who has attained puberty and he/she can form good decision and have maturity of mind can contract nikah.

Tafheem-ul-Quran by Abul A'la Maududi (R.A.) and Tehqeeq e Umar e Hazrat Ayesha R.A. rel.

(c) Islamic jurisprudence---

----Where an act appears to be harmful to the society collectively or to a particular segment of society, the State has the power to make that act prohibited even if permissible generally in Shariah.

Farooq Omar Bhoja v. Federation of Pakistan PLD 2022 FSC 1 rel.

(d) Words and phrases---

----Sui juris---Meaning---Scope---Person who is full of age and capacity. [p. 959] C

Black's Law Dictionary rel.

Malik Sohab Aslam for Petitioner.

Raja Shehzad Javed for the Complainant.

Barrister Zafarullah Khan, Advocate Supreme Court, Amicus Curiae.

Zohaib Hassan Gondal, State Counsel.

2022 P Cr. L J 981

[Islamabad]

Before Babar Sattar, J

MAJID ALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 108-B of 2022, decided on 8th February, 2022.

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

----S. 497---Bail---Scope---Language of S. 497(1), Cr.P.C., might have been acceptable in a colonial State where the indigenous persons did not enjoy complete citizenship and fundamental rights and the State found it expedient to lock up anyone accused of a non-bailable offence---Every person is presumed innocent until proven guilty, that the benefit of any doubt must be granted to the accused, and that bail is not to be denied to an accused as punishment---Language of S. 497(1), Cr.P.C., vests in a Court the limited discretion to determine if there exist "reasonable grounds for believing" that the accused is "guilty"---Standard applicable is that of a reasonable man and the language of S. 497(1), Cr.P.C., does not require the prosecution to satisfy the "beyond reasonable doubt" standard applicable for securing a conviction---Section 497(1), Cr.P.C. essentially requires a court to prejudge the "guilt" of an accused by applying a "reasonable" man standard, which is a lower standard than the "beyond reasonable doubt" standard, leaving almost no room to grant an accused the benefit of the doubt at the time of considering his entitlement to bail---Such, together with the innumerable offences, which prescribe a punishment of up to 10 years means that the State has to meet a very basic threshold to take away the right of a citizen to liberty guaranteed by Art. 9 of the Constitution, if he is charged with a non-bailable offence---Accused remains hauled up behind bars pending trial in which the State often fails to meet the higher "beyond reasonable doubt" standard (as reflected by conviction rate), resulting in acquittal, but also resulting in the accused having been imprisoned for years, due to denial of bail pending without ever being convicted.

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

----S. 497---Constitution of Pakistan, Arts. 9 & 10-A---Bail---Security of person---Right to fair trial---Scope---Denial of bail automatically becomes a punishment in view of (i) the broad category of offences that fall within the prohibitory clause, (ii) the limited discretion vested in Court in view of the language of S. 497(1), Cr.P.C., and the lax standard that applies to the prosecution to justify arrest, and (iii) the time it takes to complete trials---Such undermines the rights of an accused to liberty guaranteed by Art. 9 and pre-trial punishment without conviction prohibited by Art. 10-A and fundamental principles of fairness, due to courts required to only ascertain, tentatively, if the accused is "guilty" on the basis of a "reasonability" standard---Such assessment takes place at a time when the accused is behind bars and has no ability to fully defend himself as he does not have complete access to the material to be presented by the prosecution before the court to satisfy the "reasonability" threshold---Right to liberty in Art. 9 is subject to law---Language used in S. 497(1), Cr.P.C., creates a prescription by law which renders the right of liberty of a citizen accused of a non-bailable offence pending his trial largely meaningless.

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

----S. 497---Constitution of Pakistan, Arts. 9 & 10-A---Bail---Security of person---Right to fair trial---Scope---Legislature has determined the scope of discretion vested in a court to release a person on bail who has been accused of a non-bailable offence---Legislature in balancing the interest of the State in prosecuting offenders and the rights of a person to liberty (till such time that he or she has been convicted after a fair trial) could have left only the most heinous offences within the prohibitory clause of S. 497(1), Cr.P.C.---Such would probably be in line with provisions of Arts. 9 & 10-A of the Constitution and the settled principle of fairness and justice that a person is presumed to be innocent until proven guilty---Legislature has not done so and has placed fetters on the right to liberty of a person who is accused of a non-bailable offence punishable for up to ten years in prison---Only discretion vested in the Court for purposes of bail in an offence falling under S. 497(1), Cr.P.C., is for the court to satisfy itself that sufficient grounds exist to support a belief that the person arrested is guilty of an offence he has been charged---Court cannot give the words of S. 497(1), and specially the word "punishable" used therein any meaning other than its ordinary textual meaning which inevitably means that given that punishment up to ten years imprisonment is prescribed in relation to a large number of offences, the persons accused of such offences are not entitled to bail as a matter of right.

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

----S. 497---Bail---Prohibitory clause---Word "punishable"---Scope---Plain reading of S. 497, Cr.P.C. suggests that it is the maximum sentence prescribed that is to be considered in relation to an offence for purposes of determining whether or not such offence falls within the prohibitory clause---First part of S. 497(1), Cr.P.C. is permissive and allows a person arrested to be released on bail who is accused of a non-bailable offence---Second part of S. 497(1), Cr.P.C. contains a prohibition against the release of a person arrested for being accused of a non-bailable offence and has come to be recognized as the prohibitory part of S. 497 (i.e. the prohibitory clause)---Prohibition is applicable in relation to a person who has been arrested after being accused of a non-bailable offence "punishable" with death or imprisonment for life or imprisonment for ten years---Operative word here is "punishable"---Word "punishable" has been defined to mean "subject to a punishment" when used in relation to a person---Meaning of the word "punishable" therefore clarifies that in the event that a person has been charged for an offence which could possibly result in the punishment of ten years in prison such offence would fall within the prohibitory clause---Any offence in relation to which punishment has been prescribed in the form of a range and it has been left to the court to determine the sentence in view of the facts of the case, but the maximum punishment that could possibly be awarded for such offence is ten years, would fall within the prohibitory part of S. 497(1), Cr.P.C.---Simply put, it is the maximum punishment and not the minimum punishment in relation to an offence under P.P.C. that determines whether or not the accused is "punishable" for ten years and whether the offence in question falls within the prohibitory clause or not---Court was not to try and predict the possible sentence that would be imposed on a person under arrest for being an accused of a non-bailable offence.

Zahid Hussain Chandio v. State 2016 MLD 1103 ref.

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

----S.497---Bail---Prohibitory clause---"Reasonable grounds"---Scope---Section 97(1) provides a broad threshold to guide the courts in exercising their discretion in bail matters---Initially the prohibitory part of section 497(1) provided that a person was not to be released on bail if there appeared reasonable grounds for believing that he was guilty of a non-bailable offence that he had been charged with---Said proviso was amended and substituted in 1923 when the prohibition was limited to offences punishable with death or transportation for life---Said provision was once again amended in 1974 and the prohibition in S. 497(1) was extended to offences punishable with death or imprisonment for life or imprisonment for ten years---Legislative intent in view of the words used in S. 497(1) is therefore unambiguous---In relation to offences which attract a maximum punishment of less than ten years, bail is granted as a matter of right---However, in cases where a person has been arrested for a non-bailable offence the maximum punishment for which is up to ten years in prison, the court is required to determine, "if there appears reasonable grounds for believing that he has been guilty" of such offence---Second proviso to S. 497(1), Cr.P.C. places the responsibility of showing cause as to why an accused should not be released on bail upon the prosecution---Prosecution is to satisfy the court that reasonable grounds do exist for supporting the belief that the accused is guilty of an offence punishable with up to ten years of imprisonment---If the prosecution fails to do so, the court can admit an accused to bail under S. 497(1), Cr.P.C. even where he stands accused of a non-bailable offence punishable with death or imprisonment for life or imprisonment for ten years.

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

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

----S. 497--- Bail--- "Reasonable grounds"--- Scope--- "Reasonable grounds" is an expression which connotes that the grounds be such as would appeal to a reasonable man for connecting the accused with the crime with which he is charged, "grounds" being a word of higher import than "suspicion"---However, strong a suspicion may be it would not take the place of reasonable grounds---Grounds will have to be tested by reason for their acceptance or rejection---Reasonableness of the grounds has to be shown by the prosecution by displaying its cards to the Court, as it may possess or is expecting to possess as demonstrating evidence available in the case both direct and circumstantial.

Abdul Malik v. State PLD 1968 SC 349 fol.

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

----S. 497---Bail---"Reasonable grounds"---Scope---While it is not for a court to conduct anything in the nature of preliminary trial at bail stage to consider the probability of accused person's guilt or innocence---Court is to ascertain as to whether there exist any reasonable grounds upon which its belief can be founded to look on the materials placed before it by the Investigating Agency and be prima facie satisfied that some tangible evidence can be offered which if left un-rebutted may lead to the inference of guilt before it can come to the conclusion that this discretion no longer exists---Such evidently means that the discretion of the Court in refusing bail in cases of offences punishable with death or transportation is wrested away only after the Investigating Agency satisfies the Court prima facie that there are reasonable grounds in the case which if not rebutted would lead to the inference of guilt of accused persons.

Abdul Malik v. State PLD 1968 SC 349 fol.

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

----S. 497---Bail---Tentative assessment---Scope---Court, in case of bail is not required to probe into the matter but has to make a tentative assessment of the material produced to ascertain whether there are reasonable grounds to believe that the accused has committed the crime.

Chaudhry Shujat Hussain v. The State 1995 SCMR 1249 fol.

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

----S. 497---Bail---Reasonable grounds---Scope---Term "reason to believe" can be classified at a higher pedestal than mere suspicion and allegation but not equivalent to proved evidence---Even the strongest suspicion cannot transform in "reason to believe"--- Criteria laid down seems to be that where some tangible evidence is available against the accused which, if left un-rebutted, may lead to the inference of guilt.

Chaudhry Shujat Hussain v. The State 1995 SCMR 1249 fol.

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

----S. 497---Bail---Further inquiry---Scope---Bail is to be allowed if it appears to the Court that there are sufficient grounds for further inquiry into the guilt of the accused---Now what would constitute as sufficient grounds for further inquiry would depend on the peculiar facts of each case and no hard and fast rule can be laid down for that purpose---Every hypothetical question which can be imagined would not make it a case of further inquiry simply for the reason that it can be answered by the trial court subsequently after evaluation of evidence---Broadly speaking, the condition laid down in clause (2) of S. 497, Cr.P.C., is that there are sufficient grounds for further inquiry into his guilt which means that the question should be such which has nexus with the result of the case and may show or tend to show that accused is not guilty of the offence with which he is charged.

Shoib Mehmood Butt v. Iftikhar ul Haq and 3 others 1996 SCMR 1845 fol.

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

----S. 497---Bail---Discretionary jurisdiction---Structured discretion---Scope---Discretion is vested in the court to release a person on bail who has been accused of an offence punishable with death or imprisonment for life or punishment up to ten years---Such discretion has to be exercised on the basis of whether or not the court has been convinced by the prosecution that sufficient material exists on record which satisfies the test of existence of reasonable grounds for the court to believe that the person is guilty of such offence which falls within the prohibitory clause.

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

----S. 497---Penal Code (XLV of 1860), Ss. 392 & 411---Robbery---Dishonestly receiving stolen property---Bail, refusal of---Identification parade---Scope---Accused was alleged to have snatched mobile phone and cash from the complainant on gunpoint---Features of the accused were mentioned by the complainant and recorded in the FIR---Accused, after having been arrested in the relation to another FIR, was included in an identification parade and was positively identified by the complainant---Nothing was placed on record to establish that the identification parade was not carried out in accordance with law---Such identification parade was carried out within ten days of the accused having been arrested---Cell phone with the IMEI (International Mobile Equipment Identity) number that is noted in the FIR was recovered from the possession of the accused---Argument that the number of the SIM Card (Subscriber Identity Module Card) installed in the phone was not mentioned in the FIR made no difference as the SIM Card was replaceable and it was the IMEI number that was unique to the phone---Petition for grant of bail was dismissed, in circumstances.

Haneef alias Qadeer v. The State 1988 PCr.LJ 2287; Syed Shamshad Razi v. The State 1987 MLD 1003 and Muhammad Rafique v. State 1997 SCMR 412 ref.

Usman Ali Chaudhry for Petitioner.

Rabi Bin Tariq, State Counsel.

2022 P Cr. L J 1145

[Islamabad]

Before Aamer Farooq, J

MUHAMMAD RAZIQ---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal Miscellaneous No. 1134-T of 2021, decided on 20th January, 2022.

Criminal Procedure Code (V of 1898)---

----Ss. 17 (4), 193 (2), 497, 526, 528 (1B) & 561-A---Bail application, transfer of--- Acting Sessions Judge---Entrustment of cases---Principle---Applicants assailed order passed by Acting Sessions Judge transferring bail applications pending before one Court to other Court---Validity---Sessions Judge, under S. 17(4), Cr.P.C., where he was incapable or unavoidably absent, could entrust any urgent application to another Additional Sessions Judge but did not have power and jurisdiction to withdraw the same once entrusted---Sessions Judge could entrust by general or special order under S. 193(2), Cr.P.C. any work/case to another Additional Sessions Judge---At any time before the trial in any case had commenced or hearing of appeal before Additional Sessions Judge, Sessions Judge under S. 528(1A), Cr.P.C., could either try the case/appeal himself or could have entrusted the same to another Court for trial or hearing, as the case might be---Where trial had commenced, power to transfer vested with High Court under S. 526, Cr.P.C.---Bail application once entrusted could not be transferred from one Court to another---High Court retained power to effect transfer in bail application under S. 561-A, Cr.P.C. and/or Constitutional jurisdiction under Art. 199 of the Constitution---High Court set aside order passed by acting Sessions Judge as the same was without jurisdiction and lawful authority---Application was dismissed, in circumstances.

Naveed Hussain v. The State and others PLD 2020 Lah. 382; Talib Hussain v. Muhammad Aslam Somra, Additional Sessions Judge, Multan and others 1996 PCr.LJ 466; Abdul Rafiq alias Qassu v. The State 1994 PCr.LJ 2507 and Haji Misri v. The State 1968 PCr.LJ 1463 ref.

Malik Jawwad Khalid for Petitioner.

Raja Rizwan Abbasi and Zeeshan Abbasi for Respondents.

2022 P Cr. L J 1242

[Islamabad]

Before Aamer Farooq, J

ZAKIR JAFFER and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 884-B of 2021, decided on 29th September, 2021.

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

----S. 497---Penal Code (XLV of 1898), Ss. 302, 201, 511, 109, 118, 364, 368, 176 & 376---Qatl-i-amd, causing disappearance of evidence of an offence committed or giving false information to screen the offender in a capital offence, attempting to commit offence punishable with imprisonment and in such attempt doing any act towards the commission of the offence, abetment, concealing a design to commit an offence punishable with death or imprisonment for life if the offence be committed, kidnapping or abducting in order to murder, concealing or keeping in confinement a kidnapped person, intentionally omitting to give notice or information to a public servant by a person legally bound to give such notice or information, rape---Bail, refusal of---Admittedly, accused-petitioners were not the principal accused under S. 302, P.P.C. but were to face the trial with respect to offences under Ss. 109, 201, 511, 176 & 118, P.P.C.--- Admitted position was that the petitioners were not nominated in the FIR but were investigated and arrested as the investigation progressed---Initially, accused-petitioners came under investigation in the light of the statement made by the principal accused when he divulged the police that he had informed the parents about the confinement of victim who was subsequently killed---Question regarding admissibility or inadmissibility of such statement though was a question for the Trial Court to determine but prima facie Arts. 38 to 40 of Qanun-e-Shahadat, 1984, were attracted---Independent CDR was available which clearly established that principal accused was in touch with the petitioners in the early and late part of evening between 6:30/6:45 p.m. till 9:00 p.m.---Watchman (Chokidar) posted at the residence of the petitioners i.e. the place of occurrence also confirmed that he apprised accused-petitioner about the confinement of a girl and the entire scenario but no effort was made to report the matter to police---Prima facie it seemed that the accused-petitioners aided and abetted the principal accused in the commission of offence, inasmuch as they had the information that victim was in confinement yet did not make any attempt to inform the police authorities---Case was almost ripe for trial, hence there was every likelihood that if accused-petitioners were enlarged on bail they might obstruct the course of justice, tamper with the prosecution evidence and/or try to influence the trial---Bail petition was dismissed, in circumstances.

The State v. Jamil Iqbal PLD 1974 Quetta 28; In Re Abdul Basha Sahib AIR 1941 Madras 316; Satish Chandra Seal and others v. Emperor AIR (32) 1945 Calcutta 137; Raja Muhammad Younas v. The State 2013 SCMR 669; Mian Khalid Perviz v. The State 2021 SCMR 522; Manzoor v. The State PLD 1972 SC 81; Amir v. The State PLD 1972 SC 277; Zaigham Ashraf v. The State and others 2016 SCMR 18; Khalid Javed Gillan v. The State PLD 1978 SC 256; Shoaib Mehmood Butt v. Iftikhar ul Haq and 3 others 1996 SCMR 1845; Taria Bashir v. The State PLD 1995 SC 34; Muhammad Faisal v. The State and another 2020 SCMR 971; Abid Mehmood and others v. The State and others 2017 SCMR 728; Muhammad Sarfraz Ansari v. The State and others PLD 2021 SC 738; Muhammad Faisal v. The State and others 2020 SCMR 971; Abid Mehmood v. The State 2017 SCMR 728; Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585; Naveed Asghar and 2 others v. The State PLD 2021 SC 600; Muhammad Riaz v. The State and others 2021 MLD 564; Tariq Bashir v. The State PLD 1995 SC 34; Gulzar Hassan Shah v. Ghulam Murtaza and 4 others PLD 1970 SC 335; Naseer Ahmed v. The State PLD 1997 SC 347; The State v. Khalid Sharif 2006 SCMR 1265; Dr. Behram Khan v. Nasir Ahmed Bacha and others PLD 1986 SC 118 and Muhammad Nasir Muneef Qureshi v. The State and others 2019 YLR 1591 ref.

Shahid Orakzai v. Pakistan Muslim League (Nawaz) 2000 SCMR 1969; Mst. Hanifan Bibi and another v. Zulfiqar and another PLD 2001 Lah. 123; Tariq Bashir v. The State PLD 1995 SC 34 and Iftikhar Ahmad v. The State PLD 2021 SC 799 rel.

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

----S. 497--- Bail--- Scope--- Observations made in bail orders are tentative in nature and will not prejudice the Trial Court while deciding the matter.

Khawaja Haris Ahmad and Asad Jamal for Petitioners.

Shah Khawar, Barrister Qasim Nawaz Abbasi and Babar Hayat Samor for the Complainant/Respondent No.2.

2022 P Cr. L J 1331

[Islamabad]

Before Aamer Farooq, J

JUNAID MASEEH---Petitioner

Versus

The STATE through PS CTW, FIA, Islamabad and 2 others---Respondents

Writ Petition No. 4328 of 2021, decided on 10th January, 2022.

(a) Official Secrets Act (XIX of 1923)---

----Ss. 3, 4 & 13---Constitution of Pakistan, Art. 199---Criminal Procedure Code (V of 1898), S. 173---Constitutional petition---Quashing of FIR---Spying---Communication with foreign agents to be evidence of commission of certain offences---Restriction on trial of offences---Scope---Petitioner was a civil servant and was being investigated under Ss. 3 & 4 of Official Secrets Act, 1923---Person sought quashing of FIR on the basis that the court can take cognizance in the matter only on the complaint of authorized officer of the Government of Pakistan and not on basis of challan/report under S. 173, Cr.P.C.---Law did not prohibit lodging of the FIR, investigation of the matter and arrest of the accused in an offence under the Official Secrets Act, 1923---However, it was only when the matter is to be proceeded by the Court by taking cognizance in the same, the complaint by an authorized officer is required---Registration of the case by Federal Investigation Agency and subsequent investigation in the matter was also deemed to be permissible in light of proviso to subsection (3) of S. 13 of the Official Secrets Act, 1923---Constitutional petition was dismissed.

Muhammed Nazir v. Fazal Karim and others PLD 2012

SC 892 ref.

Muhammad Mohsin Ghuman v. Government of Punjab 2013 SCMR 85 rel.

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

----Ss. 195 & 154---Information in cognizable cases---Prosecution for certain offences---Scope---If the provisions of S. 195(1)(c), Cr.P.C., place a prohibition against taking cognizance of except in the given manner then all prior steps taken before the stage of taking of cognizance by Court could be deemed to be permissible.

Muhammad Mohsin Ghuman v. Government of Punjab 2013 SCMR 85 rel.

2022 P Cr. L J 1373

[Islamabad]

Before Tariq Mehmood Jahangiri, J

UMER BILAL---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 784-B of 2021, decided on 12th August, 2021.

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

----S. 497---Penal Code (XLV of 1860), Ss. 354-A, 506, 342, 509, 395, 384, 375-A, 377-B, 114, 412 & 34---Qanun-e-Shahadat (10 of 1984), Art. 38---Assault or use of criminal force to woman and stripping her of her clothes, criminal intimidation, wrongful confinement, dacoity, extortion, gang rape, sexual abuse, abettor present when offence is committed, dishonestly receiving property stolen in the commission of dacoity, common intention---Bail, grant of---Confession to police-officer not to be proved---Scope---Prosecution case was that a video went viral on social media wherein 5/6 persons had confined two victims, a boy and a girl, in a room; victims were stripped on gun point; threats were issued; they were forced to do indecent/obscene acts as such FIR was lodged by the police---Accused was not seen in the video but allegation against him was that he was present at the main door and was opening and closing the door of the flat---Accused was also identified by the victims---Accused was not nominated in the statements of victims recorded under Ss. 161 & 164, Cr.P.C.---No allegation was leveled against the accused regarding making videos, stripping of clothes, gang rape, dacoity, extortion, taking money, sexual abuse, etc.---Only allegation levelled against the accused was that he was present at the door of the bedroom and was opening and closing the door---Accused was arrested on the basis of statement of co-accused---Statement of co-accused before the police was inadmissible under Art. 38 of the Qanun-e-Shahadat, 1984 and the same had no evidentiary value and was inadmissible in evidence---Petition for grant of bail was accepted, in circumstances.

Muhammad Tanvir v. The State and others 2017 SCMR 366; Haibat Khan v. The State and others 2016 SCMR 2176; Zahid v. The State and another 2018 YLR Note 220; Hassan Ali Shah v. The State and another 2017 PCr.LJ Note 85 and Fayyaz v. The State 2017 PCr.LJ Note 199 ref.

Raja Muhammad Younas v. State 2013 SCMR 669 rel.

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

----S. 154---Information in cognizable cases---Scope---Everyone is bound to report the commission of cognizable offence to the police immediately, so that the FIR should be registered and accused punished.

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

----S. 497---Penal Code (XLV of 1860), S. 34---Bail---Common intention---Scope---Questions of sharing common intention and vicarious liability of the accused are to be determined by the Trial Court after recording of evidence.

Manzoor Hussain and another v. State 2011 SCMR 902 and Ramachandran v. State of Kerala 2012 SCMR 1156 rel.

2018 YLR 920; 2005 PCr.LJ 794 and 2018 PCr.LJ 928 ref.

(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 the 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 mistaken relief of bail after arrest granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albiet his acquittal in the long run.

Zaigham Ashraf v. The State and others 2016 SCMR 18 and Haji Muhammad Nazir and others v. The State 2008 SCMR 807 rel.

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

(e) Administration of justice---

----Courts do not decide the matters/cases on the basis of views, comments, opinions and hype created regarding the matters on social media, print media and electronic media, rather the cases are always decided on the basis of evidence/material available/collected according to the relevant provisions of law.

Sher Afzal Khan Marwat for Petitioner.

Hassan Javed for the Victims.

Syed Shahbaz Shah, State Counsel.

2022 P Cr. L J 1393

[Islamabad]

Before Sardar Ejaz Ishaq Khan, J

MUHAMMAD TARIQ---Petitioner

Versus

MUHAMMAD IBRAHIM and another---Respondents

Writ Petition No. 4407 of 2021, decided on 12th January, 2022.

Criminal Procedure Code (V of 1898)---

----Ss. 476 & 195---Prosecution for certain offences relating to documents given in evidence---Procedure---Scope---Petitioner assails the dismissal of his application under S. 476, Cr.P.C.---Petitioner is a party in a suit for declaration and permanent injunction in relation to a house---Petitioner claims that the power of attorney filed on his behalf by another party in the suit is forged because he was in jail at the relevant time and did not sign it---Validity---Application under S. 476, Cr.P.C. was moved during pendency of suit for declaration and permanent injunction wherein he could contest the authenticity of the power of attorney in question by leading evidence---Trial Court might find the power of attorney to be genuine; to hold a parallel inquiry on the same question does not make sense, all the more so where the criminal prosecution would require proof beyond reasonable doubt---Insisting on prosecution in these circumstances is inexplicable---Safe assumption is that the Trial Court is the proper judge to evaluate the prospects of a successful prosecution for filing of forged documents before it as it would have the occasion to hear evidence by the party contesting the document---Judicial precedent respects its discretion and is averse to forcing it to decide otherwise---Instances could be there where a supervisory court may come to a different conclusion, but such instances can never arise before the trial is concluded or would be the ones where the forgery is so obvious as not requiring any investigation--- Constitutional petition is dismissed.

1997 MLD 2097; 1998 MLD 686; 1984 PCr.LJ 381; 1990 PCr.LJ 97; 1999 PCr.LJ 61; 2005 MLD 1103; 1970 SCMR 10; 1969 SCMR 37; 2004 SCMR 805 and 2003 YLR 249 rel.

2022 P Cr. L J 1442

[Ialamabad]

Before Arbab Muhammad Tahir, J

MUHAMMAD SHAHZAD---Petitioner

Versus

MUHAMMAD SHAHBAZ and another---Respondents

Criminal Miscellaneous No. 1361-BC of 2021, decided on 2nd February, 2022.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302, 148, 149 & 34---Qatl-i-amd, rioting, armed with deadly weapon, common object and common intention---Bail, cancellation of---Scope---Co-accused persons had taken the deceased with them on the asking of the accused, who was granted pre-arrest bail---Call Data Record (CDR) of the accused indicated his presence near the place of occurrence at the relevant time---Not only that but a witness in his statement recorded under S. 161, Cr.P.C., had narrated that he had witnessed the accused in company of co-accused persons and the deceased on the day of incident---In the presence of above incriminating material coupled with the fact that no malice and mala fide on the part of complainant had ever been alleged, the exercise of extraordinary jurisdiction in the attending circumstances of the case, was unjust, arbitrary and was result of miscarriage of justice---Impugned order did not qualify status of a well-reasoned order, being devoid of reasons, rational with the facts of the case---Pre-arrest bail granted to the accused was recalled, in circumstances. Mst. Asia Qaseem and others v. Alamzaib and another 2021 SCMR 302 ref.

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

----S. 497(5)---Bail, cancellation of---Scope---Bail granting order having patent illegality, either erroneous or factually incorrect can be interfered with particularly when the same is in defiance of the material available on the record.

Abdul Majeed Afridi v. The State and Abdul Latif Afridi, Criminal Petition No. 632 of 2021; Samiullah and another v. Laiq Zada and another 2020 SCMR 1115; Criminal Petitions Nos. 1459/2020, 1523/2020, 970 to 976/2021 and Criminal Petition No. 1145-L of 2020 and Maqbool Ahmed Mahessar and others v. National Accountability Bureau through its Chairman and others 2021 SCMR 1166 rel.

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

----S. 498---Pre-arrest bail---Scope---Relief of pre-arrest bail is meant to protect an accused from false accusation, malice and mala fide and humiliation of arrest---Such cannot be invoked in every criminal case where prima facie some tangible evidence regarding commission of an offence is available on record---Purpose behind the arrest is to thresh out the evidence which the alleged accused is holding---Remedy of pre-arrest bail is certainly not a substitute for post-arrest bail.

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

----S. 497---Bail---Scope---Exhaustive reasoning is not required to be given while deciding bail matter as only tentative assessment is to be made but it does not mean that the decision so made is based on just few lines---Such type of dispensation, in no way, can be termed justified, well reasoned and in accordance with the principles of natural justice.

Abid Hussain v. Tassawar Hussain and another 2021

SCMR 518 ref.

Syed Ali Raza Kazmi for Petitioner/Complainant.

Ajmal Raza Bhatti for Respondent No. 1/Accused.

2022 P Cr. L J 1511

[Islamabad]

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

Syed MOHSIN ALI and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 122, 123 and 125 of 2020, decided on 9th March, 2022.

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

----Ss. 302, 120-B, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S. 188---Qatl-i-amd, criminal conspiracy, abetment, common intention, act of terrorism---Appreciation of evidence---Jurisdiction of the court---Scope---Accused were charged for committing murder of the deceased in UK with the help of co-accused---Murder of the deceased was committed in London (United Kingdom)---Offence took place outside Pakistan and all the accused persons were citizens of Pakistan---Section 188 of Cr.P.C. provided that the courts in Pakistan had the jurisdiction to try the accused for offence and punish accordingly with the proviso that such accused person shall have the protection of double jeopardy and permission of the Federal Government shall be obtained before proceeding with the inquiry---In view of the said provision of law the Trial Court had the jurisdiction to deal with the matter and decide the same provided there was sanction of the Federal Government---Interpretation rendered to S. 188, Cr.P.C., in respect of obtaining sanction of Federal Government had been held to be a mere procedural requirement and violation thereof to be of no consequence---Circumstances established that the prosecution had proved its case beyond reasonable doubt---Appeal was dismissed accordingly.

PLD 2009 SC 11; PLD 1978 SC 21; PLD 2020 SC 61; Shahid Azeem v. The State 2018 PCr.LJ 1653; Tariq Hussain Shah v. The State 2003 SCMR 938; Majeed v. The State 2010 SCMR 55; Joygun Bibi v. The State PLD 1960 SC 313; Manjeet Singh v. The State PLD 2006 SC 30; Muhammad Amin v. The State PLD 2006 SC 219; Ghulam Nabi v. The State 2007 SCMR 808; Dadulla v. The Sate 2015 SCMR 856; Alamgir Khalid Chughtai v. The State PLD 2009 Lah. 254; Umair Ashraf v. The State 2008 MLD 1442; Saifal v. The State 2013 PCr.LJ 1082; Abdul Hameed v. Boo Ali Shah Zaidi 1999 MLD 2989; Arif Hashwani v. Sadruddin Hashwani PLD 2007 Kar. 448; Asfand Yar v. Kamran 2016 SCMR 2084; Muhammad Latif v. The State PLD 2008 SC 503; Scheraz Tufail v. The State 2007 SCMR 518; Mst. Farida Bano v. Karachi Electric Supply Corporation 2008 MLD 62; Haji Muhammad Ameen v. Messrs Frontier Ceramics Ltd. Peshawar PLD 2005 Pesh. 69; Abu Bakar v. The State 1989 PCr.LJ 369; Abdul Qadir Shah v. Muhammad Qasim PLD 2014 Bal. 28; Muhammad Majid v. Gul Muhammad 2012 PCr.LJ 1572; Abdul Rauf Butt v. The State through SHO Police Station Margallah Islamabad 2004 YLR 3012 and Shahbaz-ud-Din Chaudhry v. SHO Police Station Garden Town, Lahore PLJ 1999 Lahore 801 ref.

Shahbaz-ud-Din Chaudary v. Station House Officer Police Station Garden Town PLJ 1999 Lah. 801 and Abdul Rauf Butt v. The State 2004 YLR 3012 rel.

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

----Ss. 302, 120-B, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, criminal conspiracy, abetment, common intention, act of terrorism---Appreciation of evidence---Confession, retraction of---Scope---Accused were charged for committing murder of the deceased in UK with the help of co-accused---Accused persons recorded their confessional statements before the Judicial Magistrate, but retracted during trial---However, in the confessional statements both the accused gave meticulous accounts of the fact---One of the accused who had been convicted of aiding and abetting the principal offenders narrated in great deal how he arranged departure of principal accused to UK to fulfil the design of murder of the deceased---Likewise, other accused also stated in elaborated length the details of the fact that he and his co-accused carried out the murder of the deceased and the facts prior and subsequent thereto---Confessional statements made by the accused persons could not be discarded completely and still carried evidentiary value---Circumstances established that the prosecution had been able to prove its case beyond reasonable doubt---Appeal was dismissed accordingly.

Tariq Hussain v. The State 2003 SCMR 938; Joygun Bibi v. The State PLD 1960 SC 313; Manjeet Singh v. The State PLD 2006 SC 30; Muhammad Amin v. The State PLD 2006 SC 219; Shahid Azeem v. The State 2018 PCr.LJ 1653; Majeed v. The State 2010 SCMR 55; Muhammad Ismail v. The State 2017 SCMR 898; Nasir Javed v. The State 2016 SCMR 1144 and Mir Zaman v. The State 2012 SCMR 580 rel.

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

----Ss. 302, 120-B, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, criminal conspiracy, abetment, common intention, act of terrorism---Appreciation of evidence---Motive proved---Scope---Accused were charged for committing murder of the deceased in UK with the help of co-accused---Motive set by the prosecution was that there was, within the party, a sentiment that the deceased was a threat to the top leadership, hence ought to be eliminated---In that behalf, the notes from the diary of the deceased were produced and its translation was tendered in evidence---Statement of the concerned officer in UK Police Force was recorded and he affirmed that he was given the role of searching of the residence of the deceased and seized number of items in order to implement the motive---Conspiracy was hatched to murder the deceased and departure of accused persons was arranged---Number of people facilitated the travel of said persons to UK, which included present accused persons---In that behalf, admissions of the principal perpetrators in the educational institutions were procured as well as experience certificates and tickets were arranged---Requisite documents were tendered in evidence---Circumstances established that the prosecution had been able to prove its case beyond reasonable doubt---Appeal was dismissed accordingly.

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

----Ss. 302, 120-B, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, criminal conspiracy, abetment, common intention, act of terrorism---Appreciation of evidence---Recovery of incriminating material---Scope---Accused were charged for committing murder of the deceased in UK with the help of co-accused---Landing card of principal accused was produced by the witness and tendered in evidence plus mobile record---Said witness also produced compact disc containing CCTV compilation of crime scene---Said witness produced statement of a person pertaining to four kitchen knives---Brick, with which, the deceased was initially stuck, was exhibited---Site plan or sketches of crime scene were tendered in evidence---Finger print identification/ notification and the samples pertaining to principal accused were tendered in evidence---Autopsy report of Doctor prepared by hospital was exhibited as well as microscopy report was exhibited---Statement of Doctor, who conducted post-mortem of deceased, was exhibited---Travel record of the accused persons was tendered in evidence---Circumstances established that the prosecution had been able to prove its case beyond reasonable doubt---Appeal was dismissed accordingly.

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

----Ss. 302, 120-B, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, criminal conspiracy, abetment, common intention, act of terrorism---Appreciation of evidence---Ocular account---Scope---Accused were charged for committing murder of the deceased in UK with the help of co-accused---Ocular account of the occurrence had been furnished by three eye-witnesses---One of the witnesses stated that she had seen the occurrence from her front door, whereupon made a call to the police authorities---Said witness described the assailant as Asian with thick black hair and stated that occurrence took place in one to two minutes---Other witness stated that she went to kitchen to give dinner to her children , when she had seen her neighbour bringing his bin bag and then heard him shouting Oy---Said witness claimed that she heard noises outside the door and seen her neighbour lying with blood outside her house and brick was lying next to him---Said witness also described the incident---Other witness stated that he saw one man hitting the deceased with brick and saw the incident from distance of 20-30 meters---Investigating Officer submitted that he visited various stores nearby the murder scene and found identical knives in 99-P stores and purchased the similar one as was recovered from near the scene of crime---Circumstances established that the prosecution had been able to prove its case beyond reasonable doubt---Appeal was dismissed accordingly.

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

----Ss. 302, 120-B, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, criminal conspiracy, abetment, common intention, act of terrorism---Appreciation of evidence---Delay in lodging FIR---Scope---Accused were charged for committing murder of the deceased in UK with the help of co-accused---Undoubtedly, FIR was lodged at a belated stage in Pakistan---Under S. 188, Cr.P.C., the courts in Pakistan had the jurisdiction to try the offence, as killing of Pakistani citizen took place in United Kingdom, the matter was promptly registered there and police authorities, in the said country, carried out total investigation in the matter and according to them as well, accused persons were the culprits along with others---Law of limitation had no applicability in criminal cases as such, even belated FIR could form basis for conviction, it was only that same was treated with care as there might be element of concoction---In the instant case, even that suspicion was not required, the matter was promptly intimated to the police authorities in London who reached the site and did the needful as per their practice and procedure as well as the law---Registration of FIR in Pakistan, at a belated stage, was inconsequential---Circumstances established that the prosecution had been able to prove its case beyond reasonable doubt---Appeal was dismissed accordingly.

Mehr Muhammad Bukhsh, Arif Khan and Zeeshan Riaz Cheema for Appellants.

Kh. Imtiaz Ahmed, Deputy Attorney General and Imran Farooq, Assistant Attorney General for the State.

2022 P Cr. L J 1587

[Islamabad]

Before Arbab Muhammad Tahir, J

ABID REHMAN---Petitioner

Versus

FAROOQ UMAR BHOJA and others---Respondents

Criminal Revision No. 8 of 2020, decided on 20th May, 2022.

Penal Code (XLV of 1860)---

----Ss. 302 & 321---Criminal Procedure Code (V of 1898), S. 190---Qatl-i-amd and Qatl-bis-Sabab---Forum of trial---Determination---Investigating officer submitted his report under S. 173 Cr.P.C. before Area Magistrate who in exercise of his jurisdiction under S. 190, Cr.P.C. forwarded the case to Sessions Judge for trial---Sessions Judge before framing of charge concluded that it was a case under S. 321, P.P.C. and not one under S. 302 P.P.C. and sent the case to Magistrate under S. 30 Cr.P.C. for trial---Complainant was aggrieved of order passed by Sessions Judge converting trial under S. 302, P.P.C. to trial under S. 321, P.P.C.---Validity---No reasons were given to form opinion with regard to application of S. 321, P.P.C. instead of S. 302, P.P.C., inserted by prosecution in report under S. 173, Cr.P.C.---No mention in record as to how findings of Judicial Commission, report under S. 173, Cr.P.C. or for that matter statements of witnesses and other documents led to draw opinion by Sessions Judge with regard to application of S. 321, P.P.C. instead of S. 302, P.P.C.---High Court set aside order passed by Sessions Judge, as the same was short of reasons essential to justify opinion---High Court remanded the matter to Sessions Court to decide the issue afresh---Revision was allowed in circumstances.

1985 SCMR 1314; 1981 SCMR 267; 2007 MLD 935; 2002 YLR 234 and 2001 YLR 269 ref.

Ch. Abdul Kabeer v. Mian Abdul Wahid and others 1968 SCMR 464; Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173; Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others 1986 SCMR 1736; M.D. Civic Centre Hyderabad v. Abdul Majeed and others PLD 2002 SC 84; Government of Sindh through Land Acquisition Officer and others v. Muhammad Juman and another 2009 SCMR 1407; Iqbal Ahmad v. The State 2013 SCMR 271; The State through Mehmood Ahmad Butt v. Sharaf ud Din Sheikh and another 2013 SCMR 565; Messrs MFMY Industries Limited and others v. Federation of Pakistan through Ministry of Commerce and others 2015 SCMR 1550 and Muzaffar Ali and 5 others v. The Collector Land Acquisition, Mirpur and 16 others 2020 YLR 451 rel.

Omer Farouk Adam, Advocate Supreme Court for Petitioner.

Adil Aziz Qazi and Syed Wasif Hussain Kazmi for Respondent No.1.

Sajid-ur-Rehman Mashwani for Respondents Nos. 2 and 3.

Babar Mumtaz for Respondents Nos. 4, 5, 6, 8, 10 and 12.

Nabeel Javed Kahloon for Respondent No. 7.

Sohail Khursheed, State Counsel with Fakhar Abbas, SI.

2022 P Cr. L J 1636

[Islamabad]

Before Saman Rafat Imtiaz, J

MUHAMMAD TANVEER AHMAD---Petitioner

Versus

EX-OFFICIO JUSTICE OF PEACE/ ADDITIONAL SESSIONS JUDGE-III, ISLAMABAD-EAST and 3 others---Respondents

Writ Petition No. 440 of 2022, decided on 7th April, 2022.

Penal Code (XLV of 1860)---

----S. 378---Criminal Procedure Code (V of 1898), Ss. 22-A & 22-B---Theft of movable property--- Proof--- Petitioner/complainant was aggrieved of dismissal of his complainant by Ex-officio Justice of Peace---Validity---Movable property was to have been taken out of possession of a person without such person's consent---Movable property alleged to have been taken by proposed accused was admittedly in the house belonging to such accused---Property was in her possession and could not be described as having benefit of doubt taken from the possession of petitioner/complainant---One of the elements of S. 378 of P.P.C. was that intended taking was dishonest---Removal of property on a bona fide claim of right did not constitute theft---House hold items and car were brought by petitioner/complainant for proposed accused--- Proposed accused had bona fide claim of right on the property, removal of which did not constitute theft---Allegation that proposed accused committed theft of movable property to which she had a bona fide claim of right belonging to her did not spell out any cognizance offence---High Court declined to interfere in order passed by Ex-officio Justice of Peace---Constitutional petition was dismissed, in circumstances.

PLD 2016 SC 581 and PLD 2007 SC 539 ref.

Abdul Aziz Sattar alias Abdul Aziz Abdul Sattar v. Khaja M. Ashraf and another PLD 1965 Dhaka 315 rel.

Malik Irfan Asif for Petitioner.

Hazrat Younas, State Counsel and Tanveer Hussain, A.S.I. for Respondents.

2022 P Cr. L J 1665

[Islamabad]

Before Tariq Mehmood Jahangiri, J

KHURRAM IFTIKHAR and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Interior Division, Islamabad and others---Respondents

Writ Petitions Nos. 80, 1946, 180, 603 and 1048 of 2016, decided on 16th June, 2021.

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

----Ss. 173 & 265-K--- Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of proceedings---Challan filed in Court---Effect---When challan/report under S. 173 Cr.P.C. is submitted in Trial Court, then petitioner has alternate remedy to file petition under S. 265-K, Cr.P.C. for his acquittal.

Director-General, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others PLD 2013 SC 401; Mst. Kaniz Fatima v. Muhammad Salim 2001 SCMR 1493 and Rana Aftab Ahmad Khan v. Muhammad Ajmal and another PLD 2010 SC 1066 rel.

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

----Ss. 409, 109 & 34---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal Procedure Code (V of 1898), S. 177---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of FIR---Territorial jurisdiction of trial and inquiry---Petitioners were accused of causing loss to national exchequer by sale of shares of their company at place "K"---Jurisdiction of High Court at place "I" was invoked but subsequently High Court at place "K" quashed proceeding against co-accused persons---Validity---Jurisdiction in the matter had already been assumed by High Court at place "K", therefore, High Court at place "I" lacked jurisdiction to entertain the matter for the reason: that impugned transaction of sale and purchase of shares was made at place "K"; that initial offer of purchase of shares was made at place "K"; that sale price of shares was made at place "K"; that seller company was listed at Karachi Stock Exchange; that petitioner's companies were registered and incorporated at "K"; that whole transaction was complete at place "K" and no part of it was accomplished at place "I"; that inquiry was directed by Director Federal Investigation Agency at place "K" without any intervention of Head Office; that FIR was lodged at place "K" and all relevant evidence was there; that illegal acts were committed at place "K" and dominant cause had accrued there; that there was no allegation against Securities and Exchange Commission of Pakistan nor any relief was claimed against it; that nothing was urged against any functionary at place "I"; and that agitating grievance of filing petition at place "I" was without any cause---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

PLD 2020 Sindh 601; 2017 SCMR 1218; 2004 SCMR 1397; PLD 1959 SC 322; 2013 SCMR 338; 2014 SCMR 1376; 2016 SCMR 2084; PLD 2020 SC 282; PLD 2020 SC 427; PLD 2019 SC 250; PLD 2016 SC 55; PLD 1997 Lah. 385; 1996 SCMR 186; PLD 2008 SC 735; 2009 CLD 1498; 1996 CLC 539; 2012 PTD 1869; 1999 PCr.LJ 1584; 2011 YLR 337; 2020 PCr.LJ 1307; 2018 SCMR 802; 2017 PCr.LJ 1540; 2016 PCr.LJ 1056; 2016 PCr.LJ 693; PLD 2001 Pesh. 7; PLD 1997 Lah. 643; 1996 CLC 539; PLD 1975 SC 244 and Ahmed and 25 others v. Ghama and 5 others 2005 SCMR 119 ref.

Sandalbar Enterprises Ltd. v. Central Board of Revenue PLD 1997 SC 334; Muhammad Mansha v. Station House Officer, Police Station City, Chiniot, District Jhang and others PLD 2006 SC 598; Nasir Ali v. Munshi Mehar Khan PLD 1981 SC 607; Dr. Sher Afghan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813; Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276; Ahmed Saeed v. The State and another 1996 SCMR 186; Ajmeel Khan v. Abdur Rahim PLD 2009 SC 102; Dr. Ghulam Mustafa v. The State and others 2008 SCMR 76; Ghulam Muhammad v. Muzammal Khan and 5 others PLD 1967 SC 317 and Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192 rel.

Munawar Us Salam, Salman Aslam Butt, Akram Shaheen, Hasnain Haider Kazmi, Ali Hussain Bhatti and Anique Salman Malik for Petitioners.

Barrister Minaal Tariq, Syed Hamid Ali Shah, Khurram Mahmood Qureshi and Akhlaq Ahmed Bhatti for Respondents.

Saqlain Haider and Syed Nazar Hussain, Assistant Attorneys General, Qaiser Masood, Additional Director Law, F.I.A, H.Q., Islamabad and Siraj Panhwar, Assistant Director/I.O., Sindh Zone, Karachi.

Abdul Rehman, Assistant Director Legal, EOBI.

2022 P Cr. L J 1739

[Islamabad]

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

SAMI ULLAH---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 65 of 2019, decided on 29th April, 2021.

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

----Ss. 84, 302 & 338-C---Criminal Procedure Code (V of 1898), Ss. 464 & 465---Qatl-i-amd, isqat-i-janin---Appreciation of evidence---Unsoundness of mind, proof of---Accused was charged for committing murder of his wife/sister of the complainant, while she had a developed fetus in her womb---When the charge was read, the accused had pleaded guilty by taking the plea that because of unsoundness of mind, he did not know what he was doing---Application was filed under Ss. 464 & 465, Cr.P.C. read with S. 84 of P.P.C. on behalf of the accused, assessing that the accused was of unsound mind---Medical Board was constituted and pursuant thereto, the accused was examined---Medical Board included the Senior Professor and head of the Psychiatry Department, after examining the accused, recorded its opinion to the effect that the accused had a history of psychosis which was most likely drug induced and for which he had been treated---Board was of the opinion that at the time of his examination the accused was found to be mentally fit to stand trial---Accused was also examined on numerous occasions by visiting psychiatrists and medical practitioners in the prison where he remained incarcerated during the trial---At no stage the Medical Experts reported signs of unsoundness of mind or any other mental disease rendering the accused incapable of making his defence during the trial---Circumstances established that the prosecution had proved its case beyond a reasonable doubt---Appeal was dismissed accordingly.

Abdul Wahid alias Wahdi v. The State 1994 SCMR 1517; Sirajuddin v. Afzal Khan and another PLD 1997 SC 847; Fauqual Bashir v. The State 1997 SCMR 239; Nasir Mehmood v. The State 2017 PCr.LJ 255; Inayatullah v. The State 2005 PCr.LJ 33; Naseebullah v. Special Judge, Anti-Terrorism Court-II, Quetta and another PLD 2017 Bal. 37; Abdul Majeed v. The State 2011 SCMR 941; Nasrullah alias Nasro v. The State 2017 SCMR 724; Muhammad Uzair Jamal v. The State and another 2002 SCMR 1862; Iftikhar Ahmad v. The State 2005 SCMR 272; Muhammad Taj and another v. The State 1980 SCMR 348; Abdul Haque v. The State and another PLD 1996 SC 1; Said Rasool v. Muhammad Fazil and another 1990 PCr.LJ 210; Abdul Hamid v. The State PLD 1962 Quetta 111 and Ata Muhammad v. The State PLD 1960 Lah. 111 ref.

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

----Ss. 84, 302 & 338-C---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, isqat-i-janin---Appreciation of evidence---Defence plea as unsoundness of mind---Accused was charged for committing murder of his wife/sister of the complainant, while she had a developed fetus in her womb---In his statement, recorded under S. 342, Cr.P.C., the accused had reiterated the plea of suffering from hallucinations and that he had also remained admitted in a medical facility for treatment---Accused stated that he had gone to sleep and when he woke up he found that he had killed the deceased in a state of unsoundness of mind---Despite taking the specific defence of insanity under S. 84, P.P.C., the accused could not produce cogent and reliable evidence to prove cognitive impairment at the time of the commission of the offence---In order to discharge the onus, the brother of the accused entered the witness box, besides contradicting the plea taken by him, he was of no help in establishing the factum of unsoundness of mind at the time of the commission of the offence---Testimony of said witness confirmed the existence of marital disputes---Defence witness had deposed that the accused was engaged in business and was financially supporting his family---Nothing was on record to even remotely suggest that during the trial the accused might have suffered from mental disease or cognitive impairment, rendering him incapable to put up a defence---Circumstances established that the prosecution had proved its case beyond a reasonable doubt---Appeal was dismissed accordingly.

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

----Ss. 84, 302 & 338-C---Qatl-i-amd, isqat-i-janin---Appreciation of evidence--- Admission of accused about committing the offence---Scope---Accused was charged for committing murder of his wife/sister of the complainant, while she had developed a fetus in her womb---Record showed that accused had taken the life of his wife as well as destroyed a fully grown fetus in her womb in the most painful, gruesome and inhumane manner---Multiple stabbing of the deceased had taken place while four minor children were present at the crime scene---As per record it was a cold blooded murder because it was deliberate, cruel and savage---Accused admitted killing the deceased but absolutely failed in discharging the burden of proving the plea of insanity---Prosecution had brought on record cogent and reliable evidence to corroborate the admission made by the accused and what the accused did was evil and thus he did not deserve any leniency---Circumstances established that the prosecution had proved its case beyond a reasonable doubt---Appeal was dismissed accordingly.

Raja Rizwan Abbasi for Appellant.

Ansar Mehmood Kiani for the Complainant.

Majid Rashid Khan, State Counsel.

2022 P Cr. L J 1806

[Islamabad]

Before Arbab Muhammad Tahir, J

RUKHSANA BIBI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 198-B of 2022, decided on 21st April, 2022.

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

----S. 498---Pre-arrest bail---Scope---Pre-arrest bail is an extraordinary remedy to be extended by diverting usual course of law for the purpose of protecting reputation and honour of an innocent citizen, being hounded through abuse of process of law for purposes sinister and oblique---Protection is based upon equity and cannot be extended in every criminal case, prima face, founded upon incriminatory evidence, warranting custody for investigation purposes.

Maqbool Ahmad Mahessar and others v. National Accountability Bureau (NAB) through Chairman and others 2021 SCMR 1166 rel.

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

----S. 498---Penal Code (XLV of 1860), Ss. 302, 109 & 34---Pre-arrest bail, grant of---Scope---Prosecution case was that the accused committed murder of the brother of complainant---Record revealed that the accused-petitioner was an accused of hatching conspiracy for committing murder of the deceased---First Information Report as well as the statements recorded under S. 161 Cr.P.C. were short of details of such conspiracy/abetment as to its time and place besides names of the persons who heard about such conspiracy---Prosecution case was not that the accused-petitioner had even remote role in the commission of the alleged offence---Stance of the prosecution that accused-petitioner had been in contact with her husband and son at the relevant time could not be termed to be an incriminating circumstance as it would not lend support that she was planning any conspiracy through the said conversations, until and unless the same was surfaced---Transcript of the conversation inter se co-accused, son and husband of the accused-petitioner did not reveal anything about the details of the conspiracy---Accusation, or for that matter doubt, how firm it might be, in the estimation of the Court could not be termed or even looked into as an incriminating material, on the basis of which any legitimate inference with regard to the involvement of the accused-petitioner in the commission of the alleged offence could be drawn---Disclosure of the co-accused before the police during the course of investigation without mentioning details of the occurrence and non-collection of any evidence pursuant to the said disclosure could not be equated with legitimate incriminating material, particularly, when the stated motive based on earlier criminal litigation was culminated into compromise between the parties and the investigation verified that it had no connection with the commission of the present occurrence---Having examined the case, on tentative assessment of the material placed on record, it was concluded that accused-petitioner had succeeded to make out a case for exercise of extra ordinary discretion of pre-arrest bail---Criminal miscellaneous was allowed and ad-interim pre-arrest bail already granted to the accused-petitioner was confirmed, in circumstances.

PLD 2021 SC 708; 2014 PCr.LJ 237; 2011 PCr.LJ 72; 2007 PCr.LJ 752 and 1999 SCMR 1316 ref.

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

----Ss. 497 & 498---Bail---Tentative assessment---Scope---Observations made in the bail order were tentative in nature and the same would not prejudice the case of either party during the trial.

Petitioner on ad-interim bail with Taimoor Aslam Khan for the Petitioner.

Ghulam Farooq Awan for Respondent.

2022 P Cr. L J 1838

[Islamabad]

Before Aamer Farooq, J

MUHAMMAD IMRAN---Petitioner

Versus

ASSISTANT DIRECTOR, RECLAMATION AND PROCLAMATION, ICT, ISLAMABAD and 3 others---Respondents

W.P. No. 2131 of 2022, decided on 24th August, 2022.

(a) Good Conduct Prisoners' Probational Release Act (X of 1926)---

----S. 2---Power of Government to release by license on conditions imposed by it---Scope---Petitioner was convicted under S. 302, P.P.C.---Superintendent, Central Jail recommended his case for release on parole under Good Conduct Prisoners' Probational Release Act, 1926---Deputy Commissioner rejected the proposal for release on parole vide impugned order---Validity---Nothing was taken into account and no reason was mentioned by the Deputy Commissioner in turning down the request/recommendation for release of petitioner on parole---Nothing adverse was available on record against the petitioner, which led the Deputy Commissioner to exercise discretion against him---Authorities had to satisfy on the basis of rolls of register in the jail and upon inquiry made from the competent authority/Superintendent Central Jail that petitioner shall abstain from further committing the offence and would be beneficial to the society---Impugned order was set aside and the matter of release of petitioner on parole shall be deemed to be pending and decided in accordance with law.

(b) Good Conduct Prisoners' Probational Release Act (X of 1926)---

----Ss. 2, 3, 4 & 6---Power of Government to release prisoner by license on conditions imposed by it---Period for which license is to be in force---Period of release to be reckoned as imprisonment for computing period of sentence served---Power to revoke license---Scope---It is the prerogative/discretion of the Government to approve or reject the request of parole but such discretion has to be exercised in a reasonable or structured manner; no law permits absolute exercise of discretion---Parameters for exercise of discretion have been provided under S. 2 of the Good Conduct Prisoners' Probational Release Act, 1926---Section 2 of the Good Conduct Prisoners' Probational Release Act, 1926, empowers the Government where a person is confined in prison under a sentence of imprisonment and it appears to the Provincial Government from his antecedents or his conduct in the prison that he is likely to abstain from crime and lead useful and industrious life, he may be released from prison by granting license spelling out terms and conditions regarding the supervision or authority of a servant of the state or other person who is willing to take charge of him---Under S. 3, the license has to operate and remain enforced under the date on which the person released would, in the execution of the order of warrant authorizing his imprisonment, has been discharged from prison had he not been released on license, or until the license is revoked, whichever is sooner---Under S. 4 of the Good Conduct Prisoners' Probational Release Act, 1926, the period, during which a person is absent from prison but has been released on license, shall be reckoned as the period, for which, he was imprisoned and serving sentence---License shall be in such form as prescribed by the Provincial Government, however, under S. 6, license may be revoked by the concerned/competent authority.

(c) Good Conduct Prisoners' Probational Release Act (X of 1926)---

----S. 8---Good Conduct Prisoners' Probational Release Rules, 1927, Rr. 7, 8 & 9---Final release of prisoner on parole---Revocation of license---Classes of offenders eligible for conditional release---Scope---Section 8 of the Good Conduct Prisoners' Probational Release Act, 1926 empowers the Provincial Government to make rules, which accordingly, were framed as Good Conduct Prisoners' Probational Release Rules, 1927; in this behalf, R. 7 prescribes the procedure or the cases of prisoners who are eligible for release on parole under R. 9---Ways, under which, the matter shall be taken up for parole, are on the application of the prisoner, on the application of the relatives or friends of the prisoner, on the recommendation of the Superintendent of the Jail and by Assistant Director on his visit to jails---Rule 8 empowers the Superintendent of Jail to prepare the rolls of the prisoners to be considered for release on parole and forward it to the Assistant Director---Rule 9 provides that the rolls received from the Superintendents of jails shall be examined in the office of the Assistant Director and enquiry letter shall be issued to the Superintendents on the basis thereof.

(d) Words and phrases---

----Parole---Meaning and concept explained.

Asad Javed v. Federation of Pakistan PLD 2022 Isl. 206 and Muhammad Nawaz and another v. The State 1987 SCMR 1399 rel.

Sajjad Haider Malik for Petitioner.

Zohaib Hassan Gondal, State Counsel.

2022 P Cr. L J 21

[Sindh (Hyderabad Bench)]

Before Rashida Asad, J

ALLAH BACHAYO---Applicant

Versus

STATION HOUSE OFFICER, POLICE STATION MATLI and others---Respondents

Criminal Miscellaneous Application No. S-564 of 2020, decided on 17th September, 2021.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B, 185 & 561-A---Inherent jurisdiction of High Court---Registration of criminal case---Territorial jurisdiction---Offence consisting of several acts--- Applicant/complainant was aggrieved of order passed by Ex-Officio Justice of Peace who partly allowed his application only to the extent of offence committed in his territorial jurisdiction and declined remaining part falling outside his territorial jurisdiction---Validity---Nothing prevented High Court to give appropriate direction or to make an order for registration of FIR at any of the two police stations where the alleged continued offence consisting of several acts was committed--- High Court directed Station House Officer to record statement of applicant/complainant under S. 154, Cr.P.C. including but not limited to the allegations in respect of continuing acts committed within the local areas of his police station and as well register FIR against all nominated/proposed accused in other district---High Court set aside the order passed by Ex-Officio Justice of Peace to the extent of offence falling outside his territorial jurisdiction---Constitutional petition was allowed accordingly.

PLD 2018 SC 595; PLD 1997 Kar 119; 2020 SCMR 1200 and 2019 MLD 1192 ref.

Manzoor Ahmed Panhwar for Applicant along with the Applicant in person.

Miss Safa Hisbani, A.P.G. for the State along with DSP Nandlal, Inspector Zafar Hussain (Focal Person Badin), Inspector Muhammad Ali Zaur, SIP Hadi Bux, SIP Irshad All Shahani, ASI Qadir Bux Sahito, HC Karim Bux Nizamani and ASI Bashir Ahmed of Police Station Tando Muhammad Khan.

Wazir Hussain Khoso for Respondent No 9.

2022 P Cr. L J 65

[Sindh]

Before Muhammad Iqbal Kalhoro and Shamsuddin Abbasi, JJ

ANWAR ALI---Appellant

Versus

The STATE through Chairman NAB and others---Respondents

Criminal Accountability Appeal No. 12 of 2020 and Constitutional Petition No. D-4978 of 2020, decided on 7th September, 2021.

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

----Ss. 9(a)(v) & 14(c)---Assets beyond known sources of income---Presumption---Onus to prove---Accused is always presumed to be innocent and onus of proving commission of offence and guilt of accused lies on prosecution---Exception has been provided under National Accountability Ordinance, 1999 to such rule and has been provided in S. 14(c) of National Accountability Ordinance, 1999---Notwithstanding presumption contained in S. 14(c) of National Accountability Ordinance, 1999, initial burden of proof always rests on prosecution---Burden to prove all ingredients of charge always 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---Prosecution is never absolved from proving charge beyond reasonable doubt and burden shifts to accused only when prosecution succeeds in establishing presumption of guilt.

Rehmat v. State PLD 1977 SC 515; Mansoorul-Haq v. Government of Pakistan PLD 2008 SC 166 and Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 rel.

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

----Ss. 9(a)(vi) & 14(c)---Misuse of authority and causing loss to government---Appreciation of evidence---Plea bargaining of co-accused---Effect---During trial two co-accused persons entered into plea bargain who admitted their guilt and returned illegal benefits derived by them---Accused was convicted by Trial Court for imprisonment for five years for committing misuse of authority and causing loss to government exchequer---Validity---Prosecution failed to establish any nexus of accused with co-accused persons inspite of the fact that they entered into plea bargain and settled their liabilities with National Accountability Bureau (NAB)-- It was duty of investigating officer to bring on record evidence showing connivance of accused with co-accused persons---Such kind of evidence was lacking, which had made case of prosecution doubtful---If accused as solely responsible for misappropriation in funds then two co-accused persons could not have entered into plea bargain who had deposited major part of misappropriated amount---No money trail or accumulation of assets beyond known sources of income was established against accused---High Court set aside conviction and sentence awarded to accused and acquitted him of the charge as prosecution failed to prove its case against accused beyond shadow of reasonable doubt--- Appeal was allowed in circumstances.

The State v Anwar Saifullah Khan PLD 2016 SC 276; M. Anwar Saifullah Khan v. State PLD 2002 Lah. 458; Muhammad Luqman v. State PLD 1970 SC 10; Shamoon v. State 1995 SCMR 1377; Wali Muhammad v. The State 1969 SCMR 612; Khushi Muhammad v. Muhammad Hanif 1980 SCMR 616; Ali Sher v. State PLD 1980 SC 317; Hakim Ali v. State 1971 SCMR 432; Rab Nawaz v. State PLD 1994 SC 858 and Ayub Masih's case PLD 2002 SC 1048 rel.

(c) Criminal trial---

----Evidence of investigating officer---Object, purpose and scope---Investigating officer is an important character who is under obligation to investigate the matter, honestly, fairly and justly, so as to bring on surface the truth---Bounden duty of investigating officer not only to build up case with such evidence enabling Court to record conviction by all means but also to dig out the truth to light to reach at a just and fair decision---Purpose of investigation is to collect all relevant evidence pertaining to allegation of crime and to dig out the truth enabling and facilitating the Court to administer justice and to bring real culprits to book.

Shahab Sarki along with Zulfiqar Ali Langah, Abdul Rashid Rajar, Jawaid Panhwar and Ghulam Mujtaba Sahito for Appellant/ Petitioner (in Criminal Accountability Appeal No. 12 and Constitutional Petition No.D-4978 of 2020).

R.D. Kalhoro, Special Prosecutor NAB (in Criminal Accountability Appeal No. 12 and Constitutional Petition No.D-4978 of 2020).

2022 P Cr. L J 121

[Sindh (Sukkur Bench)]

Before Omar Sial and Abdul Mobeen Lakho, JJ

MUNEER AHMED alias MEER AHMED and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. S-38 of 2021, decided on 2nd July, 2021.

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

----S. 34---Common intention---Appreciation of evidence---Common intention to launch murderous assault not established---Effect---Admittedly it was only the main co-accused, who had an axe to grind with the complainant on account of his ex-wife having married the complainant---Furthermore it was also an admitted position that it was the main co-accused who fired upon the complainant and that the role of the accused and another co-accused was restricted to having allegedly accompanied the main co-accused and resorting to aerial firing while leaving the premises---No other role had been attributed to the accused and co-accused in the entire episode---In order to hold the accused and co-accused to be vicariously responsible for the act of main co-accused, it was necessary to show that the former two shared a common intention with the latter---Apart from an assertion that the accused and co-accused had accompanied the main co-accused to the place of occurrence there was no evidence produced at trial to show that the all three had come with a pre-arranged plan to murder or injure the complainant---Accused and co-accused were armed too and there was nothing stopping them from also shooting at the complainant, but they did not---Though they might have shared dislike for the complainant, but it was not proved or any evidence shown which would even prima facie show that the accused and co-accused shared a common intention with the main co-accused---Allegation of aerial firing while leaving the premises levelled against accused and co-accused was also doubtful in view of the fact that the police found only one empty from the place of incident---Investigation Officer admitted at trial that the parcel in which even that one empty cartridge was sealed was not signed by the witnesses to the recovery, which further cast doubt on the allegation---No recovery was effected from the accused and co-accused after their arrest though they were said to be armed with pistols---In such circumstances benefit of doubt should have gone to the accused and co-accused---Appeal was allowed, conviction and sentence awarded to accused and co-accused were set-aside and they were acquitted of the charge.

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

----S. 34---Common intention---Scope---Mere presence of an accused at the place of incident with co-accused who committed the offence may not be sufficient to visit the former with the vicarious liability, but there should be some circumstance manifesting a common intention---Generally, common intention inter alia, precedes by some or all of the following elements, namely, common motive, pre-planned preparation and concert pursuant to such plan---However, common intention may develop even at the spur of moment or during the commission of offence---Conversely common intention may undergo change during the commission of offence.

Mohammad Akbar v. The State PLD 1991 SC 923 ref.

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

----S. 34---Common intention---Scope---Common intention presupposed prior concert; it required a pre-arranged plan because before a man could be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all---Inference of common intention should never be reached unless it was a necessary inference deducible from the circumstances of the case---All that was necessary was either to have direct proof of prior concert, or proof of circumstances which necessarily led to that inference or the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis.

Mohammad Yaqoob, Sub-Inspector v. The State PLD 2001 SC 378 ref.

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

----S. 34---Common intention, conviction for---Pre-requisites for convicting an accused under S. 34, P.P.C. stated.

Following are the pre-requisites for convicting an accused under section 34, P.P.C :

(i) It must be proved that criminal act was done by various persons;

(ii) The completion of criminal act must be in furtherance of common intention as they all intended to do so;

(iii) There must be a pre-arranged plan and criminal act should have been done in concert pursuant whereof;

(iv) Existence of strong circumstances (for which no yardstick could be fixed and each case would have to be discussed on its own merits) to show common intention; and

(v) The real and substantial distinction between 'common intention' and 'similar intention' should be kept in view. [p. 125] D

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

Shahid Ali K. Memon for Appellants.

Aftab Ahmed Shar, Additional P.G. for the State.

2022 P Cr. L J 143

[Sindh (Sukkur Bench)]

Before Zulfiqar Ali Sangi, J

MUHAMMAD EIDAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-566 of 2021, decided on 15th October, 2021.

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

----S. 497(2)---Sindh Prohibition of Preparation, Manufacturing, Storage, Sale and Use of Gutka and Manpuri Act, 2019 (III of 2020), Ss. 4 & 8---Penal Code (XLV of 1860), Ss. 269, 270 & 273---Possession of Gutka---Bail, grant of---Further inquiry---Record reflected that alleged recovery was affected from a populated area but no private person was associate as witness in the proceedings nor the complainant tried---All the witnesses were police officials, therefore, there was no apprehension of tempering the evidence---Investigation of case was complete and the challan had been filed before the court having jurisdiction, therefore, the custody of accused was not required for further investigation---Sections 269, 270 & 273, P.P.C. were bailable and for the violation of S. 4 of the Sindh Prohibition of Preparation, Manufacturing, Storage, Sale and Use of Gutka and Manpuri Act, 2019, punishment of up to 03 years but not less than 01 year was provided---Even taking into account the maximum punishment of 3 years, said provision did not fall within the prohibitory clause of S. 497, Cr.P.C.---Accused having made out a case for further inquiry into his guilt, was granted bail in circumstances.

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

----S. 497---Bail---Principle---While deciding the question of bail lesser sentence provided for the offence was to be considered.

Shahmoro's case 2006 YLR 3167 ref.

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

----S. 497---Bail---Scope---Offence not falling within the prohibitory clause of S. 497, Cr.P.C.---Grant of bail in such cases was a right (of an accused) and refusal thereof an exception.

Tarique Bashir v. State PLD 199 SC 34; Zafar Iqbal v. Muhammad Anwar 2009 SCMR 1488;, Muhammad Tanveer v. State PLD 2017 SC 733 and Shaikh Abdul Raheem v. The State and others 2021 SCMR 822 ref.

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

----S. 497---Bail, right of---Grounds for refusing bail---Grounds for a case to fall within the exception meriting denial of bail was where there was likelihood of the accused's abscondence to escape trial; or his tampering with the prosecution evidence or influencing the prosecution witnesses to obstruct the course of justice; orhis repeating the offence keeping in view his previous criminal record or the desperate manner in which he had prima facie acted in the commission of offence alleged---Prosecution had to show if the case of the accused fell within any of the said exception on the basis of the material available on the record.

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

----S. 497--- Bail--- Appreciation of evidence--- Scope--- Deeper appreciation of the evidence was not permissible while deciding a bail application, and the same was to be decided tentatively on the basis of material available on the record.

Shahid Ali K. Memon for Applicant.

Khalil Ahmed Maitlo, D.P.G. for the State.

2022 P Cr. L J 159

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Mrs. Kausar Sultana Hussain, JJ

Molvi GHULAM MURTAZA and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. D-22, D-24 and D-25 of 2018, decided on 28th April, 2021.

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

----Ss. 302(b), 376 & 511---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, rape, attempting to commit offences punishable with imprisonment for life or for a shorter term---Appreciation of evidence---Examination of accused---Scope---Accused were said to have committed forcible rape with daughter of complainant in a mosque where she used to go for Quranic education---Subsequently, the victim died---Record showed that main piece of evidence, as deposed by mother of deceased and relied upon by the Trial Court for conviction had not been put to accused while examining them under S. 342, Cr.P.C.---Trial Court had recorded the statements of accused under S. 342, Cr.P.C. in a very casual manner and committed illegalities, which were not curable under the law---Appeal was allowed by setting aside the impugned judgment and case was remanded to the Trial Court with the direction to record the statements of all the accused under S. 342, Cr.P.C. afresh by putting all incriminating pieces of prosecution evidence so brought against them.

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

----S. 342---Examination of accused---Scope---Piece of evidence produced by the prosecution against an accused, if not put to accused while examining him/her under S. 342, Cr.P.C. could not be used against the said accused---Rationale beyond was that the accused must know and respond to the evidence brought against him/her by the prosecution---Accused must have firsthand knowledge of all the aspects of the prosecution case being brought against him/her.

Om Parkash H. Karmani and Inderyas Barkat for Appellants.

Nemo for the Complainant.

Shahzado Saleem Nahiyoon, Deputy Prosecutor General Sindh for the State.

2022 P Cr. L J 186

[Sindh]

Before Mohammed Karim Khan Agha and Irshad Ali Shah, JJ

ABDUL MAJEED alias BOHRA and another---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Jail Appeals Nos. 95, 109 and Confirmation Case No. 46 of 2019, decided on 23rd September, 2021.

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

----Ss. 302(b), 376(ii), 364-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abducting a person under the age of fourteen, rape, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Last seen evidence---Scope---Accused were charged for committing murder of minor niece of complainant after kidnapping and raping her---Record showed that there was no eye witness to the kidnapping, rape, murder or dumping of the dead body of the deceased by the accused---No last seen evidence was available to connect the accused with the deceased---According to the witness of last seen evidence, the deceased was last seen on a camel which was being lead by someone else other than the accused whose identity remained unknown---Evidence of said witness was corroborated by two other witnesses, who stated in cross-examination that they could not identity anybody neither the camel person nor the person running along with the camel---No evidence showing that the accused persons had anything to do with camels---Evidence showed that the accused was a painter by profession---Co-accused was not even seen with accused at the time when he paid for the deceased's camel ride which might have even been an act of kindness on behalf of accused as the deceased had no money whereby witness who was riding on the camel with the deceased paid for the ride herself---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) Penal Code (XLV of 1860)---

----Ss. 302(b), 376(ii), 364-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abducting a person under the age of fourteen, rape, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Extra-judicial confession, retraction of---Scope---Accused were charged for committing murder of minor niece of complainant after kidnapping and raping her---Prosecution case mainly revolved around the retracted extra judicial confessions made by the accused persons before the police---Confession made before a Police Officer was inadmissible in evidence---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.

Muhammad Ibrahim v. Ahmed Ali and others 2010 SCMR 637; Joygun Bibi v. The State PLD 1960 SC 313; Faqirullah v. Khalil-uz-Zaman and others 1999 SCMR 2203; Muhammad Amjad v. The State PLD 2008 Lah. 32; Shaukat Ali v. The State PLD 2019 SC 577; Nazir Shehzad v The State 2009 SCMR 1440 and Fazal Akbar v. The State 2013 PCr.LJ 369 ref.

Hayatullah v. The State 2018 SCMR 2092 and Gul Muhammad and another v. The State through Prosecutor General Batochistan 2021 SCMR 381 rel.

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

----Ss. 302(b), 376(ii), 364-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abducting a person under the age of fourteen, rape, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Recovery of certain articles belonging to deceased---Scope---Accused were charged for committing murder of minor niece of complainant after kidnapping and raping her---In the present case, certain articles belonging to the deceased were recovered---Recovery of all those articles were result of conjecture and surmises and without any legal backing hence, same did not advance the case of the prosecution especially when all those pieces of evidence were denied by the accused while making their statement under S. 342, Cr.P.C---With regard to the recoveries of the chapal and chaddar found at apartment of accused, there was no evidence that those belonged to the deceased and even otherwise when the deceased's body was moved from house of accused it did not appeal to reason, logic or common sense that accused would have left those belongings of the deceased at his house where they could be readily found---Accused would have disposed of them when he allegedly disposed of the body---High Court observed that even if it was accepted that the recoveries were made on the pointation of the accused persons which they later denied those recoveries alone would not be sufficient to convict the accused without overwhelming other admissible prosecution evidence---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.

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

----Ss. 302(b), 376(ii), 364-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abducting a person under the age of fourteen, rape, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Medical evidence---Scope---Accused were charged for committing murder of minor niece of complainant after kidnapping and raping her---Although semen was found on some of the clothes of the deceased but no DNA report was exhibited so as to link the semen to either of the accused persons in connection with the rape of the deceased---Best that could be said was that the deceased was raped but by whom remained unproven---Even if it was believed through the evidence of witness (who allegedly lived above the accused) that accused lived below him as no rental agreement was produced it did not appeal to logic, reason or common sense that whilst the deceased was screaming during the rape and then having her eyes gauged out by a poker nobody heard anything especially as many other tenants lived in the building---No blood was recovered from the place of the rape and murder which put the place of the incident in some doubt---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.

Muhammad Usman v. The State 2020 PCr.LJ 799 rel.

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

----Ss. 302(b), 376(ii), 364-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abducting a person under the age of fourteen, rape, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Recovery of dead body of the deceased---Scope---Accused were charged for committing murder of minor niece of complainant after kidnapping and raping her---Body of the deceased was found in a nulla about 8 KM's from the house of accused and the body (which was complete rather than being chopped up) according to the prosecution was taken from his house to such location by motor bike---Again it did not appeal to reason, logic or commonsense that a dead body would be transported for 8 KM's on a motor bike without being noticed---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---Prosecution must prove its case against the accused beyond a reasonable doubt---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.

Iftikhar Ahmed Shah for Appellant No. 1.

Muhammad Farooq for Appellant No. 2.

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

2022 P Cr. L J 227

[Sindh (Sukkur Bench)]

Before Fahim Ahmed Siddiqui and Yousuf Ali Sayeed, JJ

MUJAHID and 6 others---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeals Nos. D-109 of 2012 and D-24 of 2020, decided on 19th February, 2021.

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

----S. 365-A---Anti-Terrorism Act (XXVII of 1997). S. 7---Kidnapping for ransom, act of terrorism---Appreciation of evidence---Benefit of doubt---Accused were charged for kidnapping the complainant for ransom and making aerial firing for causing harassment---Allegedly, at the time of the abduction, the accused persons had made aerial firing for creating harassment but in such type of offences usually aerial firing was not made, especially when no resistance was offered---Object of culprits was to remove the abductee from the place of abduction so that he might be shifted to some safe place without any hindrances---Complainant and witnesses had allegedly identified a teeming number of accused persons with their names and respective weapons, which created doubts---Source of identification was said to be torch lights but the same was not established---Complainant and witnesses had stated that they had identified the accused persons on torch light but the investigator did not collect those torches as real or objective evidence---Prosecution had not disclosed any reason for the non-collection of the torches and other articles to be produced 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 Tufail v. The State 2013 SCMR 768; Muhammad Dawood and others v. The State 2015 PCr.LJ 316; Pahlwan and 2 others v. The State 2000 PCr.LJ 299 and Ghulam Kadir v. The State 2000 PCr.LJ 677 ref.

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

----S. 365-A---Anti-Terrorism Act (XXVII of 1997). S. 7---Kidnapping for ransom, act of terrorism---Appreciation of evidence---Benefit of doubt---Delay of about six months in lodging the FIR---Scope---Accused were charged for kidnapping the complainant for ransom and maing aerial firing for causing harassment---Record showed that FIR was lodged after 6 months of the incident when the alleged abductee was already recovered 04 months earlier to the lodgment of the FIR---Abductee and his witnesses had reasoned out that delay by submitting that the abductee after recovery remained under treatment for one and half months---Such treatment was provided by the private Doctor---In case of such a huge delay, the evidence of said Doctor was important but the said Doctor was neither cited as a witness nor he was examined during the trial---Prosecution, during the trial, had not made any efforts for examining Doctor to establish that during the intervening period of recovery and lodgement of FIR, the abductee remained under treatment---Even if the assertion of treatment was accepted as gospel truth, it would be not helpful to the prosecution as according to prosecution witnesses, the abductee remained under treatment for one and half months only---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.

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

----S. 365-A---Anti-Terrorism Act (XXVII of 1997). S. 7---Kidnapping for ransom, act of terrorism---Appreciation of evidence---Benefit of doubt---Defective investigation---Effect---Accused were charged for kidnapping the complainant for ransom and making aerial firing for creating harassment---Record showed that all the accused were arrested formally while they were confined at Jail in some other case---After the proforma arrest of the accused, the prosecution had not tried to get remand of the arrested accused for the purpose of investigation, which was important in such type of cases where the recovery of weapon was required---Another important prosecution witness was the owner/ Manager of Public Call Office (PCO) from where the abductee had contacted his father and brother---Even the investigator did not try to collect the CDR of the phone number through which the alleged abductee had contacted his relatives---Investigator had also not collected the call record of the PCO from where the abductee had contacted to establish that link that he had reported his recovery from PCO---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.

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

----S. 365-A---Anti-Terrorism Act (XXVII of 1997). S. 7---Kidnapping for ransom, act of terrorism---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Effect---Accused were charged for kidnapping the complainant for ransom and making aerial firing for creating harassment---Allegedly, the amount of ransom was paid to one "A" by a brother of the abductee in presence of witness---Witnesses were not consistent on the vital issue of ransom and regarding the place of payment of such amount---Said fact also created serious doubt regarding the prosecution story---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.

Rukhsar Ahmed Junejo, Dareshani Ali Haider "Ada" and Syed Soofan Shah for Appellants.

Complainant in person.

Aftab Ahmed Shar, Additional P.G. for the State.

2022 P Cr. L J 279

[Sindh (Hyderabad Bench)]

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

FAHAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-13 of 2020, decided on 2nd September, 2020.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Non-association of independent witnesses---Delay in sending samples to Chemical Examiner---Complainant acting as Investigating Officer---Contradictory statements---Effect---Accused was convicted for having been found in possession of 3400 grams of charas---Complainant despite having advance information and the place of recovery being a thickly populated area had not bothered to pick/associate any independent mashir---No evidence was available on record to show that the charas was kept in safe custody from the time of its recovery until it was sent to and received in the office of Chemical Examiner, which was with an unexplained delay of 06 days---Incharge of Malkhana was not examined by the prosecution---Complainant had not only lodged the FIR but had also conducted investigation of the case himself as well as he himself had taken the case property for Chemical Examination---Propriety demanded that the case must have been investigated by an independent officer but not by the complainant himself---Prosecution witnesses in their evidence had stated that alleged narcotic substance was wrapped in a black colour shopper and it was sealed in a white colour cloth whereas Chemical Examiner's report showed that it was only wrapped in black colour shopper---Two seals were affixed on the parcel, as per prosecution witnesses, whereas Chemical Examiner's report revealed that it was having three seals/stamps---Chemical Examiner's report was silent about letter as well as the date under which the sealed parcel was sent for report---Prosecution had failed to prove its case against the accused--- 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 and Nazeer Ahmed v. The State PLD 2009 Kar. 191 ref.

Ikramullah and others v. The State 2015 SCMR 1002; 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.

(b) Criminal trial---

----Benefit of doubt---Scope---Benefit of doubt occurring in prosecution case must go to the accused by way of right as opposed to concession.

Tariq Pervez v. The State 1995 SCMR 1345 ref.

Faisal Ali Raza Bhatti for Applicant.

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

2022 P Cr. L J 323

[Sindh]

Before Muhammad Karim Khan Agha and Abdul Mobeen Lakho, JJ

MUHAMMAD ASLAM---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 920 and Confirmation Case No. 36 of 2019, decided on 6th May, 2021.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Scope---Accused was charged for committing murder of the deceased by inflicting churri blows and also injuring his wife---Ocular account had been furnished by three witnesses including injured---Evidence of said witnesses was sufficient to prove the case of prosecution beyond a reasonable doubt as the same was straightforward, confidence inspiring and trustworthy---Defence could not bring anything on record to doubt the presence of witnesses in the flat of deceased at the relevant time---Evidence of said witnesses was fully corroborated by medical evidence---Arrest of accused at the crime scene which was committed in broad day light, recovery of crime weapon i.e. churri and positive chemical report were enough to hand him down with the sentence---Evidence of other witnesses was also consistent on all material particulars of the case---Importantly no witness had any enmity with the accused and as such had no reason to falsely implicate him in the case---Accused had admitted his presence at the place of incident in his statement recorded under S. 342 Cr.P.C.---In such circumstances, the appeal against conviction was dismissed, however, the sentence was reduced from death penalty to life imprisonment.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Haq Nawaz v. The State 2018 SCMR 21 and Ali Bux and others v. The State 2018 SCMR 354 ref.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Interested and related witnesses---Scope---Accused was charged for committing murder of the deceased by inflicting churri blows and also injured his wife---Defence objected that eye-witnesses were interested being closely related to the deceased, hence not reliable---High Court observed that mere close relationship of the witnesses with the deceased had no bearing to discard their testimony---Appeal against conviction was dismissed, however, the sentence was reduced from death penalty to life imprisonment.

Khair Muhammad and another v. State 2007 SCMR 158 rel.

(c) Criminal trial---

----Minor contradictions---Scope---Contradictions, which were minor in nature and not material and certainly not of such materiality so as to effect the prosecution case, could be ignored.

Zakir Khan v. The State 1995 SCMR 1793 rel.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence--- Quantum of sentence--- Mitigating circumstances---Scope---Accused was charged for committing murder of the deceased by inflicting churri blows and also injuring his wife---Mitigating circumstances were present i.e. the motive of the incident remained shrouded in mystery, also been conceded by prosecution---If no motive had been proved by the prosecution, that was a ground which the court might use in exercising its sentencing discretion to reduce the sentence of death to life imprisonment---In such circumstances, the sentence was reduced from death penalty to life imprisonment---Appeal against conviction was dismissed with said modification in sentence.

Amjad Shah v. State PLD 2017 SC 152 rel.

Iftikhar Ahmed Shah for Appellant.

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

2022 P Cr. L J 353

[Sindh]

Before Mohammed Karim Khan Agha and Zulfiqar Ali Sangi, JJ

FAHEEM ARSHADULLAH and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 239 and 276 of 2011, decided on 21st May, 2020.

Penal Code (XLV of 1860)---

----Ss. 409 & 477-A---Criminal Procedure Code (V of 1898), Ss. 245(2) & 342---Criminal breach of trust and falsification of accounts---Appreciation of evidence---Admission in statement recorded under S. 342, Cr.P.C.---Accused was Bank official who in his statement under S. 342, Cr.P.C. admitted misappropriation in bank at the relevant time when he was posted there---Prosecution had proved its case against accused beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring ocular and documentary evidence---Assertions/admissions made by prosecution against accused if admitted during his statement under S. 342, Cr.P.C., such admission could be used against accused while awarding conviction---High Court declined to interfere in conviction and sentence awarded to accused by Trial Court---Appeal was dismissed, in circumstances.

S. M. Sardar Jafri v. The State 1986 MLD 1859; Tariq Saleem v. The State 1987 PCr.LJ 62 and Mitho Khan v. The State 1987 PCr.LJ 1869 ref.

Khaleeq Ahmed for Appellant No. 1.

Appellant No. 2 in person assisted by Khaleeq Ahmed.

Mukesh Kumar Khatri, Assistant Attorney General for Pakistan for the State.

2022 P Cr. L J 370

[Sindh (Hyderabad Bench)]

Before Khadim Hussain M. Shaikh, J

MOULA BUX alias MOULAI MALLAH and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Applications Nos. S-67 and S-69 of 2020, decided on 10th March, 2020.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 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---Bail, grant of---Non-availability of Chemical Examiner's report---Non-association of independent witnesses---Further inquiry---Scope---Accused sought post-arrest bail in an FIR registered under Ss. 269, 270 & 337-J, P.P.C., whereas co-accused sought pre-arrest bail in the same FIR---No independent person was picked up to act as mashir either from the place where the police allegedly received information or from the alleged place of recovery although both the places were in populated areas---Weight of the contraband was not mentioned in the FIR---Chemical Examiner's report was not available on record---Case required further inquiry into the guilt of accused persons and their case fell within the ambit of S. 497(2), Cr.P.C., which entitled them to the grant of concession of bail--- Applications for grant of bail were allowed, in circumstances.

Taj Muhammad Keerio for Applicants.

Mrs. Sobia Bhatti, A.P.G. for the State.

Applicant No. 1 present in person.

2022 P Cr. L J 376

[Sindh]

Before Mohammed Karim Khan Agha and Abdul Mobeen Lakho, JJ

ADNAN ABBASI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 689 and Confirmation Case No. 38 of 2019, decided on 28th April, 2021.

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

----Ss. 302(b), 201, 202 & 34---Qatl-i-amd, causing disappearance of evidence, intentional omission to give information of an offence, common intention---Appreciation of offence---Benefit of doubt---Delay of more than one day in lodging FIR---Scope---Accused was charged that he along with co-accused committed murder of the son of complainant---Record showed that the FIR was lodged by the complainant after a delay of more than one day despite the complainant discovered the dead body---Such delay had not been fully explained and as such that would go against the complainant's case as it left room for concoction and falsification---Accused was not named in the FIR---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 201, 202 & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, causing disappearance of evidence, intentional omission to give information of an offence, common intention---Appreciation of offence---Confession, retraction of---Scope---Accused was charged that he along with co-accused committed murder of the son of complainant---Prosecution case rested primarily on the judicial confession of accused made before the Judicial Magistrate---No evidence at the time of his confession to link the accused to the offence and as such he had no reason to confess---Accused had maintained that his brothers were in custody at the time when he made his confession and he made his confession in order to save his brothers---Said fact was put to the Judicial Magistrate who recorded his confession, during cross examination and therefore was not an afterthought---Accused also stated the same in his statement under S. 342, Cr.P.C.---Investigating Officer even admitted in his evidence that the brothers of accused were in custody facing enquiries prior to the arrest of accused---Children of accused were also in custody at the time when he made his confession---Accused confessed before the Judicial Magistrate because his brothers were already in custody and he was threatened that they would be implicated in false cases if he refused to confess---Confession recorded in the hand writing of the Investigating Officer also accorded with the accused version that he was required to memorize the Investigating Officer's version of his confession and repeated the same before the Judicial Magistrate---Confession of accused was a result of inducement and coercion and as such it was not made voluntarily, thus, discarded and placed no reliance on it---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Mansha v. The State 2018 SCMR 772; Mah Gul v. The State 2009 SCMR 4; Wazir Muhammad and another v. The State 2005 SCMR 277; Qaddan and others v. The State 2017 SCMR 148; Syed Mehroz Mehdi Zaidi alias Mehdi Badshah v. The State 2020 MLD 1344 and Nizam-ud-Din v. Riaz and another 2010 SCMR 457 ref.

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

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

----Ss. 302(b), 201, 202 & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, causing disappearance of evidence, intentional omission to give information of an offence, common intention---Appreciation of offence---Confessional statement, recording of---Infirmities---Scope---Accused was charged that he along with co-accused committed murder of the son of complainant---Numerous significant procedural omissions were made by the Judicial Magistrate in recording the confession of accused---Accused was not informed that he would not be returned to police custody if he failed to confess and that the confession could be used against him in evidence---Judicial confession would still need to be corroborated by some other independent evidence from an unimpeachable source---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Ismail and others v. The State 2017 SCMR 898 rel.

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

----Ss. 302(b), 201, 202 & 34---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, causing disappearance of evidence, intentional omission to give information of an offence, common intention---Appreciation of offence---Withholding material evidence---Effect---Accused was charged that he along with co-accused committed murder of the son of complainant---Daughter of complainant, who was an important witness who was contacted on her mobile phone by the person who told her that the deceased's body was in the flat, was not led for unknown reasons---Phone of said witness was not recovered and no Call Data Record of any phone was exhibited, which could link the accused to any phone call to said witness---Accused would never had made such a call which could potentially implicate him in the crime---No recovery was made from the accused as the murder weapons were left at the scene---Fact that the accused pointed out the flat where the murder took place was completely irrelevant as the police and the complainant already knew about said place---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

(e) Criminal trial---

----Benefit of doubt---Principle---Prosecution must prove its case against the accused beyond a reasonable doubt---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.

Khaleeq Ahmed for Appellant.

Muhammad Iqbal Awan, Deputy Prosecutor General for the State.

Azizullah Khan for the Complainant.

2022 P Cr. L J 400

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi, J

MUMTAZ ALI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-1394 of 2019, decided on 10th February, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 504 & 34---Qatl-i-amd, intentional insult with intent to provoke breach of the peace, common intention---Bail, grant of---Further enquiry---Allegation against accused was that he, on account of a matrimonial dispute, came to the house of complainant party along with another by riding on a motorcycle, abused the complainant party and his co-accused, who was armed with a pistol, made straight fire at the deceased (then alive)---No overt act was assigned to the accused---Accused at the time of commission of alleged offence had not played an active role---Vicarious liability could only be established after recording of evidence---Case of accused fell within the ambit of further inquiry as envisaged under subsection (2) of S. 497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Zoor Zameen Gul and another v. The State 2019 PCr.LJ Note 66; Sher Muhammad alias Shero v. The State 2019 MLD 1250 and Zaigham Ashraf v. The State and others 2016 SCMR 18 ref.

Nusrat Mehmood Gill for Applicant.

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

2022 P Cr. L J 412

[Sindh (Hyderabad Bench)]

Before Mohammed Karim Khan Agha and Zulfiqar Ali Sangi, JJ

MUHAMMAD YOUSIF---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 378 of 2017, decided on 30th April, 2020.

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

----Ss. 9(c), 25 & 29---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotics---Appreciation of evidence---Prompt FIR---Mode of making searches and arrest---Refusal of independent persons to act as mashir---Scope---Accused was allegedly to have been found in possession of 300 kgs of charas---First Information Report was lodged with promptitude giving no time for concoction and the S. 161, Cr.P.C. statements were recorded promptly which were not significantly improved upon---Arrest and recovery was made on the spot and the accused was caught red handed with the narcotic by the police whose evidence fully corroborated each other in all material respects as well as the prosecution case---Police had no reason to falsely implicate the accused in a case---Police evidence was corroborative in all material respects---No major contradictions were found in the evidence of prosecution witnesses---Narcotic was recovered from the car which the accused had revealed to the police and he was the only person in the car, as such, there was no doubt that the accused had actual knowledge of the narcotic which was being transported---Once the recovery was proven, the onus had shifted to the accused to show his innocence in that at least he had no knowledge of the narcotic---Improbable for the police to foist such a large amount of charas being in total 300 kgs---No delay in sending for the chemical report for analysis which turned out to be positive---Recovered narcotic was kept in safe custody---Although no independent mashir was associated with the arrest and recovery of the accused but it had come in evidence that no private person was prepared to become an independent mashir at the time of arrest and recovery despite being asked---Even otherwise S. 103, Cr.P.C., was excluded for offences falling under the Control of Narcotic Substances Act, 1997 by virtue of S. 25---Appeal against conviction was dismissed, in circumstances.

Hussain Shah and others v. The State PLD 2020 SC 132; The State v. Abdali Shah 2009 SCMR 291 and Muhammad Hanif v. The State 2003 SCMR 1237 ref.

Nadir Khan v. State 1998 SCMR 1899 and Zahid and Riaz Ali v. State Jail Appeal No.172 of 2018, dated 03-03-2020 rel.

(b) Criminal trial---

----Evidence---Police witness---Scope---Evidence of a police witness is as reliable as any other witness provided that no enmity exists between him and the accused.

(c) Criminal trial---

----Complainant acting as Investigating Officer---Scope---No legal restriction exists on the complainant for being the Investigating Officer provided that no animosity or enmity is alleged against him by the accused.

Zafar v. State 2008 SCMR 1254 ref.

(d) Criminal trial---

----Minor contradictions---Scope---Minor contradictions which do not effect the materiality of the evidence can be ignored.

Zakir Khan v. State 1995 SCMR 1793 ref.

Muhammad Farooq for Appellant.

Habib Ahmed, Special Prosecutor, ANF for the State.

2022 P Cr. L J 443

[Sindh]

Before Muhammad Iqbal Kalhoro and Shamsuddin Abbasi, JJ

Dr. KISHORE KUMAR and another---Petitioners

Versus

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

C.Ps. Nos. D-1752 and D-4351 of 2021, decided on 4th October, 2021.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(vi) & 9(b)-- Constitution of Pakistan, Art. 199---Constitutional petition---Bail, refusal of---Prima facie case---Record, disappearance of---Petitioner was alleged to have misused his authority and had made illegal appointments causing loss to national exchequer---Plea raised by accused was that he was to follow the instruction of his seniors---Validity---No record was available to support candidacy, let alone each one having earned same marks---Instead of getting alarmed and playing his part with due caution expected of a public officer in such circumstances, he went ahead and issued offer orders---Manual of Secretariat Instructions showed that accused as Section Officer was among others was in charge of that section and responsible for its proper working and maintenance of record in addition to disposing of cases of his section in the light of precedents, which required his attentive diligence towards his duty and not being blindsided by a letter from his superior---High Court repelled the stance of accused that he had no option but to issue offer letters to obey order of his Secretary, as such stance was shorn of legal value---Accused and others like him in order to cover-up illegal acts ensured disappearance of record---Such fact was supported by witnesses in their statements and was also established in departmental inquiry by a committee formed for such purpose---High Court declined to release accused on bail as all pieces of evidence prima facie connected accused with alleged offence--- Bail was refused, in circumstances.

Mian Ali Ashfaque and Ahmed Mujtaba for Petitioner (in C.P. No.D-1752/2021).

Raj Ali Wahid for Petitioner (in C.P. No.D-4351/2021).

Shahbaz Sahotra, Special Prosecutor NAB along with Hameedullah, I.O. NAB.

Irfan Ali Memon, D.A.G.

2022 P Cr. L J 480

[Sindh]

Before Mohammed Karim Khan Agha and Kausar Sultana Hussain, JJ

COLLECTOR OF CUSTOMS PREVENTIVE MODEL CUSTOMS COLLECTORATE, CUSTOMS HOUSE, KARACHI---Appellant

Versus

MAQBOOL KHAN and another---Respondents

Special Criminal Acquittal Appeal No. 16 of 2016, decided on 25th November, 2021.

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

----S. 9(b)---Possession of narcotic---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Prosecution case was that heroin powder was recovered from the possession of accused---Complainant deposed that he separated three samples of five grams each from the heroin powder recovered from the shoes of accused in presence of mashirs---Said version was belied by mashir who had stated that the complainant separated six samples of 20 grams each viz: three samples of heroin recovered from suitcase and three samples of heroin powder recovered from shoes of accused---Prosecution had failed to even prove the separation of six samples each containing five grams heroin powder---When the separation of six samples of five grams heroin powder each as claimed by the complainant was not proved by the prosecution through evidence of witnesses then how it could be believed that samples sent to the Chemical Examiner were of the alleged heroin powder recovered from suitcase, its metal handle and shoes of accused---Said reason alone would cut the root of the prosecution case and made the whole case doubtful---Benefit of doubt if any would go in favour of the accused---Said version of complainant was also belied by the contents of chemical report showing that the sealed parcel contained heroin powder weighing 4.9 grams---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal was dismissed with costs of Rs. 30,000 imposed on concerned Collector of Customs.

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

----S. 9(b)---Possession of narcotic---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Contradictions in the statements of witnesses---Scope---Prosecution case was that heroin powder was recovered from the possession of accused---Complainant deposed that he found that heroin powder was also concealed in the bottom of shoes of the accused---Said version was contradicted by contents of mashirnama and FIR produced by him in his evidence, in which he had mentioned that the examination of pair of shoes led to further recovery of off-white heroin packed in polythene packets which were concealed in the cavities under the inner soles of said pair of shoes---Complainant deposed that he found that heroin powder was also concealed in the bottom of shoes of the accused---However, said version was belied by mashir who stated that complainant in his presence and of co-mashir checked the shoes of accused and from inside the shoes of accused further 330 grams off-white heroin powder was recovered---Neither the chemical reports produced by Investigating Officer in his evidence showed that whole heroin powder lying in both parcels was consumed in examination nor the sealed parcel containing remaining heroin powder of both parcels checked by the Chemical Examiner was produced in evidence by the witnesses in the case as proof---Chemical reports were also silent about availability of signature of complainant and mashirs on both sample parcels---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal was dismissed with costs of Rs. 30,000 imposed on concerned Collector of Customs.

Ms. Dilkhurram Shaheen for Appellant/Customs.

2022 P Cr. L J 505

[Sindh]

Before Mohammed Karim Khan Agha and Kausar Sultana Hussain, JJ

MUHAMMAD SAJID alias CHOTA BONA and others---Appellants

Versus

The STATE---Respondent

Special Criminal A.T.As. Nos. 182, 183 and Confirmation Case No. 7 of 2020, decided on 24th November, 2021.

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

----Ss. 302 & 34---Sindh Arms Act (V of 2013), S. 23(i)A---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, common intention, possession of illegitimate weapon, act of terrorism--- Appreciation of evidence--- Test identification parade--- Infirmities--- Accused were charged for committing murder of the brother of the complainant by firing---Accused was a very small man being under five feet tall and that even Investigating Officer stated in his evidence that the accused present in the court was of small height---True, that height of the accused was not normally found in public---Judicial Magistrate who carried out the identification parade stated in his evidence that proper description of dummies such as age, height, physique, complexion and features/hulia were not mentioned in the memo---Memo was silent regarding colour, style and type of clothes of dummies and accused---Significantly neither of the eye-witnesses stated in their statement under S. 161, Cr.P.C. the unique feature that the killer was extremely small which must have stood out to them at the time---Fact as admitted by the Investigating Officer that such small men were not available in the general public---Dummies according to the eye-witness were not similar at all which led to the inescapable conclusion that the accused stood out from the other dummies at the identification parade and could have been easily described to the eye-witness before the identification parade---No coincidence that the Judicial Magistrate who carried out the identification parade did not keep records of the dummies which he was obliged to in accordance with law to ensure a fair and reliable identification parade---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt--- Appeal against conviction was allowed, in circumstances.

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

----Ss. 302 & 34---Sindh Arms Act (V of 2013), S. 23(i)A---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, common intention, possession of illegitimate weapon, act of terrorism---Appreciation of evidence---Withholding material witness---Scope---Accused were charged for committing murder of the brother of the complainant by firing---Two eye-witnesses who were actually sitting in the room with the deceased when the killer entered and shot him, who would have been able to give the best evidence of the murder despite being readily traceable, were not produced as prosecution witnesses---Prosecution had intentionally and deliberately not produced the best evidence at trial against the accused which had damaged its case---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt--- Appeal against conviction was allowed, in circumstances.

(c) Criminal trial---

----Medical evidence---Scope---Medical evidence could only reveal how the deceased died, what kind of weapon was used and the seat of the injuries---However, it could not identify the person who inflicted the injuries.

(d) Criminal trial---

----Confessional statement of accused before police---Scope---Confessions before the police are inadmissible in evidence and thus no reliance could be placed on such confession.

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

----Ss. 302 & 34---Sindh Arms Act (V of 2013), S. 23(i)A---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, common intention, possession of illegitimate weapon, act of terrorism---Appreciation of evidence---Confessional statement---Scope---Accused were charged for committing murder of the brother of the complainant by firing---Accused had confessed his guilt before the police, however, it did not appeal to logic, reason or commonsense that a person who was behind the bars in an unlicensed weapons case and there was no evidence against him in a murder case would confess to an offence which carried the death penalty---Confession of accused was also not recorded before a Judicial Magistrate despite his being taken before a Judicial Magistrate for an identification parade---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt--- Appeal against conviction was allowed, in circumstances.

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

----Ss. 302 & 34---Sindh Arms Act (V of 2013), S. 23(i)A---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, common intention, possession of illegitimate weapon, act of terrorism---Appreciation of evidence---Recovery of weapon of offence on the instance of accused---Reliance---Scope---Accused were charged for committing murder of the brother of the complainant by firing---Record showed that an unlicensed pistol was recovered from the accused at the time of his arrest in a separate case years later---Said fact did not appeal to logic, commonsense or reason that a person who had committed a brutal murder would keep the murder weapon for nearly seven years---Empties were recovered from the scene of the incident---No evidence showing that where weapons were kept in safe custody for seven years when the pistol was allegedly recovered from the accused---Fact that empties matched with the pistol could not be given weight to---Prosecution evidence regarding the arrest and recovery of the pistol from the accused found to be highly doubtful and the possibility could not be ruled out that the pistol was foisted on the accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

(g) 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.

Mohammad Mahmood Sultan Khan Yousifi for Appellants.

Khawaja Naveed Ahmed for the Complainant.

Muhammad Iqbal Awan, Additional Prosecutor General for the State.

2022 P Cr. L J 526

[Sindh]

Before Muhammad Iqbal Kalhoro and Abdul Mobeen Lakho, JJ

Syed SAKHAWAT MOHSIN---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No. 159 of 2019, decided on 3rd July, 2020.

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

----S. 23---Penal Code (XLV of 1860), S. 365-A---Power to transfer cases to regular Courts---Kidnapping or abducting for extorting property, valuable security---Scope---Complainant reported an incident of abduction of his son while he was travelling with the accused---Accused, on being investigated, confessed that he had abducted the son of complainant and murdered him---Dead body of the son of complainant was recovered on the indication of accused, which was buried in a house rented by the accused---Accused filed an application under S. 23 of Anti-Terrorism Act, 1997, before the Anti-Terrorism Court for transfer of his case to the court of ordinary jurisdiction which was dismissed vide impugned order---First Information Report was blind qua identity of the accused and was in fact based on the narrative disclosed by the accused himself---Entire emphasis of the defence counsel to defeat jurisdiction of the Anti-Terrorism Court was on evidence of the complainant admitting that he had not received the call for ransom after son went missing, which according to him took the case off the ambit of S. 365-A, P.P.C. making it a simple murder case triable by the court of ordinary jurisdiction---If agreed, this approach would manifestly tend to overlook revelations made by the accused in his confession regarding motive part---Trial Court had yet to evaluate the evidentiary value of the confession and its impact on factual merit of the case thus, it would be premature to hold that the case did not fall under S. 365-A, P.P.C. and that Anti-Terrorism Court had no jurisdiction---Application for transfer of case to the court of ordinary jurisdiction at present point of time must fail and was dismissed accordingly.

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

----Ss. 7 & 2(t)---Penal Code (XLV of 1860), S. 365-A---Abducting or kidnapping for ransom---Act of terrorism---Scheduled offence---Scope---Anti-Terrorism Court has jurisdiction to try the heinous offences mentioned in Entry No. 4 of the Third Schedule in addition to the offences constituting terrorism---Accused can be punished in the first category of cases only for commission of those offences and not under Anti-Terrorism Act, 1997 for committing terrorism---Held, that the cases of heinous offences specified in Entry No. 4 of the Third Schedule to the Anti-Terrorism Act, 1997 are cases of those offences which do not per se constitute the offence of terrorism but such cases are to be tried by an Anti-Terrorism Court because of their inclusion in the Third Schedule---While specifically mentioning offence of abduction or kidnaping for ransom, it has been stated that such offence under S. 365-A, P.P.C. is included in Entry No. 4 of the Third Schedule and simultaneously is one of the actions specified in S. 7(e) of the Anti-Terrorism Act, 1997, it follows, therefore, that whether it is an ordinary case of abduction or kidnapping for ransom under S. 365-A, P.P.C. or kidnapping for ransom is committed with the design or purpose specified in clause (b) or (c) of subsection (1) of S. 6 of the Anti-Terrorism Act, 1997, which will be an act of terrorism attracting S. 7(e) of the Act, the jurisdiction to try the same will lie only with an Anti-Terrorism Court---In the former case, the accused is to be convicted and sentenced only for the offence under S. 365-A, P.P.C., whereas in the latter case he will be convicted both for the offence under S. 365-A, P.P.C. as well as for the offence under S. 7(e) of the Anti-Terrorism Act, 1997.

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

----S. 6---"Terrorism"---Scope---Mere creation of fear or insecurity in the society as a result of an action or threat of such an action is not by itself terrorism unless it is seen or shown that the motive or intention or design behind the action or threat of such action was to create fear or insecurity in the society, and that an action or its threat would not be terrorism when fear or insecurity is just an unintended consequence of a crime---Action, howsoever grave, shocking, brutal, gruesome or horrifying it may be or it may fall under subsection (2) of S. 6 of the Act, would not qualify to be termed as terrorism if it is not committed with the design or purpose specified or mentioned in clause (b) or (c) of subsection (1) of S. 6 of the said Act or if it is taken in furtherance of personal enmity or private vendetta, in such event, a court of ordinary jurisdiction will have authority to try the case against the accused.

Ghulam Hussain and others v. The State PLD 2020 SC 61 rel.

Shaikh Jawed along with Naseer Ahmed for Applicant.

Muhammad Shahzad Anjum, Special Prosecutor Rangers (Sindh).

Khalid Mumtaz along with Siraj Ali Chandio, Additional P.G. Sindh for the Complainant.

2022 P Cr. L J 558

[Sindh]

Before Mohammed Karim Khan Agha and Arshad Hussain Khan, JJ

TARIQ KHAN and others---Appellants

Versus

The STATE---Respondent

Special Criminal A.T. Appeal No. 196, Special Criminal A.T. Acquittal Appeal No. 209, Special Criminal A.T. Jail Appeal No. 204 and Confirmation Case No. 8 of 2020, decided on 23rd December, 2021.

Penal Code (XLV of 1860)---

----Ss. 322, 324, 353, 400 & 171---Sindh Arms Act (V of 2013) S. 23(1)--- Anti-Terrorism Act (XXVII of 1997), Ss. 17, 19, 21-M & 23---Constitution of Pakistan, Art. 10-A---Criminal Procedure Code (V of 1898), S. 423---Qatl-bis-Sabab, attempt to Qatl-i-amd, assault to deter public servant, belonging to gang of dacoits, wearing garb or carrying token used by public servant with fraudulent intent and recovery of illegal arms---Fair trial and due process of law---Trial of other offences---Anti-Terrorism Court---Jurisdiction---Appellate Court, jurisdiction of---Accused assailed his conviction and sentence awarded to him by Anti-Terrorism Court on the plea that without deciding his application for transfer of trial to Court of ordinary jurisdiction, Anti-Terrorism Court decided the matter when no offence under Anti-Terrorism Act, 1997, was established on record---Validity---When charge conveyed to accused what he had to defend himself and evidence was recorded in accordance with law as it would have been before an ordinary Court, accused was not prejudiced at trial---Accused was guaranteed his full due process rights as laid down under Art. 10-A of the Constitution---No legal justification was available for remanding the case back for de novo trial which if taken as a precedent would only leave the accused in jail longer---Completely clogged up work of Trial Courts delay in trials would not be in the interest of justice---High Court decided to hear and decide the appeal even if prima facie jurisdiction of Anti-Terrorism Court to hear such case was doubtful---High Court directed the office to fix appeals for regular hearing---Objection to jurisdiction of Anti-Terrorism Court was decided accordingly.

Gul Muhammad v. The State and another 2002 PCr.LJ 1374; Farooq Ahmed v. The State and another 2020 SCMR 78; Amjad Ali and others v. The State PLD 2017 SC 661; Muhammad Bilal v. The State and others 2019 SCMR 1362; Ghulam Hussain and others v. The State and others PLD 2020 SC 61; The State v. Muhammad Arif and 3 others PLD 2012 Sindh 119; Muhammad Bilal alias Sulleman v. Federation of Pakistan through the Secretary Ministry of Law, Justice and Human Rights Division and 3 others 2011 PCr.LJ 411; Muhammad Sharif v. Judge, Anti-Terrorism Court and 5 others 2012 YLR 2448; Ali Gohar and others v. Pervaiz Ahmed and others PLD 2020 SC 427; Ali Nawaz and 5 others v. The State and 2 others 2021 PCr.LJ 909; Murad Ali Bagalani and 5 others v. The State 2019 PCr.LJ 95; Shahbaz Khan alias Tippu and others v. Special Judge Anti-Terrorism Court No.3, Lahore and others PLD 2016 SC 1; Nadeem Butt v. Special Courts Constituted under Anti-Terrorism Act, 1997 (Presided by Sardar Mashkoor Ahmed), Camp At Dharampura, Lahore 2000 SCMR 1086; Ijaz Ahmad v. The State 2009 SCMR 99; Syed Mushahid Shah v. Federal Investigation Agency 2017 SCMR 1218; Waris Ali v. The State 2017 SCMR 1572; Tahir Mehmood alias Achoo v. The State 2018 SCMR 169; Shah Nawaz v. The State 2020 MLD 466; Safarish Ali v. The State 2020 MLD 474; Munawar Hussain v. Judge ATC II, Lahore 2017 PCr.LJ 46; Abdur Rab alias Ali Akber and others v. The State and others 2018 PCr.LJ 1313; Afaq Shafqat v. The State and 2 others 2018 PCr.LJ Note 22; Muhammad Umer Mangrio v. The State 2014 MLD 1813; Muhram Ali and others v. The State and others 2016 PCr.LJ 961; Sadiqullah and another v. The State and another 2020 SCMR 1422; Shaikh Muhammed Amjad v. State 2002 PCr.LJ 1317; Muhammad Yaqoob v. The State PLD 2019 SC 580; Kashif Ali v. The Judge, Anti-Terrorism Court No.II, Lahore and others PLD 2016 SC 951; Ch. Shaukat Ali v. Haji Jan Muhammad and others 2017 SCMR 533; Khuda-e-Noor v. The State PLD 2009 SC 195 and Muhammad Faizan v. The State 2016 PCr.LJ 897 ref.

Aamir Mansoob Qureshi and Iftikhar Ahmed Shah for Appellants (in Special Criminal A.T. Appeal No. 196 and Confirmation Case No. 8 of 2020).

Muhammad Iqbal Awan, Additional Prosecutor General, Sindh for the State (in Special Criminal A.T. Appeal No. 196, Special Criminal A.T. Jail Appeal No. 204, Special Criminal A.T. Acquittal Appeal No. 209 and Confirmation Case No. 8 of 2020).

Amir Saeed Channa and Miss. Murik Nizam Shaikh for Appellant (in Special Criminal A.T. Jail Appeal No. 204 of 2020).

Muhammad Jibran Nasir for Appellant (in Special Criminal A.T. Acquittal Appeal No. 209 of 2020).

Mehmood Akhtar Qureshi, Amicus Curiae appointed by the Courts (in all appeals).

2022 P Cr. L J 606

[Sindh]

Before Mohammed Karim Khan Agha and Zulfiqar Ali Sangi, JJ

MUHAMMAD SABIR and another---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Jail Appeal No. 123 of 2017, decided on 12th May, 2020.

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

----Ss. 302, 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Pakistan Arms Ordinance (XX of 1965), S. 13---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention---Act of terrorism---Unlicensed possession of arms---Appreciation of evidence---Prompt FIR---Independent witnesses---Scope---Prosecution case was that the accused persons fired at the police party upon being signaled to stop as a result of which one of the members of police party died---First Information Report was registered by the police with promptitude within a few hours of the incident leaving no room for the police to concoct a false case against the accused---Accused persons were named in the FIR with a specific role which was confirmed by the eye-witnesses during their evidence---Mashirs of the memo of arrest and recovery were independent witnesses who had no enmity with the accused persons and had no reason to implicate them in a false case---One of the said witnesses was owner of a hotel/restaurant which was located about 250/300 square yards from the place of incident and he was caught in traffic whilst going home and as such he was not a chance witness---Medical evidence was corroborative/supportive of the oral evidence as it revealed that the deceased was shot twice by firearm which was the cause of his death and that there was no blackening around the wound which fitted in with the prosecution case that the encounter did not take place from close range---Unlicensed pistol was recovered from each of the accused at the time of their arrest on the spot after the encounter---Recoveries of empties at the scene of both 9mm and SMG which when matched with the recovered weapons from the accused and SMG used by the police produced a positive FSL report--- Appeal against conviction was dismissed, in circumstances.

Muhammad Akram v. The State 2009 SCMR 230; Shah Izzat alias Shahzad v. Adnan, Constable No.5355 and another 2017 PCr.LJ 25; Zeeshan alias Shani v. The State 2012 SCMR 428; Muhammad Ismail v. The State 2017 SCMR 713; Khan alias Khani and another v. The State 2006 SCMR 1744; Muhammad Ehsan v. The State 2006 SCMR 1857; Muhammad Ashraf v. The State 2011 SCMR 1046; Anwar Shamim and another v. The State 2010 SCMR 1791 and Abdul Majeed v. The State 2008 SCMR 1228 ref.

Mohammad Din v. The State 1985 SCMR 1046; Majhi v. The State 1970 SCMR 331; Tareen alias Bado and another v. The State 2019 PCr.LJ 832; Salam alias Toor Jan v. The State 2013 PCr.LJ 1461 and Mohammad Amin v. State 2006 YLR 3128 rel.

(b) Criminal trial---

----Evidence---Statement of police official---Scope---Evidence of a police officer is as good as any other witness provided that no ill will or enmity is suggested against him.

(c) Criminal trial---

----Court can convict if it finds the direct oral evidence of one eye-witness to be reliable, trust worthy and confidence inspiring.

Muhammad Ehsan v. The State 2006 SCMR 1857 and Niaz-Ud-Din v. The State 2011 SCMR 725 ref.

Ajab Khan Khattak for Appellant No.1.

Aurangzeb Gorar for Appellant No. 2.

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

2022 P Cr. L J 644

[Sindh]

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

ALI ASLAM MALIK---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and others---Respondents

Constitutional Petitions Nos. D-7437 of 2015 and D-1401 of 2019, decided on 12th June, 2020.

National Accountability Ordinance (XVIII of 1999)---

----S. 18(g)---Securities and Exchange Commission of Pakistan Act (XLII of 1997), Ss. 2(pa), 27 & 41-B [as inserted by Securities and Exchange Commission of Pakistan (Amendment) Act (XXXVI of 2016)]---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of proceedings---Regulated activity---Liability, determination of---Pendency of civil suit---Petitioners were Stock Exchange Brokers and were alleged to have caused loss to State exchequer by selling shares in question at very low price---Petitioners sought quashing of proceedings before National Accountability Bureau (NAB) on the plea that it was a regulated activity and forum to inquire into such matters was Securities and Exchange Commission of Pakistan---Validity---Dispute between parties was one pertaining to rate that shares in question were sold by petitioners---Suit was already pending in High Court for determination of amount at which the shares were to be sold---Liability of petitioners, if any towards shareholders was disputed between the parties---Many factors and market conditions existed that were to be taken into account before liability of petitioners could be affixed---Such was an ongoing process and was to reach finality when pending suit for determination of liability was decided---Securities and Exchange Commission of Pakistan was best placed to determine in the first instance, whether an offence or fraud had taken place--- Securities and Exchange Commission of Pakistan was granted substantial powers under S. 27 of Securities and Exchange Commission of Pakistan Act, 1997, to investigate whether any regulated person was engaged in committing fraud, misfeasance or other misconduct in carrying out a regulated activity, which was the complaint against petitioners---Securities and Exchange Commission of Pakistan for the purpose of investigation could seek assistance of any other investigating agency or bureau under S. 29(4) of Securities and Exchange Commission of Pakistan Act, 1997--- Securities and Exchange Commission of Pakistan had extensive powers to investigate the matter and if needed could file a reference with NAB---As no reference was made by Securities and Exchange Commission of Pakistan, proceedings against petitioners were void ab initio and were quashed---Petition was allowed, in circumstances.

Syed Mushahid Shah and others v. Federal Investigating Agency and others 2017 SCMR 1218 ref.

State v. Imam Baksh 2018 SCMR 2039 rel.

Mian Ali Ashfaq and Shazib Masud for Petitioner.

Sattar Muhammad Awan, Special Prosecutor NAB along with Karim Bakhsh, I.O.

Syed Imran Ali Shamsi, Law Officer for SECP.

2022 P Cr. L J 653

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi, J

ZULFIQAR ALI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-684 of 2020, decided on 10th August, 2020.

Criminal Procedure Code (V of 1898)---

----S. 498---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3 & 4---Prohibition of manufacture, etc, of intoxicants---Owning or possessing intoxicants---Pre-arrest bail, grant of---Non-availability of chemical examination report---Non-association of independent witnesses---Scope---Prosecution case was that the accused was in possession of six big and small cartons of water; that he, on seeing the police party, escaped from the spot; that the police secured the said property containing several bottles of wine---Alleged material was not exclusively recovered from the possession of the accused---Chemical Examiner's report with regard to the alleged material was not available in police file---Alleged incident had taken place in broad daylight and populated area but despite that the complainant did not bother to associate any independent person of the locality to witness the event---Offences under which the accused was booked did not fall within the ambit of prohibitory clause of S. 497, Cr.P.C.---Grant of bail was a rule and refusal was an exception in such like cases and no exceptional ground appeared in the case to withhold the bail---Bail application was allowed, in circumstances.

Nasrullah v. The State 2014 MLD 1500 ref.

Abdul Rasool Abbasi for Applicant along with Applicant.

2022 P Cr. L J 661

[Sindh]

Before Muhammad Iqbal Kalhoro and Shamsuddin Abbasi, JJ

ABDUL RAHEEM SHAH---Applicant

Versus

GOVERNMENT OF SINDH through Secretary Ministry of Interior and 5 others---Respondents

Criminal Miscellaneous Application No. 539 of 2019, decided on 4th September, 2020.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 173 & 154---Inherent powers of High Court---Report of Investigating Officer---Information in cognizable cases---Scope---Applicant sought quashing of trial against him on the ground that he had reported the incident in the capacity of a complainant and that he had killed the deceased in his self-defence---Held, opinion of Investigating Officer was influenced by different pieces of evidence which the Trial Court had found to be sufficient for holding a trial---Investigating officer was not required to be guided and controlled by the story of the FIR---Where the information collected in the investigation showed the manner of commission of offence, its background and the person who had done it otherwise than the one expressed in the FIR, the complainant's version of events would only be considered as a first information of the incident and nothing more, which on account of discovery of different facts would not be accepted by the investigating officer as true reflection of the incident and he would not be obliged to approve it for the trial---Investigating officer was required to unearth actuality of the matter irrespective of version disclosed in FIR and in the process was expected to collect information from all the persons who seemed to be acquainted with the facts and circumstances of the case---Based on such collection he had to make a final opinion to be submitted in the court under S. 173, Cr.P.C., for holding a trial--- If during such process, evidence pointed unambiguously to the complainant having played accused in the incident his place would be transposed and he would be made as accused regardless of his status in the FIR---Application was dismissed.

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

Ahmed Nawaz for Applicant.

Abrar Ali Khichi, Additional P.G. Sindh for Respondents.

2022 P Cr. L J 690

[Sindh]

Before Abdul Maalik Gaddi, J

ALI KHAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 1362 of 2020, decided on 26th November, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497--- Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotics---Bail, grant of---Further inquiry---Non-association of independent witnesses---Complainant acting as Investigating Officer---Delay in sending samples to Chemical Examiner---Scope---Accused was alleged to have been found in possession of 4600 grams of charas---Complainant had not associated with him any private person either from the place of information or from the place of incident to witness the event---Case of the prosecution was based upon the evidence of Anti-Narcotics Force officials---No doubt the evidence of the Anti-Narcotics Force officials was as good as private persons, but when the whole case of the prosecution rested upon the evidence of Anti-Narcotics Force officials, therefore, their evidence was required to be minutely scrutinized at the time of trial---Complainant himself had investigated the matter---No buyer was available and no evidence was available as to whom the narcotic was to be sold---Nothing was available on record to show as to whether the alleged charas was weighed along with shopper or otherwise---Samples of allegedly recovered charas were sent to the Chemical Examiner after a considerable time for which no plausible explanation was given by the prosecution---Accused was not a previous convict and was behind bars since his arrest---Case of accused required further probe---Accused was admitted to post-arrest bail, in circumstances.

Barrister Ali Tahir for Applicant.

Ms. Abida Parveen Channer, Special Prosecutor, ANF for the State.

2022 P Cr. L J 705

[Sindh (Hyderabad Bench)]

Before Irshad Ali Shah, J

MUHAMMAD HANIF and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-129 of 2018, decided on 22nd January, 2021.

Criminal Procedure Code (V of 1898)---

----Ss. 353 & 231---Constitution of Pakistan, Art. 10-A---Right to fair trial---Evidence to be taken in presence of accused---Recalling of witnesses when charge altered--- Scope--- Accused persons in furtherance of their common intention committed murder of victim by strangulating his throat, for that they were booked and reported upon by police---Accused persons were convicted after trial, which conviction was appealed against---Counsel for the parties, pointed out that on joining of trial by one of the accused persons, the charge already framed was amended and the evidence already recorded in his absence was adopted, which was contrary to the mandate contained in S. 353, Cr.P.C. which called for examination of witnesses in presence of accused and that all the three accused persons were convicted and sentenced accordingly by the trial court which was against the mandate contained in S. 231, Cr.P.C. which called for examination witnesses afresh when charge was altered, amended or added---Impugned judgment was set aside by the High Court with direction to the Trial Court to recall and re-examine the complainant and his witnesses by providing fair chance to the accused persons to contest the case as per mandate contained in Art. 10-A of the Constitution---Appeal was disposed of accordingly.

Tarique Ahmed Shah and Muhammad Zakaria Bahalkani for Appellants.

2022 P Cr. L J 709

[Sindh (Sukkur Bench)]

Before Aftab Ahmed Gorar and Fahim Ahmed Siddiqui, JJ

Syed ASGHAR ALI SHAH---Petitioner

Versus

CIRCLE OFFICER, ANTI-CORRUPTION ESTABLISHMENT, GHOTKI CIRCLE and 6 others---Respondents

Constitutional Petition No. D-991 of 2020, decided on 28th April, 2021.

Criminal Procedure Code (V of 1898)---

----S. 154---Constitution of Pakistan, Art. 199---Quashing of FIR---Transfer of investigation---Scope---Accused/petitioner sought quashing of FIR and change of investigation---Held; accused could apply for pre-trial or pending trial acquittal under S. 265-K, Cr.P.C., as such no further discussion was necessary for quashing of FIR---Accused had shown mistrust upon the enquiry being conducted by Circle Officer of Anti-Corruption Establishment and had presented a photograph of the Circle Officer wherein he was sitting before a notable politician in submissive style at his place---Photograph indicated that he was vulnerable to take pressure or he was eager to make someone's acquaintance beneficial for him---Although, distrust of accused upon Circle Officer was not unfounded but still the enquiry in a criminal case could not be discontinued as such it was not proper to quash any enquiry---Enquiry was transferred to another officer---Chairman Anti-Corruption Establishment was instructed to initiate disciplinary proceedings against the Circle Officer and it further ordered that no field posting would be offered to Circle Officer in future---Petition was disposed of accordingly.

Jamshed Ahmed Faiz for Petitioner.

Wazeer Ahmed Ghoto for Applicant/intervener Abdul Farooque.

2022 P Cr. L J 722

[Sindh]

Before Nadeem Akhtar and Muhammad Iqbal Kalhoro, JJ

Agha SIRAJ KHAN DURRANI and others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman---Respondent

Constitutional Petitions Nos. D-2356, D-1776, D-1850, D-1851, D-2976, D-2236, D-2235, D-6623, D-8474 of 2019, D-1637, D-1638, D-1639, D-1640, D-1641, D-584, D-585, D-586 of 2020 and D-1559 of 2021, decided on 13th October, 2021.

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

----Ss. 9(a)(v) & 9(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Pre-arrest bail, refusal of---Prize bond, proof of winning---Petitioner was alleged to have assets beyond her known sources of income---Petitioner stated that she had a lucky draw twice on prize bonds that fetched her enough amount to get all those properties---Validity---Such exposition was a postscript as neither at the stage of investigation nor at the time of filing of petition before High Court, such plea and documents were presented for consideration---All details about alleged prize bonds i.e. entries made in relevant register of purchasing or en-cashing them, source of finance, announcement date of result etc. were completely lacking---Petitioner was a government employee and it was incumbent upon her to declare in her tax returns not only her properties but also the source used to buy them---No such document was placed on record or referred to by her counsel in hearing to establish such claim---High Court declined to form any positive opinion about petitioner so as to extend extraordinary relief of pre-arrest bail---Pre-arrest bail was declined, in circumstances.

PLD 2018 SC 40; PLD 2005 SC 364; PLD 2019 SC 250; 2019 MLD 433; 2021 SCMR 449; 2021 SCMR 1166; 2011 YLR 144; 2010 SCMR 1697; PLD 2021 SC 916; PLD 2021 SC 927; PLD 2021 SC 738 and Mushtaq Hussain and another v. The State 2011 SCMR 45 ref.

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

----Ss. 9(a)(v) & 9(b)---Constitution of Pakistan, Art. 199---Pre-arrest bail, refusal of---Accused not joining investigation---Prima facie case---Deeper appreciation of evidence---Petitioner was alleged to have assets beyond known sources of income---Petitioner did not join investigation to put his case before investigating officer and claimed to be landlord and principal accused was his tenant---Effect---Such claim was neither borne out from petition nor sustained by any other material---Plea of petitioner required deeper appreciation of evidence to find out candor of what he contended---High Court declined to do deeper appreciation of evidence in Constitutional jurisdiction, in absence of any evidence led in trial on such issue---Prima facie there was sufficient evidence against petitioner and there was no material to show his implication by NAB on account of any disingenuous motive---Pre-arrest bail was declined, in circumstances.

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

----S. 9(b)---Bail---Principle---Bail matters are to be decided on the basis of tentative assessment of material available on record and not on the evidence or consideration extraneous and not yet part of the case---Such a ground i.e. fresh investigation does not regulate principles ruling consideration in bail matters---Further investigation does not amount to further inquiry in evidence already collected but it is to discover and add further evidence in respect of a particular allegation.

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

----Ss. 9(a)(v) & 9(b)--- Constitution of Pakistan, Art. 199---Pre-arrest bail, grant of---Further inquiry, case of---Petitioners were family members of principle accused who were alleged to have involved in the offence---Validity---To decide a question of entitlement of an accused to relief of pre-arrest in a pending case, not only element of malice on the part of complainant or prosecution but merits of the case were to be looked into---If case of accused on merits was found to entail further inquiry into his guilt and there were no reasonable grounds to believe that he was involved in reported offence, accused was to be extended such relief irrespective of the fact whether or not there was any material indicating malice on the part of prosecution or complainant to implicate him in the case---No apparent element of malice on the part of NAB to implicate petitioners i.e. family members of principal accused, but on merits they had a good case for consideration---Pre-arrest bail was allowed, in circumstances.

Amer Raza Naqvi for Petitioner (in C.P. No.D-2356 of 2019).

Shahab Sarki for Petitioners (in C.Ps. Nos. D-2356 of 2019, D-1637, D-1638, D-1639, D-1640 and D-1641 of 2020).

Dur Muhammad Shah for Petitioner (in C.P. No.D-1776/2019).

Rehman Ghous along with Raghim Ibrahim Junejo for Petitioners (in C.Ps. Nos. D-1850, D-1851, D-2235, D-2236 of 2019, D-584, D-585, D-586 of 2020 and D-1559 of 2021).

Salahuddin Ahmed for Petitioner (in C.P. No. D-2976 of 2019).

Had Pagganwala and Zain Mustafa Soomro for Petitioner (in C.P. No.D-6623 of 2019).

Syed Muhammad Shah for Petitioner (in C.P. No. D-8474 of 2019).

Riaz Alam, Special Prosecutor, NAB.

Asif Raza, Deputy Director, NAB/I.O. of the case.

Irfan Ahmed, DAG.

2022 P Cr. L J 749

[Sindh (Hyderabad Bench)]

Before Muhammad Saleem Jessar, J

MEHBOOB ALI---Applicant

Versus

The STATE and others---Respondents

Criminal Revision Application No. S-167 and Criminal Miscellaneous Application No. S-532 of 2019, decided on 22nd April, 2020.

(a) Criminal trial---

----Evidence---Rule of consistency---Scope---Rule of consistency demanded that if the evidence of prosecution had been disbelieved in respect of a co-accused, the same could not be relied upon for convicting other accused.

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

----Ss. 438, 506(2), 337-H(2) & 34---Mischief committed by fire or explosive substance, criminal intimidation, rash or negligent act to endanger human life or personal safety of others, common intention---Appreciation of evidence---Acquittal of accused---Rule of consistency---Applicability---Scope---Prosecution case was that the accused along with his co-accused were present in cattle pond of complainant, they were encircled by the complainant party and caught hold of accused, while co-accused by making aerial firing and extending threats made their escape good---Record showed that acquitted accused were fully implicated by the complainant and two alleged eye-witnesses of the incident, rather said two accused were assigned harsher role than the accused, which was evident from the evidence of all three witnesses---Accused was also alleged to have made aerial firing---Despite that those two accused had been acquitted by the Trial Court by extending them benefit of doubt, whereas present accused had been convicted which seemed to be in clear violation of 'rule of consistency'.

Umar Farooque v. State 2006 SCMR 1605; Muhammad Asif v. The State 2017 SCMR 486 and Muhammad Akram v. The State 2012 SCMR 440 rel.

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

----S. 345(6)---Penal Code (XLV of 1860), Ss. 438, 506(2), 337-H(2) & 34---Mischief committed by fire or explosive substance, criminal intimidation, rash or negligent act to endanger human life or personal safety of others, common intention---Appreciation of evidence---Compounding of offence---Compromise between the parties---Conviction and sentence, effect upon---Prosecution case was that the accused along with his co-accused were present in cattle pond of complainant, they were encircled by the complainant party and caught hold of accused, while co-accused by making aerial firing and extending threats made their escape good---Record showed that both the parties viz. the complainant and the accused had patched up their differences and amicably settled their disputes and had filed application under S. 345(2), Cr.P.C., for granting permission to compromise the matter---Compromise application under S. 345(6), Cr.P.C., was also filed mentioning therein that due to intervention of nekmards of locality the parties had compromised the matter for keeping good, brotherly and cordial relations with each other---Admitted fact was that both the parties had amicably settled all their differences and disputes and had agreed to pass rest of their lives in peace, tranquillity and harmony, however, High Court observed that non-compoundability of a particular offence under any section of the enactment should not be read in isolation but it should be read in the background of each criminal case and beneficial interpretation should be given to it---Petition was allowed by setting aside conviction and sentences recorded by the Trial Court, in circumstances--- Accused was acquitted accordingly.

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

----S. 345(6)---Compromise---Scope---If both the parties had earnestly decided to live in peace and tranquillity by ignoring and settling all their past differences, then for the sake of their welfare in particular and betterment of socio-economic conditions of the society as a whole, it would be prime need of the time to accept the compromise and consequently acquit the accused from the charge.

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

G. Ali alias Ali Jan Qureshi for Applicant.

Complainant in person.

S. Sobia Bhatti, A.P.G. Sindh for the State.

2022 P Cr. L J 774

[Sindh]

Before Naimatullah Phulpoto and Abdul Mobeen Lakho, JJ

ASSADDULLAH---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 131 and 132 of 2020, decided on 12th March, 2021.

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

----S. 7---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Sindh Arms Act (V of 2013), S. 23-1(A)---Act of terrorism, possession of hand grenade, Kalashnikov and bullets---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Scope---Prosecution case was that one hand grenade, a Kalashnikov and bullets were recovered from the possession of accused---Record showed that it was the case of spy information but the Investigating Officer had failed to associate independent persons of the locality to act as mashir, which was admittedly thickly populated area---Prosecution had claimed that one hand grenade of gray colour was allegedly recovered from the possession of the accused but no description/number of the hand grenade was mentioned in mashirnama of arrest and recovery---Incharge Bomb Disposal Unit while contradicting that fact, in his evidence produced inspection report of hand grenade, which showed that on the lever there was lot No.24-70 y3PTM 386---Case of the prosecution was that a Kalashnikov without number was also allegedly recovered from the possession of the accused, however, Forensic Science Laboratory Report depicted that the weapon was with rubbed number---Investigating Officer had also failed to interrogate the accused that with what intention, he was carrying such explosive substance---In the present case, it appeared to be very illogical that though accused being allegedly armed with deadly weapons like Kalashnikov and hand grenade but he did not resist and calmly surrendered himself before the police---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) Anti-Terrorism Act (XXVII of 1997)---

----S. 7---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Sindh Arms Act (V of 2013), S. 23-1(A)---Criminal Procedure Code (V of 1898), S. 342---Act of terrorism, possession of hand grenade, Kalashnikov and bullets--- Appreciation of evidence---Benefit of doubt---Defence plea---Scope---Prosecution case was that one hand grenade, a Kalashnikov and bullets were recovered from the possession of accused---In the present case, defence plea had been raised by the accused that he was picked up by the Police Officials while he was coming from hospital along with his cousin---Investigating Officer failed to examine such plea during investigation even Trial Court ignored defense evidence without assigning cogent reasons---Appeal against conviction was allowed.

Ghulam Fareed Balouch for Appellant.

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

2022 P Cr. L J 781

[Sindh (Sukkur Bench)]

Before Muhammad Faisal Kamal Alam and Amjad Ali Sahito, JJ

MIR GHULAM ABBAS JAKHRANI---Petitioner

Versus

DIRECTOR GENERAL NAB and 2 others---Respondents

Constitutional Petition No. D-149 of 2022, decided on 9th March, 2022.

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

----S. 9(a)---Constitution of Pakistan, Arts. 10A & 199---Criminal Procedure Code (V of 1898), S. 497(2)---Benamidar, abettor, facilitator and associate of a politician, laundering proceeds of crime for sale/purchase of immoveable property---Bail, grant of---Inordinate and unconscionable delay in conclusion of trial---Accused/petitioner was arrested and he was in jail for about 29 months---Admittedly the interim Reference in the subject case was filed on 14-01-2020 against five accused persons including the present accused, whereas, the charge was framed against the accused on 06-11-2020 and after framing of charge out of 49 witnesses, 07 prosecution witnesses were examined---Record and proceedings of the case showed that 39 times the case was proceeded before the Trial Court, out of which 12 adjournments were sought by the prosecution, 07 adjournments were sought by co-accused and progress was made in the trial of the case but only two adjournments were sought by the present accused only to the extent of reserving cross-examination, while on three dates the Court work was suspended or holidays were declared by the Government---Accused was shown to have been arrested on 20-9-2019 and he was in custody without any progress in the matter---Such a long delay did constitute "inordinate and unconscionable delay" in conclusion of trial---Article 10 (A) of the Constitution which included the right to an expeditious trial should be fully applied to protect an under trial prisoner from prolonged periods of incarceration during his trial due to no fault of his own---Moreover in the present case there was no tangible, sufficient, incriminating material available on record against the accused for the commission of the offence alleged against him---Accused had succeeded to make out the case for grant of bail on the ground of "inordinate and unconscionable delay" and also in terms of subsection (2) of S. 497, Cr.P.C.---Constitutional petition was allowed, and the accused was admitted to bail.

Talat Ishaq v. NAB PLD 2019 SC 112; Himesh Khan v. The National Accountability Bureau (NAB) Lahore 2015 SCMR 1092; Muhammad Jawad Hanif Khan and another v. National accountability Bureau Sindh and others 2020 SCMR 185; Muhammad Iqbal Khan Noori and another v. National Accountability Bureau (NAB) and others PLD 2021 SC 916; Shakeel Shah v. The State and others 2022 SCMR 1 and Nadeem Samson v. The State and others PLD 2022 SC 112 ref.

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

----S. 9---Constitution of Pakistan, Art. 10A---Accused charged under the National Accountability Ordinance, 1999, detention of---In a case where the National Accountability Bureau (NAB) is unable to show sufficient incriminating material to the Court to justify the detention of the accused, depriving the accused of his liberty and freedom even for a single day is, to say the least, unconscionable and below human dignity.

Muneer Ahmed Malik and Mohsin Shahwani for Petitioner.

Bahawal-u-Din Shaikh, Special Prosecutor for NAB, Sukkur and Mumtaz Ali Gopang, Assistant Attorney General for Respondents.

2022 P Cr. L J 815

[Sindh]

Before Muhammad Iqbal Kalhoro and Shamsuddin Abbasi, JJ

SAEED HASSAN---Petitioner

Versus

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

Constitutional Petition No. D-7991 of 2019, decided on 17th August, 2021.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(c)--- Constitution of Pakistan, Art. 199---Constitutional petition---Closure of investigation---Mala fide of investigating officer---Proof---Investigation against petitioner was closed by National Accountability Bureau (NAB) but Trial Court declined to affirm its report---Validity---Against conclusion of NAB, nothing was available on record to take a reverse view and agree with order passed by Trial Court---Opinion reached by investigating officer and endorsed by Regional Board Meeting was an outcome of a long toil aimed at ferreting out incriminating material against petitioner but without a result---Even in already held investigations and inquiries on complaints before other forums including Anti-Corruption Establishment, no proof regarding allegations against petitioner was found and he was exonerated---Trial Court reversed the opinion of investigating officer upholding innocence of petitioner, hypothesizing mala fide on his part and his failure to take into account the complaints of affectees---Mala fide by investigating officer could only be alluded and taken as a ground for disagreeing with his report when material available emphatically pointed out to evidence connecting the accused with crime and when on a look at the material no other opinion except the one endorsing involvement of accused in crime was possible---No material to show nexus of petitioner with allegations or evidence that investigating officer deliberately out of mala fide had overlooked such material which was available---Land in question was still with government and things as they stood Sind Building Control Authority had no jurisdiction to grant approval for alteration or making addition in government buildings---Reinvestigation was not going to alter such reality or even bring forth new evidence in such regard---High Court set aside the order passed by Trial Court and confirmed findings of investigating officer---Constitutional petition was allowed accordingly.

Khawaja Shamsul Islam for Petitioner.

Barrister Waleed Rehan Khanzada for Respondent No.3/KW&SB.

Riaz Alam, Special Prosecutor, NAB along with IO Adeel Zia.

Ms. Naushaba Haq Solangi, A.A.G.

2022 P Cr. L J 828

[Sindh]

Before Nadeem Akhtar, J

AZIZ-UR-REHMAN alias BABUL---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-1344 of 2021, decided on 25th February, 2022.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 376, 452 & 506---Rape, house-trespass after preparation for hurt, assault or wrongful restraint---Pre-arrest bail, refusal of---Prompt FIR---Absence of mala fide conduct---Negative DNA report---Complainant had specifically and clearly nominated the accused with specific role of committing zina with her; she had reiterated the allegations in her statement under S. 164, Cr.P.C.---Reporting of alleged crime with reasonable promptitude had ruled out any chance of false involvement of the accused or manipulation of the narrative of FIR---Mere statement of victim was sufficient to connect the accused with the commission of the offence, if the statement of the victim inspired confidence---Nothing was available on record to show that the offence alleged against the accused was the result of mala fides on the part of the complainant or the police---So far as the contention that the DNA test report did not support the case of prosecution was concerned the samples for the test were collected after twelve days, as such, the absence of fresh evidence of intercourse was quite reasonable---Prima facie sufficient material was available on record to connect the accused with the offence alleged against him which fell within the prohibitory clause of S. 497(1), Cr.P.C.--- Accused was not entitled to the grant of concession of pre-arrest bail--- Application was dismissed, in circumstances. [pp. 831, 832, 833] A, B, C, D, E & F

Ehsanullah v. The State 2012 SCMR 1137; Muhammad Ayoub v. The State and another 2021 PCr.LJ 821; Gaman Bangulani and 2 others v. The State 2021 YLR Note 30; Muhammad Shareef v. The State and another 2020 YLR Note 46; Chelo and another v. The State 2020 YLR 1406; Fida Ahmed v. The State 2020 YLR Note 153; Rana Muhammad Javed Iqbal v. The State and another 2018 YLR 207; Ashiq Ali and 6 others v. The State and another 2018 PCr.LJ 1084; Muhammad Zafar v. Civil Judge and Judicial Magistrate-8, Hyderabad and 2 others 2016 PCr.LJ 207; Pervaiz and another v. The State and another 2014 PCr.LJ 599; Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427; Nehal v. The State and another 2020 SCMR 2053; Adil v. The State 2016 YLR 1259; Imran v. The State 2016 PCr.LJ 1888; Salman v. The State 2014 PCr.LJ 641; Usman Khan v. Mst. Nasreen and 2 others 2021 MLD 1833; Muhammad Tariq Ilyas v. The State 2018 YLR Note 224; Muhammad Nasir Iqbal v. State 2000 PCr.LJ 112; Rana Raja Falak Javed v. The State and another 2021 YLR 388; Dilawar v. The State and another 2020 MLD 155; Mukhtiar Ali and others v. The State 2018 YLR 1743 and Qadeer and another v. The State 2017 YLR Note 283 ref.

Rashad v. The State 2002 SCMR 1329; Atif Zareef v. The State PLD 2021 SC 550 and Zahid v. The State 2022 SCMR 50 rel.

Abdul Rauf for Applicant.

Ms. Amna Usman for the Complainant.

Ms. Rahat Ehsan, D.P.G. along with SIP Muhammad Ejaz of P.S. Docks for the State.

2022 P Cr. L J 849

[Sindh]

Before Salahuddin Panhwar, J

Mst. SEEMA and another---Petitioners

Versus

WAJID ALI SHAH and others---Respondents

Criminal Miscellaneous Application No. 319, Criminal Revision Application No. 135 and C.P. No. S-445 of 2020, decided on 14th January, 2021.

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

----S. 494--- Family Courts Act (XXXV of 1964), S. 5, Sched.---Suit for dissolution of marriage---Marrying again during lifetime of husband or wife---Bona fide conduct---Effect---Suit for khula filed by petitioner/Wife was decreed---Petitioner contracted second marriage after her suit was decreed---Respondent assailed the decree before Appellate Court; case was remanded back for pre-trial---In second trial, the suit was dismissed by the Family Court---Respondent filed criminal case against the petitioner and others under S. 494, P.P.C.---Trial Court took cognizance only against the petitioner with regard to second marriage---Said order was assailed before the High Court---Petitioner impugned the orders of the Appellate Court and Family Court whereby her case was remanded and the suit was subsequently dismissed---Petitioner also challenged the order passed by Magistrate whereby he had taken cognizance against her---Validity---Respondent had arraigned the petitioner in various litigations, including two criminal cases on charge of zina; alleged illegal visa as well as fraudulent CNIC---Such conduct and pending litigation(s) were, prima facie, sufficient to make it clear that respondent's claim to the effect that petitioner was his legally wedded wife was only being used to keep her in court(s) or get her punished else he would have, first, attempted for restitution of his rights which he, prima facie, never did---Petitioner had contracted second marriage while believing that khula was sufficient to exercise her right to re-marry---Bona fide was attached with her act of second marriage---Remand order as well as dismissal of her suit could not be allowed to undo the re-marriage after khula because re-marriage was nothing but a seal on door of her first marriage and petitioner was happy with the decision of khula---Law favoured rights over procedure---Judgments of Appellate Court and Family Court were set aside and the earlier order passed by Family Court whereby suit was decreed was maintained---Order of Magistrate taking cognizance of second marriage of petitioner was set aside as the same was without declaration of family jurisdiction---Petitions were disposed of accordingly.

2014 SCMR 1762; 2014 CLC 60; PLD 2011 Lah. 37; 1992 SCMR 1273; 1986 PCr.LJ 2174; PLD 2010 Kar. 61; PLD 2011 Lah. 534; 2017 CLC 1718; 1997 CLC 142 and 1991 MLD 1419 ref.

(b) Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Suit for dissolution of marriage---Scope---Marriage is a legal contract through which both parties agree to live a harmonious life by honouring their respective obligations and duties towards each other---Islam, also, nowhere forces the spouses to live a life devoid of harmony and happiness rather allows the parties to part, if they can't live together, as they should---Such act is not liked yet is permitted because it is never fair to compel/force two persons to live together as same, surely, would be against guaranteed fundamental rights of such persons---Man (husband) has a unilateral right to give talak but the woman (wife) has also been provided a right to seek separation by way of khula---This, prima facie, is a way out for woman (wife) to come out of such bond of marriage and for such claim, she even is not supposed to give detail(s) for such move but her disliking is sufficient for exercise of such right--- In such event, she would only be required to return/restore the benefit(s), if any, she received from husband.

Al-Khul' (divorce) Baqarah 2:229 and Mst. Bilqis Fatima v. Naimul Ikram Qureshi PLD 1959 Lah. 566 rel.

(c) Administration of justice---

----Law favours the rights over procedure.

Syed Nadeem Haider Shah for Petitioner along with Mst. Seema.

Muhammad Sharif Buriro for Respondent.

2022 P Cr. L J 876

[Sindh]

Before Muhammad Iqbal Kalhoro and Shamsuddin Abbasi, JJ

SULTAN QAMAR SIDDIQUI and others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU and others---Respondents

C.P. No. D-2757 of 2020, decided on 27th April, 2021.

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

----Ss. 13 & 23---Objection against freezing of Bank accounts---Petitioner was alleged to have accumulated assets beyond means---Pending trial, bank accounts of petitioner and his family members were frozen and put under caution under S. 23 of National Accountability Ordinance, 1999---Petitioner filed application for releasing certain amounts for meeting household expenses but the same was dismissed---Trial culminated in acquittal of the petitioner---Petitioner after acquittal, moved application under S. 13 of National Accountability Ordinance, 1999, for lifting caution but it was also dismissed on the ground that since National Accountability Bureau (NAB) has filed acquittal appeal, a continuation of trial, as such court could not decide the issue---Validity---Section 23 of National Accountability Ordinance, 1999, allowed the Chairman, NAB, to put caution on the property of an accused involved in an offence from transferring the same, creating charge, alienating possession thereof, etc., however, after conclusion of trial, resulting into acquittal of the accused, vires of power exercised as such came to an end and got merged into the judgment---Challenge to High Court did not change the situation, unless ordered otherwise and the appeal was admitted for regular hearing---Impugned order was set aside and the application as well as the constitutional petition was allowed as prayed for.

(b) Appeal against acquittal---

----Element of doubt presumption of innocence running in favour of the accused would lean strongly against any presumed probability of its being upset in the acquittal appeal.

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

----S. 417---Appeal against acquittal---Scope---Principles governing consideration in acquittal appeal are quite distinctive to what regulates the appeal against the conviction---Acquittal appeal is not right of the appellant, whereas, it is vice versa in the appeal against conviction.

Khawaja Shams-ul-Islam for Petitioner.

Riaz Alam, Special Prosecutor, NAB.

2022 P Cr. L J 883

[Sindh (Sukkur Bench)]

Before Muhammad Faisal Kamal Alam and Amjad Ali Sahito, JJ

NAEEM AKHTAR KHEMITO and another---Applicants

Versus

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

Criminal Bail Applications Nos. D-11 of 2022 and D-258 of 2021, decided on 2nd March, 2022.

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

----S. 497---National Accountability Ordinance (XVIII of 1999), S. 9---Initiating bills and making payments to contractors without any tendering process or award of contracts---Bail, grant of---Inordinate and unconscionable delay in conclusion of trial---Accused and co-accused were in jail for about or more than two years respectively --- Admittedly the Reference in the subject case was filed on 22-11-2018 against forty-five (45) accused persons including the present accused and co-accused, whereas, the charge was framed against them on 10.10.2019 and after framing of charge out of twenty (20) witnesses, four (4) prosecution witnesses were examined---Thus, in a period of two (2) years only four prosecution witnesses had been examined out of twenty (20) witnesses by the Trial Court---For the rest of the witnesses the trial was most likely going to take a sufficient period to conclude---Record showed that the accused was shown to have been arrested on 09-11-2017, while co-accused was shown to have been arrested on 17.03.2020 and they were in custody without any progress in the matter---Such a long delay constituted "inordinate and unconscionable delay"---Bail applications were allowed and the accused and co-accused were granted bail on the ground of 'inordinate and unconscionable delay' in conclusion of their trial.

Talat Ishaq v. National Accountability Bureau PLD 2019 SC 112 and Himesh Khan v. The National Accountability Bureau (NAB) Lahore 2015 SCMR 1092 ref.

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

----S. 497--- Constitution of Pakistan, Art. 10-A--- Under trial prisoner---Bail, grant of---Grounds---Inordinate and unconscionable delay in conclusion of trial---Article 10-A of the Constitution, which includes the right to an expeditious trial should be meaningful and should be fully applied to protect an under trial prisoner from prolonged periods of incarceration during his trial due to no fault of his own.

Muhammad Sidique for Applicant (in Criminal Bail Application No. D-258 of 2021).

Manzoor Hussain Larik for Applicant (in Criminal Bail Application No. D-11 of 2022).

Mujeeb-ur-Rehman Soomro and Bahawal-u-Din Shaikh, Special Prosecutor for NAB Sukkur and Ali Raza Pathan, Assistant Attorney General for Respondents.

2022 P Cr. L J 908

[Sindh]

Before Aftab Ahmed Gorar, J

RIZWAN HAIDER and others---Applicants

Versus

The STATE---Respondent

Criminal Bail Applications Nos. 76, 1430 and 1537 of 2021, decided on 15th September, 2021.

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

----S. 498---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd and common intention---Bail, grant of---Scope---Accused persons sought pre-arrest bail in an FIR registered under Ss. 302 & 34, P.P.C.---Deceased had died due to road accident and in that regard statement of private person who was allegedly the driver of van with whom the motorcycle of the deceased was claimed to have collided was recorded---Medical certificate had shown that the deceased had received hard and blunt injury on his head---Neither the deceased was in custody of the accused persons nor any other marks of violence were found on the body of the deceased to prima facie establish that the deceased was murdered---No enmity of the deceased or complainant was shown with the accused persons---No complaint of misuse of concession of bail or tampering the record was pointed out despite the fact that the accused persons were police officials---No specific role was assigned to any of the accused persons---Case of accused persons called for further inquiry in terms of subsection (2) of S. 497, Cr.P.C.---Accused persons were admitted to pre-arrest bail, in circumstances.

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

----S. 497---Bail---Tentative assessment---Scope---Object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail---At bail stage, deeper appreciation of evidence and circumstances appearing in the case are not permitted and only tentative assessment is to be made, however, where accused satisfies the Court that there are reasonable grounds to believe that they are not guilty of such offence then the Court must release them on bail.

Yar Muhammad v. The State and another 2004 YLR 2230 ref.

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

----S. 497---Bail---Scope---Object of bail is neither punitive nor preventive therefore, deprivation of liberty must be considered a punishment, unless it may be required to ensure the presence of accused during trial---Punishment begins after conviction and not before it, as in criminal justice system every man is deemed to be innocent until found guilty.

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

----S. 497---Bail---Scope---Putting the un-convicted persons in custody is nothing but to secure their attendance at the trial.

Khawaja Naveed Ahmed for Applicant (in Criminal Bail Application No. 76 of 2021).

Mudassar Ahmed for Applicant (in Criminal Bail Application No. 1430 of 2021).

Muhammad Ibrahim for Applicant (in Criminal Bail Application No. 1537 of 2021).

Siraj Ali Khan, A.P.G. for the State.

2022 P Cr. L J 920

[Sindh]

Before Naimatullah Phulpoto and Abdul Mobeen Lakho, JJ

OWAIS and another---Appellants

Versus

The STATE---Respondent

Special Criminal A.T. Jail Appeal No. 146 of 2020, decided on 18th March, 2021.

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

----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that when the police party signalled the accused to stop, they made direct firing on the police party with the intention to commit their qatl-i-amd---Police also fired in self defence due to which one accused sustained injury and was apprehended, whereas the remaining made their escape good---Record showed that the prosecution story appeared to be unnatural and unbelievable for the reasons that according to prosecution case an encounter took place at 5:40 a.m. between accused and police party, said to be a case of cross-firing, with automatic weapons wherein one accused was caught hold in injured condition, whereas other two accused made their escape good---Quite unbelievable, for the reason that alleged encounter continued for considerable time with automatic weapons, however, not a single injury/scratch was caused to any Police Official, any passerby or to police mobile and it hit only to the accused while selecting his ankle---Except bullet injury no bruise or abrasion had been found by the Medical Officer though the accused after receiving injury fell down on the ground from the motorcycle, which was, according to the prosecution case, in a high speed---Even no one from the police tried to chase and catch hold of other two accused, who ran away from the place of incident---Assertion that accused was armed with pistol, but he did not resist his arrest and easily surrendered himself before the police seemed to be illogical---Evidence of Police Officials in the peculiar circumstances, required independent corroboration, which was lacking in the case---High Court observed that defence pleas raised by the accused that they were picked up by the police from their house/work place and weapons were foisted upon them in fake police encounter appeared to be plausible, however, the Trial Court disbelieved the same without assigning any reason---Based on the evidence led, the prosecution story regarding a police encounter did not appeal to logic and the benefit of the doubt must go to the accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of reasonable doubt---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---Criminal Procedure Code (V of 1898), S. 103---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Non-association of private witness---Scope---Prosecution case was that when the police party signalled the accused to stop, they made direct firing on the police party with the intention to commit their qatl-i-amd---Police also fired in self defence due to which one accused sustained injury and was apprehended, whereas the remaining accused made their escape good---Admittedly, the place of incident was a thickly populated area, but no private person was associated as witness to arrest and recovery proceedings---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of reasonable doubt---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---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Non-recovery of incriminating material---Scope---Prosecution case was that when the police party signalled the accused to stop, they made direct firing on the police party with the intention to commit their qatl-i-amd---Police also fired in self defence due to which one accused sustained injury and was apprehended, whereas the remaining accused made their escape good---No blood was found at the place of incident at the time of site inspection---Prosecution case was that Police Constable fired four shots at the accused persons but not a single empty of such shots had been secured from the place of incident---Even the motorcycle allegedly used in the commission of crime by the accused had also not been made as a case property---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence and crime empties---Safe custody and safe transmission of pistol and empties---Reliance---Scope---Prosecution case was that when the police party signalled the accused to stop, they made direct firing on the police party with the intention to commit their qatl-i-amd---Police also fired in self defence due to which one accused sustained injury and was apprehended, whereas the remaining accused made their escape good---In the present case, the safe custody and safe transmission of the pistols and empties had also not been proved before Trial Court---Record transpired that it had not been explained by the prosecution that the weapons and empties were retained by whom during intervening period---If it was assumed that the case property was lying in the Malkhana then no report/entry of the Malkhana had been produced to corroborate the version of prosecution---No official from Forensic Division had been examined in the case---Investigating Officer nowhere had deposed about safe custody of the pistol at Police Station and its safe transmission to the Ballistic Expert, as such positive report of Forensic Science Laboratory would not improve the case of prosecution---Prosecution was under legal obligation to prove the safe custody of the recovered weapon and its safe transmission to the Forensic Science laboratory---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

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

----S. 353--- Police encounter--- Standard of proof--- High Court observed that in the case of police encounter, it is desirable and even imperative that it should have been investigated by some other agency---Police, could not be investigators of their own cause---Such investigation which is woefully lacking independent character could not be made basis for conviction, that too when it is riddled with many lacunas and loopholes.

Zeeshan alias Shani v. The State 2012 SCMR 428 rel.

Iftikhar Ahmed Shah for Appellants.

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

2022 P Cr. L J 941

[Sindh]

Before Muhammad Iqbal Kalhoro and Shamsuddin Abbasi, JJ

ABBAS HAIDER NAQVI and another---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

C.P. No. D-4519 of 2019, decided on 8th January, 2021.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(vi)---Criminal Procedure Code (V of 1898), Ss. 265-K & 403---Constitution of Pakistan, Arts. 13 & 199---Constitutional petition--- Maintainability--- Quashing of proceedings---Fag end of trial---Double jeopardy---Show cause notice, proceedings of---Scope---Petitioners were facing trial who sought quashing of proceedings against them at the stage when cross examination on investigating officer as last prosecution witness was under process---Plea raised by petitioners was that penalty in the matter had already been imposed against proceedings initiated under show cause notice therefore, trial was a double jeopardy---Validity---Case of prosecution was almost over and at such stage expressing opinion into merits of the case especially based on evidence that too under discretionary Constitutional jurisdiction was not only to prejudice case of parties but was likely to deprive both of them an appellate forum which otherwise in the wake of final decision by Trial Court was available to aggrieved party---Petitioners were not the only accused in reference but were arraigned therein along with other accused persons---Nature of allegations and overlapping role of each accused in causing effect leading to alleged loss to national exchequer was such that separating attribution to one accused from the other was not possible without undermining the whole prosecution case---Such approach would amount to resolving controversy in piecemeal which had never been the scheme of law---Commission of any offence by petitioners could only be settled after deep and at minuscule level examination of evidence---Such exercise was not permissible under Constitutional jurisdiction and was tantamount to stretching things beyond prescribed limits---Penalty imposed under show cause notice was not outcome of any proceedings held in trial and in respect of same offence by competent Court of law to attract principle of double jeopardy enshrined under Art. 13 of the Constitution and S. 403, Cr.P.C.---Proceedings in terms of show cause notice were not equal to the ones held in trial which were basically meant to find out guilt or otherwise of an accused in alleged offence on the basis of evidence---Show cause notice followed quite distinct procedure than the one held in regular trial where mandatorily evidence of parties was to be recorded and appreciated, whereas in the former no such exercise was restored to---Constitutional petition was dismissed, in circumstances.

PLD 1978 SC 121; PLD 2008 SC 166; 2008 SCMR 1118 and PLD 2016 SC 276 ref.

PLD 1999 SC 937; PLD 2001 SC 7; Muhammad Nadeem Anwar v. Securities Exchange Commission of Pakistan through Director NBFCs Department Islamabad 2014 SCMR 1376 and Adam v. Collector of Customs, Karachi PLD 1969 SC 446 rel.

Rasheed A. Rizvi along with Tahmasp R. Rizvi and Shoaib Khatian for Petitioners.

Shahbaz Sahotra, Special Prosecutor NAB.

Mukesh Kumar Khatri, Assistant Attorney General.

2022 P Cr. L J 961

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ

MUREED MAJEEDANO---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-99 of 2017, decided on 7th May, 2018.\

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

----Ss. 9(c) & 25---Police Rules, 1934, R. 25.2(3)---Criminal Procedure Code (V of 1898), S. 103---Recovery of narcotic substance---Appreciation of evidence---Recovery witnesses---Evidence of police officials---Principle---Administration of justice---Charas weighing 14 kilograms was recovered from custody of accused---Trial Court convicted the accused and sentenced him to imprisonment for life---Validity---Private persons were present at the time of recovery so also persons sitting at hotel, who refused to act as Mashir---Complainant/investigating officer failed to mention names of those person who refused to act as Mashir---High Court declined to accept explanation given by investigating officer that independent persons were available but they were not willing to give evidence as it was no excuse for excluding such persons without legal justification---Justice was not to be done only in Courts---Other persons entrusted with powers were also responsible to do justice at their level---Responsible officer of Anti-Narcotic Force, invested with powers of investigation was also obliged in law to do justice and conduct fair trial and independent investigation---Prosecution failed to prove that Charas was in safe custody for the period and positive report of Chemical Examiner could not prove case of prosecution---Reasonable doubts existed in the case of prosecution, it was not necessary that there should many circumstances creating doubts---If there was a single circumstance which had created reasonable doubt in a prudent mind about guilt of accused, then accused was entitled to the benefit as not a matter of grace and concession but as a matter of right---High Court set aside conviction and sentence awarded to accused and acquitted him of the charge as prosecution failed to prove its case---Appeal was allowed, in circumstances.

Tarique Parvez v. The State 1995 SCMR 1345; Taj Wali and 6 others v. The State PLD 2005 Kar. 128; Munawar Ali Jatoi v. The State 2012 MLD 1763; Roshan v. The State 2018 PCr.LJ Note 26; Ghulam Qadir v. The State PLD 2006 SC 61; Zafar v. The State 2008 SCMR 1254 and Muhammad Sarfraz v. The State and others 2017 SCMR 1874 ref.

Nazeer Ahmed v. The State PLD 2009 Kar. 191 rel.

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

----S. 36---Report of Chemical Examiner---Scope---If signed report in quadruplicate in 'the prescribed manner' is not prepared, such report cannot qualify to be called a report in the context of S. 36 of Control of Narcotic Substances Act, 1997, so as to be treated as a 'conclusive' proof of recovery of narcotic substance from an accused person.

Ikramullah and others v. The State 2015 SCMR 1002 rel.

Manzoor Hussain Subhopoto for Appellant.

Muhammad Ayoub Kasar, Special Prosecutor ANF for the State.

2022 P Cr. L J 995

[Sindh]

Before Nadeem Akhtar, J

ABRAR AHMED SIDDIQI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 1198 of 2021, decided on 22nd April, 2022.

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

----S. 498---Penal Code (XLV of 1860), S. 324---Attempt to commit qatl-i-amd---Pre-arrest bail, grant of---Further inquiry---Scope---Complainant (wife) alleged in the FIR that the accused (husband) attacked her with a knife in their house with the intention of killing her and she received a stab wound in her abdomen as a result of the attack---Allegation was denied by the accused by claiming that the complainant became enraged and violent as he had divorced her and the stab wound was inflicted by her in her abdomen with a knife in order to take revenge from him---Admittedly, the knife from which the injury was allegedly caused was never recovered either from the accused or from the scene of the alleged crime---In the present case, there were two eye-witnesses of the incident, a neighbour of the parties and a minor daughter of the complainant---Neighbour had stated in his statement under S. 161, Cr.P.C., that the injury was inflicted by the complainant herself---Minor daughter of the complainant had disclosed to the police that her mother had stabbed herself in the abdomen with a knife---Both eye-witnesses had supported the version of the accused---Medico legal report did not specify whether the wound was self-inflicted or otherwise although the medico legal officer was competent enough to identify such nature of the wound and to mention it in his report---Case of accused was one of further inquiry---Petition for grant of pre-arrest bail was allowed, in circumstances.

Saqib and others v. The State and others 2020 SCMR 677; Farooq Khan and another v. The State and another 2020 YLR 292; Rehman alias Peer v. The State and another 2017 YLR Note 428 and Ehsanullah v. The State 2012 SCMR 1137 ref.

Muhammad Jahangir Khan and others v. The State and others 2020 SCMR 1270; Habibullah Jan and another v. The State through A.G. Khyber Pakhtunkhwa and others 2020 SCMR 1278; Muhammad Arshad and another v. The State and another 1996 SCMR 74; Muhammad Irshad and others v. Amanat Ali and another 2004 SCMR 1375; Muhammad Aslam and another v. The State 2007 SCMR 1412 and Muhammad Sadiq and others v. The State and another 2015 SCMR 1394 distinguished.

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

----S. 497---Bail---Tentative assessment---Scope---Thorough or deep scrutiny of evidence was not permissible at the stage of bail nor was the requirement of law; however, in order to form a tentative opinion as to whether or not the accused was prima facie connected with the commission of the offence, the Court was not precluded from tentatively assessing the evidence of the eye-witnesses, the witnesses of the recovery, the medical reports, cross-versions, other connecting evidence and the plea of defence, if any.

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

----S. 497---Bail---Prohibitory clause---Scope---Bail cannot be refused merely on the ground that the offence falls within the prohibitory clause if upon a tentative assessment of the evidence the case otherwise appears to be that of further inquiry and or the accused succeeds in making out a case for the grant of bail.

Waqas Ali Chaudhry for Applicant.

Jahanzeb Baloch for the Complainant.

Hussain Bakhsh Baloch, Additional P.G. for the State.

2022 P Cr. L J 1032

[Sindh]

Before Muhammad Iqbal Kalhoro and Shamsuddin Abbasi, JJ

ASADULLAH SOLANGI and another---Appellants

Versus

The STATE (NAB) through Director General---Respondent

Criminal Accountability Appeals Nos. 51 and 52 of 2018, decided on 27th August, 2021.

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

----S. 342---Statement of accused---Defence plea---Reliance---If accused person has a defence plea the same should be put to witnesses in cross-examination and then put forward the same while recording statement under S. 342, Cr.P.C.---Where no specific plea is taken by accused person in his statement under S. 342, Cr.P.C., such statement has to be discarded for not confidence inspiring.

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

----S. 9(a)(vi)---Misuse of authority, attempt of---Appreciation of evidence---Personal gain---Causing of financial loss---Principle---Accused persons were officials of revenue department who were convicted for misusing their authority and sentenced to imprisonment for ten years---Plea raised by accused persons was that they had not drawn any personal gain nor caused any financial loss to national exchequer---Validity---Accused persons in their official capacity failed to discharge their duties in accordance with minimum required standards to protect assets of government which was a sacred trust under their command and control---Accused persons failed to do so and it amounted to corruption and corrupt practices---Offence of corruption and corrupt practices as provided in S. 9(a)(vi) of National Accountability Ordinance, 1999, included even an attempt to misuse authority so as to gain any benefit to any other persons and it need not necessarily resulted in any personal gain to accused---Prosecution successfully proved its case against accused persons beyond shadow of doubt---Accused persons failed to point out any material illegality or serious infirmity committed by Trial Court while passing judgment in question---High Court declined to interfere in conviction and sentence awarded to accused persons as the same was based on fair evaluation of evidence brought on record---Appeal was dismissed, in circumstances.

Mansur-ul-Haque v. Government of Pakistan PLD 2008 SC 166; The State and others v. M. Idrees Ghauri and others 2008 SCMR 1118; Pir Mazharul Haq and others v. The State through Chief Ehtesab Commissioner, Islamabad PLD 2005 SC 63; M. Anwar Saifullah Khan v. The State PLD 2002 Lah. 458; The State v. Anwar Saif Ullah Khan PLD 2016 SC 276; M. Siddique-ul-Farooque v. The State PLD 2002 Kar. 24; Masood Alam Niazi and others v. The State through Chairman NAB 2021 PCr.LJ 99 and Malik Din v. Chairman National Accountability Bureau and another 2019 SCMR 372 ref.

Ali Asghar Buriro and Jamil Ahmed Rajpar for Appellants (in Criminal Accountability Appeals Nos. 51 and 52 of 2018).

R.D. Kalhoro, Special Prosecutor NAB for Respondent (in Criminal Accountability Appeals Nos. 51 and 52 of 2018).

2022 P Cr. L J 1059

[Sindh (Larkana Bench)]

Before Omar Sial and Zulfiqar Ali Sangi, JJ

TARIQUE ALI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-78 of 2019, decided on 19th June, 2021.

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

----Ss. 302, 338-B, 337-H(2), 386, 114 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, rash and negligent act, abeter present at the time of crime, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Ocular account---Scope---Accused was charged that he made firing upon the pregnant wife of complainant, due to which she died and her baby in the womb also died---Record showed that the complainant who was husband of the deceased had changed his entire version given by him in the FIR at the time of recoding his evidence---Complainant had completely exonerated the accused---In the FIR, complainant had shown himself as an eye-witness, while during his examination-in-chief he deposed that he was informed through phone that his wife sustained firearm injury, he rushed to hospital where he came to know that his wife had already died---Complainant further deposed that he thereafter took the dead body and buried---Complainant had deposed that he was called by DSP on next day and in the office his thumb impression was obtained on the FIR and the contents of FIR were not read over to him---Complainant was declared hostile on the request of APG for the State and he negated all the suggestions made by APG---Prosecution examined two more eye-witnesses who were shown in the FIR as eye-witnesses---Said witnesses also did not support the case of prosecution---Both the witnesses exonerated the accused and not supported their statement recorded under S. 161, Cr.P.C. and under S. 164, Cr.P.C., during the investigation---Said witnesses were also declared hostile on the request of APG and during the cross-examination both of them denied that their statements under S. 164 were recorded before the Judicial Magistrate---Circumstances established that the prosecution had not been able to prove its case against the accused beyond reasonable doubt--- Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 338-B, 337-H(2), 386, 114 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S.164---Qatl-i-amd, rash and negligent act, abetter present at the time of crime, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Confessional statement, recording of---Accused was charged that he made firing upon the pregnant wife of complainant, due to which she died and her baby in the womb also died---Prosecution examined Judicial Magistrate who recorded the statements under S. 164, Cr.P.C. of the eye-witnesses and had produced the same---Since the eye-witnesses whose statements were recorded by the Magistrate had not supported the case and had denied their statements recorded by the Magistrate---Judicial Magistrate during cross-examination admitted that he had gone through the contents of FIR at the time of recording the statements of witnesses and stated that witnesses in their statements were in contradiction with FIR---Evidence of the Magistrate had no substance to believe that accused had committed the murder---Circumstances established that the prosecution had not been able to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 338-B, 337-H(2), 386, 114 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, rash and negligent act, abeter present at the time of crime, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Medical evidence---Scope---Accused was charged that he made firing upon the pregnant wife of complainant, due to which she died and her baby in the womb also died---Medical evidence was not helpful to the prosecution as the same was only to be used for corroboration of ocular evidence---Medical evidence was also in conflict with the ocular evidence produced by the complainant party before the Investigating Officer but latter on complainant party changed the same during recording their evidence before the Trial Court---As per FIR the accused was armed with pistol and he fired upon the deceased and as per the memo of recovery (recovery not supported by the mashir in his evidence) police recovered one TT pistol and live bullets while the Medical Officer in her cross-examination stated that the same was caused by pellet emitting weapon like shot gun---Medical evidence produced by the prosecution was not of such standard to maintain the conviction in case of capital sentence--- Circumstances established that the prosecution had not been able to prove its case against the accused beyond reasonable doubt--- Appeal against conviction was allowed, in circumstances.

(d) Criminal trial---

----Medical evidence---Scope---Medical evidence only spoke about the nature of injuries, duration and seat of injuries, kind of weapon used in the commission of offence including cause of death etc. but could not identify the accused.

(e) Criminal trial---

----Benefit of doubt---Principle---Benefit of all the favourable circumstances would be extended to the accused not as a matter of grace or concession but as a matter of right.

Abdul Jabbar and another v. The State 2019 SCMR 129 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

Habibullah Ghouri for Appellant.

Muhammad Noonari, Deputy Prosecutor General for the State.

2022 P Cr. L J 1094

[Sindh]

Before Muhammad Iqbal Kalhoro and Shamsuddin Abbasi, JJ

KHALID ALAM---Petitioner

Versus

PROVINCE OF SINDH through Home Secretary Sindh and 5 others---Respondents

Constitutional Petition No. D-1013 of 2020, decided on 5th October, 2020.

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

----Ss. 249-A & 265-K---Quashing of FIR---Alternate remedy, availability of---Submission of challan---Scope---Accused sought quashing of FIR on the ground that all the FIRs were in respect of one and same transaction executed at the time for sale of rickshaws---Held; first FIR was lodged against three dishonoured cheques given by the accused to the complainant against purchase of 56 CNG rickshaws pursuant to a transaction executed in 2019---Second FIR was lodged for two dishonoured cheques and was in respect of sale of 20 rickshaws to the accused following a transaction executed in 2018/2019---Transactions appeared to be distinct in every dimension from each other and were done at different points of time---Mere nature of transactions being the same i.e. sale and purchase of the rickshaws between the same parties did not make them as one and same incident to be probed only in one FIR---Third FIR was altogether different and was lodged for commission of offences of breach of trust, cheating and dishonestly inducing delivery of property under Ss. 420 & 406, P.P.C.---High Court observed that since reports under S. 173, Cr.P.C. had been submitted, the accused had a remedy under S. 249-A or 265-K, Cr.P.C. as the case might be before the Trial Courts for the same relief---Constitutional petition was dismissed.

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

----Chap. XIV [Ss. 154 to 176]---Information to the police and their powers to investigate---Scope---After an FIR, the matter becomes a case and the Investigating Officer in the investigation of the case can record any number of versions of the same incident brought to his notice by different persons but those would be treated statements recorded under S. 160, Cr.P.C. and for which no separate FIR would be required to be lodged---Investigating Officer is bound to investigate all such versions of the incident in the case and is not obligated to focus on establishing correctness of the story of incident contained in the FIR---Investigating Officer is not required to be restricted or guided or controlled by version in the FIR either---If the information collected in the investigation points to a version and background different than what is revealed in the FIR, the same would be deemed only a version of first informant and nothing more---Report under S. 173, Cr.P.C. is to be based on final opinion of the investigating officer which has to be influenced by information/evidence collected from any number of persons acquainted with the circumstances of the case.

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

----S. 71--- Limit of punishment of offence made up of several offences---Scope---Section 71 of P.P.C. unambiguously speaks of limit of punishment to be inflicted to an accused for having committed an offence made up of parts constituting separate offences instead of punishing him for each such separate offence---Section 71, P.P.C. would be attracted only for executing sentence for that offence when the accused has been convicted.

Muhammad Bilal Rashid and Muhammad Ali Danish for Petitioner.

Muhammad Yousuf, A.A.G. and Ali Haider Saleem, D.P.G. for Respondents.

2022 P Cr. L J 1111

[Sindh]

Before Nazar Akbar and Muhammad Faisal Kamal Alam, JJ

ILTAF HUSSAIN and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Chairman NAB and others---Respondents

Constitutional Petitions Nos. 2587, 2588 and 2589 of 2021, decided on 20th May, 2021.

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

----S. 9(b)---Surety amount---Concealing of facts---Petitioners were accused persons who sought confirmation of their bail orders on the offer to return benefits availed by them---Petitioners sought reduction in bail bond amount on the plea that no such offer was made by them---Validity---Petitioners who were enjoying ad-interim pre-arrest bail granted to them without touching merits of the case had attempted to misguide and cheat the Court by first making offer/statement for confirmation of their bails again without touching merits of their cases on the basis of judgment of Supreme Court and then backed out from the offer by alleging before Supreme Court that such statement/offer was not made by their counsel---Petitioners had repeated their false statement again before the same Bench of High Court---High Court declined to interfere in surety amount already fixed and imposed cost on every petitioner--- Constitutional petition was dismissed accordingly.

2017 SCMR 1152 ref.

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

----S. 9(b) & Preamble---Bail---Offer to return benefits---Effect---Scheme of National Accountability Ordinance, 1999, is that once accused offers to deposit entire amount of alleged loss caused to government exchequer by him, at least half of the purpose of National Accountability Ordinance, 1999 is instantly achieved---Primary purpose of National Accountability Ordinance, 1999 as set out in its Preamble to recover ill-gotten gain accomplishes without bargain and only penal aspect of National Accountability Ordinance, 1999 is left to Accountability Court.

G. M. Bhutto for Petitioners (in all petitions).

2022 P Cr. L J 1141

[Sindh]

Before Muhammad Iqbal Kalhoro and Shamsuddin Abbasi, JJ

DAWOOD-UR-REHMAN---Petitioner

Versus

The STATE---Respondent

C.P. No. D-4145 of 2020, decided on 17th September, 2020.

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

----Ss. 9, 72, 74 & 76---Customs Act (IV of 1969), S. 2(s)---Possession of narcotics---Smuggling---Application of Customs Act, 1969---"Act to override other laws"---Scope---Prosecution case was that the FIA conducted raid at a house and recovered 170 bags of ketamine, tactfully concealed in bags of rice meant for export---Accused was arrested as he was present at the spot---Challan of the case was not filed in any court, therefore, the accused approached High Court for seeking bail---Special Judge (Customs, Taxation and Anti-Smuggling) had not entertained the report of the police and had returned the same---Investigating Officer, thereafter, reportedly attempted to submit the challan in the court established under Control of Narcotic Substances Act, 1997, but it was not accepted for want of jurisdiction---Validity---Section 72 of Control of Narcotic Substances Act, 1997, envisaged that prohibition and restriction imposed under the Act on import, export of narcotic drug, psychotropic substances would be deemed to be prohibitions and restrictions imposed under the Customs Act, 1969, and the provisions of said Act would apply---First proviso stipulated that notwithstanding anything contained in any law including the Customs Act, 1969, all the offences relating to narcotic drugs would be tried under the provision of the Act---Second proviso, which appeared to be aimed at meeting any investigation related exigency in that regard, elucidated that where an Officer of Customs apprehended a person involved in any such offence, he would be empowered to carry out inquiry or investigation in the manner as an officer authorized under this Act, which meant that if an offence of smuggling in terms of Customs Act, 1969, was committed in respect of any narcotic drug, etc. the scheme under Control of Narcotic Substances Act, 1997, would come into play and the accused would be dealt with under the provisions of said Act---Arrest and investigation by an officer not strictly authorized by the Act would stand legitimized as having been done by an officer under the Act---Outcome of such investigation for conducting a trial would be the subject matter of the Act and would be looked into by a Court established under the Act---Combined reading of Ss. 74 & 76 of Control of Narcotic Substances Act, 1997, jointly provided an overriding character of Control of Narcotic Substances Act, 1997, in the matters of punishment to an accused involved in narcotics cases and applicability of its provisions notwithstanding anything contained in any other law---Even in the face of any conflict between provisions of said Act and other laws criminalizing an action, its consequence, and the medium to deliver or enforce it, provisions of Control of Narcotic Substances Act, 1997, would prevail over the other law---Investigating Officer was directed by the High Court to submit challan in the court established under the Control of Narcotic Substances Act, 1997---Petition was disposed of accordingly.

The State through Collector of Customs v. Nasim Amin Butt and others 2001 SCMR 1083; Hussain Abdullah Salum v. The State PLD 2001 Kar. 283 and John Bernard Sender v. The State PLD 2004 Kar. 136 rel.

Khalid Mehmood Khan Kayani for Petitioner.

Mukesh Kumar Khatri, Assistant Attorney General for the State.

2022 P Cr. L J 1160

[Sindh]

Before Mohammed Karim Khan Agha and Irshad Ali Shah, JJ

IFTIKHAR AHMED alias BADSHAH---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 361 and Confirmation Case No. 7 of 2019, decided on 5th October, 2021.

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

----Ss. 302(b), 376 & 397---Qatl-i-amd, kidnapping or abducting a person under the age of fourteen, robbery or dacoity with attempt to cause death---Appreciation of evidence---Delay of about three hours in lodging the FIR---Effect---Accused was charged for committing murder of the brother, his wife, daughter and son of the complainant during dacoity---Record showed that the statement under S. 154, Cr.P.C., was recorded by the complainant within three hours of the incident despite their being no eye-witness to the incident and thus the FIR was lodged with promptitude---Even otherwise, the complainant had no enmity with the accused and had no reason to implicate him in a false case---FIR was against unknown persons which would not have been the case if the aim of the FIR was to falsely implicate the accused---Circumstances established that the prosecution had successfully proved its case---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b), 376 & 397---Qatl-i-amd, kidnapping or abducting a person under the age of fourteen, robbery or dacoity with attempt to cause death---Appreciation of evidence---Ocular account, proof of---Scope---Accused was charged for committing murder of the brother, his wife, daughter and son of the complainant during dacoity---Prosecution produced six witnesses to prove the charge against the accused---None of whom had any enmity or ill will towards the accused and had no reason to falsely implicate him in the case---Although all the witnesses were related to the deceased the picture emerged that the accused was treated like an adopted son by deceased couple who had been with them for 11 to 12 years---Accused mostly resided with them at their flat which was the scene of the incident apart from occasionally going to his own flat from time to time---All the said witnesses therefore knew the accused well and he knew them well and that fact had not been disputed by the accused---Fact that the witnesses were mostly related to the deceased did not mean that there evidence could not be relied upon, because there was no ill will or enmity between them and the accused---In fact they treated the accused as a friend and a family member---Circumstances established that the prosecution had successfully proved its case---Appeal against conviction was dismissed accordingly.

Ijaz Ahmed v. State 2009 SCMR 99 rel.

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

----Ss. 302(b), 376 & 397---Qatl-i-amd, kidnapping or abducting a person under the age of fourteen, robbery or dacoity with attempt to cause death---Appreciation of evidence---Last seen evidence---Scope---Accused was charged for committing murder of the brother, his wife, daughter and son of the complainant during dacoity---Bodies of the deceased were recovered less than a day later and the accused was the last person to see the deceased alive---Since the accused was treated as the son of the murdered couple and was very friendly with their son and usually stayed at there flat he had every reason to be with the deceased when he was last seen with them---Place of incident was the place where the accused was last seen with the deceased at his flat where the accused was staying---Timing to when the accused was last seen with the deceased and time of death of the deceased was closed especially as most of the time was during the night when people ordinarily slept---Incident was reported expeditiously---Post-mortems were carried out by an expert and the murder weapon was found blooded at the scene of the crime---Motive for the murder of the deceased was that either they had refused to allow him to marry daughter of deceased couple or after raping that lady the accused needed to get rid of all the eye-witnesses---Such was a fit case of last seen evidence---Van of accused was not only seen whilst he was at the flat but according to tracking records it was in the vicinity of the flat at the time when the murders were committed---Despite being treated as an adopted son of deceased couple and being best friends with deceased son of deceased couple it did not appeal to logic, commonsense or reason as to why the accused did not answer his phone after the incident and did not even attend the funeral of his adopted parents if he had nothing to hide---Again two days prior to the arrest of accused, he was spotted in his van by the police, it did not appeal to logic, commonsense or reason that he would attempt to and indeed did escape from the police who were chasing him, if he was truly innocent---Circumstances established that the prosecution had successfully proved its case---Appeal against conviction was dismissed accordingly.

Ghulam Abbas and another v. The State and another 2021 SCMR 23; Altaf Hussain v. The State 2019 SCMR 274; Muhammad Abid v. The State and another PLD 2018 SC 813; Imran Ali v. The State 2018 SCMR 1372; Atif Zareef and others v. The State PLD 2021 SC 550; Ali Haider alias Papu v. Jameel Hussain and others PLD 2021 SC 362; Sh. Muhammad Amjad v. The State PLD 2003 SC 704; Ghulam Farooq v. The State 2015 SCMR 948; Dadullah and another v. The State 2015 SCMR 856; Jafar Ali v. The State 1998 SCMR 2669; Ijaz Ahmad v. The State 2009 SCMR 99; Muhammad Ishaq and another v. The State SBLR 2019 Sindh 1603 and 2021 YLR 2107 ref.

Fayyaz Ahmed v. State 2017 SCMR 2026 and Muhammed Abid v. State PLD 2018 SC 813 rel.

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

----Ss. 302(b), 376 & 397---Qatl-i-amd, kidnapping or abducting a person under the age of fourteen, robbery or dacoity with attempt to cause death---Appreciation of evidence---Recovery of stolen articles on the pointation of the accused---Reliance---Scope---Accused was charged for committing murder of the brother, his wife, daughter and son of the complainant during dacoity---Some of the items which were stolen from the flat including the artificial jewellery given to the deceased lady by her sister was recovered at the flat of the accused where he took the police on his own pointation and which was recognized by witness who had given her deceased sister the artificial jewellery---Other items stolen from the flat of the deceased at the time of the murder were also recovered from the accused from the boot of his car on his pointation---Circumstances established that the prosecution had successfully proved its case---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b), 376 & 397---Qatl-i-amd, kidnapping or abducting a person under the age of fourteen, robbery or dacoity with attempt to cause death---Appreciation of evidence---Recovery of weapon of offence from the place of occurrence---Scope---Accused was charged for committing murder of the brother, his wife, daughter and son of the complainant during dacoity---Medical evidence supported the fact that all the deceased were murdered by a hard blunt object like the iron bar which was found blooded at the scene, which the accused would have had access to---Circumstances established that the prosecution had successfully proved its case---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b), 376 & 397---Qatl-i-amd, kidnapping or abducting a person under the age of fourteen, robbery or dacoity with attempt to cause death---Appreciation of evidence---DNA test---Scope---Accused was charged for committing murder of the brother, his wife, daughter and son of the complainant during dacoity---DNA of the vaginal swabs taken from deceased girl produced a 100% match with the accused, which left no doubt coupled with the medical evidence and the fact that deceased girl was found half naked and the DNA swabs were kept with a safe chain of custody that girl was raped at the flat where her dead body was found and thereafter murdered and the rapist was the accused which also placed him in the flat at the time of rape and the murders---Circumstances established that the prosecution had successfully proved its case---Appeal against conviction was dismissed accordingly.

Ali Haider alias Pappu v. Jameel Hussain and others PLD 2021 SC 362 rel.

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

----Ss. 302(b), 376 & 397---Qatl-i-amd, kidnapping or abducting a person under the age of fourteen, robbery or dacoity with attempt to cause death---Appreciation of evidence---Police witnesses---Reliance---Scope---Accused was charged for committing murder of the brother, his wife, daughter and son of the complainant during dacoity---Police witnesses had no enmity or ill will towards the accused and had no reason to falsely implicate him in the case by foisting the robbed jewellery on him---In such state of affairs, it had been held that the evidence of the police witnesses could be fully relied upon---Circumstances established that the prosecution had successfully proved its case---Appeal against conviction was dismissed accordingly.

Mushtaq Ahmed v. The State 2020 SCMR 474 rel.

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

----Ss. 302(b), 376 & 397---Qatl-i-amd, kidnapping or abducting a person under the age of fourteen, robbery or dacoity with attempt to cause death--- Appreciation of evidence---Minor contradictions---Scope---Accused was charged for committing murder of the brother, his wife, daughter and son of the complainant during dacoity---Record showed that all the witnesses were consistent in their evidence---Even if there were some contradictions in their evidence, which were considered as minor in nature and not material and certainly not of such materiality so as to affect the prosecution case and the conviction of the accused---Circumstances established that the prosecution had successfully proved its case---Appeal against conviction was dismissed accordingly.

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

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

----Ss. 302(b), 376 & 397---Qatl-i-amd, kidnapping or abducting a person under the age of fourteen, robbery or dacoity with attempt to cause death---Appreciation of evidence---Statements of witnesses were recorded by police with promptitude---Scope---Accused was charged for committing murder of the brother, his wife, daughter and son of the complainant during dacoity---All the witnesses gave their statements under S. 161, Cr.P.C. with reasonable promptitude which left no time for collusion or concoction and there were no improvements in the evidence which they gave in the court as witnesses under oath so as to render their evidence at trial unreliable---None of the evidence of any witness was dented during lengthy cross-examination so as to render their evidence unreliable---Rather such evidence was given in a straightforward manner and was confidence inspiring---Circumstances established that the prosecution had successfully proved its case---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b), 376 & 397---Qatl-i-amd, kidnapping or abducting a person under the age of fourteen, robbery or dacoity with attempt to cause death---Appreciation of evidence---Substitution, a rare phenomenon---Scope---Accused was charged for committing murder of the brother, his wife, daughter and son of the complainant during dacoity---It did not appeal to logic, reason or commonsense that the complainant would allow the real culprit and murderer of his close relations to get off scot free by substituting him with innocent people---Circumstances established that the prosecution had successfully proved its case---Appeal against conviction was dismissed accordingly.

Allah Ditta v. State PLD 2002 SC 52 rel.

Shamsul Haq Rashidi for Appellant.

Mohammad Iqbal Awan, Additional Prosecutor General for the State.

2022 P Cr. L J 1196

[Sindh]

Before Mohammed Karim Khan Agha and Zulfiqar Ali Sangi, JJ

YACOOB SUTTAR and others---Petitioners

Versus

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

Constitutional Petitions Nos. D-3813 of 2019, D-1048, D-2582 and D-2583 of 2020, decided on 3rd September, 2020.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(vi) & 9(b)--- Constitution of Pakistan, Art. 199---Constitutional petition---Pre-arrest bail, grant of---Mala fide---Proof---Second reference---Loss caused due to business market---One of the petitioners was ex-minister and remaining were senior officials who were alleged to have misused their authority in appointing officials on high salaries to introduce Liquefied Natural Gas (LNG) into Pakistan State Oil (PSO)---Validity---Petitioner was an out spoken critic and opponent of current Federal Government---Another reference was already filed against petitioner at place "I" in which he was imprisoned for 7 months before he was granted bail and thereafter second reference was filed---Mala fides on the part of National Accountability Bureau (NAB) could not be ruled out in order to put political pressure on petitioner to stay mum and keep him incarcerated---Evidence against petitioner and other accused persons was prima facie not strong--- Mala fide was very hard to prove and it could be inferred from facts and circumstances of the case---Reference was largely based on documents which were in possession of NAB and could not be interfered with by accused persons---Question of loss if at all was occurred to State in appointing co-accused persons and PSO entering into LNG market was its business/policy decision---Loss if any could not be on account of corruption but for other factors such as a weak international market etc.---Accused persons cooperated throughout investigation and were no longer needed for investigative purposes---Bail could not be used as a punishment and by placing names of petitioners on Exit Control List threat of their absconsion would be removed--- Pre-arrest bail was allowed, in circumstances.

Rana Mohammed Arshad v. Muhammed Rafique PLD 2009 SC 427 and Khawaja Salman Rafique and another v. National Accountability Bureau dated 17.03.2020 in Civil Petitions Nos. 2243-L and 2986-L of 2020 ref.

Sarmad Hani for Petitioner (in Constitutional Petition No. D-3813 of 2019).

Zahid Hussain Baladi and Suttar Muhammad Awan, Special Prosecutors NAB assisted by Adnan Hafeez Abbasi, I.O. for the State (in Constitutional Petitions Nos. D-3813 of 2019, D-1048, D-2582 and D-2583 of 2020).

Muhammad Ashraf Kazi and Irshad Ahmed Jatoi for Petitioner (in Constitutional Petition No. D-1048 of 2020).

Khawaja Naveed Ahmed for Petitioner (in Constitutional Petition No. D-2582 of 2020).

Khawaja Naveed Ahmed for Petitioner (in Constitutional Petition No. D-2583 of 2020).

2022 P Cr. L J 1217

[Sindh]

Before Muhammad Iqbal Kalhoro and Agha Faisal, JJ

AMANULLAH MEMON---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Interior and another---Respondents

C.P. No. D-3294 of 2021, decided on 7th April, 2022.

National Accountability Ordinance (XVIII of 1999)---

----S. 26---Exit from Pakistan (Control) Ordinance (XLVI of 1981), S. 3---Criminal Procedure Code (V of 1898), Ss. 337, 338 & 339---Constitution of Pakistan, Art. 199---Exit Control List---Removal of name---Tender of pardon---Effect---Petitioner was accused who was made approver and had been granted pardon to disclose facts during trial---Petitioner was aggrieved of placing his name in Exit Control List---Validity---Dispensation underlying in provisions of Ss. 337, 338 & 339, Cr.P.C. were incorporated in S. 26 of National Accountability Ordinance, 1999, with a few modifications befitting the law---Chairman NAB had substituted District Public Prosecutor for the purpose---Provision of S. 26 of National Accountability Ordinance, 1999, did not put a bar on travel of a person who had accepted tender of pardon---All that a person having accepted pardon was required to do was to present himself for examination by Magistrate for recording his pela first and then as a witness in subsequent trial---Petitioner had complied with first requirement and his statement under section 164 Cr.P.C. was recorded before Magistrate---Necessity to take action against person who had accepted pardon, as envisaged by S. 26(f) of National Accountability Ordinance, 1999, would arise only when Chairman NAB certified that he had willfully concealed anything essential or given false evidence through willful or reckless misstatement or not complied with the conditions on which tender was made---High Court directed the authorities to remove name of petitioner from Exit Control List---Constitutional petition was allowed accordingly.

2011 CLD 511; PLD 2014 Sindh 398; PLD 2016 SC 570 and 2017 SCMR 1179 ref.

Barrister Mohsin Shahwani for Petitioner.

Irfan Ahmed Memon, D.A.G. for Respondent No. 1.

Shahbaz Sahotra, Special Prosecutor NAB along with Ahmed Bin Zahid, Deputy Director NAB/I.O. for Respondent No. 2.

2022 P Cr. L J 1250

[Sindh]

Before Aftab Ahmed Gorar, J

IKRAAM KHAN and others---Applicants

Versus

The STATE---Respondent

Special Criminal Bail Applications Nos. 39 and 40 of 2021, decided on 6th September, 2021.

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

----S. 497---Customs Act (IV of 1969), Ss. 156(1)(59) & 178---Fraudulent removal of warehoused goods---Punishment of persons accompanying a person possessing goods liable to confiscation---Bail, grant of---Scope---Allegation against accused persons was that they were involved in stealing goods from government warehouse---Names of accused persons were not mentioned in the FIR and their names were only mentioned in the interim charge-sheet---Investigation against accused persons was complete and they were not required for further investigation---No exceptional circumstances appeared in the case to withhold bail of accused persons---Accused persons were not previous convicts---Petitions for grant of bail were accepted, in circumstances.

Suba Khan v. Muhammad Ajmal 2006 SCMR 66 ref.

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

----S. 497---Constitution of Pakistan, Arts. 4 & 9--- Right of individuals to be dealt in accordance with law---Security of person---Bail---Scope---Liberty of an individual has been guaranteed by the Constitution besides the fact that speedy trial is inalienable right of every accused, therefore, even if S. 497, Cr.P.C., in ordinary course is not applicable, the broader principle of the same can be pressed into service in hardship cases to provide relief to a deserving accused person incarcerated in jail for an indefinite period.

Sanjay Chandra v. Central Bureau of Investigation AIR 2012 SC 830 rel.

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

----S. 497---Bail---Scope---Where case does not fall within the prohibitory clause of S. 497, Cr.P.C., bail is to be granted as a rule and refusal is an exception.

Ghulam Abbas v. State 2006 PCr.LJ 413; Tahir Mehmood v. The State 2007 PCr.LJ 112 and Tariq Bashir v. The State PLD 1995 SC 34 ref.

Waqar Alam Abbasi for Applicant (in Special Criminal Bail Application No. 39 of 2021).

Muhammad Hanif Samma for Applicant (in Special Criminal Bail Application No. 40 of 2021).

Ashiq Ali Anwar Rana, Special Prosecutor Customs.

Choudhary Waseem Akhtar, Assistant Attorney General.

2022 P Cr. L J 1279

[Sindh]

Before Mohammed Karim Khan Agha and Khadim Hussain Tunio, JJ

AHMER and others---Appellants

Versus

The STATE---Respondent

Special Criminal A.T. Appeals Nos. 205, 206, 207, 208, 209 and 210 of 2019, decided on 3rd February, 2022.

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

----Ss. 302, 324, 353, 109, 148, 149 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---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, rioting armed with deadly weapon, unlawful assembly, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---First Information Report was lodged with promptitude---Scope---Prosecution case was that the accused persons fired at the police party, when they went to apprehend them as a result of which two of the members of police party died, whereas many other injured---First Information Report was lodged with promptitude leaving no time for the police to cook up a false case against the accused---Accused were all named in the FIR with similar roles of firing on the police with intention to kill them which led to the death of two Police Officers on the spot and injury to three other Police Officers on the spot and the evidence led by those witnesses including the complainant had not been significantly improved on---Circumstances established that the prosecution had proved its case beyond a reasonable doubt---Appeal was dismissed accordingly.

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

----Ss. 302, 324, 353, 109, 148, 149 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---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, rioting armed with deadly weapon, unlawful assembly, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Police Officials as witnesses---Scope---In the present case, at least eight police witnesses gave evidence that they were present at the time of the encounter between the police and the miscreants whilst others had heard that the incident was a result of an encounter---Three of these police witnesses were injured by fire arm at the scene as confirmed by medical evidence and three of the accused were killed by the police at the scene as confirmed by medical evidence---Evidence of police witnesses was as reliable as any other witness provided that no enmity existed between them and the accused---No enmity had been suggested against any of the police witnesses and as such the police had no reason to falsely implicate the accused persons in a false case---Thus, police evidence was believable which was corroborated in all material respects--- Circumstances established that the prosecution had proved its case beyond a reasonable doubt---Appeal was dismissed accordingly.

Qaddan and others v. The State 2017 SCMR 148; Rajib v. The State 2020 PCr.LJ 1342; Afaq Ahmed v. The State 2020 YLR 676; Muhammad Ilyas v. The State 2011 SCMR 460; Muhammad Arif alias Mama v. The State PLD 2003 SC 942; Muhammad Din v. The State 1985 SCMR 1046; Muhammad Mansha v. The State 2001 SCMR 199; Asif and others v. The State 2020 SCMR 610; Atta-ur-Rehman v. The State 2018 SCMR 372; Hakim Khan v. The State 2013 SCMR 777 and Abdul Rashid v. Muhammad Nazir 1970 SCMR 330 ref.

Mustaq Ahmed v. The State 2020 SCMR 474 rel.

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

----Ss. 302, 324, 353, 109, 148, 149 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---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, rioting armed with deadly weapon, unlawful assembly, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Police encounter---Scope---Encounter, according to the prosecution evidence was of a major nature which lasted up to four hours---Reinforcements were called---149 empties of varying bore was recovered from the scene along with human blood as proved by a chemical report---Two policemen died on the spot, three policemen were injured on the spot and three of the miscreants were killed on the spot which was an admitted position---No defence witness was produced from the locality to give evidence that no encounter took place---Encounter as alleged by the police had been proven beyond a reasonable doubt on the time, date and location as alleged in the charge---Circumstances established that the prosecution had proved its case beyond a reasonable doubt---Appeal was dismissed accordingly.

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

----Ss. 302, 324, 353, 109, 148, 149 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---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, rioting armed with deadly weapon, unlawful assembly, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Identification of accused---Scope---Record showed that the complainant was present as an eye-witness throughout the incident at the scene arrested all the accused on the spot and recovered fire arms from them---Evidence of complainant accorded with the FIR which was lodged with promptitude and was not significantly improved on---Complainant had no ill will or enmity with any of the accused and had no reason to implicate them in a false case---Evidence of complainant was not dented during a lengthy cross-examination and he gave his evidence in a straight forward manner which was found to be reliable, trust worthy, confidence inspiring and was believable---Complainant recognized all the accused, as those whom he arrested after the encounter in court---Evidence of the complainant was corroborated in all material respects by another Police Officer who was present as an eye-witness throughout the incident at the scene and was mashir of the arrest and recovery made from the accused---Station House Officer was injured by firearm at the scene and his evidence fully corroborated the prosecution case---Said witness/SHO recognized all the accused in court as having taken part in the encounter---Circumstances established that the prosecution had proved its case beyond a reasonable doubt---Appeal was dismissed accordingly.

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

----Ss. 302, 324, 353, 109, 148, 149 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---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, rioting armed with deadly weapon, unlawful assembly, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Recovery of weapons of offence from the accused---Reliance---Scope---Specific weapons were recovered from each of the accused persons at the time of their arrest on the spot---Said weapons of each of the accused produced a positive Forensic Science Laboratory Report when matched with the empties recovered at the scene---Ten days delay in sending the empties and weapons for Forensic Science Laboratory Report found to be inconsequential---Circumstances established that the prosecution had proved its case beyond a reasonable doubt---Appeal was dismissed accordingly.

Muhammad Ashraf v. The State 2011 SCMR 1046 rel.

(f) Criminal trial---

----Statement---Minor contradictions---Scope---Minor contradictions which did not effect the materiality of the evidence could be ignored.

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

----Ss. 302, 324, 353, 109, 148, 149 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---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, rioting armed with deadly weapon, unlawful assembly, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Common intention---Scope---Record showed that all accused fired upon the police party with intention to kill them and whether or not it was one of their bullets which caused the fatal wound to any Police Officer---Such was a classic case of murder with common intent falling within the purview of Ss. 302(b)/34, P.P.C. which based on the evidence the accused were guilty of---Circumstances established that the prosecution had proved its case beyond a reasonable doubt---Appeal was dismissed accordingly.

Atta-ur-Rehman v. The State 2018 SCMR 372 rel.

Jan Mohammad Naich for Appellants (in Special Criminal A.T. Appeals Nos. 205, 206 and 207 of 2019).

Muhammad Iqbal Awan, Additional Prosecutor General, Sindh for the State (in Special Criminal A.T. Appeals Nos. 205, 206, 207, 208, 209 and 210 of 2019).

Allah Warayo Khan for Appellants (in Special Criminal A.T. Appeals Nos. 208, 209 and 210 of 2019).

2022 P Cr. L J 1303

[Sindh]

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

Mirza SHAH NAWAZ AGHA---Applicant

Versus

SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN (SECP) through Joint Registrar of Companies and another---Respondents

Criminal Revision Application No. 57 of 2020, decided on 16th February, 2022.

Criminal Procedure Code (V of 1898)---

----S. 540---Penal Code (XLV of 1860), Ss. 409, 420, 468 & 471---Securities and Exchange Commission of Pakistan Act (XLII of 1997), Ss. 30 & 37---Criminal breach of trust, cheating, using forged documents---Material witness, summoning of---Juristic person as complainant---Authorized person, replacement of---Complaint was filed by Security and Exchange Commission of Pakistan through its authorized person---Accused was aggrieved of order passed by Trial Court summoning another official of Security and Exchange Commission of Pakistan as complainant other than the one who got FIR registered---Validity---No illegality would occur if circumstances were such that a body corporate needed to change its authorized officer---Not necessary for body corporate to be represented through same individual right from inception of the complaint till its final disposal, to hold so would be to allow for a technical knockout to take precedence over aim and spirit of law which would then inevitably stand defeated---Litigation was a protracted exercise and it was practically impossible for the same officer to be involved in the case throughout its course---High Court declined to extend benefit of absence of complainant/witness---High Court directed Trial Court to fully take care of such situation and to examine all necessary witnesses so that all relevant and necessary evidence was produced for the purpose of just and proper decision---Revision was dismissed in circumstances.

Privy Council in The Matter of The Reverend James Godfrey Mackmanway PLD 1950 PC 149 and State Bank of Pakistan v. Securities and Exchange Commission of Pakistan PLD 2018 SC 52 ref.

Shahzad Abid v. The State 2004 PCr.LJ 409 rel.

Kazi Shehryar Iqbal for Applicant.

Imran Ali Shamsi, Special Public Prosecutor SECP and Syed Ebad-ur-Rehman for Securities and Exchange Commission of Pakistan.

Muhammad Ahmed, Assistant Attorney General.

2022 P Cr. L J 1324

[Sindh]

Before Aftab Ahmed Gorar, J

MUHAMMAD AYUB CHAUDHARY---Applicant

Versus

The STATE through Deputy Attorney General, Karachi---Respondent

Criminal Miscellaneous Application No. 704 of 2021, decided on 9th December, 2021.

Criminal Procedure Code (V of 1898)---

----Ss. 351 & 561-A---Penal Code (XLV of 1860), Ss. 161 & 162---Prevention of Corruption Act (II of 1947), S. 5(2)---Illegal gratification and misconduct---Arraying of accused---Direction of Trial Court---Applicant was aggrieved of order passed by Trial Court directing investigating officer to submit charge sheet against him in Court---Validity---Trial Court was duty bound to do justice by punishing the real culprits as accused---Court was not powerless in calling applicant to face trial---Court was the sole repository of justice and duty was cast upon it to uphold the rule of law---High Court did not deny existence of such powers with the Courts in criminal justice system where it was not uncommon that real accused, at times got away by manipulating investigating and / or prosecuting agency---Desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of offence---High Court declined to give its categorical and specific verdict regarding applicant that he was not involved in commission of offence---No such precise verdict in criminal cases can be given as every criminal case has its own facts and circumstances---High Court declined to interfere in the order passed by Trial Court as the same was passed after thoroughly examining the record and direction was rightly issued to investigating officer to submit Challan against applicant--- Application was dismissed, in circumstances.

Mati-ur-Rehman v. The State 2004 YLR 2101; Naseebullah Khan and another v. The State PLD 1986 Kar. 417; Federation of Pakistan v. Zafar Awan Advocate High Court PLD 1992 SC 72 and Waqar Ilias and another v. The State PLD 1993 Quetta 49 distinguished.

Syed Mehmood Alam Rizvi and Jazib Aftab for Applicant.

Choudhary Waseem Akhtar, Assistant Attorney General for the State.

2022 P Cr. L J 1345

[Sindh (Hyderabad Bench)]

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

KHAIRULLAH QURESHI---Petitioner

Versus

PROVINCE OF SINDH through Home Secretary Sindh and 8 others---Respondents

C.P. No. D-2626 of 2019, decided on 2nd September, 2020.

Penal Code (XLV of 1860)---

----S. 409--- Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of FIR---Criminal breach of trust by public servant, or by banker, merchant or agent---Scope---Petitioner sought quashing of FIR lodged against him---Allegation against petitioner was that despite suspension from service he did not return the official vehicle---Case of petitioner could not be considered under Art. 199 of the Constitution as the High Court refrained from rendering any finding on the merits of the case, which might prejudice case of the either side in any manner whatsoever---Legal and factual issues raised in the petition could be taken by the petitioner in the first instance before the Investigating Officer and then even before framing of the charge by the Trial Court---Investigating Officer had the power to discharge the petitioner--- High Court could not stop the investigation of crime especially when no mala fide was alleged against Investigating Officer of the case---Constitutional petition was dismissed.

Nasreen Bibi v. Farrukh Shahzad and others (Criminal Appeal No.280 of 2013 decided on 04.02.2014 rel.

Ishrat Ali Lohar for Petitioner.

Kamaluddin for Respondents Nos. 8 and 9.

Allah Bachayo Soomro, Additional Advocate-General, Sindh for Official Respondents.

2022 P Cr. L J 1369

[Sindh]

Before Aftab Ahmed Gorar, J

FAZAL ALI---Applicant

Versus

The STATE and another---Respondents

Criminal Revision Application No. 104 of 2021, decided on 16th November, 2021.

Penal Code (XLV of 1860)---

----Ss. 407, 408 & 34---Criminal Procedure Code (V of 1898), S. 173(8)---Production of USB/DVD as evidence during the deposition of Investigating Officer---Scope---Prosecution produced Investigating officer during trial of the case---Trial Court while recording the deposition of Investigating Officer had sustained the objection of the defence for production of USB/DVD as evidence---Validity---Record revealed that in the present case, after the completion of investigation, interim challan was submitted, thereafter final challan was submitted and later on supplementary challan was submitted by the Investigating Officer but nothing about the USB/DVD had been mentioned in the said three challans and thereafter when the evidence of Investigating Officer was being recorded, the applicant brought the said USB/DVD---No provision of law was available for a witness to directly seek production of additional documents during the course of trial and at the time of recording of his/her evidence---Permitting such production of additional documents directly by the witnesses would prejudice the accused persons by depriving them of a fair opportunity to prepare their defence---Additional documents could be produced by following the procedure of further investigation as contemplated under S. 173(8) of Cr.P.C. and the prosecutor taking a call as to whether such documents needed to be produced in order to prove the charge against the accused---Circumstances established that no ground appeared to interfere in the impugned order as no illegality or irregularity had been committed by the Trial Court while passing the impugned order---Revisional application was dismissed accordingly.

Muhammad Ashraf Kazi for Applicant.

Nasir Raza Rind for Respondent No. 2.

2022 P Cr. L J 1388

[Sindh]

Before Yousuf Ali Sayeed and Adnan Iqbal Chaudhry, JJ

MUHAMMAD ASSAD QURESHI---Appellant

Versus

The STATE through Prosecutor General Sindh, Karachi---Respondent

Special Criminal A.T.A. No. 103 of 2020, decided on 25th September, 2021.

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

----Ss. 11-H & 11-N---Collecting fund for proscribed organization---Appreciation of evidence---Benefit of doubt---Accused was arrested while collecting funds for terrorism activities---Memo of arrest reflecting that several private persons were present at the time of arrest of accused---No such person was associated with the investigation who could say that the accused was collecting money in the name of the proscribed organization nor was any person from the vicinity who gave any money to the accused for such purpose brought forward to support the prosecution case---Said aspect was glossed over with the observation that the private persons had refused to act as witnesses---Record was silent as to the names of any persons who were called upon and refused and there was no mention of any notice even having been issued in that regard under S. 160, Cr.P.C.---Indeed, even as portrayed, the circumstances surrounding the arrest of accused did not confirm to a scenario where he was caught in flagrante delicto collecting funds from a specified person or conveying the same to a named terrorist---Such facts casted doubt over the arrest of the accused, as shown, and it was apparent that the prosecution even otherwise failed to establish that the money allegedly recovered from accused was to be made available to a proscribed organization or otherwise used for terrorism---Appeal against conviction was allowed, in circumstances.

Saathi M. Ishaque for Appellant.

Zafar Ahmed Khan, A.P.G. for the State.

2022 P Cr. L J 1420

[Sindh (Larkana Bench)]

Before Zulfiqar Ali Sangi, J

PIR BUX and another---Applicants

Versus

The STATE through Deputy Prosecutor General and another---Respondents

Criminal Revision Application No. S-38 of 2020, decided on 5th April, 2021.

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

----S. 176---Application for disinterment/exhumation of dead body---Mala fides of applicant---Effect---Applicant/complainant moved application before the Trial Court for disinterment of dead body of her deceased-wife alleging that she had been murdered by applicants/ accused by firing--- Said application was allowed--- Validity---Undeniably, post-mortem of the deceased lady was not conducted and nothing was available on record to decide that whether she expired unnaturally as asserted by the prosecution or naturally as asserted by the defence side---No doubt, the exhumation of dead body could be ordered on the request of or on the information of even a stranger for the purpose to know the actual cause of death so that criminal machinery be set in motion---For the said purpose time limitation was also not a ground to deny such course---Trial Court, passed the order for exhumation of dead body only for the purpose to know the actual cause of death of the deceased and the same required investigation for which the Trial Court was not competent to direct for investigation, however, the same could be done by exercising the powers under S. 156, Cr.P.C., or under S. 190. Cr.P.C., only by the Magistrate concerned or by the police---In the present case, the Trial Court on application filed by DDPP for the State under S. 540, Cr.P.C. had already called Medical Officer who as per complainant issued death certificate of the deceased but the evidence of said Medical Officer had yet not been recorded and the said powers under S. 540, Cr.P.C., had rightly been exercised by the Trial Court---Order passed by the Trial Court being without jurisdiction was set aside, in circumstances.

Mukhtar Ahmed v. The State 1991 PCr.LJ 896; Amir Khan v. The District Magistrate Chakwal and 2 others 1998 PCr.LJ 1326; Muhammad Rafiq v. The State 2005 YLR 3247; Rehmatullah v. Colonel (R) Muhammad Latif Khan 2005 YLR 3278 and Zafar Ali v. Mst. Muradan and another 2017 PCr.LJ 1341 ref.

Ghazala Begum v. District Magistrate 1996 PCr.LJ 389 rel.

(b) Jurisdiction---

----Jurisdiction can neither be created by consent of parties nor referral to need of that thing alone because lack of competence/jurisdiction shall leave such an order/judgment with no other status but that of being void and of no legal effect. S.M. Waseem Ashraf v. Federation of Pakistan 2013

SCMR 338 rel.

(c) Administration of justice---

----Things required to be done in a particular manner should be done in that manner and if anything is done contrary to that then same should be deemed to have not been done at all.

Munir Ahmed Khuhawar and Ahsan Ahmed Quraishi for Applicants.

Muhammad Noonari, Deputy Prosecutor General for the State.

Sarfraz Khan Jatoi and Muhammad Afzal Jagirani for Respondent No.2.

2022 P Cr. L J 1447

[Sindh (Hyderabad Bench)]

Before Nazar Akbar and Khadim Hussain Tunio, JJ

Dr. MUBEENUDDIN KHAN and another---Petitioners

Versus

KHURRAM SHAHZAD and 3 others---Respondents

C.P. No. D-787 of 2020, decided on 13th January, 2021.

Sindh Health Care Commission Act, 2013 (VII of 2014)---

----Ss. 29 & 28---Constitution of Pakistan, Art. 199---Constitutional petition---Immunity---Jurisdiction of Commission for adjudication of fine---Criminal proceedings, initiation of---Scope---Accused persons sought quashing of FIR registered on the direction of Justice of Peace while claiming protection under S. 29 of Sindh Health Care Commission Act, 2013---Validity---Accused persons were found guilty of the negligence and professional misconduct by Sindh Health Care Commission after thorough inquiry conducted on the complaint of respondent and fine was also imposed---Respondent, thereafter, had approached the Justice of Peace after exhausting the remedy available to him under the Sindh Health Care Commission Act, 2013, through an application under Ss. 22-A & 22-B, Cr.P.C. which was allowed---Case against the accused persons was challaned before the Court having jurisdiction---Criminal as well as civil law could be set into motion simultaneously---Factual controversy could not be taken into consideration by the High Court through constitutional petition---Constitutional petition was dismissed.

PLD 2018 Lah. 903 and 2015 PCr.LJ 1628 ref.

Dr. Riaz Qadeer Khan v. Presiding Officer, District Consumer Court, Sargodha and others PLD 2019 Lah. 429; Director General, FIA and others v. Kamran Iqbal and others 2016 SCMR 447; Muhammad Aslam v. Dr. Imtiaz Ali Mughal and 4 others PLD 2010 Kar. 134 and Amjad Ali v. Dr. Taqdees Naqaish and others 2020 PCr.LJ 1583 distinguished.

Muhammad Farooq v. Ahmed Nawaz Jagirani and others PLD 2016 SC 55 rel.

Muhammad Jameel Ahmed for Petitioners.

Jehangir Khan Pathan for Respondent No.1.

Muhammad Ismail Bhutto, Additional Advocate General, Sindh.

2022 P Cr. L J 1462

[Sindh]

Before Naimatullah Phulpoto and Abdul Mobeen Lakho, JJ

SHARJEEL INAM MEMON---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman---Respondent

C.P. No. D-8285 of 2019, decided on 1st November, 2021.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a), 9(b) [as amended by National Accountability (Second Amendment) Ordinance (XXIII of 2021)] & 24---Constitution of Pakistan, Art. 199---Arrest---Prior permission of High Court---Petitioner contended that NAB could not arrest him without prior permission of High Court---Validity---Provision of Art. 199 of the Constitution could not be invoked if alternate remedy was available to aggrieved party under relevant law---Remedy was available to petitioner in view of recent amendment through National Accountability (Second Amendment) Ordinance, 2021, whereby powers to deal with bail matter had been conferred upon Accountability Courts---High Court declined to interfere in the matter---Constitutional petition was dismissed accordingly.

Maryam Nawaz Sharif v. National Accountability Bureau and others W.P. No.19989 of 2021 and Muhammad Hanif v. The State 2019 SCMR 2029 ref.

Raj Ali Wahid Kunwar for Petitioner.

2022 P Cr. L J 1476

[Sindh]

Before Mohammed Karim Khan Agha and Khadim Hussain Tunio, JJ

ZAIN SHAHID---Appellant

Versus

The STATE---Respondent

Special Criminal A.T. Appeal No. 100 of 2020, decided on 19th January, 2022.

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

----Ss. 11-H, 11-N & 11-F(i)(ii)---Membership, support and meetings relating to a proscribed organization, fund raising, funding arrangements---Appreciation of evidence---Accused was charged for collecting the donation or funding amount for a proscribed organization being its member, which was used for terrorism activities all over the country and such like act fell within the ambit of Anti-Terrorism Act---First Information Report was lodged with promptitude on the basis of the accused being a member of a proscribed organization who was active in collecting funds for a terrorist organization---Accused had not denied that he was a member of a proscribed organization---Accused was arrested on the spot by the police on the basis of spy information and on his arrest a fund raising book with the title of "Daish Pakistan Funding For Jehad and Help Mujahideen" containing 54 leaves with 08 receipts having been issued to different people with different amounts as mentioned on the counter foil of the receipt was recovered from him along with Rs. 1500 in three notes of 500 each and one ball point pen and the last three counter foils of the fund raising book all mentioned Rs. 500 each---Signature of accused was on the fund raising book which was sealed on the spot and kept in safe custody---Likewise the three Rs. 500 notes which tallied with the amounts on the last three counter foils of the fund raising book recovered from the accused---Arrest and recovery was made on the spot by the police whose evidence fully corroborated each other in all material respects as well as the prosecution case---Although no independent mashir was associated with the arrest and recovery of the accused and the fund raising book it had come in evidence that no independent person was available at the place of arrest and recovery---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal was dismissed accordingly.

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

----Ss. 11-H, 11-N & 11-F(i)(ii)---Membership, support and meetings relating to a proscribed organization, fund raising, funding arrangements---Appreciation of evidence---Police witnesses---Scope---Accused was charged for collecting the donation or funding amount for a proscribed organization being its member, which was used for terrorism activities all over the country and such like act fell within the ambit of Anti-Terrorism Act---Evidence of a police witness was as reliable as any other witness provided that no enmity existed between them and the accused---In the present case, no enmity had been suggested against any police officer---Such evidence was believable as police evidence was corroborative in all material respects---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal was dismissed accordingly.

Mustaq Ahmed v. The State 2020 SCMR 474 rel.

(c) Criminal trial---

----Statement---Minor contradictions in the evidence of witnesses---Scope---Minor contradictions which do affect the materiality of the evidence can be ignored.

Zakir Khan v. State 1995 SCMR 1793 rel.

Raja Rashid Ali for Appellant.

Abrar Ali Khichi, Additional Prosecutor General Sindh for the State.

2022 P Cr. L J 1506

[Sindh]

Before Nazar Akbar and Zulfiqar Ahmad Khan, JJ

The STATE/ANTI-NARCOTICS FORCE through Assistant Director (Law)---Applicant

Versus

JUDGE SPECIAL COURT-I (CNS) CLIFTON, KARACHI and another---Respondents

Criminal Appeal No. 469 of 2018, decided on 5th November, 2020.

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

----Ss. 48, 6 & 9(b)---Appeal---Possession of narcotics---Revision petition---Maintainability---Condonation of delay---Scope---Prosecution preferred appeal for enhancement of sentence awarded by Trial Court in view of plea of guilty---Accused was convicted for an offence under Ss. 6 & 9(b) of Control of Narcotic Substances Act, 1997---Anti-Narcotics Force could only invoke the jurisdiction of appeal under S. 48 of Control of Narcotic Substances Act, 1997, for challenging the order of Special Court---Authorization by the Acting Director, Anti-Narcotics Force under S. 14 of Control of Narcotic Substances Act, 1997, for filing revision petition was given after the expiry of statutory period of limitation for challenging the impugned order---Appellant, neither at the time of filing revision nor at the time of oral request to convert the revision into appeal, had filed any application for condonation of limitation period for filing the appeal---In the absence of any request for condonation of delay or any oral explanation for the delay in filing appeal, no justification existed to entertain the hopelessly time-barred appeal---Reasoning advanced by the Trial Court was confession of guilt and also that the accused was of young age being the only bread-earning member of the family as well as admittedly first offender---Appeal was dismissed.

Fazeelat Bibi's case PLD 2013 SC 361; Ghulam Murtaza and another v. The State PLD 2009 Lah. 362 and State through the Deputy Director (Law), Regional Directorate, Anti-Narcotics Force v. Mujahid Naseem Lodhi PLD 2017 SC 671 rel.

Ms. Abida Parveen Chanar, Special Prosecutor, ANF.

2022 P Cr. L J 1530

[Sindh]

Before Mohammed Karim Khan Agha and Kausar Sultana Hussain, JJ

MUHAMMAD WAQAS---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 202 and Confirmation Case No. 5 of 2020, decided on 26th October, 2021.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Sentence, reduction in---Delay in lodging the FIR---Scope---Accused was charged for committing murder of the cousin of complainant by stabbing---Record showed that the FIR was lodged within twenty four hours of the incident---Delay in lodging the FIR had been explained by the complainant in his evidence---Evidence of complainant showed that he was a soldier and was informed on telephone that the accused had murdered the deceased by stabbing on the day of incident, however, complainant was not granted leave on that day but was only granted leave for the next day whereupon he went to the police station and lodged the FIR and collected the dead body of his cousin from the mortuary---Accused was named by the complainant in the FIR and he had no apparent enmity with the accused and thus had no reason to implicate him in a false case---During the delay the prosecution obtained no benefit---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---However, the death sentence was reduced to that of rigorous imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Sentence, reduction in---Ocular account---Scope---Accused was charged for committing murder of the cousin of complainant by stabbing---Ocular account of the incident had been furnished by eye-witness/brother of the accused---Witness knew the accused as he was his brother and as such there was no case of misidentification and no need for an identification parade especially as it was a daylight incident and he witnessed the attack from a short distance---Eye-witness was not a chance witness as the incident took place in his house where the accused and the deceased were staying---Said witness had no enmity or ill-will with the accused and had no reason to implicate him in a false case---Said eye-witness gave his statement under S. 161, Cr.P.C on the same day whereby he named the accused and thus there was no time to concoct a false case---Evidence of said witness contained no material improvement from his statement under S. 161, Cr.P.C. and his evidence was not dented despite a probing cross-examination---Presence of said witness at the scene was not challenged---Said witness gave his evidence in a natural and straight forward manner and there was no reason to disbelieve the same---Evidence of said witness was found to be reliable, trust worthy and confidence inspiring and thus could be believed the same especially in terms of his correct identification of the accused and could convict on that evidence provided that there was some corroborative/supportive evidence---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Death sentence was reduced to that of rigorous imprisonment for life---Appeal was dismissed with said modification in sentence.

Muhammad Ehsan v. The State 2006 SCMR 1857 and Farooq Khan v. The State 2008 SCMR 917 rel.

(c) Criminal trial---

----Witness---Related witness---Reliance---Scope---Evidence of related witness could not be discarded simply on the basis of being relatedalone unless some enmity, ill will or reason to falsely implicate the accused had come on record.

Ijaz Ahmed v. The State 2009 SCMR 99 and Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152 rel.

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

----S. 164---Confession, retraction of---Scope---Even a retracted judicial confession could be relied upon if it was found to be voluntary and was truthful and fitting in with the prosecution case.

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

(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 accused---Scope---Accused was charged for committing murder of the cousin of complainant by stabbing---Record showed that confessional statement of the accused was recorded before the Judicial Magistrate---Evidence of said Judicial Magistrate and written prescribed proforma showed that all the necessary procedural safeguard for making a confession were followed and as such it was found to be voluntary, truthful and fully fitting in with the prosecution case---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt, however, the death sentence was reduced to that of rigorous imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Sentence, reduction in---Medical evidence---Scope---Accused was charged for committing murder of the cousin of complainant by stabbing---Medical evidence and reports fully supported the eye-witness/prosecution evidence---Medical evidence confirmed that the deceased was brought to the hospital suffering from a stab wound to the chest and that she died on account of the stab wound to the chest as evidenced by the post-mortem and death certificate---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt, however, the death sentence was reduced to that of rigorous imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Sentence, reduction in---Contradictions in the statement of witnesses---Scope---Accused was charged for committing murder of the cousin of complainant by stabbing---Record showed that all the prosecution witnesses were consistent in their evidence---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 a reasonable doubt, however, the death sentence was reduced to that of rigorous imprisonment for life---Appeal was dismissed with said modification in sentence.

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

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Sentence, reduction in---Police witnesses---Scope---Accused was charged for committing murder of the cousin of complainant by stabbing---Record showed that the accused on his arrest led the police to the murder weapon i.e. churri---Police witnesses had no proven enmity or ill-will towards the accused and no reason to falsely implicate him in the case by making up his arrest or foisting the churri on him---Evidence of the police witnesses could be fully relied upon---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt, however, the death sentence was reduced to that of rigorous imprisonment for life---Appeal was dismissed with said modification in sentence.

Mustaq Ahmed v. The State 2020 SCMR 474 rel.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Sentence, reduction in---Scope---Accused was charged for committing murder of the cousin of complainant by stabbing---Record showed that the motive for the murder had been proved by the confession of accused---High Court observed that Murder of a young lady of 18 years of age was quite shocking, however, few discrepancies were found in the prosecution case which, although not of any material significance, had persuaded to follow abundant caution---It was better in such type of cases to preserve life and award the lesser sentence of life imprisonment---Sentence of accused from death was reduced to that of rigorous imprisonment for life---Appeal was dismissed with said modification in sentence.

Ghulam Mohy-ud-Din v. State 2014 SCMR 1034 rel.

Iftikhar Ahmed Shah for Appellant.

Mohammad Iqbal Awan, Additional Prosecutor General for the State.

2022 P Cr. L J 1557

[Sindh]

Before Muhammad Iqbal Kalhoro and Agha Faisal, JJ

ABID IQBAL---Petitioner

Versus

PROVINCE OF SINDH through Chief Secretary and 4 others---Respondents

C. P. No. D-6163 of 2021, decided on 10th May, 2022.

Sindh Enquiries and Anti-Corruption Act, 1991 (IV of 1992)---

----S. 3---Constitution and powers of Establishment---Jurisdiction of Establishment against private persons---Scope---Petitioner aggrieved by initiation of three enquiries against him and others by Anti-Corruption Establishment seeks protection against any action including registration of FIR and arrest to be taken pursuant to such enquiries---Main ground to question the enquiries and its repercussions is that he is a private person---Sindh Enquiries and Anti-Corruption Act, 1991 provides for constitution of a special agency for investigation of certain offences relating to corruption or enquiry into misconduct by public servant and for holding preliminary enquiries against such servants in Sindh---Anti-Corruption Establishment has not only been given a power to hold preliminary enquiry against a public servant but also against any person who has joined hands with such public servant in any capacity for determining whether the reported offences shall be investigated or departmental enquiries be conducted---Such position, extending domain of Anti-Corruption Establishment over a private person associated in any capacity with a public servant in commission of a scheduled offence, satisfactorily dissipates misgiving of the petitioner that enquiry against him cannot be initiated---Constitutional petition, being meritless, was dismissed.

2001 PCr.LJ 1006; 2019 YLR 2911 and 2019 YLR Note 80 ref.

Taimoor Ali Mirza for Petitioner.

Chaudhry Waseem Akhtar for Respondent No. 5.

Zeeshan Adhi, Additional Advocate General Sindh.

Ali Haider Saleem, Additional Prosecutor General Sindh.

2022 P Cr. L J 1564

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD SHOAIB---Appellant

Versus

The STATE through Prosecutor General Sindh---Respondent

Criminal Appeals Nos. 642 and 648 of 2019, decided on 12th January, 2021.

(a) Criminal trial---

----"Investigation" and "trial"---Scope---Criminal administration of justice consists of two parts i.e. investigation and trial---During investigation it is the duty of Investigating Officer to find out the truth of the matter under investigation---Object of Investigation Officer is to discover the actual facts of the case and to arrest the real offender or offenders; he shall not commit himself prematurely to any view of the facts for or against any person---Upon conclusion of the investigation, the report to be submitted under S. 173, Cr.P.C., is to be based upon the actual facts discovered during the investigation irrespective of the version of the incident, advanced by the first informant or any other version brought to the notice of the Investigating Officer by any other person---Normally, the Court(s) do not interfere in investigation process which is completely dealt with by the Investigating Officer---Conclusion of investigation, however, neither holds sent up person as guilty but an accused only---Purpose of investigation is to bring truth on surface and to send culprits to face the trial or submit report regarding disposal of case under B or C class, as the case may be which, however, is always subject to approval of the competent court of law---Second part i.e. trial is the legal procedure whereby the competent court decides the guilt or innocence of the sent up accused persons by following the dictated procedure---Proceedings before the Magistrate, during course of investigation, shall not prejudice the authority and competence of Trial Court but such Court shall absolutely and independently determine the question of guilt and innocence---None can deny that an 'evidence' shall not stand complete when it is consisting on 'examination-in-chief' and 'cross-examination'---Purpose and object of 'investigation' and 'trial' are quite different hence the action(s), taken in the course of 'investigation' cannot prejudice the procedure for conducting trial which includes recording of evidence as well as right to cross-examination.

Sughran Bibi v. State PLD 2018 SC 595 fol.

Muhammad Ahmed v. State 2010 SCMR 660 rel.

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

----S. 164---Qanun-e-Shahadat (10 of 1984), Art. 133---Power to record statements and confessions---Cross-examination during investigation---Scope---Section 164, Cr.P.C. includes a right to cross-examination to accused but such right legally shall not prejudice the right of the accused to cross-examine the witness while standing in witness box before the Trial Court---Such statement remains only a statement (piece of evidence, collected by investigation agency) in both cases i.e. cross-examination by accused or dropping thereof---If any other view is taken then first such recorded statement shall have to be given the status of 'examination-in-chief' which the law, nowhere permits---Such statement could well be used for contradicting the witness regarding his previous statements made by him in writing or reduced into writing, as is provided by Art. 140 of Qanun-e-Shahadat, 1984---Such legal position needs to be kept in view by all the lower Court(s) while conducting trial so that no prejudice is caused to guaranteed right of fair-trial, undeniably available even to an accused, within the meaning of Art. 10-A of Constitution.

Sami Ahsan for Appellant (in Appeal No. 642 of 2019).

Ms. Sadia Khatoon for Appellant (in Appeal No. 648 of 2019).

2022 P Cr. L J 1603

[Sindh (Sukkur Bench)]

Before Zulfiqar Ali Sangi, J

KHAIR MUHAMMAD and 12 others---Applicants

Versus

ALI SHER and 4 others---Respondent

Criminal Revision Application No. S-24 of 2021, decided on 14th December, 2021.

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

----Ss. 4, 5 & 9---Taking cognizance and investigation---Procedure---Provisions of Criminal Procedure Code, 1898---Applicability---For taking cognizance and investigation, Illegal Dispossession Act, 2005, has its own provisions---Trial and other proceedings for which there is no provision, by virtue of S. 9 of in Illegal Dispossession Act, 2005, provisions of Criminal Procedure Code, 1898 are applicable.

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

----Ss. 5 & 7---Criminal Procedure Code (V of 1898), S. 265-C---Illegal dispossession---Interim relief---Restoring of possession---Accused was aggrieved of order passed by Trial Court under S. 7 of Illegal Dispossession Act, 2005, allowing interim relief to complaint---Validity---Trial could not start until a period of seven days after supplying relevant copies to accused in terms of S. 265-C, Cr.P.C. was expired and charge was framed---Such was considered as first step towards commencement of trial and second step was recording of evidence---Condition of "during trial" as provided in S. 7 of Illegal Dispossession Act, 2005, was to come in force---Trial Court did not attend itself to condition precedent appearing in S. 7 of Illegal Dispossession Act, 2005 before passing order in question, which order was without lawful authority and not sustainable in the eyes of law---High Court set aside order in question and remanded the matter to Trial Court for decision afresh after framing of charge and affording right of hearing to parties--- Revision was allowed accordingly.

Haq Nawaz and others' case 2000 SCMR 785 ref.

(c) Interpretation of statutes---

----Words, meaning of---Principle---If words of statute are clear and unambiguous, no more is necessary to expound those words in their natural and ordinary sense, words themselves best declare intentions of legislature.

Mumtaz Hussain v. Dr. Nasir Khan and others 2010 SCMR 1254 and Ghulam Haider and others v. Murad through Legal Representatives and others PLD 2012 SC 501 rel.

Ahmed Nawaz Shar for Applicants.

Safdar Ali Bhatti for Respondent No. 1.

Zulfiqar Ali Jatoi, Additional P.G. for Station House Officer Police Station Setharja and other Respondents.

2022 P Cr. L J 1631

[Sindh (Sukkur Bench)]

Before Zulfiqar Ali Sangi, J

WAHID BUX alias WAHIDO---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-13 of 2020, decided on 12th November, 2021.

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

----S. 24---Punishment for possessing arms with intent to use for unlawful purposes---Appreciation of evidence---Benefit of doubt---Contradictory statements--- Safe custody--- Scope--- Accused was convicted for having possession of an unlicensed weapon---Prosecution witnesses had given contradictory evidence in respect of preparing the mashirnama of the recovery of weapon---Pistol produced in court was with some descriptions which both the witnesses had admitted but the description was not mentioned in the mashirnama of the recovery---Prosecution had failed to establish safe custody of the recovered weapon---Neither Writing Head Constable (WHC) nor any other responsible official (incharge) of the Malkhana was produced before the Court to confirm the deposit of weapon---Place of recovery of weapon did not belong to accused---Appeal was allowed and the accused was acquitted of the charge, in circumstances.

Umed Ali v. The State 2018 MLD 1311 and Ikramullah and others v. The State 2015 SCMR 1002 ref.

(b) Criminal trial---

----Duty of prosecution---Scope---Prosecution is bound 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.

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

(c) Criminal trial---

----Conviction must be based and founded on unimpeachable evidence and certainty of guilt, and 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.

(d) Criminal trial---

----Benefit of doubt---Scope---For extending benefit of doubt, it is not necessary that there should be multiple circumstances creating doubt---If a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Muhammad Nasir Malik for Appellant.

Khalil Ahmed Maitlo, D.P.G. for the State.

2022 P Cr. L J 1648

[Sindh]

Before Mohammed Karim Khan Agha and Kausar Sultana Hussain, JJ

Mirza HAMAYOON---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 152 of 2013, decided on 30th November, 2020.

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

----Ss. 409, 477-A & 70---Prevention of Corruption Act (II of 1947), S. 5---Criminal breach of trust by public servant, or by banker, merchant and agent--- Falsification of accounts--- Criminal misconduct---Scope---Appellant was convicted for misappropriation and embezzlement of certain amount which was received by him as a Bank teller---Counsel for appellant conceded that the prosecution had proved the charge and stated that he did not want to argue the appeal on merits instead requested a reasonable reduction in sentence on the grounds that (a) he had served most of his sentence (b) that he had a family to support for which he was the sole bread winner (c) that he suffered ill health (d) that he had already suffered through the loss of his job (e) that the appellant showed remorse for his actions by deciding not to contest the appeal and (f) that the appellant had used his time productively in jail in activities which could contribute towards his reformation---Mitigating circumstances made out by the appellant justified a reduction in sentence---Appellant's conviction was maintained but his sentence was reduced from seven years to six years---For default in payment of fine, the appellant was directed to undergo one year---High Court clarified that the appellant would still be liable to pay the fine imposed on him under the impugned judgment---Appeal was dismissed except as modified in terms of sentencing.

(b) Criminal trial---

----Sentencing policy---Scope---Sentencing is at the discretion of the court and is not a mechanical exercise---In exercising its discretion the court could consider numerous factors such as the minimum and maximum sentence which could be imposed on conviction, the role of the accused, the gravity of the offence, the amount of loss caused, whether the accused showed any kind of remorse, whether the accused was capable of reformation, the age of the accused, the health of the accused, his conduct in jail and how long he has already spent in jail, etc.

Muhammed Juman v. State 2018 SCMR 318 rel.

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

----S. 70---Fine leviable within six years, or during imprisonment---Death not to discharge property from liability---Scope---Fine or any part thereof, which remains unpaid, may be levied at any time within six years after the passing of the sentence, and if, under the sentence, the offender be liable to imprisonment for a longer period than six years, then at any time previous to the expiration of that period; and the death of the offender does not discharge from the liability any property which would, after his death, be legally liable for his debts.

Ahmed Ali Siddiqui v. Sargodha Central Cooperative Bank Limited 1989 SCMR, 824 rel.

Khaleeq Ahmed for Appellant.

Syed Asghar Ali for the Complainant.

Ghulam Mohiuddin, A.A.G. for the State.

2022 P Cr. L J 1687

[Sindh]

Before Muhammad Iqbal Kalhoro and Agha Faisal, JJ

PAKISTAN POST OFFICE EMPLOYEES COOPERATIVE HOUSING SOCIETY through Authorized Persons---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary and others---Respondents

C.P. No. D-6652 of 2021, decided on 26th May, 2022.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 12 & 23---Constitution of Pakistan, Art. 199---Constitutional petition---Freezing and caution---Applicability---Restraining transfer of assets without freezing order---Effect---Petitioner was a cooperative housing society and aggrieved of notice under S. 23 of National Accountability Ordinance, 1999, restraining it from alienation of any land---Validity---Dispute over land was between private persons i.e. petitioner and beneficiaries of tampering in record of rights---Government had nothing to do with it and had not suffered any loss in any terms, nor at any point in time had its land involved or come under question to warrant interference by National Accountability Bureau (NAB)---Determination of title of land in favour of either party was pending in a civil suit---In inquiry by NAB nothing against petitioner was being looked into---Report of inquiry upheld claim of petitioner over land and showed that it was petitioner which was at receiving end from machinations of revenue officials done in league with some private persons---Provision of S. 23 of National Accountability Ordinance, 1999, was meant to hamper accused from creating third party interest in property acquired through illegal means and thereby making it difficult for the government to retrieve it but no such situation was extant---Endless enforcement of caution was harsh and to the detriment of only petitioner's right to deal with its land in accordance with law, and was ergo against tenets of natural justice---Without first exercising powers of freezing property under S. 12 of National Accountability Ordinance, 1999, S. 23 of National Accountability Ordinance, 1999, could not be pressed into service---High Court High declined to give carte blanche to NAB to deprive owner to deal with his property when he was not an accused in any enquiry or investigation pending with NAB on allegations of acquiring said property through illegal means and when there was no chance of his alienating the property by creating third party interest in it and thus making it difficult for the government to recover it---High Court set aside caution notices issued by NAB---Constitutional petition was allowed, in circumstances.

2021 PCr.LJ 1738 rel.

M. Sarmad Khan and Muhammad Qasim Iqbal for Petitioner.

Zeshan Adhi, Additional Advocate General, Sindh.

Asad Iftikhar, Assistant Advocate General, Sindh.

2022 P Cr. L J 1721

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Rashida Asad, JJ

IRSHAD ALI and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. D-70, Criminal Jail Appeal No. D-71, Confirmation Case No. D-13 and Criminal Appeals Nos. D-74, Criminal Jail Appeal No. D-76, Criminal Appeals Nos. S-172, S-173 of 2018, D-7, D-8, D-9 of 2019, decided on 7th September, 2021.

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

----Ss. 302, 324, 353 & 34---Criminal Procedure Code (V of 1898), S. 353---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention---Appreciation of evidence---Recall of witnesses when charge is altered, evidence to be taken in presence of accused---Scope---Prosecution case was that the accused on seeing the police party made firing upon them, due to which Police Constable was hit and died---Record showed that firstly, four accused were arrested and charge was framed, at trial two prosecution witnesses were examined; thereafter, another accused was arrested and then the charge was amended---After amendment of the charge, Trial Court on the statement of prosecutor adopted the same evidence of prosecution witnesses earlier recorded---Such procedure adopted by the Trial Court was an illegality and in violation of the mandatory provisions of S. 353, Cr.P.C.---Such contravention of the provisions of S. 353, Cr.P.C., could not be termed as an error, omission or irregularity so as to be curable under S. 537, Cr.P.C.---Violation of the mandatory provisions of Ss. 353, Cr.P.C. was nothing but a downright illegality vitiating the relevant proceedings of the trial of accused---Appeal, in circumstances, was allowed and matter was remanded by setting aside the convictions and sentences with the direction to record the statements of witnesses in presence of all the accused and record the statements of accused under S. 342, Cr.P.C., afresh by putting to them all pieces of prosecution evidence produced during trial.

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

----Ss. 302, 324, 353 & 34---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention--- Appreciation of evidence---Examination of accused---Scope---Prosecution case was that the accused on seeing the police party made firing upon them, due to which Police Constable was hit and died---Record showed that the trial court had recorded the statements of accused under S. 342, Cr.P.C., in a very casual manner and committed several illegalities, which were not curable under the law---Any piece of evidence produced by the prosecution against an accused, if not put to accused while examining him/her under S. 342, Cr.P.C., could not be used against that accused---Rationale beyond was that the accused must know and respond to the evidence brought against her/him by the prosecution---Appeal, in circumstances, was allowed and matter was remanded by setting aside the convictions and sentences with the direction to record the statements of witnesses in presence of all the accused and recording the statements of accused under S. 342, Cr.P.C. afresh by putting to them all pieces of prosecution evidence produced during trial.

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

Farhad Ali Abro and Sajjad Ali Gopang for Appellants.

Shawak Rathore, Deputy P.G., Sindh for the State.

2022 P Cr. L J 1765

[Sindh]

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

MUHAMMAD IQBAL KHAN---Appellant

Versus

BASHIR AHMED alias KHANDHARI and another---Respondents

Criminal Acquittal Appeal No. D-386 of 2018, decided on 26th March, 2021.

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

----Ss. 302 & 34---Criminal Procedure Code (V of 1898), S. 417---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---Delayed test identification parade---Scope---Prosecution case was that the accused along with another had fired at the deceased after intercepting the motor vehicle of complainant party---No incriminating articles were recovered from the possession of the accused so as to connect him with the commission of the offence and even the motorcycle allegedly being ridden by him at the time of the incident was not recovered and produced---Medical evidence introduced by the prosecution had not supported the ocular account given by the witnesses in as much as the entry and exit wounds reflected in the Medical Examiner Report were inconsistent with the account given by them as to the angle/direction of fire and the manner of injury sustained by the deceased---Identification parade was conducted after a period of two years---Only source of light was the headlights of the motor vehicle, as even the sketch of the scene prepared by the Mukhtiarkar did not show any other source of light---Proper identification of the assailants under such conditions in obviously stressful circumstances would have been difficult---Consistencies existed in the deposition of the complainant as to the composition of Test Identification Parade and placement of the accused---Test Identification Parade could not be relied upon, in circumstances---Statement of a prosecution witness under S. 161, Cr.P.C. was recorded after two years of the incident---Prosecution had failed to prove the participation of accused in the crime---Trial Court had rightly extended benefit of doubt to the accused---Appeal against acquittal was dismissed, in circumstances.

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

----S. 417--- Appeal against acquittal--- Scope--- Presumption of innocence applies doubly upon acquittal, and such a finding is not to be disturbed unless there is some discernible perversity in the determination of the Trial Court that can be said to have caused a miscarriage of justice.

Muhammad Zafar and another v. Rustam and others 2017 SCMR 1639 rel.

Muhammad Khalid for Appellant.

Nemo for Respondent No. 1.

Ali Haider Saleem, A.P.G. for the State.

2022 P Cr. L J 1779

[Sindh]

Before Yousuf Ali Sayeed and Adnan Iqbal Chaudhry, JJ

JAWAAD ALI and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeals Nos. 631 and 641 of 2019, decided on 13th September, 2021.

(a) 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---Effect---Prosecution case was that 2010 grams charas was recovered from the vehicle of accused and 2110 grams charas was recovered from the vehicle of co-accused---Complainant merely mentioned that the police party had patrolled the specific area, whereas Police Constable stated that they had patrolled through a different area---Complainant stated that 5 to 6 vehicles had been checked prior to the arrest of the accused persons, Police Constable said that they did not check any other vehicle except the vehicle of accused---Complainant stated that there was an interval of about 10 to 15 minutes between the arrival of the first vehicle and the second vehicle of the accused persons, whereas Police Constable confirmed that both vehicles arrived simultaneously at the place of incident---Complainant deposed that it was he who had conducted the search of accused, whereas Police Constable contrarily stated that it was he (constable) who had done so---Complainant deposed that two pieces of charas wrapped in yellow colour plastic tape were found tied around the abdomen of co-accused with a cloth strip, whereas Police Constable stated that one packet of charas in the shape of similarly wrapped piece was so recovered---Complainant stated that private witnesses were not available at the time of arrest and recovery, whereas Police Constable stated that the Complainant asked one or two passers-by to act as witnesses, but they refused---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)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Possession of narcotics--- Appreciation of evidence--- Benefit of doubt---Withholding material evidence---Scope---Prosecution case was that 2010 grams charas was recovered from the vehicle of accused and 2110 grams charas was recovered from the vehicle of co-accused---Head Constable who was a witness to the memo of arrest, search and seizure and was also present at the time of sealing of the parcels of alleged charas was dropped as a witness by the prosecution---Non-examining of said witness was fatal to the prosecution case---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.

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

----S. 9(c)--- Possession of narcotics---Appreciation of evidence---Benefit of doubt---Statements of complainant and Investigating Officer---Contradictions---Scope---Prosecution case was that 2010 grams of charas was recovered from the vehicle of accused and 2110 grams charas was recovered from the vehicle of co-accused---Arrest of the accused persons and recovery of charas from their possession were said to have taken place at around 0010 hours with the memo. of arrest and seizure said to have been prepared by the complainant on the spot showing the occurrence as spanning from 0020 to 0130 hours---Complainant had stated that the police party then returned to the Police Station, where the investigation was entrusted to the Investigating Officer and relevant papers were handed over to him, with the time of registration of the FIR's being entered as 0255 hours---Depositions of the prosecution witnesses narrated that the Investigating Officer then left the Police Station at the place of incident at 0315 hours, accompanied by the complainant and Police Constable, and conducted a site inspection at 0400 hours so as to return to the Police Station at 0430 hours with the relevant entries produced by the Investigating Officer reflecting such departure and arrival---Matter was clouded by the deposition of the Investigating Officer that his duty timings on the day were from 0800 hours to 2000 hours and the fact that the memo of inspection shown as having been prepared on the spot bore a time of 0900 hours---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.

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

----S. 9(c)--- Possession of narcotics---Appreciation of evidence---Benefit of doubt---Chain of safe custody---Scope---Prosecution case was that 2010 grams charas was recovered from the vehicle of accused and 2110 grams charas was recovered from the vehicle of co-accused---Investigating Officer stated that he received the case property from Sub-Inspector Police (SIP) and sent the same for chemical analysis the next day---Investigating Officer did not place anything on record to show where the recovered charas was kept during that intervening period---Indeed, no malkhana entry was produced, nor was the officer in charge of the malkhana called upon to depose as to safe custody of the charas---First Information Reports were also silent as to the custody of the recovered charas and even the letter shown to have been addressed by the Investigating Officer to the Chemical Examiner was bereft of a reference number, with it also being acknowledged by the Investigating Officer during cross-examination that the accused persons had not been implicated in any other narcotics case---Chain of custody remained shrouded in uncertainty, which was of particular significance as the sanctity of the chain was absolutely imperative for the Chemical Examiner's Report to have any real probative value---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.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---Even a single circumstance that creates a reasonable doubt in a prudent mind as to the guilt of the accused entitles him to its benefit, not as a matter of grace or a concession, but as a matter of right.

Muhammad Akram v. The State 2009 SCMR 230 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

Saleem Raza Jakhar for Appellant (in Criminal Jail Appeal No. 631 of 2019).

Amrat Kumar for Appellant (in Criminal Jail Appeal No. 641 of 2019).

Khadim Hussain, A.P.G. for the State (in both Appeals).

2022 P Cr. L J 1

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh, J

MUHAMMAD FAIZAN SALEH---Petitioner

Versus

The STATE and others---Respondents

Writ Petition No. 11984 of 2020, decided on 6th September, 2021.

Criminal Procedure Code (V of 1898)---

----Ss. 164, 340 & 243 ---Constitution of Pakistan, Art. 10A----Punjab Prevention of Gambling Ordinance (VII of 1978) Ss. 5 & 7----Confessional statement, recording of---Right to legal counsel---Conviction and sentence imposed on accused by Special Magistrate on basis of alleged confession---Fundamental Right to fair trial---Scope---Accused impugned his conviction and imposition of sentence of fine, under Ss. 5 & 7 of Punjab Prevention of Gambling Ordinance, 1978 by Special Magistrate---Contention of accused, inter alia, was that when he was produced before Special Magistrate for judicial remand, the Magistrate acting upon basis of alleged confession of accused, convicted him, whereas under the law at most Special Magistrate could only record confessional statement of accused under S. 164, Cr.P.C. and had no jurisdiction to convict accused---Validity---Right to fair trial was recognized in Art. 10A of Constitution and right to counsel was associated with such Fundamental Right and also recognized in S. 340, Cr.P.C., and thus before recording confession under S. 164, Cr.P.C., Magistrate was bound to inform accused about such right and afford him reasonable opportunity to engage counsel---Perusal of record revealed that Magistrate convicted and sentenced accused when he was produced for judicial remand and did not take confessional statement in prescribed manner and straightway passed as short two-line order convicting accused and imposing sentence of payment of fine---Magistrate did not record petitioner's statement and had no jurisdiction to convict him at that stage and therefore impugned order, along with conviction and sentence of accused was set aside with observation that FIR against petitioner would be deemed to be pending and would be proceeded with in accordance with law --- Revision was allowed, accordingly.

Shabbir Ahmed v. Kiran Khursheed and 8 others 2012 CLC 1236; Ahmad v. The State 1989 PCr.LJ 861; S.C. Sarkar, The Code of Criminal Procedure, Tenth Edition (Lexis Nexis), p.762-763; Articles 37, 38, 39 and 42 of Qanun-e-Shahadat, 1984, are pari materia with these sections; Nazir Ahmed v. King-Emperor AIR 1936 PC 253; Taylor v. Taylor (1876) 1 Ch. D 426; Ghulam Hussain v. The State [1949] UKPC 69; State of Uttar Pradesh v. Singhara Singh and others AIR 1964 SC 358; Ramaswami Reddiar and another's case AIR 1953 Madras 138; Nazir Ahmad v. The State PLD 1975 Lah. 304; Muhammad Jehangir v. The State and another 1999 MLD 2450; Sarfaraz Khan v. The State 1985 PCr.LJ 167; King Emperor v. Kasim Walad Mohammed Saffer AIR 1925 Sind 188; Farrukh Shehzad v. The State 2012 PCr.LJ 352; Muhammad Amin v. The State 2014 YLR 2207 and Sarwan Singh Rattan Singh v. State of Punjab AIR 1957 SC 637 rel.

Rahat Masood Tipu for Petitioner.

Adnan Latif Sheikh, Deputy Prosecutor General for the State.

2022 P Cr. L J 30

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh, J

DILAWAR KHAN---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION FIA/CC, MULTAN and 3 others---Respondents

Writ Petitions Nos. 3102 and 6749 of 2020, decided on 4th May, 2021.

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

----Ss. 420, 468 & 471---Copyright Ordinance (XXXIV of 1962), Ss. 60, 60-A & 67-C---Intellectual Property Organization of Pakistan Act (XXII of 2012), Ss. 13(xviii)(xix)(xx) & 39---Federal Investigation Agency Act, 1974 (VIII of 1975), S. 3---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of FIR--- Intellectual property right, infringement of---Jurisdiction of investigation---Petitioner was facing investigation with Federal Investigation Agency for infringing registered copyright of complainant---Validity---Under S. 13(xix) read with S. 39 of Intellectual Property Organization of Pakistan Act, 2012, had conferred exclusive jurisdiction on Intellectual Property Organization to initiate and conduct inquiries, investigations and proceedings related to offences under the laws specified in Schedule--- Complainant alleging infringement of his copyright was to approach the Organization---Complaint was then to be referred under S. 13(xx) of Intellectual Property Organization of Pakistan Act, 2012, by the Organization to concerned law enforcement agency or authority--- Federal Investigation Agency could not entertain any complaint directly and register FIR---Such has a purpose and the Organization was a bulwark against frivolous complaints and undue harassment---Organization was a specialized body which had expertise and requisite data to verify whether there was actually a case of infringement of intellectual property rights under applicable law---Intellectual Property Organization of Pakistan Act, 2012 had ordained under S. 13(xviii) of Intellectual Property Organization of Pakistan Act, 2012, to initiate and monitor enforcement and protection of intellectual property rights through designated law enforcement agencies of Federal or Provincial Government---Inclusion of Copyright Ordinance, 1962 in Schedule of Federal Investigation Agency Act, 1974, had effect of designating Federal Investigation Agency for enforcement in terms of S. 13(xviii) of Intellectual Property Organization of Pakistan Act, 2012---Such could not left to officer of the Organization to choose between two agencies i.e. Federal Investigation Agency and local police---Absence of reasonable classification and prescribed parameters impinged on fundamental right guaranteed under Art. 25 of the Constitution---High Court quashed FIR in question as the same was without lawful authority and complainant could proceed against petitioner afresh in accordance with law---Constitutional petition was allowed accordingly.

Director General, FIA, and others v. Kamran Iqbal and others 2016 SCMR 447; Syed Mushahid Shah and others v. Federal Investigating Agency and others 2017 SCMR 1218; The State through Deputy Attorney-General v. Muhammad Amin Haroon and 14 others 2010 PCr.LJ 518 and Dr. Syed Iqbal Raza v. Justice of Peace and others 2019 CLD 881 ref.

Messrs Farooq Ghee and Oils Mills (Pvt.) Ltd. v. Registrar of Trade Marks, Trade Mark Registry and others 2015 SCMR 1230; Orissa State Prevention and Control of Pollution Board v. Messrs Orient Paper Mills and another AIR 2003 SC 1966; Jantia Hill Truck Owners Association v. Shailang Area Coal Dealer and Truck Owner Association and others (2009) 8 SCC 492; Black's Law Dictionary (Sixth Edition); R. Dalmia v. The Commissioner of Income Tax New Delhi AIR 1977 SC 988; Shah Muhammad Khan v. The Federation of Pakistan and 2 others PLD 1958 (W.P.) Lahore 137; Asif Saigol and 2 others v. Federation of Pakistan through the Interior Secretary, Pakistan Secretariat, Islamabad and 2 others PLD 2002 Lah. 416; Javed Iqbal and 2 others v. Federal Investigation Agency and 3 others PLD 1986 Lah. 424; Asif Saigol and 2 others v. Federation of Pakistan through the Interior Secretary, Pakistan Secretariat, Islamabad and 2 others PLD 1998 Lah. 287; Shahbaz-ud-Din Chaudhry and 3 others v. The Director, FIA, C.B.C., Lahore and 2 others 1999 YLR 678; Zafar Iqbal and 3 others v. Ghulam Abid and 2 others 1995 MLD 1285; Mian Hamza Shahbaz Sharif v. Federation of Pakistan and others 1999 PCr.LJ 1584; Federal Employees Cooperative Housing Society through President v. Director General, Federal Investigation Agency, Islamabad and others 2019 PCr.LJ 594; Vita Pakistan Limited through Chief Executive v. Director-General, FIA and 3 others PLD 2011 Lah. 181; Iftikhar Hussain and others v. Government of Pakistan and others 2001 PCr.LJ 146; Manzoor Ahmad Akhtar v. The Special Judge, Central, Lahore and another PLD 1995 Lah. 1; Mrs. Surayya Farman v. The State 1998 PCr.LJ 958; Malik Ghulam Yaseen and another v. The Deputy Director, FIA, Lahore and another 1990 PCr.LJ 1834; Ch. Alla-ud-Din v. S.S.P., District Sargodha and 2 others 1999 PCr.LJ 1909; Rafi Ahmed and another v. Special Judge Central, Lahore and another PLD 2010 Lah. 692; Dr. Syed Iqbal Raza and others v. Justice of Peace, Islamabad and others 2019 CLD 642; 2019 PCr.LJ 1059; State through Deputy Attorney General v. Ikramullah PLD 2021 Bal. 1; 2020 CLD 1203; District Bar Association, Rawalpindi and others v. Federation of Pakistan and others PLD 2015 SC 401; Dewan Salman Fiber Ltd. and others v. Federation of Pakistan through Secretary Ministry of Finance and others 2015 PTD 2304; Ch. Basharat Ali v. Federation of Pakistan through Secretary Labour and Manpower Division Islamabad and 4 others 2012 PLC 219; Engro Fertilizers Limited v. Islamic Republic of Pakistan and Federation of Pakistan, Islamabad and others PLD 2012 Sindh 50 and National Bank of Pakistan v. Iftikhar Rasool Anjum and others 2017 PLC (C.S) 453 rel.

(b) Interpretation of statutes---

----Preamble---Scope---Preamble is part of a statute though not its operative part---Useful guide is provided by preamble to find out legislative intent---Sometimes purpose of statute is not discernable from preamble; in such situation Court must look at the whole of it to find out legislative intent.

Mst. Ummatullah through Attorney v. Province of Sindh through Secretary Ministry of Housing and Town Planning, Karachi and 6 others PLD 2010 Kar. 236; Kamil Khan Mumtaz and others v. Province of Punjab through Chief Secretary, Government of Punjab, Lahore and others PLD 2016 Lah. 699; Doe v. Branding, (1828) 7 B & C 643; Attorney-General v. H.R.H. Prince Ernest Augustus of Hanover, 1957 AC 436; Mst. Zainab Bibi and others v. Mst. Bilqis Bibi and others PLD 1981 SC 56 and Pakistan Railway v. Abdul Haqique and others 1991 SCMR 657 rel.

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

----S. 3 & Sched.---Federal Investigation Agency---Jurisdiction---Dispute between private parties---Scope---Federal Investigation Agency does not have jurisdiction in matters between private individuals and that there must be some nexus between offences complained of and Federal Government.

Province of West Pakistan and another v. Mahboob Ali and another PLD 1976 SC 483 and Director General, FIA and others v. Kamran Iqbal and others 2016 SCMR 447 rel.

(d) Interpretation of statutes---

----Purposive construction---Scope---Purposive construction is one of the important ways to give effect to legislative intent.

Adnderson v. Ryan, (1985) 2 All ER 355; Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul Nawaz), Narowal and 5 others PLD 1992 Lah. 178; Speech of Lord Diplock "Courts and Legislators", Birmingham (1965) and Judicial Review of Public Actions, Second Edition, p. 625 rel.

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

----S. 3 & Sched.---Federal Investigation Agency---Jurisdiction---Pre-conditions---Jurisdiction of Federal Investigation Agency is attracted if two conditions are satisfied: first, the offence is included in schedule of Federal Investigation Agency Act, 1974 and secondly, the offence must be in connection with matters concerning Federal Government.

Mian Ahmad Mahmood, assisted by Muhammad Afzal Bhatti for Petitioner.

Malik Muhammad Siddiq, Assistant Attorney General for Pakistan, with Zahid Iqbal/SI, Junaid Hassan/SI for Respondents Nos. 1 and 2.

Mian Babur Saleem for Respondent No. 3.

Amjad Ali Ansari, Assistant Advocate General, with Zakir Hussain/ASI for Respondent No. 4.

Sher Hassan Pervez and Shafqat Abbas, Research Officers, Lahore High Court Research Centre for Research assistance.

2022 P Cr. L J 59

[Lahore]

Before Sohail Nasir and Ali Zia Bajwa, JJ

MUHAMMAD ASIF ALI USAMA---Appellant

Versus

The STATE and 2 others---Respondents

Criminal Appeal No. 45611 of 2021, decided on 3rd August, 2021.

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

----S. 94---Summoning of record or a thing---Pre-condition---Word "whenever"---Scope---Only precondition to invoke provision of S. 94, Cr.P.C. is that Court is to be satisfied that production of document or thing is necessary for just decision of case---Scope of S. 94, Cr.P.C. is very wide and word "whenever" suggests that Court could exercise its power conferred to it at any stage of inquiry or trial.

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

----S. 94---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Recovery of narcotic substance---Document, summoning of---Accused during cross examination sought summoning of Call Data Record of cellular phones of prosecution witnesses---Trial Court declined to summon the record---Validity---Accused was facing charge entailing capital sentence, it was essential that he could get every chance to defend him---While passing order in question, Trial Court failed to take notice of such considerations and fell in error, while dismissing application filed by accused---Prosecution witnesses were members of raiding party who admitted that telephone numbers were in their personal use---Production of Call Data Record of mobile numbers would help the Court to arrive at just decision---High Court directed Trial Court to summon Call Data Record as desired by accused---Appeal was allowed in circumstances.

United States v. Marzano, 149F.2D 923 (2nd Cir. 1945); Sarfraz Saleem v. Federation of Pakistan PLD 2014 SC 232; Naveed Asghar v. The State PLD 2021 SC 600 and Muhammad Bashir v. Rukhsar and others PLD 2020 SC 334 rel.

M. Shahbaz Butt for Appellant.

2022 P Cr. L J 83

[Lahore]

Before Muhammad Shan Gul, J

ABID HUSSAIN---Petitioner

Versus

The STATE through SHO, Police Station Nawab Town and others---Respondents

Writ Petition No. 5777 of 2020, heard on 9th July, 2021.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Constitution of Pakistan, Art. 199---Penal Code (XLV of 1860), Ss. 279, 427 & 337-G---Constitutional petition---Order for change of investigation, quashing od---Allegations contained in the FIR were that the petitioner hit the son of the complainant by a car and fled away---Petitioner being driver of the said vehicle was prime suspect, thus police started investigation against him---On the application of complainant, first investigation was changed---Complainant being dissatisfied with the conduct of Investigating Officer moved application for change of investigation---In view of said application, investigation was changed---Second Investigating Officer refused to investigate the case which brought the complainant back to the position where he was before the second investigation, thus, he moved for the change of investigation---On the application of complainant third change of investigation was allowed---Aggrieved by the said order passed by Inspector General of Police on the recommendation of Standing Review Board, the petitioner, had approached the Court through the titled petition on the ground that since challan had been submitted and charge had been framed in the matter against him, the impugned order could not have been passed---Validity---Record showed that report under S. 173, Cr.P.C., had already been submitted before the Trial Court and trial had also commenced, however, after submission of report under S. 173, Cr.P.C., and commencement of trial, change of investigation was uncalled for and was not sustainable in the eye of law---No legal bar existed for re-investigation of a criminal case even after submission of final report under S. 173, Cr.P.C., but the same could only be done before commencement of trial---Prime consideration for further investigation, reinvestigation or change of investigation was to arrive at the truth, hands of an Investigating Agency for any further investigation should not be tied on the ground of mere delay or that it would prolong the trial---Mere fact that there might be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and aided it in ensuring substantial and effective justice---Reinvestigation, further investigation or transfer of investigation was permissible even after submission of challan or for that matter framing of charge till the time the trial was concluded, however, at the same time, it did not mean that change of investigation or further investigation could be ordered as par for the course---Certain postulates existed that had to be met before an order for further investigation or reinvestigation or transfer thereof could be passed---Such an order might be passed if some new event or incident was discovered warranting reinvestigation or further investigation---Such an order could also be made if some new evidence was discovered---Such an order could also be passed if the previous investigations had been conducted unilaterally without associating the actual culprit involved and without trying to identify and ascertain the person responsible for committing the crime---Police did not have an unfettered power in that respect and reinvestigation or further investigation might only be carried out if some further material relating to the case was required or if the previous investigation was malafide or in excess of jurisdiction---More alarming was the question as to why the petitioner had filed the petition---Petitioner had challenged an order directing investigation in a case, where if the complainants' version was accepted, then the petitioner got away scot free and did not have to face the inconvenience of a trial, why should he challenge such an order was only reflective of the presence of ulteriors in the matter---Approach of petitioner to High Court, in such circumstances, was indeed questionable and made his locus standi somewhat suspected---Constitutional petition failed and was dismissed, in circumstances.

Qari Muhammad Rafique v. Additional Inspector General of Police (INV.), Punjab and others 2014 SCMR 1499; Asif Ali v. Province of Sindh through Chief Secretary Government of Sindh Secretariat Karachi and 10 others 2016 PCr.LJ 1484; Riaz Hussain and others v. The State 1986 SCMR 1934; Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31; Aswad Iqbal v. R.P.O. and others PLD 2020 Lah. 434; Muhammad Akbar v. The State 1972 SCMR 335; Raja Khurshid Ahmed v. Muhammad Bilal and others 2014 SCMR 474; Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373; Aftab Ahmad v. Hassan Arshad and 10 others PLD 1987 SC 13 and Atta Muhammad v. Inspector-General of Police, West Pakistan, Lahore and others PLD 1965 (W.P.) Lahore 734 ref.

Aftab Ahmad v. Hassan Arshad and 10 others PLD 1987 SC 13; Muhammad Yousaf v. The State and others 2000 SCMR 453; Muhammad Ashfaq v. Amir Zaman and others 2004 SCMR 1924; Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373; Raja Khurshid Ahmed v. Muhammad Bilal and others 2014 SCMR 474; Aswad Iqbal v. R.P.O. and others PLD 2020 Lah. 434 and Sohail Jiwani v. Ghulam Qadir Thebo 2016 PCr.LJ 107; Qari Muhammad Rafique v. Additional Inspector General of Police (Inv.), Punjab 2014 SCMR 1499; Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31; Riaz Hussain and others v. The State 1986 SCMR 1934; Muhammad Idrees v. Regional Police Officer, Sheikhupura and others 2019 PCr.LJ Note 105, p. 116; Muhammad Naveed v. I.G. of Police, Punjab, and others 2019 PCr.LJ Note 130, p. 147; Munir Ahmad v. Additional Inspector General of Police, Punjab and 6 others 2016 MLD 2039; 2011 SCMR 446; 2010 SCMR 1495; 2008 SCMR 404; 2006 SCMR 1637; 1997 SCMR 1368; Muhammad Nawaz v. Crown 48 Cr.LJ 774; Muhammad Ashfaq v. Amir Zaman and others 2004 SCMR 1924; Aftab Ahmad v. Hassan Arshad and 10 others PLD 1987 SC 13; Muhammad Akbar v. The State 1972 SCMR 335; PLD 2019 Bal. 101; 2016 YLR 559; 2016 PCr.LJ 107; 2013 PCr.LJ 920; PLD 2012 Lah. 315; PLD 2009 Lah. 101; 2018 PCr.LJ Note 105; PLD 2008 Lah. 394; PLD 1997 Lah. 24; 2016 YLR Note 37 and PLD 1965 (W.P) Lahore 734 rel.

Zafar Iqbal Chohan for Petitioner.

Syed Muhammad Shah for Respondent No. 6.

Barrister Syed Ali Nouman, Assistant Advocate General with A.D. Dhakku, Inspector (Legal) on behalf of Inspector General of Police, Punjab.

Sher Hassan Pervaiz, Research Officer.

2022 P Cr. L J 109

[Lahore]

Before Sehram Sarwar Ch. And Muhammad Tariq Nadeem, JJ

NASIR ABBAS and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 73258 and Murder Reference No. 489 of 2017, heard on 27th May, 2021.

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

----Ss. 302, 324, 34, 337-F(i), 337-F(v) & 440---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, shajjah-i-khafifah, ghayr-jaifah, mischief committed after preparation made for causing death or hurt---Appreciation of evidence---Benefit of doubt---Delay of about four hours in lodging FIR---Scope---Prosecution case was that the accused party made firing upon complainant party, due to which one person died, while other received severe injuries hence the FIR---Motive behind the occurrence was that accused had a grudge against the deceased and injured person that they had arranged engagement of their brother with his sister---Record showed that the occurrence had taken place at 3:15 a.m. (night) and the matter was reported to the police on the next day at 07:15 a.m. i.e. after the delay of about four hours of the incident---Distance between police station and the place of occurrence was six kilometres---Complainant in cross-examination stated that he had been using mobile phone for the last ten years and the witnesses were also using mobile phone since then---Obviously they were travelling at night far away from their houses so there was every possibility that all the witnesses had mobile phones available with them---In that way, they could have easily made calls through their mobiles to the police at available police emergency numbers which were almost known to a person travelling---Prosecution failed to give any plausible reason for the said delay, in circumstances---Thus, the delay in setting the machinery of law into motion spoke volumes against the veracity of prosecution version---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Altaf Hussain v. The State 2019 SCMR 274 rel.

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

----Ss. 302, 324, 34, 337-F(i), 337-F(v) & 440---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, shajjah-i-khafifah, ghayr-jaifah, mischief committed after preparation made for causing death or hurt---Appreciation of evidence---Benefit of doubt---Delay of about six hours and fifteen minutes in conducting post-mortem---Scope---Prosecution case was that the accused party made firing upon complainant party, due to which one person died, while other received severe injuries----Record showed that post-mortem examination on the dead body of deceased was conducted at 09.30 a.m. with a delay of six hours and fifteen minutes from the occurrence---Opinion of Medical Officer revealed the time between the death and post-mortem examination was six hours---Such noticeable delay normally occasioned due to incomplete police papers necessary to be handed over to the Medical Officer to conduct the post-mortem on dead body of the deceased which happened only when the complainant and police remained busy in consultation and preliminary inquiry regarding the culprits in such cases of un-witnessed occurrence---Such facts created doubt against the veracity of prosecution version---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Sufyan Nawaz and another v. The State and others 2020 SCMR 192; Irshad Ahmad v. The State 2011 SCMR 1190;.Muhammad Ashraf v. The State 2012 SCMR 419 and Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327 rel.

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

----Ss. 302, 324, 34, 337-F(i), 337-F(v) & 440---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, shajjah-i-khafifah, ghayr-jaifah, mischief committed after preparation made for causing death or hurt---Appreciation of evidence---Benefit of doubt---Ocular account---Scope---Prosecution case was that the accused party made firing upon complainant party, due to which one person died, while other received severe injuries---Ocular account had been furnished by complainant, injured and eye-witness---Complainant was father, injured was cousin and eye-witness was nephew of the deceased---Narration of occurrence given by said witnesses was repellent to senses---Record showed that it was a night occurrence and witnesses were sitting in the car---Witnesses had identified the culprits in the lights of car yet it was hardly believable that they could see the assailants when they had been firing desperately---All the witnesses were equally under direct and immediate threat of death but still they were able to give photographic narration of the occurrence by attributing fire shots at the deceased and injured at the hands of two accused persons at a distance of thirty three feet---Said witnesses had no weapons along with them so they were at the mercy of assailants to be targeted---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 324, 34, 337-F(i), 337-F(v) & 440---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, shajjah-i-khafifah, ghayr-jaifah, mischief committed after preparation made for causing death or hurt---Appreciation of evidence---Benefit of doubt---Night time occurrence---Source of light---Scope---Prosecution case was that the accused party made firing upon complainant party, due to which one person died, while other received severe injuries---Only source of light available with the witnesses by which they saw the accused firing at the deceased was the head lights of the car---Complainant in his cross-examination admitted that he had not produced the car used by them at the time of occurrence---Record showed that the police had also not taken into possession the car in which the alleged eye-witnesses were travelling and they witnessed the occurrence in the light of car---Identification of the accused in the head lights of vehicle was a weak type of evidence---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Sajjad alias Sajoo and others v. The State 2018 PCr.LJ 1064 rel.

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

----Ss. 302, 324, 34, 337-F(i), 337-F(v) & 440---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, shajjah-i-khafifah, ghayr-jaifah,mischief committed after preparation made for causing death or hurt---Appreciation of evidence---Benefit of doubt---Statement of injured witness---Scope---Prosecution case was that the accused party made firing upon complainant party, due to which one person died, while other received severe injuries---Much stress had been laid on the statement of one injured eye witness who acclaimed to have received firearm injuries during the occurrence---Prosecution had pressed hard that injuries on the person of said witness were conclusive proof of their presence at the spot, thus, his testimony was destined to be accepted, even without scrutinizing it on the touch stone of corroboration---Firearm injuries were present on the person of injured indicating his presence at the spot, however it was not a conclusive proof of what he deposed before the Court was true---Medical evidence also belied the ocular account in the case---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

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

----Ss. 302, 324, 34, 337-F(i), 337-F(v) & 440---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, shajjah-i-khafifah, ghayr-jaifah,mischief committed after preparation made for causing death or hurt---Appreciation of evidence---Benefit of doubt---Medical evidence---Scope---Prosecution case was that the accused party made firing upon complainant party, due to which one person died, while other received severe injuries---Record showed that the distance, from where the firing was caused by the accused upon deceased, shown in the site plan was about three feet but that fact had been rebutted by medical evidence as in the cross-examination Medical Officer stated that there was no blackening, burning and tattooing on the body of the deceased---Said witness further described in his cross-examination that burning occurred when fire was made within the range of three feet whereas the blackening occurred within the range of four feet---In the light of the statement of Medical Officer, there was glaring contrast between ocular and medical account---In the peculiar circumstances of the case,there must be blackening on the body of deceased which was very much lacking in that case---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Mian Sohail Ahmad and others v. The State and others 2019 SCMR 956 rel.

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

----Ss. 302, 324, 34, 337-F(i), 337-F(v) & 440---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, shajjah-i-khafifah, ghayr-jaifah, mischief committed after preparation made for causing death or hurt---Appreciation of evidence---Benefit of doubt---Motive was not proved---Scope---Prosecution case was that the accused party made firing upon complainant party, due to which one person died, while other received severe injuries---Motive behind the occurrence was that accused had a grudge against deceased and injured that they had arranged engagement of their brother with his sister---First Information Report as well as in their statements of the witnesses showed that they failed to even give the name of said girl---Complainant had admitted in his cross-examination that he had not produced any Shaadi card during the investigation before the Investigating Officer---Complainant also described in his cross-examination that prior to the occurrence, engagement took place between brother of deceased and sister of accused one year earlier---Earlier to the occurrence, both the families were having cordial relation---Engagement ceremony was celebrated according to the custom of the area and jewellery was exchanged between both the parties---Trial Court had already found the motive part flimsy one---Prosecution, in circumstances had failed to prove motive part against the accused---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt--- Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 324, 34, 337-F(1), 337-F(5) & 440---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, shajjah-i-khafifah, ghayr-jaifah, mischief committed after preparation made for causing death or hurt---Appreciation of evidence---Benefit of doubt---Recovery of pistol (crime weapon) at the instance of accused---Reliance---Scope---Prosecution case was that the accused party made firing upon complainant party, due to which one person died, while other received severe injuries---Record showed that pistols were recovered at the instance of accused persons and matching report of the Forensic Science Agency was available, however, the same were immaterial because the ocular version, medical evidence and motive had already been disbelieved---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Munir Ahmad Bhatti, Nasir Mehboob Tiwana and Ch. Zulfiqar Ali Hargan for Appellants.

Muhammad Naveed Umar Bhatti, Deputy Prosecutor General for the State.

Noor Muhammad Jaspal, Aqeel Atif Chatha and Irfan Ali for the Complainant.

2022 P Cr. L J 126

[Lahore]

Before Sohail Nasir, J

TAJ MUHAMMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 1717 of 2010, heard on 27th May, 2021.

(a) Criminal trial---

----Witness---Improvements made by witness---Scope---No reliance could be made on the testimony of a witness who intentionally introduced improvements in his statement so as to cover the lacunas or to bring his testimony in line with other pieces of evidence.

Sardar Bibi and another v. Munir Ahmad and others 2017 SCMR 344; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 and Muhammad Arif v. The State 2019 SCMR 631 rel.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Site plan---Scope---Accused was charged for committing murder of the son of complainant by firing---Motive alleged was that the accused had borrowed an amount of Rs. 50,000/- from complainant and on demand for its return, accused was insulted by deceased---Prosecution's case was that deceased was present at crime scene on his rickshaw---Said rickshaw was not produced by the complainant during investigation---Even its documents were not placed for consideration before the Investigating Officer---Investigating Officer in cross-examination specifically replied that he had not shown any rickshaw in rough site plan---Same position was there in the scaled site plan---Circumstances always played an important role in corroboration to the ocular account, however, it was not the case of prosecution that someone had taken the rickshaw from there, so the question was unanswered that where that rickshaw was---Said fact had also created serious dents in prosecution's story---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.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---First Information Report was lodged with promptitude---Scope---Accused was charged for committing murder of the son of complainant by firing---Although it was claimed that FIR was recorded promptly, but it was not found so---Occurrence took place at 12:30 noon---Police Station was at a distance of one kilometre from crime scene that was in the city area---Complainant after taking Medico Legal Report of deceased went to police station and FIR was recorded---Prior to 01:45 p.m., no one informed the police about the occurrence, however, it was an absolute position and could not be questioned that priority for complainant was to save the life of deceased but the duty to inform the police could be performed by two others, who being his near and dear were accompanying the complainant---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.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Motive was not proved---Scope---Accused was charged for committing murder of the son of complainant by firing---Motive alleged was that the accused had borrowed an amount of Rs. 50,000/- from complainant and on demand for its return, accused was insulted by deceased---Prosecution was under heavy burden to prove that at what date, time and place and in what manners the accused had borrowed the amount of Rs.50000/- from complainant party---Said duty was not discharged, so without any further discussion it was held that motive was not proved in the case---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.

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

----Art. 46---Dying declaration---Scope---Dying declaration is testimony that would normally be barred as hearsay but might be admitted as evidence in criminal trials because it constituted the last words of a dying person---Rationale is that someone who is dying or believed death to be imminent would have less incentive to fabricate testimony, and as such, the hearsay statement carried with it some reliability.

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

----Art. 46---Dying declaration---Scope---Dying declaration certainly is an important piece of evidence, which possesses the sanctity on the reason that a dying man is not expected to tell lie, however, said fact is not as absolute rule, as that dying declaration is a weak type of evidence as it cannot be challenged in cross-examination---Court was to evaluate its sanctity with great care and caution.

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

----Art. 46---Dying declaration---Principles---Whether the maker had the physical capacity to make the dying declaration---Whether the maker had opportunity to identify the assailant/assailants---Whether there was a chance of misidentification on the part of dying man in identifying and naming the assailants---Whether it was free from prompting from any outside quarter---Whether witness heard the deceased correctly and whether that evidence could be relied upon.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Dying declaration---Scope---Accused was charged for committing murder of the son of complainant by firing---Statement of deceased under S. 161, Cr.P.C., which had been claimed as dying declaration---One of the considerations to appreciate the dying declaration was that, it must be free from any outside promptness that means that at the relevant time no one had to be there to influence the deceased---Not only that, but also no one met him before his statement---Investigating Officer admitted in cross-examination that at the time of recording statement of injured, complainant and two witnesses were also present there---Said fact alone was enough to discard the evidence of dying declaration---Investigating Officer recorded the statement after seeking declaration from the woman Medical Officer, which meant that she was present in hospital at the relevant time---Investigating Officer was duty bound to record the statement in the presence of woman Medical Officer and then to obtain her signature in token of its correctness with a certificate also that injured remained conscious throughout during his statement---Even otherwise, the dying declaration was factually incorrect as injured had alleged sole fire by accused whereas through medical evidence it had been established that he had received two fire shots and same was also maintained by two eye-witnesses---In the present case, it had been established that one female was involved in hatching the conspiracy whereas in dying declaration injured had stated that they were two different personalities---Said deliberations made a definite result that the alleged dying declaration had not been proved by the prosecution---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.

Mst. Zahida Bibi v. The State PLD-2006- SC-255 rel.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence from the possession of accused---Reliance---Scope---Accused was charged for committing murder of the son of complainant by firing---Record showed that from the possession of accused a .30 bore pistol was recovered on his arrest---As no empty was found at crime scene,therefore,recovery was inconsequential with no benefit to prospection---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.

(j) Criminal trial---

----Benefit of doubt---Principle---If there was a real and reasonable doubt as to guilt, the accused would be entitled to the benefit of doubt---Law required that the conviction should be certain and not doubtful.

Muhammad Imran v. The State 2020 SCMR 857 rel.

Malik Jahanzaib for Appellant.

Irfan Zia, Deputy Prosecutor General for the State.

Nemo for the Complainant.

2022 P Cr. L J 151

[Lahore]

Before Tariq Saleem Sheikh, J

MUHAMMAD SAJID alias SAJO---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 59005/B of 2021, decided on 9th November, 2021.

Criminal Procedure Code (V of 1898)---

---- S. 498---Penal Code (XLV of 1860), Ss. 377A & 377B--- Sexual abuse against children--Delay in lodging FIR---Medical examination of victim---Proof of mala fides---Pre-arrest bail, refusal of---Accused sought pre-arrest bail for offence under Ss. 377A & 377B, P.P.C., inter alia, on ground that evidence against him was fabricated, that no medical examination of victim was done and that there was unexplained delay in lodging of FIR---Validity---Accused was nominated in FIR with specific allegations and adverse inference could not be drawn against complainant for approaching police seven days after the incident, as such incidents were generally not reported immediately in the society---Overall impact of said delay, if any, had to be determined by Trial Court on conclusion of the trial when testimony of all witnesses was recorded and they were duly cross-examined---Accused did not place any material which suggested that allegations were fabricated and mala fides must be pleaded with particularity and proof of mala fides was sine qua non for grant of pre-arrest bail --- All acts described in S. 377A, P.P.C. were criminal offences if the victim was less than 18 years of age and same held true regardless of age of accused and consent of victim was inconsequential; and victim's own statement against accused was most important---Allegation against accused, in the present case, was of fondling the victim, and there was no possibility of injury to victim, therefore medical examination was not required---Application for grant of pre-arrest bail was rejected, in circumstances.

International Law Concerning Child Civilians in Armed Conflict (1997), Clarendon Press; In: Falch-Eriksen A., Backe-Hansen E.(eds) Human Rights in Child Protection. Palgraye Macmillan, Cham. https://doc.org/10.1007/978-3-319-94800-3_2; Ben Mathews, New International Frontiers in Child Sexual Abuse, Theory, Problems and Progress (2019), ISBN 978-3-319-99043-9 (eBook); Shahzada Qaiser Arfat alias Qaiser v. The State and another PLD 2021 SC 708; Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427; Muhammad Sadiq and others v. The State and another 2015 SCMR 1394; Khalil Ahmed Soomro and others v. The State PLD 2017 SC 730; Ghulam Farooq Channa v. Special Judge ACE (Central-I), Karachi, and others PLD 2020 SC 293; Mir Muhammad and others v. National Accountability Bureau through Chairman and others 2020 SCMR 168 and Raja Khurram Ali Khan and 2 others v. Tayyaba Bibi and another PLD 2020 SC 146 rel.

Nasir Mehmood for Petitioner with the Petitioner in person.

Muhammad Mustafa Chaudhry, Deputy Prosecutor General, with Muhammad Sharif/ASI. for the State.

Naveed Khalid for the Complainant.

[There] is a mass of human rights law, both treaty and 'soft law', both general and child-specific, which recognizes the distinct status and particular requirements of children … [Children] owing to their particular vulnerability and their significance as the future generation, are entitled to special treatment generally, and, in situations of danger, to priority in the receipt of assistance and protection.

2022 P Cr. L J 170

[Lahore]

Before Muhammad Tariq Nadeem, J

ZUBAIR ANWAR and 2 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 55277-B of 2021, decided on 9th November, 2021.

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

----S. 498---Pre-arrest bail --- For a pre-arrest bail personal appearance of accused (before the Court) was mandatory.

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

----S. 498--- Penal Code (XLV of 1860), Ss. 302, 324, 147, 149 & 337-L(2)---Murderous assault---Ad interim pre-arrest bail, confirmation of---No specific injury attributed---Probability of false implication---First Information Report (FIR) was lodged with the delay of almost 3 days and no explanation for such inordinate delay had been brought on record---Narration of FIR and evidentiary material collected by the police and presented before High Court showed no specific injury was attributed to the accused rather collective role had been assigned to him---Question as to whether the accused participated in the occurrence in the manner as mentioned in the crime report as well as culpability of the accused were issues, which could best be settled after recording of evidence---Prima facie, the prosecution lacked sufficient incriminating material to connect the accused with the commission of alleged offence and chances of his false implication with deliberation after consultation could not be ruled out---Moreover accused had joined investigation and no useful purpose would be served by sending the accused behind bars---Ad-interim pre-arrest bail granted to accused was confirmed in circumstances.

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

----S. 498---Pre-arrest bail---Scope---Concession of pre-arrest bail being an extra ordinary relief was to be granted to protect the innocent from victimization and humiliation of police through abuse of law for ulterior motives.

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

----Ss. 497 & 498---Pre-arrest bail---Scope---If an accused person had a good case for post arrest bail then merely at the wish of complainant, he could not be sent behind bars for few days by dismissing his application for pre-arrest bail.

Khalil Ahmed Soomro v. The State PLD 2017 SC 730 and Shahzada Qaiser Arfat alias Qaiser v. The State and another PLD 2021 SC 708 ref.

Barrister Danyal Ijaz Chadhar for Petitioner with Petitioner in person.

Muhammad Moeen Ali, Deputy Prosecutor General for the State.

2022 P Cr. L J 195

[Lahore]

Before Ali Baqar Najafi, J

USMAN SHAHID---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No. 64049 of 2021, decided on 23rd December, 2021.

Punjab Infectious Diseases (Prevention and Control) Act (XIII of 2020)---

----S. 28-A---Penal Code (XLV of 1860) S. 188---Punjab Prevention and Control of Dengue (Temporary) Regulations, 2021, Reglns. 3, 15 & 5---Constitution of Pakistan, Art. 199---Constitutional petition----Quashing of FIR---Prevention and control of dengue---Registration of FIR by Dengue Control Teams against owners/occupiers of premises found to be in violation of dengue control regulations----Mandatory procedure before initiation of criminal proceedings---Scope---Petitioner sought quashing of FIR lodged against it under S. 188, P.P.C. read with Regln. 15 of Punjab Prevention and Control of Dengue (Temporary) Regulations 2021, after Provincial Government Dengue Control team inspected premises of petitioner and allegedly found dengue mosquitos at such premises---Contention of petitioner, inter alia, was that FIR was motivated by intention to blackmail petitioner and to obtain illegal gratification ---Validity--- Record showed that authorities had not been able to show any positive report of specimen of water allegedly collected from premises of petitioner and it was not shown that the Provincial Government Authorities had made any effort to spray disinfectant on any pond, fountain or place of petitioner with notice to owner as required by Punjab Prevention and Control of Dengue (Temporary) Regulations 2021---No notice as required under Punjab Prevention and Control of Dengue (Temporary) Regulations 2021 was issued to petitioner to take appropriate measures as per the Standard Operating Procedures for dengue control---In order to initiate criminal proceedings, the specific procedure required issuance of notice, site inspection, taking of specimen and getting report of laboratory and such requirements had not been fulfilled in the present case---First Information Report was therefore nothing but abuse of process of law and could not be sustained, and was quashed---Constitutional petition was allowed, accordingly.

Muhammad Asghar and 3 others v. Station Hous Officer and 2 others PLD 2020 Lah. 87 ref.

Sheraz Zaka for Petitioner.

2022 P Cr. L J 203

[Lahore]

Before Muhammad Amjad Rafiq, J

SHERAZ KHAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 44216-B of 2021, decided on 27th July, 2021.

(a) Prevention of Electronic Crimes Act (XL of 2016)---

----S. 50---General Clauses Act (X of 1897), S. 26---Provision as to offences punishable under two or more enactments---Relation of the Act with other laws---Trials to be conducted separately---Scope---Court constituted under Prevention of Electronic Crimes Act, 2016, cannot try offences under P.P.C.---Under S. 26 of General Clauses Act, 1897, an offence falling under two definitions of different laws shall be tried separately---Unlike S. 17 read with S. 21-M of Anti-Terrorism Act, 1997, there is no specific provision for holding joint trial in Prevention of Electronic Crimes Act, 2016---Under S. 50 of Prevention of Electronic Crimes Act, 2016, provisions of said Act shall have effect not in derogation of Pakistan Penal Code or any other laws; which means, if similar offence under P.P.C. and Prevention of Electronic Crimes Act, 2016, is committed then offender shall be charged under Prevention of Electronic Crimes Act, 2016 only---Offender is usually charged with offence only under special law which has an effect on any other law for the time being in force; like Control of Narcotic Substances Act, 1997, offender is charged under S. 9 and not under Art. 3 or 4 of Prohibition (Enforcement of Hadd) Order, 1979---Some personal offences like cyber stalking, spamming or spoofing would be tried independently under Prevention of Electronic Crimes Act, 2016, even if they are offences under any other law because provisions of Prevention of Electronic Crimes Act, 2016, shall have effect on other laws and no charge under other laws shall be part of trial in the court constituted under Prevention of Electronic Crimes Act, 2016---If different offences under different laws are committed in the same transaction; joint trial by one court is prohibited unless there is a provision of holding joint trial in that law---If an offender is apprehended on the spot for committing robbery; on his personal search, pistol and narcotics are recovered; trial for possession of unlicensed pistol and narcotics shall not be held in one court, rather by different courts, similarly, offences under P.P.C., if are committed through use of an information system shall be tried by the ordinary court and not by court constituted under Prevention of Electronic Crimes Act, 2016; if such acts are committed through unauthorized access to information system, then main offence shall be tried by the ordinary court and offence of unauthorized access shall be tried by court under Prevention of Electronic Crimes Act, 2016.

(b) Prevention of Electronic Crimes Act (XL of 2016)---

----S. 50---General Clauses Act (X of 1897), S. 26---Provision as to offences punishable under two or more enactments---Relation of the Act with other laws---Scope---Prevention of Electronic Crimes Act, 2016, deals only with those persons who possess know-how or expertise in using the information system; it has nothing to do with ordinary offenders who commit the offence with conventional methods---More clearly, Prevention of Electronic Crimes Act, 2016, deals with white collar crimes through the use of information system.

(c) Prevention of Electronic Crimes Act (XL of 2016)---

----S. 50---General Clauses Act (X of 1897), S. 26---Provision as to offences punishable under two or more enactments---Relation of the Act with other laws---Scope---If an offence under other laws is committed by uploading data or information generally on social media or sending messages through any mobile application, it would not be an offence under Prevention of Electronic Crimes Act, 2016, until it is transmitted through unauthorized access for the purpose or through a required action as depicted in the relevant sections of Prevention of Electronic Crimes Act, 2016, or target a particular person in case of offences of cyber stalking, spamming or spoofing.

(d) Prevention of Electronic Crimes Act (XL of 2016)---

----Preamble, Ss. 27, 28, 30, 36, 44 & 50---Legal recognition of offences committed in relation to information system, Pakistan Penal Code, 1860 (Act XLV of 1860) to apply, power to investigate, dealing with seized data or information system, cognizance and trial of offences, relation of the Act with other laws---Trials to be conducted separately---Scope---Main object of Prevention of Electronic Crimes Act, 2016, as reflected from Preamble is to prevent unauthorized acts with respect to information system---Sections 27, 28, 30, 36(3)(b), 36(3)(c), 44 & 50 of Prevention of Electronic Crimes Act, 2016, make it clear that offences under P.P.C. or any other law cannot be tried jointly with any coordinate offence under Prevention of Electronic Crimes Act, 2016, even if it is committed in the same transaction---No provision for joint trial exists in Prevention of Electronic Crimes Act, 2016.

(e) Prevention of Electronic Crimes Act (XL of 2016)---

----S. 27---Legal recognition of offences committed in relation to information system---Scope---Section 27 of Prevention of Electronic Crimes Act, 2016, provides that all offences under the Act or any other laws will be recognized and enforced under said laws even if they are committed in relation to or through the use of an information system---Phrase "legal recognition and enforcement shall not be denied" means the applicability of offences in that law for the purpose of trial will not become redundant on the premise that it is now like an offence under Prevention of Electronic Crimes Act, 2016 and would be tried only by the court constituted under Prevention of Electronic Crimes Act, 2016.

(f) Prevention of Electronic Crimes Act (XL of 2016)---

----Ss. 27 & 36--- Legal recognition of offences committed in relation to information system---Dealing with seized data or information system---Scope---Sections 36(3)(b) & 36(3)(c) of Prevention of Electronic Crimes Act, 2016, talks about another ongoing investigation or criminal proceedings, which fortifies that the offence defined in other laws shall be investigated and tried separately by the respective courts.

(g) Prevention of Electronic Crimes Act (XL of 2016)---

----Ss. 27 & 30---Legal recognition of offences committed in relation to information system---Power to investigate---Scope---Section 30 of Prevention of Electronic Crimes Act, 2016, mandates about Joint Investigation Team to investigate an offence under Prevention of Electronic Crimes Act, 2016 or any other law for the time being in force which gives a distinct mark and clear indications to deal with the trials separately, if different offences have been committed.

(h) Prevention of Electronic Crimes Act (XL of 2016)---

----Ss. 50 & 28---General Clauses Act (X of 1897), S. 26---Provision as to offences punishable under two or more enactments---Relation of the Act with other laws---Pakistan Penal Code, 1860 (XLV of 1860) to apply---Scope---Perusal of S. 28 of Prevention of Electronic Crimes Act, 2016, clarifies that it does not support omnibus application of all provisions of P.P.C. rather application is limited to those provisions which relate to vicarious liability like common intention or common object, abetment or criminal conspiracy and provisions relating to General Exceptions in P.P.C., if they are not inconsistent with provisions of Prevention of Electronic Crimes Act, 2016.

Iftikhar Ahmad v. The State PLD 2021 SC 799 and Muhammad Tanveer v. State PLD 2017 SC 733 rel.

(i) Predicate offence---

----Scope---Predicate crime or offence is a crime which is a component of a larger crime---Crimes are predicate to a larger crime if they have a similar purpose to the larger crime---For example, using false identification is itself a crime; it may be a predicate offence to larceny or fraud if it is used to withdraw money from a Bank account---If the offence of money laundering is committed for terrorism financing, then money laundering becomes a predicate offence; though money laundering is a separate offence which is separately tried under Anti-Money Laundering Act, 2010.

(j) White collar crime---

----Scope---White collar crime is "a crime committed by a person of respectability and high social status in the course of their occupation"---Typical white-collar crimes could include wage theft, fraud, bribery, Ponzi schemes, insider trading, labour racketeering, embezzlement, cyber crime, copyright infringement, money laundering, identity theft and forgery.

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

----S. 235---Offence falling within two definitions---Scope---Section 235, Cr.P.C. deals with offences falling within two or more separate definitions of any law; the word "any law" does not mean different laws but by the same law; as is evident from illustration to subsection (2) of S. 235, Cr.P.C.

Shahzada Muhammad Zeeshan Mirza for Petitioner.

Malik Khaliq Shafique, Assistant Attorney General for Pakistan with Shafqat, Sub-Inspector/FIA.

2022 P Cr. L J 240

[Lahore (Rawalpindi Bench)]

Before Sohail Nasir, J

ALI ZAR---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No. 90 of 2020, decided on 21st June, 2021.

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

----S. 367---Language of judgment---Contents of judgment---Scope---Judgment is the decision of a Court regarding the rights and liabilities of the parties in a legal action or proceedings---Such is an official proclamation by a Judge that defines the legal relationships between the parties to a hearing, a trial, an appeal or other Court proceedings.

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

----Ss. 367 & 424---Language of judgment---Contents of judgment---Features of a good judgment, detailed.

Some important features of a good judgment are as under:

i. A good judgment enhances the image and perception associated with the justice delivery process and increases public confidence in the judiciary.

ii. A well written to the point judgment based on comprehensive analysis of facts and law is not only an indication of the intellectual strength of a judge but also is a sign of a worthy judicial system.

iii. The central purpose of a speaking judgment is to make clear the judges' own view. It explains the decision to the parties concerned.

iv. Basic structure of a judgment should be such that a reader while reading it without difficulty understands the facts delineated in the judgment. Further, a reader must be able to know effortlessly, the reasons given in it in reaching a just, and indeed one might say, often inevitable conclusion.

v. Judgment must contain everything that needs to be said as to why a decision was reached and nothing more.

vi. Failure to give a fair judgment will destroy the idea of justice for an innocent person.

vii. It must base on deep critical analysis of all the facts relevant to the case and not on external consideration.

viii. In all circumstance, it has to be transparent, unambiguous, and intelligible.

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

----S. 367---Language of judgment---Contents of judgment---Scope---Judgment should be transparent like clean water so that people can understand it without any doubt and probabilities.

Raja Faheem Altaf for Petitioner.

Faizan Zafar Awan for Respondent No. 2.

2022 P Cr. L J 259

[Lahore]

Before Muhammad Amjad Rafiq, J

ROHAN AHMAD and others---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous Nos. 18739-B and 18744-B of 2021, decided on 26th August, 2021.

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

----Ss. 344 & 497---Penal Code (XLV of 1860), Ss. 295-B, 298-C, 120-B, 34 & 109---Prevention of Electronic Crimes Act (XL of 2016), S. 11---Defiling of the Holy Qur'an, person of Quadiani group calling himself a Muslim preaching and propagating his faith, criminal conspiracy, common intention, abetment and electronic forgery--- Bail, refusal of---Remand of custody---Accused persons were alleged to be of Quadiani faith who were preaching and propagating their faith and were maintaining websites containing books including the holy Quran containing blasphemous content---Validity---Offence was to see apparently committed but for such exercise whole of the documents would be gone through which was the function of Trial Court and that it had already been done---It was to be presumed that judicial act was regularly performed as contemplated under Art. 129(e) of Qanun-e-Shahadat, 1984---Provision of S. 344, Cr.P.C. had very close nexus with S. 497, Cr.P.C. and if due to reasonable cause it would become necessary or advisable to postpone commencement of or adjourn an inquiry or trial, the Court could do it from time to time and remand the accused to custody---Explanation attached to said section was very important to understand concept of remanding the accused to custody---Remanding accused to custody was an indicator that sufficient evidence was available on record and there was likely that further evidence would be obtained by a remand---If Court had considered that further evidence was not expected and sufficient evidence so far had not been brought on record, Court in such eventuality could release accused on bail---Offences alleged against accused persons fell within the prohibitory clause of S. 497, Cr.P.C.---Evidence connecting accused persons with commission of offence was available and case was in trial---Trial Court had already refused to exercise of discretion in favour of accused persons to enlarge them on bail after considering that sufficient evidence was available and remanded them to custody---Bail was declined in circumstances.

Muhammad Hussain Muawiyah v. Inspector General of Police, Punjab and others PLD 2019 Lah. 448; Imtiaz v. Azam Khan and others 2021 SCMR 111; Mazhar Ali v. The State and others 2020 PCr.LJ 1571; Talat Hussain v. Aqib Mehmood and another 2020 YLR 356; Riaz Ahmad and 3 others v. The State PLD 1994 Lah. 485; Imran Ashraf and 7 others v. The State 2001 SCMR 424; Muhammad Jawad Hamid and another v. Mian Muhammad Nawaz Sharif and others 2019 PCr.LJ 665 and Rehmatullah v. The State and another 2011 SCMR 1332 ref.

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

----S. 497---Expressions "appears" and "brought"---Scope---Expression "appears" means appears in response to a summon by Court and "brought" means brought from custody.

Sh. Usman Karim-ud-Din for Petitioners.

Muhammad Matloob Sindhu, Assistant Attorney General with Naveed, Sub-Inspector/FIA for the State.

2022 P Cr. L J 296

[Lahore (Multan Bench)]

Before Muhammad Tariq Nadeem, J

SAEED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 984 of 2016, decided on 14th July, 2021.

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

----Art. 129(g)--- Withholding of evidence--- Criminal trial---Presumption--- If any party withholds the best piece of evidence, it can be presumed that such party has some sinister motive behind it.

Lal Khan v. The State 2006 SCMR 1846 and Muhammad Rafiq and others v. The State 2010 SCMR 385 rel.

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

----Art. 22---Identification parade---Object---Accused not known previously---Effect---If complainant does not know accused prior to occurrence and not familiar to him, then how can he identify accused without holding identification parade.

Asghar Ali alias Sabah and others v. The State and others 1992 SCMR 2088 and Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 rel.

(c) Criminal trial---

----Medical evidence---Object---Medical evidence may confirm ocular account with regard to seat of injuries and its duration, nature of injuries and kind of weapon used for causing such injuries but it cannot connect accused with commission of crime.

Muhammad Tasaveer v. Hafiz Zulqurnain and 2 others PLD 2009 SC 53; Ghulam Mustafa and another v. The State 2009 SCMR 916; Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410; Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327 and Sajjan Solangi v. The State 2019 SCMR 872 rel.

(d) Criminal trial---

----Motive---Scope---Once motive is established by prosecution, then it has to be proved otherwise adverse inference would be drawn.

Noor Muhammad v. The State and another 2010 SCMR 97; Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344 and Manzoor Ahmed Shah and others v. The State and others 2019 SCMR 2000 rel.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Crime empties and weapon of offence, sending together for analysis---Accused was convicted by Trial Court for committing Qatl-i-amd and was sentenced to imprisonment for life---Validity---Accused after his arrest got recovered weapon of offence on the same day---Weapon and crime empties were sent to Forensic Science Laboratory after arrest of accused---Although report of Forensic Science Laboratory was positive regarding pistol but it was not explained by prosecution as to why crime empties were not sent to the Laboratory till arrest of accused---Such fact had made report of Forensic Science Laboratory inconsequential---Unless direct or substantive evidence was brought on record, conviction could not be recorded on the basis of such type of evidence, howsoever convincing it might be---Prosecution was obliged to prove its case against accused beyond any reasonable doubt and if it had failed to do so, accused was entitled to benefit of doubt---Rule of benefit of doubt was described as golden rule and was essentially a rule of prudence which could not be ignored while dispensing justice in accordance with law---High Court set aside conviction and sentence awarded to accused by Trial Court and acquitted him of the charge---Appeal was allowed in circumstances.

Abdul Jabbar alias Jabbari v. The State 2017 SCMR 1155; Muhammad Ishaque v. The State 2007 SCMR 108; Arshad Khan v. The State 2017 SCMR 564; Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596; Nasrullah alias Nasro v. The State 2017 SCMR 724; Nazeer Ahmad v. The State and others 2019 SCMR 594; Irshad Ahmad v. The State 2011 SCMR 1190; Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068; Sufyan Nawaz and another v. The State and others 2020 SCMR 192; Muhammad Yasin and another v. The State through P.G. Punjab and others 2020 SCMR 1237; Mst. Sughran Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652; Mst. Mir Zalai v. Ghazi Khan and others 2020 SCMR 319; Muhabbat Khan v. Fateh Muhammad and 2 others PLD 1976 SC 593; Muhammad Nawaz v. The State 1983 SCMR 1316; Liaqat Ali and another v. The State and others 2021 SCMR 780; Hassan and others v. The State and others PLD 2013 SC 793; Muhammad Mansha v. The State 2018 SCMR 772; Muhammad Arif v. The State 2019 SCMR 631; Khalid Mehmood and another v. The State and others 2021 SCMR 810; Muhammad Idrees and another v. The State and others 2015 SCMR 612; Shahbaz v. The State 2016 SCMR 1763; Nazir Ahmad v. The State 2018 SCMR 787; Haroon Shafique v. The State and others 2018 SCMR 2118; Munir Ahmad and another v. The State and others 2019 SCMR 79; Safdar Abbas and others v. The State and others 2020 SCMR 219; Nazeer Ahmad v. The State 2016 SCMR 1628; Asad Rehmat v. The State and others 2019 SCMR 1156; Muhammad Irshad v. Allah Ditta and others 2017 SCMR 142; Muhammad Mansha v. The State 2018 SCMR 772; Tariq Pervez v. The State 1995 SCMR 1345; Ayub Masih v. The State PLD 2002 SC 1048; Muhammad Akram v. The State 2009 SCMR 230; Khalid Mehmood and others v. The State 2011 SCMR 664; Muhammad Mansha v. The State 2018 SCMR 772; Asia Bibi v. The State and others PLD 2019 SC 64; Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 and Najaf Ali Shah v. The State 2021 SCMR 736 rel.

Prince Rehan Iftikhar Sheikh and Ch. Khalid Mehmood Arain for Appellant.

Hassan Mehmood Khan Tareen for the State.

Ch. Saeed Ahmad Farrukh for the Complainant.

2022 P Cr. L J 314

[Lahore (Bahawalpur Bench)]

Before Sardar Ahmed Naeem and Muhammad Waheed Khan, JJ

MUHAMMAD ASLAM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 624-J and Murder Reference No. 81 of 2016, heard on 9th February, 2021.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Accused was charged for committing murder of his wife by inflicting hatchet blows---Motive behind the incident was stated to be that the deceased had a Jhoti (young buffalo) and the accused wanted to sell that which resulted into altercation between the spouses---Record showed that the occurrence took place at 04:00 a.m.---No source of light was mentioned by the witnesses at the crime scene---Occurrence took place in the residential room of the house situated at the Dera---Evidence and the scaled site plan showed that the deceased after sustaining injuries fell on a cot lying in the said room but no cot was taken into possession during the investigation---Material available on record further suggested that the complainant was living at a distance of 4/5 acre from the place of occurrence with his family in a nearby 'Basti' having about 100 houses---Accused was also chased by her family members---Family of a witness also came to the crime scene and witnessed the occurrence admitted by the complainant, but none from their families was cited as witness---Accused got married to the deceased 15/16 years ago and had three sons aged about 15 years, 12 years and 10 years respectively---Sons of the accused except elder were present inside the room but they were also not examined at the crime scene---Evidence showed that the place of occurrence i.e. the room had no outlet/window, thus, it appeared to be improbable that the accused could manage his escape, in particular, leaving behind the hatchet in presence of so many family members/relatives of the deceased---Statement of eye-witness was at variance with that of the complainant which reflected that he had witnessed the occurrence along with the children standing outside the room---Said witness had also admitted that they made no effort to shut the door or bolt the same from outside---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable shadow of doubt--- Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence on the pointation of accused---Reliance---Scope---Accused was charged for committing murder of his wife by inflicting hatchet blows---Accused was arrested but amazingly, he got recovered hatchet from the back side of his room lying under the sugarcane---Crime report further suggested that the accused was given a chase by the eye-witnesses but he managed his escape and no material was available on the file that while leaving the spot, the accused concealed the crime weapon behind the crime scene i.e. his residential room---Investigating Officer further admitted that the recovery memo did not suggest if it was blood-stained---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay in reporting the matter---Scope---Accused was charged for committing murder of his wife by inflicting hatchet blows---Record showed that the Medical Officer conducted post-mortem examination at 02:00 p.m. and observed seven incised wounds on the upper part of the body of the deceased---Post-mortem reflected that the rigor mortis was fully developed---Medical Officer also admitted during the cross-examination that rigor mortis fully developed in 24 hours---Occurrence took place at 04:00 a.m. on the same day---Incident was reported at 09:00 a.m. with unexplained delay of five hours and the post-mortem was conducted at 02:00 p.m., meaning thereby that the occurrence had taken place not at the time as mentioned by the witnesses in their statements---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable shadow of doubt--- Appeal against conviction was allowed, in circumstances.

(d) Criminal trial---

----Benefit of doubt---Principle---Benefit of doubt is always extended in favour of the accused---Case of the prosecution if found to be doubtful then every doubt even slightest is to be resolved in favour of the accused.

Muhammad Mansha v. The State 2018 SCMR 772; Abdul Jabbar v. The State and another 2019 SCMR 129 and Muhammad Adnan and another v. The State and others 2021 SCMR 16 rel.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---With-holding material evidence---Effect---Accused was charged for committing murder of his wife by inflicting hatchet blows---Record showed that nobody came forward from the families of the complainant and eye-witness to depose against the accused---Similarly, the independent witnesses were also not examined at trial, thus, best evidence in the case was withheld by the prosecution and thus necessary inference must be raised against the prosecution under Art. 129(g) of Qanun-e-Shahadat, 1984---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable shadow of doubt--- Appeal against conviction was allowed, in circumstances. [p. 322] E

Farooq Haider Malik for Appellant.

Najeeb Ullah Jatoi, Deputy Prosecutor General for the State.

Rao Nasir Mehmood Khan for the Complainant.

2022 P Cr. L J 338

[Lahore]

Before Shehram Sarwar Ch. And Muhammad Tariq Nadeem, JJ

ALAM KHAN and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 87338-J, 87339-J and Murder Reference No. 478 of 2017, decided on 18th May, 2021.

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

----Ss. 302(b), 392 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Benefit of doubt---Night time occurrence---Source of light---Scope---Accused were charged for murdering the uncle of complainant by firing while committing robbery---Allegedly, occurrence took place at 06.15 p.m., during the month of December and darkness had already spread---Although features of the assailants had been described in the FIR but there was haunting silence with regard to the source of light---From scanning the entire evidence, it had been concluded that no source of light had been given by the prosecution in the FIR, during the course of investigation as well as in the statements of prosecution witnesses before the court---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Gulfam and another v. The State 2017 SCMR 1189 rel.

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

----Ss. 302(b), 392 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Benefit of doubt---Presence of witnesses at the spot was doubtful---Chance witnesses---Scope---Accused were charged for murdering the uncle of complainant by firing while committing robbery---Eye-witnesses had not given any plausible reasoning about their availability at the shop of deceased---Similarly eye-witnesses had narrated in the cross-examination that accused persons did not search them so a question arose if the accused had come to commit dacoity why they left the eye-witnesses unsearched---Accused had nothing to prevent them from doing so, thus, the presence of eye-witnesses at the place of occurrence was highly doubtful and not believable---All the said facts clearly demonstrated that eye-witnesses were chance witnesses---Said witnesses were closely related to the deceased as complainant was nephew, whereas, other eye-witness was a cousin of deceased, hence, their evidence was discarded---Circumstances established that the prosecution had miserably failed to prove its case against the accused persons beyond any shadow of doubt--- Appeal against conviction was allowed, in circumstances.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 rel.

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

----Art. 22---Test identification parade---Joint identification parade---Evidentiary value---Accused were arrested and were sent to judicial lock up for identification parade which was held on jointly---Joint identification parade had no evidentiary value.

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

----Ss. 302(b), 392 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Benefit of doubt---Test identification parade---Infirmities---Accused were charged for murdering the uncle of complainant by firing while committing robbery---Record showed that in the proceedings of identification test parade, Judicial Magistrate had not mentioned ages and features of the dummies---Moreso, Judicial Magistrate also admitted that accused persons raised objection that after their arrest their pictures were taken and their movie was made by the police---Said objection of the accused persons was not rebutted by the complainant and eye-witnesses and it was not attended to by Judicial Magistrate---Investigating Officer narrated in his examination-in-chief that informer informed him that in case of interrogation from the accused persons, matter could be traced out---Next day at the information of informer Investigating Officer arrested the accused persons present in the court under S. 54, Cr.P.C. and they were produced in the court of Judicial Magistrate---Said accused persons were sent to judicial lock up for the purpose of identification parade through application---Identification parade, in circumstances, was not held in accordance with the law---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

(e) Criminal trial---

----Witness---Material improvements made by a witness in his statement---Effect---If a witness improved his version to strengthen the prosecution case, his improved statement could not be relied upon as the witness had improved his statement dishonestly, therefore, his credibility would become doubtful---Improvements once found deliberate and dishonest casted serious doubt on the veracity of such witnesses.

Farman Ahmad v. Muhammad Inayat and others 2007 SCMR 1825; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Akhtar Ali and others v. The State 2008 SCMR 6 and Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 rel.

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

----Ss. 302(b), 392 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence on the instance of accused---Reliance---Scope---Accused were charged for murdering the uncle of complainant by firing while committing robbery---Record showed that one pistol .30 bore along with five live bullets were taken into possession on the pointation of accused from the graveyard which was concealed under acacia tree (Kikar) after digging the earth---Recovery of one pistol .30 bore along with five live bullets were recovered on the pointation of co-accused from metalled road---Other co-accused got recovered pistol 30 bore along with three live bullets from the reeds plant (Sirkanda) on the way from the western side of his house---According to the report of Forensic Science Agency, pistol allegedly recovered from co-accused was found to be in mechanical operating condition with safety features functioning properly---Pistol allegedly recovered from accused was examined and found to be in mechanical operating condition with safety features functioning properly---Pistol allegedly recovered from other co-accused were not functional---Pistol allegedly recovered from accused and cartridge had been fired from the same pistol---Crime empty was sent to the office of Forensic Science Agency and pistol was sent to the Forensic Science Agency on after about 15 days---Although report of Forensic Science Agency was positive qua pistol but it had not been explained by the prosecution that was why the crime empty was not sent to the Forensic Science Agency till the arrest of accused---Said fact made the report of Forensic Science Agency highly doubtful---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Noor Ahmad v. The State and others 2019 SCMR 1327; Nazeer Ahmad v. The State 2016 SCMR 1628 and Israr Ali v. The State 2007 SCMR 525 rel.

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

----Ss. 302(b), 392 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Benefit of doubt---Recovery of currency notes from accused persons---Scope---Accused were charged for murdering the uncle of complainant by firing while committing robbery---Prosecution had also stressed upon another piece of evidence which was recovery of currency notes from the accused persons---Said recovery of currency notes was not helpful to the prosecution case because no number of currency notes had been given in the FIR---Subsequently after the recovery of alleged currency notes no identification of currency notes was held---Even in the recovery memos, no number of currency notes had been mentioned, for the reason those recovery memos had no evidentiary worth in the eye of law---Even otherwise, currency notes were easily available from the market and could easily be planted---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Imran v. The State 2021 YLR 95 rel.

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

----Ss. 302(b), 392 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Benefit of doubt---Recovery of mobile phone and motorcycle on the pointation of accused---Accused were charged for murdering the uncle of complainant by firing while committing robbery---Record showed that mobile phone of the deceased was got recovered from co-accused from the reeds plant---Prosecution had not mentioned any number of Mobile Phone which was allegedly snatched by the co-accused---Similarly it was admitted by complainant in his cross-examination that he had not produced any proof of ownership of mobile in his statement to the Investigating Officer during the investigation---Record further transpired that motorcycle was got recovered by the accused which was used by the accused persons during the occurrence---Said piece of evidence was also not helpful to the prosecution because the ocular account had already been discarded, hence, the recovery of motorcycle was not sufficient for sustaining the convictions and sentences of the accused persons---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Javed Iqbal Bhatti, Kh. Mohsin Abbas (Defence Counsel) for Appellants (in Criminal Appeal No. 87338-J of 2017).

Imtiaz Hussain Khan Baloch for Appellant (in Crl. Appeal No. 87339-J of 2017)

M. Naveed Umar Bhatti, D.P.G. for the State.

Nemo for the Complainant.

2022 P Cr. L J 364

[Lahore (Multan Bench)]

Before Ch. Mushtaq Ahmad and Farooq Haider, JJ

KHALID HUSSAIN---Petitioner

Versus

DRUG INSPECTOR/DRUG CONTROLLER LODHRAN and 2 others---Respondents

Criminal Revision No. 20 and Criminal Miscellaneous No. 161 of 2021, decided on 1st February, 2021.

Drugs Act (XXXI of 1976)---

----S. 18(h)---Criminal Procedure Code (V of 1898), Ss. 435 & 439---Powers of Inspector---Scope---Petitioner assailed order passed by Chairman, Drug Court, whereby his application for de-sealing of his medical store was dismissed on the ground that it was passed without referring to allegations levelled against the petitioner---Validity---Order passed by Chairman, Drug Court, was not speaking one as neither detail of allegations leveled against the petitioner in the complaint were mentioned nor did it appear that the relevant record was perused before passing the impugned order---Impugned order was set aside and the matter was remanded for decision afresh.

Ch. Mehmood Ali for Petitioner.

2022 P Cr. L J 385

[Lahore]

Before Sadaqat Ali Khan and Shehram Sarwar Ch., JJ

SAMAR ABBAS---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 92485-J and Murder Reference No. 501 of 2017, heard on 3rd March, 2021.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt--- Chance witnesses--- Scope--- Accused was charged for committing murder of his wife/daughter of complainant by firing---Motive behind the occurrence was domestic dispute---Ocular account consisted of complainant and other eye-witness---Presence of both the said eye-witnesses on the spot at the time of incident was doubtful because they did not receive even a scratch during the incident---Both the eye-witnesses stated that they allegedly saw the incident from a close distance but court failed to understand that in the presence of both the said witnesses, who were closely related to the deceased, how such incident with the deceased could happen without any intervention on their part to rescue the deceased---Occurrence allegedly took place in the area which was twelve kilometres away from the residences of the eye-witnesses---Both the eye-witnesses had not given any plausible reason for their presence on the spot at the time of incident---Said witnesses had no place of business or agricultural land near the place of incident---Both the said witnesses, therefore, were chance witnesses---Circumstances established that the prosecution could not prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

(b) Criminal trial---

----Witness---Chance witness---Scope---Testimony of chance witness is not accepted unless justifiable reasons are 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 convincing explanations appealing to a prudent mind for his presence on the crime spot were put forth, when the occurrence took place, otherwise, testimony of said witness would fall within the category of suspect evidence and could not be accepted without a pinch of salt.

Mst. Shazia Parveen v. The State 2014 SCMR 1197 and Muhammad Rafique v. The State 2014 SCMR 1698 rel.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Motive was not proved---Scope---Accused was charged for committing murder of his wife/daughter of complainant by firing---Motive behind the occurrence was that daughter-in-law (bahu) of complainant being annoyed with them had gone to the house of accused---Complainant and other witnesses went to make her understand where an altercation took place between accused and complainant party and due to the said grudge the accused committed the murder of his wife---No convincing evidence qua the motive part of incident was available on record---If the story of motive was admitted as true then the prime target of accused should have been the complainant and other witnesses instead of deceased with whom a quarrel took place prior to the incident---No independent witness regarding motive was joined by police in investigation or produced by prosecution before the Trial Court during trial---Prosecution had failed to substantiate motive against the accused---Circumstances established that the prosecution could not prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence---Reliance---Scope---Accused was charged for committing murder of his wife/daughter of complainant by firing---Record showed that .30 bore pistol was recovered at the instance of accused, however, the said recovery was immaterial because the accused was arrested on 02.08.2016 whereas, as per report of Forensic Science Agency, the crime empties were received in the said office on 04.08.2016 i.e. after the arrest of the accused---If the crime empty was sent to the Forensic Science Laboratory after the arrest of the accused or together with the crime weapon, the positive report of the said Laboratory lost its evidentiary value---Circumstances established that the prosecution could not prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Jehangir v. Nazar Farid and another 2002 SCMR 1986; Israr Ali v. The State 2007 SCMR 525 and Ali Sher and others v. The State 2008 SCMR 707 rel.

(e) Criminal trial---

----Medical evidence---Scope---Medical evidence might only 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 name of the assailants.

Ata Muhammad and another v. The State 1995 SCMR 599 rel.

(f) 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 of the weaknesses of the defence.

(g) Criminal trial---

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

Muhammad Akram v. The State 2009 SCMR 230 rel.

Shahid Azeem, Syed Askri Raza Shah and Muhammad Shafique Awan for Appellant.

Rai Akhtar Hussain, Deputy Prosecutor General for the State.

Naseem Ullah Khan Niazi for the Complainant.

2022 P Cr. L J 408

[Lahore (Multan Bench)]

Before Muhammad Tariq Nadeem, J

MUHAMMAD AKHTAR KHAN---Petitioner

Versus

JUSTICE OF PEACE/ADDITIONAL SESSIONS JUDGE, MULTAN and 3 others---Respondents

Writ Petition No. 10416 of 2021, decided on 15th July, 2021.

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

----Ss. 22-A & 22-B--- Constitution of Pakistan, Art. 199--- Constitutional petition---Ex-officio Justice of Peace---Locus standi---Scope---Petitioner assailed order passed by Justice of Peace whereby respondent's application for registration of criminal case against his son was allowed---Contention of petitioner was that his son had been abducted and his whereabouts were unknown, therefore, he had locus standi to file the petition---Validity---Petitioner being father of the proposed accused could not be termed as "aggrieved party or aggrieved person" and by no stretch of imagination it could be said that any of his fundamental rights was infringed or he had suffered any loss---Petitioner had no power of attorney of his son---Holy Prophet Hazrat Muhammad (PBUH) in Khutba Hajjatul Wida had ordained that father was not responsible for the deeds of his son, as well as, son was not responsible for the act of his father, as such, constitutional petition was dismissed in limine.

Mrs. Ambreen Naseem Khawaja v. Federation of Pakistan and others 2015 PCr.LJ 506; Ardeshir Cowasjee and others v. K.B.C.A. and others 2001 YLR 2403 and Ghazi Khan v. ASJ/Justice of Peace, Lodhran 2007 YLR 2842 distinguished.

Ch. Safdar Mumtaz Sandhu v. Government of the Punjab through Chief Secretary, Punjab and others PLD 2009 Lah. 1 and Province of Balochistan through Secretary Excise and Taxation Department Civil Secretariat, Quetta and 2 others v. Murree Brewery Company Ltd. through Secretary PLD 2007 SC 386 ref.

Mst. Nazia v. State through SHO and others PLD 2019 Lah. 373 rel.

(b) Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Locus standi--- Scope---Jurisdiction of High Court is conceived and regulated by Art. 199 of the Constitution and it is sine qua non for initiation of proceedings under Art. 199 of the Constitution that the petitioner should have a locus standi to institute the proceedings or in other words the petitioner should be an aggrieved person or aggrieved party from the impugned action.

Mian Fazal Din v. Lahore Improvemnet Trust, Lahore PLD 1969 SC 223 and Dr. Imran Khattak and another v. Ms. Sofia Waqar Khattak, PSO to Chief Justice and others 2014 SCMR 122 ref.

Muhammad Waseem Shahab for Petitioner.

2022 P Cr. L J 421

[Lahore]

Before Muhammad Ameer Bhatti, C.J. and Tariq Saleem Sheikh, J

Malik ZAFAR IQBAL and 5 others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 25874 of 2021, heard on 12th October, 2021.

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

----Ss. 11-B, 11-F & 11-J(2)---Proscribed organization, membership and funding---Appreciation of evidence---Term "reasonable grounds to believe" and "benefit of doubt"---Distinction---Accused persons were alleged to have established Al-Anfal Trust which was established after Lashkar-e-Tayyaba was declared proscribed organization---Validity---Condition precedent for constitution of offences under Ss. 11-F & 11-J(2) of Anti-Terrorism Act, 1997, was that organization for whose benefit or support the act was done was proscribed by Federal Government---Trust in question was banned on 10-5-2019 and accused person could not be sanctioned for ambulances purchased for it in year 2010-2011---Prosecution was to prove its case beyond reasonable doubt to secure conviction of an accused---Such standard was way higher than "reasonable grounds to believe" employed in S. 11-B of Anti-Terrorism Act, 1997 for proscription of an organization by Federal Government---Accused persons could not be convicted for the mere reason that Lashkar-e-Tayyaba or the Trust had been proscribed---High Court set aside conviction and sentence awarded by Trial Court and acquitted accused persons of the charge as prosecution independently failed to establish ingredients of offences under Ss. 11-F & 11-J(2) of Anti-Terrorism Act, 1997---Appeal was allowed, in circumstances.

Calder v. Bull, [1798] 3 Dallas (US) 386; S. M. Zafar, Understanding Statutes, Fourth Edition (2016), at p. 400; Mrs. Shahida Faisal v. Federation of Pakistan and 3 others PLD 2000 Lah. 508; Zulfikar Ali Bhutto v. The State PLD 1979 SC 53; Shahbaz Masih v. The State 2007 SCMR 1631; Sajid Javed and others v. Additional Sessions Judge (West) Islamabad and others 2016 PCr.LJ 672; The State through Deputy Attorney General for Pakistan v. Ibrahim and another 2020 YLR 1033; Muhammad Riaz and another v. The State PLD 2003 Lah. 290; Naveed Asif v. The State PLD 1988 SC 99; Gurbachan Singh v. State of Punjab AIR 1957 SC 623; Paimullah and others v. Emperor 13 Indian Cases 783 (Calcutta) and Sunnat Mondal v. Makar Sheikh AIR 1930 Calcutta 138 rel.

(b) Maxim---

----Nullum crimen sine lege---Meaning---"There can be no crime or punishment unless it is in accordance with law that is certain, unambiguous and not retroactive".

Nabi Ahmed and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others PLD 1969 SC 599 rel.

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

----S. 32---Criminal Procedure Code (V of 1898), S. 265-C---Constitution of Pakistan, Art. 10-A---Supply of copies and framing of charge---Seven days, period---Applicability---Fair trial---Purpose of S. 265-C, Cr.P.C. is to enable accused to know prosecution case and meet allegations leveled against him---Seven days requisite period does not apply to Special Courts under Anti-Terrorism Act, 1997, but they add that accused must be afforded proper opportunity to prepare his defence and meet the requirements of fair trial under Art. 10-A of the Constitution.

Shahsawar v. The State 1998 PCr.LJ 1758; Pulukuri Kottaya v. Emperor AIR 1947 PC 67; Ibrahim and another v. The State PLD 1959 (W.P.) Lahore 715; Faiz Ahmad v. The State PLD 1960 SC (Pak) 8; Rehmat Ali v. The State 1986 SCMR 446; Shamnsaheb M. Multtani v. State of Karnataka (2001) 2 SCC 577 and Ghulam Muhammad v. The State 1985 SCMR 1442 rel.

Naseer-ud-Din Khan Nayyer assisted by Ch. Muhammad Imran Fazal Gull for Appellants.

Ali Hassan, Additional Prosecutor General with Abid Baig/Inspector and Kamran Ghulam Nabi/ASI for the State.

2022 P Cr. L J 461

[Lahore]

Before Muhammad Shan Gul, J

SAFDAR HAYAT---Petitioner

Versus

EX-OFFICIO JUSTICE OF PEACE and 3 others---Respondents

Writ Petition No. 46741 of 2021, decided on 19th July, 2021.

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

----Ss. 22-A & 22-B--- Penal Code (XLV of 1860), S. 376---Constitution of Pakistan, Art. 199---Constitutional petition---Rape, allegation of---Police report, non-reliance of---Judicial review---Scope---Petitioner was proposed accused against whom Ex-Officio Justice of Peace allowed complaint filed by respondent---Plea raised by petitioner was that Ex-Officio Justice of Peace without considering report filed by police had directed Station House Officer to register criminal case against him---Validity---Allegation of rape was not a run of the mill or routine allegation that could be easily brushed aside without much ado---When a woman reared her head and had stated that she was raped, then she had to be provided certain safeguards by law enforcement agencies---Writ was for enforcement of a statute, for prohibition of some activity or action prohibited or not permitted by statute or for having some activity or exercise beyond the mandate of statute to be declared of no legal effect---In all such three scenarios pivot was a statute because judicial review was primarily aimed at securing and safeguarding provisions of law as contained in statute---All that Ex-Officio Justice of Peace had to see, even in his quasi-judicial role was whether statute was followed and respected, upheld on the way, rule of law through medium of judicial review like procedure---Proactive role of police in indulging in any precedent inquiry or prior investigation and in doing so going beyond requirement of statute was neither desirable nor could be countenanced statutorily---Police report had to remain confined to its minimalist agenda---High Court declined to interfere in order passed by Ex-Officio Justice of Peace as the same was very well reasoned, distinguishing somewhat police report as also holding that application before police report did reveal commission of a cognizable offence---High Court did not find any illegality in the order passed by Ex-Officio Justice of Peace--- Constitutional petition was dismissed in circumstances.

Salman Akram Raja and another v. Government of Punjab through Chief Secretary and others 2013 SCMR 203; Mst. Bhaitan v. The State and 3 others PLD 2005 Kar. 621; Wazir Ali v. Province of Sindh through Home Secretary, Home Department Karachi and 3 others 2018 YLR 1374; Muhammad Bashir v. Station House Officer Okara Cantt. and others PLD 2007 SC 539; Mst. Haseena v. Station House Officer Police Station Kotdiji and another 2015 PCr.LJ 790; Madawa through President v. Inspector-General of Police, Punjab and 15 others PLD 2013 Lah. 442; Mst. Shehnaz alias Asma Rani and another v. The State 2010 PCr.LJ 231; Mst. Sana Daud v. Station House Officer and 3 others 2011 YLR 1549; Sahib Khatoon v. Station House Officer Police Station, Garhi Khairo and 2 others 2013 PCr.LJ 749; Ghulam Fareed v. Station House Officer, Police Station Sangi and another 2013 PCr.LJ 117; Younas Abbas and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581; Salma Bibi v. RPO and others 2011 YLR 2685; Baba Sufi Muhammad Iqbal v. Justice of Peace/Additional Sessions Judge, Samundri, District Faisalabad and another 2020 MLD 1; Malik Sohail Aslam v. Superintendent of Police (Operation), Lahore and 3 others 2017 YLR 1548 and Khursheed Bibi v. S.P., D.I. Khan and 8 others 2009 MLD 1076 rel.

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

----S. 154---Words "shall" and "information"---Connotation---Word "shall" carries mandatory connotation used and is clearly indicative of intent of the Legislature---There is no subjective or even objective discretion left to police officer by S. 154, Cr.P.C.---Strict statutory prescription makes provision of S. 154, Cr.P.C. 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.

(c) Interpretation of statutes---

----Literal rule---Effect---Such 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 a literal reading.

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

----S. 154---First Information Report, registration of---Pre-conditions---Condition that is sine qua non for recording an FIR under S. 154, Cr.P.C. is that there must be information and that information must disclose commission of cognizable offence---Provision of S. 154, Cr.P.C. is mandatory and concerned officer is duty bound to register an FIR on the basis of information disclosing commission of a cognizable offence.

Saeed Ahmad v. Naseer Ahmad PLD 2000 Lah. 208 and M. Anwar, Barrister-at-Law v. The Station House Officer, Civil Lines, Police Station, Lahore and another PLD 1972 Lah. 493 rel.

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

----Ss. 22-A, 22-B & 154---Criminal case, registration of---Scope---There seems to be some tension between jurisprudence developed under Ss. 22-A & 22-B, Cr.P.C. and that emanating out of interpretation of S. 154, Cr.P.C.---While provision of S. 154, Cr.P.C. is a straitjacket provision and does not allow for any extraneous factors but for the ones enumerated in such provision of law to be taken into account---Jurisprudence developed under Ss. 22-A & 22-B, Cr.P.C. takes the matter ahead and allows an Ex-Officio Justice of Peace to summon a report and rely on it and if not then to distinguish it---Ex-Officio Justice of Peace by default does not only allow police to touch merits of the case by way of a preliminary fact finding exercise but also give a carte blanche to police to factor in attendant factors such as previous enmity, previous record, previous litigation between complainant and proposed accused, credibility, trustworthiness of complainant and similar nuances and for the same to be taken into account.

Khizer Hayat's case PLD 2005 Lah. 470 and Younas Abbas and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581 rel.

M. Mehmood Chaudhry for Petitioner.

Barrister Syed Ali Nouman, Assistant Advocate General for Respondents.

2022 P Cr. L J 489

[Lahore (Multan Bench)]

Before Ali Zia Bajwa, J

MUHAMMAD AATIF---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 667 of 2010, heard on 27th September, 2021.

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

----Ss. 302, 396, 397 & 412---Qatl-i-amd, dacoity with murder,robbery or dacoity with attempt to cause death or grievous hurt, dishonestly receiving property stolen in the commission of dacoity---Appreciation of evidence---Benefit of doubt---Contradictions in the statement of complainant---Scope---Accused were charged for committing murder of two persons by firing during dacoity at a petrol pump---Complainant, though, in crime report, had narrated that occurrence had been committed by four unknown accused person, out of those four unknown accused persons, detailed descriptions of three accused persons had been mentioned in the crime report---Complainant, during investigation got recorded his supplementary statement nominating five accused persons with their parentage and addresses prior to test identification parade whereupon offence under S. 396, P.P.C., was added in the FIR---Complainant while appearing in the witness-box had not uttered even a single word in his examination-in-chief with regard to his supplementary statement, which otherwise, was also not available on the record---Implication and increase of number of accused persons from four to five and the fact that the complainant didn't state anything qua nominating the accused and his co-accused, by itself, spoken volumes---Circumstances established that the prosecution had failed to bring on record any convincing and reliable evidence to establish nexus of the accused with the occurrence---Appeal against conviction was allowed, in circumstances.

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

----Ss.302, 396, 397 & 412---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, dacoity with murder, robbery or dacoity with attempt to cause death or grievous hurt, dishonestly receiving property stolen in the commission of dacoity---Appreciation of evidence---Benefit of doubt---Test identification parade---Joint identification parade---Scope---Accused were charged for committing murder of two persons by firing during dacoity at petrol pump---Record showed that identification parade of accused and his co-accused was conducted jointly---Such joint identification parade was neither acceptable nor reliable in the eye of law as such it was ruled out of consideration against the accused---Circumstances established that the prosecution had failed to bring on record any convincing and reliable evidence to establish nexus of the accused with the occurrence---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

Gulfam and another v. The State 2017 SCMR 1189 rel.

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

----Ss. 302, 396, 397 & 412---Qatl-i-amd, dacoity with murder, robbery or dacoity with attempt to cause death or grievous hurt, dishonestly receiving property stolen in the commission of dacoity---Appreciation of evidence---Benefit of doubt---Recovery of looted amount, pistol, crime empties and live bullets---Scope---Accused were charged for committing murder of two persons by firing during dacoity at petrol pump---Prosecution had relied upon the recovery of currency amounting to Rs.43,000/- (allegedly part of snatched cash) and pistol along with four live bullets on the pointing out of accused---High Court observed that cash amount was not a tainted money or having any mark of identification and it would be unsafe and against the norms of justice to connect the same with the occurrence merely on the oral assertion of the prosecution witnesses without corroboration from any independent source---Prosecution version was that Investigating Officer had secured three empties of pistol and one empty of rifle .44-bore vide recovery memo from place of occurrence and after arrest of the accused, pistol along with four live bullets was also got recovered by the accused but said pistol was never sent to the office of forensic expert for its analysis with the crime empties secured from the place of occurrence---Recovery of crime weapon, in circumstances, was inconsequential for the prosecution---Circumstances established that the prosecution had failed to bring on record any convincing and reliable evidence to establish nexus of the accused with the occurrence---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

(d) Criminal trial---

----Recovery of crime weapon---Scope---Recovery of crime weapon is merely a corroborative piece of evidence having no value in the absence of any credible and trustworthy direct evidence.

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

----Ss. 302, 396, 397 & 412---Qatl-i-amd, dacoity with murder, robbery or dacoity with attempt to cause death or grievous hurt, dishonestly receiving property stolen in the commission of dacoity---Appreciation of evidence---Benefit of doubt---Recovery of car---Reliance---Scope---Accused were charged for committing murder of two persons by firing during dacoity at petrol pump---Car allegedly used at the time of occurrence was recovered from the accused---Record was silent with regard to the registration number or model of the car in which the accused persons had arrived at the place of occurrence on the day of incident---Recovery of car from accused was of no avail to the prosecution---Circumstances established that the prosecution had failed to bring on record any convincing and reliable evidence to establish nexus of the accused with the occurrence---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

(f) Criminal trial---

----Benefit of doubt---Principle---Not necessary that there should be several circumstances for extending benefit of doubt---One reasonable doubt is sufficient to acquit an accused, not as a matter of grace but as of right.

Najaf Ali Shah v. The State 2021 SCMR 736 and The State through P.G. Sindh and others v. Ahmed Omar Sheikh and others 2021 SCMR 873 rel.

Prince Rehan Iftikhar Sheikh for Appellant.

Inayat Ullah Bhutta, Defence Counsel.

Ansar Yasin, Deputy Prosecutor General for the State.

Nemo for the Complainant.

2022 P Cr. L J 540

[Lahore]

Before Muhammad Tariq Nadeem, J

WAJID HUSSAIN---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 585 and Criminal Revision No. 358 of 2016, heard on 11th October, 2021.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Ocular account was not supported by medical evidence---Scope---Accused was charged that he along with co-accused committed murder of the brother of complainant by firing---Motive behind the occurrence was that two days prior to the occurrence hot words were exchanged between the accused and the deceased over dispute of children---Record showed that ocular account of the prosecution case had been furnished by two witnesses including the complainant---Said witnesses had given a photographic picture of the injury sustained by deceased---Injury attributed to the accused mentioned in written complaint by complainant was exit wound but the Medical Officer, who conducted autopsy on the dead body of deceased noted one entry wound and one exit wound---Statement of Medical Officer and Medico-Legal Certificate showed that Medical Officer had made overwriting in the Medico-Legal Certificate, just to favour the prosecution in order to make the medical evidence in line with ocular account---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt--- Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Motive was not proved---Effect---Accused was charged that he along with co-accused committed murder of the brother of complainant by firing---Record showed that a specific motive was mentioned in the crime report that two days prior to the occurrence hot words were exchanged between the accused and the deceased over dispute of children but it was an oral assertion of the complainant---During the said interregnum, there was no report of any quarrel or assault in between the parties---No material evidence in the shape of ocular or documentary evidence was produced to substantiate the motive by the prosecution---Motive alleged by the prosecution had rightly been disbelieved by the Trial Court---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

(c) Criminal trial---

----Motive---Scope---Once the motive was established by the prosecution then it had to be proved, otherwise, adverse inference would be drawn.

Khalid Mehmood and another v. The State and others 2021 SCMR 810 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence at the instance of accused---Reliance---Scope---Accused was charged that he along with co-accused committed murder of the brother of complainant by firing---Prosecution had made an abortive attempt to strengthen its case through the recovery of weapon of offence i.e. pistol at the instance of accused from his residential house---While conducting the recovery proceedings the Investigating Officer had violated the mandatory provisions of S. 103, Cr.P.C.---Occurrence took place on 16-04-2010, whereas the accused was arrested on 08-02-2015---High Court observed that such situation would not appeal to prudent mind that after committing the incident, the accused would keep the pistol in safe custody for so many years in order to hand it over to the police at a subsequent point of time---Both the recovery witnesses of seizure memo were closely related to the complainant party---Said witnesses had no residence or any business near the alleged place of occurrence---Mode of recovery of said pistol at the instance of the accused made the said recovery highly doubtful---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Mian Sohail Ahmad and others v. The State and others 2019 SCMR 956 rel.

(e) Criminal trial---

----Absconsion---Scope---Mere absconsion of accused was not conclusive proof of his guilt---Absconsion was only a suspicious circumstance against the accused that he was under the guilty conscious.

Muhammad Khan and another v. The State 1999 SCMR 1220 and Rohtas Khan v. The State 2010 SCMR 566 rel.

(f) Criminal trial---

----Benefit of doubt---Principle---Many circumstances for creating doubt in the prosecution story were not required rather a single circumstance creating doubt was enough to acquit the accused.

Muhammad Akram v. The State 2009 SCMR 230; Muhammad Adnan and another v. The State and others 2021 SCMR 16; Ghulam Abbas and another v. The State and another 2021 SCMR 23 and Zulfiqar Ali v. The State 2021 SCMR 1373 rel.

Malik Asif Hayat and Raja Kamran Khaliq for Appellants.

Sultan Asghar Chattha, D.P.G. for the State.

Zakar ur Rehman Awan for the Complainant.

2022 P Cr. L J 591

[Lahore (Bahawalpur Bench)]

Before Muhammad Amjad Rafiq, J

MUHAMMAD AKHTAR and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 167 and Criminal Revision No. 113 of 2011, heard on 8th September, 2021.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay of one hour in lodging the FIR---Scope---Accused were charged for committing murder of the brother of the complainant---Motive for the occurrence was of mischievous act of accused who had taken snaps of wife of deceased, whereupon, deceased had quarrelled with him, which resulted into the occurrence---Occurrence took place at 08:30 a.m. and the FIR was lodged at 09:30 a.m. on the same day---Police station was at the distance of 06-k.m. from the place of occurrence as alleged by the prosecution---For all intent and purposes it was a prompt FIR---Circumstances established that the prosecution had proved its case---Appeal against conviction was dismissed accordingly.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of crime empties and weapon of offence---Reliance---Scope---Accused were charged for committing murder of the brother of the complainant---Two crime empties were recovered from the place of occurrence on 18.03.2010---Accused was arrested on 25.03.2010---Empties were sent to Forensic Science Agency, on 01.04.2010---Pistol was recovered on 07.04.2010 and the same was sent to Forensic Science Agency on 19.04.2010---Matching report of said crime empties with the pistol recovered from the accused was received---Empties having been sent after the arrest of the accused, therefore, no inference could be drawn with respect to effect of matching report on the culpability of accused---Recovery did not favour the prosecution---Trial Court had already taken lenient view while awarding sentence to the accused, hence appeal against conviction was dismissed.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive was proved---Scope---Accused were charged for committing murder of the brother of the complainant---Motive had been attributed in the case as taking of snaps of wife of deceased and due to such indecent act, the occurrence took place---No evidence was brought on record with respect to proof of motive in the case except a suggestion during cross-examination---Neither wife of deceased appeared during the investigation nor before the Court, even mobile phone through which such snaps were taken had not been taken into possession nor was produced during the trial---Accused while answering to a question put to him during his statement under S. 342, Cr.P.C. in a manner admitted the differences between the parties and the reason was almost the same which had formed the motive part, as alleged by the prosecution---Prosecution case got support of motive as well---Circumstances established that the prosecution had proved its case---Appeal against conviction was dismissed accordingly.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Plea of self-defence---Scope---Accused were charged for committing murder of the brother of the complainant---Accused had admitted the occurrence but had come up with a defence version---One witness was also produced in evidence in his defence---Defence version could not be established in any manner for the reason that it had nowhere come in the evidence that complainant party carried any sort of weapon with them when purportedly they launched attack on the accused party---Said being the position, there was no justification at all for the accused to have exercised the right of self-defence---Scrutiny of the medical evidence had proved that both the shots were fired by accused alone---Had accused fired in exercise of self-defence, he could only use the force which was sufficient to ward off the attack, but in the present case, since the complainant party had no weapon with them, therefore, repeated fire shots by him by no means advanced his plea of self-defence nor the medical evidence supported that pistol went off and fire accidentally hit the deceased, in that case it must have only one fire---Accused, in order to prove his plea, did not enter on to his defence while appearing as his own witness under S. 340(2), Cr.P.C., nor filed written statement as required under S. 265-F, Cr.P.C., therefore, calling of defence witness directly somewhat raised question about legality of such evidence---Having failed to establish the plea of self-defence, there was no other view except to hold that in fact it was accused who had made repeated fire shots on deceased and that fact stand fully established through the prosecution evidence---Accused had not brought on record his stance and defence witness in the process through formal ways---Plea of accused could not be substantiated during the trial which disentitled him to claim acquittal---Circumstances established that the prosecution had proved its case---Appeal against conviction was dismissed accordingly.

Mst. Ameer Khatun v. Faiz Ahmad and others PLD 1991 SC 787 rel.

(e) Criminal trial---

----Burden of proof---Scope---Prosecution was bound to prove the guilt against the accused beyond reasonable doubt---Accused was not obliged to discharge the burden of proof---Any admission or plea raised by accused would have no value and could not be used against the accused.

Ali Ahmad and another v. The State and others PLD 2020 SC 201 and The State through P.G. Sindh and others v. Ahmed Umer Sheikh and others 2021 SCMR 873 rel.

Mirza Muhammad Azam for Appellant along with Appellant (Present on bail).

Malik Muhammad Latif, Additional Prosecutor General for the State.

Syed Zeeshan Haider for the Complainant.

2022 P Cr. L J 624

[Lahore]

Before Aalia Neelum and Syed Shahbaz Ali Rizvi, JJ

Khawaja MUHAMMAD ASIF---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and 5 others---Respondents

Writ Petition No. 20976 of 2021, decided on 23rd June, 2021.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(iv) & 9(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Assets beyond means---Foreign remittance---Income declared in tax record---Accused was arrested by National Accountability Bureau (NAB) for having assets beyond means---Contention of petitioner was that he had been working for a foreign company and the income was duly declared in tax returns---Validity---Representative of the company was not summoned by investigating officer---Neither there was any tangible material nor even any circumstantial material to prima facie conclude that remittance was generation of proceeds of crime---Foreign remittance declared in income tax return carried presumption of truthfulness---Even Federal Board of Revenue record regarding claim of petitioner supplemented his claim regarding properties, income gained by him and foreign remittance--- Petitioner did not cause any loss to government exchequer---Prosecution was still to establish its case and reference was not submitted before Trial Court---Bail was allowed in circumstances.

Khawaja Muhammad Asif v. Muhammad Usman Dar and others 2018 SCMR 2128 and Brig. (R) Imtiaz Ahmad v. The State PLD 2017 Lah. 23 rel.

Haider Rasul Mirza and Ch. Najam-ul-Hassan for Petitioner.

2022 P Cr. L J 649

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi, J

TALAT MEHMOOD ABBASI---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, RAWALPINDI and 3 others---Respondents

Criminal Revision No. 163 of 2021, decided on 3rd December, 2021.

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

----S. 540---Power to summon material witness or examine person present---Scope---Application for production of documents was dismissed by Trial Court with the observation that statements of prosecution witnesses were recorded thrice and documents sought to be produced were already part of record and that when re-investigation was completed, the prosecution was required to submit supplementary challan with permission of the court and in said report the prosecution was required to make said documents but that procedure was not followed---Lastly it was observed that the High Court while remanding the case to the Trial Court had specifically directed to proceed from the stage when the statements under S. 342, Cr.P.C. of the accused persons were recorded and decide the case on the basis of evidence available on record---Trial Court was justified in holding that the application for producing additional evidence was filed at very belated stage only to fill up the lacunas which was not permissible under the law--- Revision petition was dismissed.

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

----S. 540---Power to summon material witness or examine person present---Scope---Every criminal case has its own facts and it is indeed true that where some evidence is essential for just decision of the case, it is obligatory upon the Court to allow its production and examination as provided under S. 540, Cr.P.C., but the same time, the court cannot allow one of the parties to fill up lacunas in their evidence or extend second chance to a party to improve their case or the quality of evidence tendered by them, because, any such step would amount to tarnishing the objectivity and impartiality of the court which is its hallmark.

Faisal Bin Khurshid for Petitioner.

Malik Shahid Iqbal, Assistant Attorney General for the State.

Malik Qamar Afzal for Respondent No. 3.

2022 P Cr. L J 664

[Lahore (Rawalpindi Bench)]

Before Ch. Abdul Aziz and Ali Zia Bajwa, JJ

RASHED alias CHAND and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 582-J and Capital Sentence Reference No. 03-T of 2016, heard on 25th May, 2021.

(a) Criminal trial---

----Witness---Related witness, testimony of---Testimony of closely related witness could not be discarded merely on the ground of his/her relationship with the deceased.

Abdul Khaliq v. The State 2021 SCMR 325; Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152 and Talib Hussain and others v. The State and others 2009 SCMR 825 rel.

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Presence of the eye-witnesses at the spot justified---Accused were charged for committing murder of the brother of the complainant by firing---Ocular account of the incident had been furnished by brother and widow of the deceased being eye-witnesses---Widow of the deceased was admittedly the inhabitant of the house, within the four walls of which, her slain husband received the fatal shot---Similarly, brother of deceased was resided adjacent to the house of deceased---From the cross-examination of both the eye-witnesses, the defence failed to bring on record any material so as to challenge their acclaimed presence at the crime scene---Presence of both the said eye-witnesses was found to have been proved unambiguously---Incident occurred at about 1:00 p.m., and the deceased was shifted to DHQ Hospitalimmediately but he died midway whereas autopsy of deceased was conducted by Medical Officer at about 2:45 p.m.---Such swift shifting of the deceased to hospital and holding of post-mortem examination without afflux of any delay also positively reflected upon the presence of eye-witnesses at the spot---Presence of eye-witnesses at the spot was established beyond shred of any ambiguity---Said witnesses had no reason to falsely implicate the accused in the murder charge of their close relative---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---However, death sentence of two accused were converted into life imprisonment due to mitigating circumstances and death sentence of third accused was maintained---Appeal was dismissed with said modification in sentences.

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Test identification parade free from any lacunas or procedural defects---Accused were charged for committing murder of the brother of the complainant by firing---Accused were arrested by Investigating Officer and when they made disclosure about their involvement in the instant crime, their faces were covered immediately and they were shifted to Police Station---On the following day, the accused were produced in the Anti-Terrorism Court along with an application for lodging them in judicial custody so as to hold their identification parade---Said facts reasonably evinced that all necessary precautions were taken by police so as to exclude any possibility of interaction of eye-witnesses with the accused---Memo of identification showed that best possible measures were taken by the Magistrate to ensure that eye-witnesses should not have even a glimpse of suspects/accused before the identification parade proceedings---Further, identification parade of each accused was held separately which further provided credibility to the proceedings---All the accused were identified by the eye-witnesses in reference to the roles performed by them and more importantly co-accused was burdened with the responsibility of inflicting fatal pistol shot injury to the deceased---No anomaly was discernible from the identification test proceedings which might be persuaded the court to discard it---Identification proceedings were free from any shortcoming or lacuna, thus were to be accepted---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---However, death sentences of two accused were converted into life imprisonment due to mitigating circumstances and death sentence of third accused was maintained---Appeal was dismissed with said modification in sentences.

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

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 19--- Qatl-i-amd, common intention, act of terrorism--- Appreciation of evidence--- Wajtakar evidence---Admissibility of evidence as res gestae---Scope---Accused were charged for committing murder of the brother of the complainant by firing---Ocular account of eye-witnesses was supported by the evidence of another witness, who came across the accused at the corner of street while they were retreating from the crime scene---Said witness was the domestic servant of deceased so his presence at the said place was not open to any exception---Said witness was also one of the participants in the identification proceedings and committed no mistake in picking out the accused---Evidence of said witness was in the nature of Wajtakar, the probative strength of which rested in the doctrine of res gestae provided under Art. 19 of Qanun-e-Shahadat, 1984---Said doctrine was based upon the assumption that every relevant part of the chain of events was considered before the final disposal by a judicial forum dealing with the criminal cases, so that no evidence could be discarded on the ground of irrelevant considerations---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---However, death sentence of two accused were converted into life imprisonment due to mitigating circumstances and death sentence of third accused was maintained---Appeal was dismissed with said modification in sentences.

Bairon Singh's case AIR 2009 SC 2603 and Thompson v. Trevanion 1693 Skin LR 402 rel.

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Confessional statements of accused recorded after taking all precautionary measures---Accused were charged for committing murder of the brother of the complainant by firing---In the present case, confessional statements of all three accused were recorded separately by Judicial Magistrate---All the three accused were separately produced before the Judicial Magistrate and each of them was apprised that he was under no compulsion to make any confession and that, the same could be used against him---Sufficient time was provided to each accused to have a second thought but they remained persistent with their desire to make such statement---Each accused provided all the details about the motive/background of occurrence, mode and manner of crime committed by them---Close scrutiny of the confessional statements left not an iota of doubt that while recording those statements, all the precautionary measures provided in law, were taken---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---However, death sentences of two accused were converted into life imprisonment due to mitigating circumstances and death sentence of third accused was maintained---Appeal was dismissed with said modification in sentences.

Hashim Qasim v. The State 2017 SCMR 986 rel.

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Recovery of weapon of offence and crime empty---Positive forensic report---Reliance---Scope---Accused were charged for committing murder of the brother of the complainant by firing---As per report of Forensic Science Agency the pistol recovered from co-accused was found wedded with the crime empty secured from place of occurrence during spot inspection---Such positive report of Forensic Science Agency was another factor which provided credence to the incident mentioned by the accused in their respective confessional statements---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---However, death sentences of two accused were converted into life imprisonment due to mitigating circumstances and death sentence of third accused was maintained---Appeal was dismissed with said modification in sentences.

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

----S. 164---Confession before the Judicial Magistrate---Conviction---Confessional statement, if true, voluntary, and containing full details of the events of an occurrence, even if retracted afterwards, could be made basis of conviction even in case of capital punishment.

Shaukat Ali v. The State and others PLD 2019 SC 577 and Dadullah and another v. The State 2015 SCMR 856 rel.

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---CCTV footage and Call Data Record (CDR)---Accused were charged for committing murder of the brother of the complainant by firing---Prosecution had relied upon the evidence of CCTV footage and CDR pertaining to the cell phones of accused and had also given considered thought to the admissibility of such evidence---So far as, the CCTV footage was concerned, admittedly, it did not contain the clear visuals of the incident and the facial features of the culprits were also blurred---On that score alone, the evidence of CCTV footage was to be discarded---As regards, Call Data Record (CDR) no person or record keeper of the cellular company appeared in the dock to provide legal sanctity to such evidence, thus it was inadmissible---Appeal was dismissed with modification in sentences of accused.

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---DNA samples sent for analysis after arrest of accused---Accused were charged for committing murder of the brother of the complainant by firing---Prosecution had also relied upon the report of Deoxyribonucleic Acid (DNA) Test of items recovered from place of occurrence i.e. a butt of cigarette and a cigarette-case with the buccal swabs of the accused---Said articles of DNA sampling and fingerprints samples, were not sent to Forensic Science Agency instantly rather the same was done only after the arrest of accused and after obtaining their buccal swab standards and finger print samples---Said sole fact had shaken the credibility and evidentiary value of report of Deoxyribonucleic Acid (DNA) Test and fingerprint matching report---Although such tests provided strong corroboration to the stance of prosecution in identifying the accused persons, but in case of any forensic evidence, concerned authorities must adhere to the fundamentals of preserving specimens, labelling, and the chain of custody and also to comply with any constitutional or statutory requirements regulating the collection and handling of samples---For collection, preservation, safe custody and dispatching of DNA sampling and fingerprint samples to Forensic Laboratory, same principles would be applicable, which were applicable in cases of other items/samples collected for forensic opinions---Thus said evidence was not free from doubts, especially when no plausible explanation had been provided by the prosecution as to why those samples were not sent to Forensic Science Agency with other items and why police authorities did wait for the arrest of the accused and sent those samples only after taking subsequent samples from the accused---So, such piece of evidence was also not of worth reliance---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---However, death sentences of two accused were converted into life imprisonment due to mitigating circumstances and death sentence of third accused was maintained---Appeal was dismissed with said modification in sentences.

Regina v. Alan James Doheny Gary Adams, [1996] EWCA CRIM 728 and Ali Haider Alias Papu v. Jameel Hussain and others PLD 2021 SC 362 rel.

(j) Criminal trial---

----Deoxyribonucleic acid (DNA) report---Significance---DNA was a particle that encrypted the genetic information in all living beings and was the blueprint of an individual---DNA could be obtained from any biological material such as bone, blood, semen, saliva, hair, skin, etc.---Generally, when DNA profile of a sample found at the scene of crime matched with DNA profile of the suspect, it could generally be concluded that both samples had the same biological origin so, in cases where a suspect was identified, a sample of that person's DNA could be compared to evidence collected from the crime scene---Results of that comparison might help establish that the suspect committed the crime---Since DNA of every human being remained same in all areas of its body, it could not be altered or changed in any way, meaning thereby it was effectively a form of evidence, which was resilient to any form of tampering---So, such type of forensic evidence was of great help in criminal cases, where identity of an accused was suspicious.

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Mitigating circumstances---Quantum of punishment---Accused persons were charged for committing murder of the brother of the complainant by firing---Record showed that the first and second accused pre-planned the occurrence with other accused persons and also participated in the commissions of offence during the whole transaction---Thus, both said accused were rightly convicted and sentenced for all the offences and their sentences, except the death sentences were maintained---Admittedly, both said accused were present with the other accused persons at the time of occurrence but did not fire at the deceased---Such fact could be considered as a mitigating circumstance to award a lesser punishment to them---Hence, their death sentences under S. 302, P.P.C. and under S. 7(1)(a) read with S. 21(1), Anti-Terrorism Act, 1997, were converted into life imprisonment---Whereas the co-accused was the person who had fired at the deceased and had hatchet a plan with the other accused persons to commit the murder of deceased Judicial Officer and thereafter carried out the whole murderous plan---Said fact was also admitted by the said co-accused in his confessional statement and he was rightly identified by the witnesses during the identification parade with the role played by him during the occurrence i.e. firing a bullet shot at the left flank of deceased---Hence, the case of said co-accused was not at par with other accused persons and he deserved no leniency and was rightly convicted and sentenced for all the offences---For said co-accused death sentence on two counts, one under S. 302(b), P.P.C. and one under S. 7(1)(a) read with S. 21(1) Anti-Terrorism Act, 1997 were maintained---Appeal was dismissed with said modification in sentences.

Muhammad Abbas v. The State and others 2018 SCMR 397 and Atta-ur Rehman v. State 2018 SCMR 372 rel.

Barrister Osama Ameen Qazi and Shahbaz Shah for Appellants.

Naveed Ahmad Warraich, Deputy District Public Prosecutor for the State.

Syed Intikhab Hussain Shah for the Complainant.

Research Assistance:

Rana Aftab Ahmed, Research Officer.

2022 P Cr. L J 741

[Lahore]

Before Sohail Nasir, J

ABDUL RAZZAQ---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal Miscellaneous No. 49079-T of 2021, decided on 6th August, 2021.

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

----S. 526--- Transfer of case--- Scope--- Petitioner apprehending injustice from the court filed a petition for transfer of bail application from that court to another---Held; petitioner had not brought on record any substance to show that fair and impartial proceedings were not possible---Application was dismissed with costs.

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

----S. 526---Transfer of case---Scope---Judges are presumed to be performing their duties with all honesty and dedication, by knowing that they have been bestowed with a sacred obligation to deliver justice beyond any worldly temptation---To rebut the said presumption strong and exceptional material is required.

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

----S. 526---Transfer of case---Scope---Adverse judicial orders passed by a Court against a party will not be sufficient ground directing transfer of case from the Court, as aggrieved person has remedy to challenge the orders before the Court of competent jurisdiction.

(d) Administration of justice---

----Judicial independence is the motto of judicial system and dispensation of justice---Courts should not be subjected to improper influence from the private or partisan interests---With said independence, the judiciary can safeguard people's rights and freedoms which ensure equal protection for all---Party cannot force the Court to regulate the proceedings according to its wishes as it is an exclusive domain and prerogative of the Court concerned---No doubt, a party has a right to argue but decision lies with the Court that is in accordance with law and on its merits.

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

----S. 526---Transfer of case---Principles settled on the question of transfer of a case from one Court to another detailed.

Following are the principles settled on the question of transfer of a case from one Court to another:

(a) A case should not be transferred from the Court of competent jurisdiction unless the allegations are supported by strong reasons or convincing evidence.

(b) If such applications are allowed, it would impliedly mean that the allegations against a Judge have been deemed to be correct and such situation will certainly lower the image, dignity and honour of judiciary in the eyes of public at large.

Transfer of a case is to be allowed only in exceptional circumstances where the grounds urged are based on strong reasons and evidence. If this practice is not followed strictly, the parties are likely to take undue advantage by filing application for transfer of their cases on flimsy, frivolous and baseless grounds.

(c) While considering a transfer application, it must be kept in mind that the parties should not be allowed to pick and choose the Court of their own choice or liking.

(d) Interference in the working of the trial Courts on fallacious grounds would give rise to a sense of insecurity amongst the Judicial Officers and in such eventuality the Judicial Officers may not be able to work with required vigor.

(e) Vague and general allegations cannot be made the ground of transfer.

(f) The Judges should equally be protected from frivolous transfer applications in order to achieve transparent even-handed justice so that one of the litigants should not be in a position to overpower the Judge which might ultimately result in tilting scale of justice under fear and malignity.

(g) Suspicion or artificial and baseless apprehensions are not sufficient to seek transfer of case. Any bald statement containing allegation is not sufficient to allow the transfer.

Altaf Hussain v. The State and another PLD 2014 Sindh 287; Amin Kalhoro and 3 others v. The State 2015 YLR 2292; Mst. Bashiran Bibi v. Bashir Ahmad and 3 others 2015 MLD 1131; Abdul Latif and another v. Syed Kousar Ali Shah Bukhari and another 2017 YLR 1985; Mashooque Ali and another v. Additional District and Sessions Judge-II, Sanghar and others 2017 YLR 379; Mevo v. Shabeer and 4 others 2018 PCr.LJ 971; Syeda Rukiya Shah and another v. Abdul Shakoob and others 2018 PCr.LJ 1211 and Noor Muhammad v. The State 2020 MLD 1071 ref.

Akhtar Ali v. The State 2020 SCMR 1243 rel.

(f) Words and phrases---

----"Apprehension"---Meaning.

(g) Words and phrases---

----"Reasonable"---Meaning.

(h) Words and phrases---

----"Reasonable apprehension"---Meaning---Fear must be based on sound judgment.

Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369 and R. v. S. (R. D.), [1997] 3 S.C.R. 484 rel.

2022 P Cr. L J 779

[Lahore]

Before Aalia Neelum, J

SAJJAD ASHRAF---Petitioner

Versus

The STATE and 2 others---Respondents

P.S.L.A. No. 6266 of 2019, decided on 21st September, 2021.

Criminal Procedure Code (V of 1898)---

----S. 417---Appeal against acquittal---Limitation---Condonation of delay---Sufficient cause---Lawyer's strike---Scope---Petitioner filed petition for leave to appeal under S. 417(2) of Cr.P.C. and prayed for setting aside of judgment passed by Gas Utility Court whereby the respondents were acquitted of the charge in private complaint---Petition was barred by time by 97 days---Validity---Only reason forwarded by the petitioner for delay in filing the petition was that the District Court was on lockdown---Lockdown was due to lawyers' strike and allowing such application of condonation of delay on ground of lawyers' strike abstaining deliberately from the court work or going on strike boycotting the courts' working was not only against the spirit of public policy, but such an act being contempt of court should not be respected in any way---Allowing such application on ground of lawyers' strike would amount to recognizing the lawyers' strike as sufficient ground for not appearing in the court--- Even during period of alleged strikes the petitions, bail applications, etcetera were being filed in offices---Strikes did not stop those litigants from moving their petitions and copy forms, etcetera who were watchful of their rights---Besides the petitioner could apply for certified copies between the date of judgment and before the date of lockdown---Petitioner had not applied for a certified copy of the judgment within thirty two (32) days---Such acts could not be accepted as sufficient cause for condoning the delay in filing the petition, which had effect on legal rights of respondents accrued to them due to non-filing of petition within period of limitation---Petition was dismissed, in circumstances.

Nemo. for Petitioner.

2022 P Cr. L J 797

[Lahore (Multan Bench)]

Before Ali Zia Bajwa and Muhammad Shan Gul, JJ

MUNIR AHMAD alias MUNA---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 898 and Murder Reference No. 119 of 2019, heard on 13th October, 2021.

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

----Ss. 302(b), 392 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Benefit of doubt---Accused were charged for murdering the son of complainant by firing while committing robbery---Ocular account of the incident had been furnished by complainant and other witness---Perusal of the record revealed that assailants were neither named in the crime report nor their facial features, ages and physiques were mentioned therein and it was also not contended by the complainant and prosecution witnesses that they could identify the assailants---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 392 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Extra-judicial confession---Scope---Accused were charged for murdering the son of complainant by firing while committing robbery---Record showed that whole prosecution story against the accused rested upon the alleged disclosure by the father of accused before the complainant and prosecution witnesses that his son committed the occurrence in question with the help of other co-accused---Although prosecution side had termed it as extra-judicial confession on behalf of accused but that alleged information rendered by father of accused could not be termed as extra-judicial confession because confession or extra-judicial confession as the case might be was always made by the accused himself and not by any other person on his behalf---Statements of prosecution witnesses were not corroborating each other's stance regarding alleged information given by father of accused---Complainant in his statement stated that he along with two other persons were sitting near their Drawing Room (Baithak), when father of accused, came their and admitted that his son along with co-accused committed that occurrence and beseeched to pardon him and also promised to pay compensation to the legal heirs of deceased---Other witness had not stated that complainant was also present with him because in his statement he had stated that he along with other was sitting near his Drawing Room (Baithak) when father of accused came there---Said sole fact had shattered the credibility of whole episode allegedly occurred regarding disclosure of father of accused and was sufficient to belie the story of prosecution regarding involvement of accused---Said fact was also nullified from the fact that in his statement the witness categorically stated that when he along with other was sitting near his Drawing Room (Baithak), grandfather of co-accused came there and told him that the occurrence was committed by his grandson along with co-accused---Said witnesses did not report the matter to the local police or complainant, waited for more than a year and it was only after the disclosure of father of accused he was nominated in the occurrence---All the said facts and circumstances, material discrepancies in the statements of prosecution witnesses regarding alleged disclosure of guilt of accused and his co-accused by their family members and nomination of accused in the case seemed highly sceptical---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 392 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Benefit of doubt---Non-conducting of identification parade---Scope---Accused were charged for murdering the son of complainant by firing while committing robbery---Record showed that FIR was registered against the four unknown accused persons without citing their descriptions---No identification parade was held in the case which was a must in such like cases to establish the identity of unknown accused---Identification of the accused standing in the dock was not satisfactory and desirable---Identity of the accused could not be proved and said aspect of the case proved a clincher to demolish the prosecution case---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Afzal alias Abdullah v. The State and others 2009 SCMR 436; Javed Khan alias Bacha and another v. The State and another 2017 SCMR 524 and Sabir Ali alias Fauji v. The State 2011 SCMR 563 rel.

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

----Ss. 302(b), 392 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Medical evidence---Scope---Accused were charged for murdering the son of complainant by firing while committing robbery---Medical evidence although confirmed the version of the prosecution regarding receiving of firearm injury by the deceased, weapon used, time of death of deceased but admittedly in the crime report no specific role was ascribed to the accused---Further, while making statement during the course of trial, the complainant, in categorical terms, stated that it was co-accused (since proclaimed offender), who made a bullet shot upon the deceased---No injury having been attributed to the accused, medical evidence qua the role of accused was inconsequential---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

(e) Criminal trial---

----Medical evidence---Scope---Medical evidence neither itself prove involvement of an accused in the commission of an offence nor establish his culpability---Medical evidence is confirmatory in nature and may confirm the ocular evidence with regard to the seat of injury, nature of injury, kind of weapon used in the occurrence and duration between injury and death etc., but such evidence cannot connect the accused with the commission of crime---Where ocular evidence is not worthy of reliance, medical evidence is of no avail to prosecution case.

Naveed Asghar v. The State PLD 2021 SC 600; Muhammad Mansha v. The State 2018 SCMR 772; Muhammad Aslam v. Sabir Hussain 2009 SCMR 985 and Muhammad Sharif and another v. The State 1997 SCMR 866 rel.

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

----Ss. 302(b), 392 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Recovery of motorcycle used in the occurrence---Scope---Accused were charged for murdering the son of complainant by firing while committing robbery---Record established that said motorcycle was not got recovered by the accused himself in pursuance of any disclosure made by him rather it was alleged by the complainant that said motorcycle was produced by the brother of accused by contending that said motorcycle was used by the accused during the occurrence---Such recovery thus was nullity in the eye of law having no probative value---Record transpired that neither accused made any disclosure regarding usage of that motorcycle during the occurrence nor that motorcycle was recovered pursuant to any such disclosure rather that fact/information came from the mouth of his brother---Said piece of evidence therefore was not admissible under Art. 40, Qanun-e-Shahadat, 1984---Neither the details qua the model, colour and registration number of motorbike used by the accused person were provided in crime report nor in the statements of the prosecution witnesses---Prosecution hardly could take any benefit out of such recovery---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt--- Appeal against conviction was allowed, in circumstances.

Mst. Askar Jan and others v. Muhammad Daud and others 2010 SCMR 1604 rel.

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

----Ss. 302(b), 392 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Recovery of weapon of offence and crime empty---Reliance---Scope---Accused were charged for murdering the son of complainant by firing while committing robbery---Record showed that pistol 30-bore was allegedly got recovered by the accused---Admittedly no firearm injury or shot was attributed to the present accused as bullet shot which hit at the head of deceased and proved fatal was attributed to co-accused---Report of Forensic Science Agency was also in favour of accused because it was concluded by the Ballistic Expert in its opinion that because of the difference in individual characteristics the cartridge case could not have been fired from the pistol allegedly recovered on the pointing out of accused---Such piece of evidence was also of no avail to the prosecution to prove its case against the accused---Even otherwise, mere recovery of crime weapon was of no avail to the prosecution if ocular account was not up to the mark to connect the accused with the occurrence---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Akram v. The State 2012 SCMR 440 rel.

(h) Criminal trial---

----Benefit of doubt---Principle---If a single reasonable doubt is available in prosecution case, accused will be entitled to have benefit of such benefit, not as a matter of grace and concession but as a matter of right. [p. 809] L

Muhammad Imran v. The State 2020 SCMR 857; Abdul Jabbar and another v. The State 2019 SCMR 129; Mst. Asia Bibi v. The State and others PLD 2019 SC 64; Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652; Gul Dast Khan v. The State 2009 SCMR 431 and Daniel Body (Muslim name Saifullah) and another v. The State 1992 SCMR 196 rel.

Qazi Sadar-ud-Din Alvi for Appellant.

Muhammad Ali Shohab, Deputy Prosecutor General for the State.

Nemo for the Complainant.

2022 P Cr. L J 820

[Lahore]

Before Syed Shahbaz Ali Rizvi, J

IFFAT IQBAL---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 79160 of 2021, decided on 10th February, 2022.

Anti-Money Laundering Act (VII of 2010)---

----Ss. 3, 4 & 8---Income Tax Ordinance (XLIX of 2001), Ss. 192 & 192-A---Attachment of Bank accounts allegedly used for money laundering---Legality---Bank accounts in question were allegedly joint accounts in the name of the appellant-lady and an accused, against whom an FIR was registered under different provisions of the Anti-Money Laundering Act, 2010 and the Income Tax Ordinance, 2001---Appellant and said accused were in a partnership, and the partnership deed showed that appellant was the owner of 20 % of the joint business while accused owned 30 % share of the same---As per same deed, the Bank accounts were to be operated by all the partners singly or jointly---Admittedly the appellant was the wife of accused's brother and during investigation it stood established that actually the accused ran the whole business---Keeping in view such facts, the impugned order of attaching the Bank accounts of the appellant-lady for 180 days did not suffer from any illegality or impropriety requiring interference by the High Court---Appeal was dismissed.

Barrister Danyal Ijaz Chadhar for Appellant.

Malik Abdullah Raza for Respondent.

2022 P Cr. L J 833

[Lahore]

Before Ali Baqar Najafi and Sardar Muhammad Sarfraz Dogar, JJ

PACHA KHAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 1503 of 2015, heard on 13th December, 2021.

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

----Ss. 9(c) & 36---Transportation of narcotics---Reports of Government Analysts---Appreciation of evidence---Benefit of doubt---Contradictory statements---Non-production of original report---Scope---Accused was alleged to have been apprehended while transporting 15 kilograms of heroin---Constable stated that he was given samples for onward submission to Forensic Laboratory by the Moharrir whereas Moharrir stated that he had given samples to another constable for onward submission to Forensic Laboratory---Investigating Officer admitted that he had not recorded the statement of Assistant Director ANF who had supervised the raid nor had he cited him as a witness---Investigating Officer had also admitted that accused had no previous record of any involvement in the criminal case, therefore, the prosecution case regarding his previous conduct as known inter-provincial drug-dealer was not supported---Chemical Examiner had admitted in cross-examination that possibility of causing intoxication in the substance was not mentioned and that if 1 gram heroin was mixed in 100 grams of other white colour powder even then the result of the laboratory would have been the same as in the instant report---Report of Chemical Examiner was not the original report which could not have even been tendered in evidence---Appeal against conviction was allowed, in circumstances.

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

----S. 36---Reports of Government Analysts---Original report, non-production of---Scope---Where report of Chemical Examiner was not on the prescribed paper, was not stamped, was prepared on a black and white photocopy of the format paper but was signed by the Chemical Examiner, such report was full of doubt and could not have been tendered in evidence.

Ikram Ullah and others v. The State 2015 SCMR 1002 rel.

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

----S. 36---Reports of Government Analysts---Scope---Report of Chemical Examiner being an expert report has to be accepted as a whole but if it is not prepared and written according to the prescribed procedure and law, it can be discarded.

Taimoor Khan and another v. The State and another 2016 SCMR 621 ref.

Sardar Khurram Latif Khan Khosa and Bilalwal Ali Nawaz for Appellant.

Malik Muhammad Irfan, Special Prosecutor for ANF for the State.

2022 P Cr. L J 860

[Lahore]

Before Tariq Saleem Sheikh, J

Mst. KANEEZ FATIMA---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and others---Respondents

Criminal Miscellaneous No. 250964/M of 2018, decided on 1st September, 2021.

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

----Ss. 176, 439 & 561-A---Inquiry by Magistrate into cause of death---Nature of such inquiry---Scope---Question before High Court was whether inquiry by Magistrate under S. 176, Cr.P.C. was judicial in nature, and whether such inquiry was subject to revision---Held, that inquiry under S. 176, Cr.P.C. was judicial in nature and subject to revision and revision thereagainst before Sessions Court was competent.

In the matter of Troylokhanath Biswas and Ram Churn Biswas (1878) ILR 3 Cal. 742; Laxminarayan Timmanna Karki's case AIR 1928 Bombay 390; Advocate-General v. Maung Chit Maung and another AIR 1940 Rangoon 68; P. Rajangam, Sub-Inspector v. State of Madras and others AIR 1959 Mad 294; Khuda Bakhsh v. Province of West Pakistan and another PLD 1957 (W.P.) Lahore 662; Muhammad Anwar v. Sheikh Qurban Ali and 3 others 1973 PCr.LJ 882; The State v. Ch. Altaf Hussain Magistrate Ist Class, Gujrat and 2 others PLD 1978 Lah. 1259; Ghulam Hussain v. District Magistrate, Muzaffargarh and 3 others 1992 PCr.LJ 1870 and Mansab Ali v. Asghar Ali Faheem Bhatti, Additional Sessions Judge, Nankana Sahib and 3 others PLD 2007 Lah. 176 rel.

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

----Ss. 176, 439 & 561-A---Inquiry under S. 176, Cr.P.C. by Magistrate into cause of death---Revision against Inquiry Report issued by Magistrate while exercising powers under S. 176, Cr.P.C., maintainability of---Jurisdiction of Magistrate under S. 176, Cr.P.C.---Inquiry Report could not determine or opine on guilt/innocence of accused persons---Scope---Petitioner impugned order of Sessions Court whereby petitioner's revision against Inquiry Report of Magistrate under S. 176, Cr.P.C. was rejected, on ground that same was not maintainable, and furthermore petitioner sought that such Inquiry Report be declared illegal as same travelled beyond jurisdiction---Validity---Petitioner's revision against impugned Inquiry Report which was judicial in nature, was competent and ought to have been heard by the Sessions Court---Object of inquiry under S. 176, Cr.P.C. was merely to ascertain cause of death of a person who had died an unnatural death and Magistrate may opine apparent cause of death but had no jurisdiction to go beyond the same, and could not give any finding as to the guilt or innocence of accused persons(s)---In impugned report, Magistrate exceeded jurisdiction by stating that evidence produced by petitioner was replete with contradictions and Magistrate was not competent to opine that police did not transgress their right of self-defence and could not give finding that police officials had not committed any offence---High Court set aside such portions of the impugned report, and declared that same were made without lawful authority and ought to be expunged---Petition under S. 561-A, Cr.P.C. was disposed of, accordingly.

Chaman Lal v. Emperor AIR 1940 Lahore 210; Khuda Bakhsh v. Province of West Pakistan and another PLD 1957 (W.P.) Lahore 662; Shera v. The State and 3 others 1972 PCr.LJ 626; Khizar Hayat and others v. District Magistrate and others PLD 1995 Lah. 433; Zulfiqar Ali Virk and others v. D.I.G. and others 2000 MLD 1273; Mumtaz Hussain v. Deputy Inspector-General, Faisalabad PLD 2002 Lah. 78; American Life Insurance Company (Pakistan) Ltd. v. Master Agha Jan Ahmed and another 2011 CLD 350; Shabbir Hussain and others v. The State 2012 PCr.LJ 361; Haji Abdul Hameed v. Raz Muhammad and another PLD 2014 Bal. 50; Mst. Fozia Shabnam v. Additional Sessions Judge, Multan and 8 others PLD 2016 Lah. 518; Mian Touseef v. District Police Officer and 2 others 2017 PCr.LJ 1140; Muhammad Yaseen v. Additional Sessions Judge, Gojra and 3 others 2019 PCr.LJ 219 and Guiram Mondal v. State of West Bengal (2013) 15 SCC 284 rel.

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

----Ss. 154 & 176---Inquiry by Magistrate into cause of death---Registration of FIR---Scope---Registration of FIR and a private complaint were independent rights of an aggrieved person which could not be hedged by inquiry under S. 176, Cr.P.C.

Mst. Rabia v. Mr. J. Samual, ASJ and 10 others 1986 MLD 1196; Mst. Ghulam Zuhran v. Superintendent of Police, Rahimyar Khan and others 1989 PCr.LJ 1826; Mumtaz Hussain v. Deputy Inspector-General, Faisalabad PLD 2002 Lah. 78 and Mst. Sughran Bibi v. The State PLD 2018 SC 595 rel.

Sajjad Ahmad Chaudhry for Petitioner.

Haroon Rashid, Deputy District Public Prosecutor for Respondents Nos. 3 to 5.

Muhammad Mumtaz Faridi for Respondent No. 6.

2022 P Cr. L J 891

[Lahore]

Before Sadaqat Ali Khan and Muhammad Tariq Nadeem, JJ

JAFAR and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 64530-J, 64531-J and Murder Reference No. 500 of 2017, heard on 10th June, 2021.

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

----Ss. 302, 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused party made firing upon complainant party, due to which three persons died---Motive behind the occurrence was previous enmity---Record showed that five accused to whom effective roles in the occurrence were attributed had been acquitted of the charge on the same set of evidence through the impugned judgment---Role of said accused was also identical with that of the present accused---Likewise, other co-accused to whom role of abetment was assigned had also been acquitted of the charge---All the co-denounced aside from the accused were announced blameless over the span of examination---Once arraigned witnesses were doubted concerning a co-blamed then, at that point, they could not be depended upon with respect to the next co-charged until and except if it was upheld by any free verifying piece of proof, which was prominently absent in the present case---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Nazir Ahmad v. The State 2018 SCMR 787; Haroon Shafique v. The State and others 2018 SCMR 2118 and Shahbaz v. The State 2016 SCMR 1763 rel.

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

----Ss. 302, 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Improvements made by witnesses---Scope---Prosecution case was that the accused party made firing upon complainant party, due to which three persons died---Contents of the FIR showed that the complainant and witnesses had assigned collective role of firing to all the accused persons, however, in private complaint and while appearing before the Trial Court, they improved their earlier stance by assigning the specific role of firing to each of the accused persons upon the body of the deceased persons---Deposition of the eye-witnesses, who were most important witnesses of the prosecution came up with deliberate improvements made the prosecution case doubtful---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

(c) Criminal trial---

----Witness---Improvement made by witness---Scope---If any witness made deliberate improvements with mala fide intention, the testimony of such witness could not be relied upon.

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

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

----Ss. 302, 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence---Contradictions---Prosecution case was that the accused party made firing upon complainant party, due to which three persons died---Record showed that in the site plan one of the deceased received fire shot injuries from a distance of 05 karams; other deceased received firearm injuries from a distance of 06 karams; another deceased received fire shots from a distance of 8 karams, yet the medical evidence belied the prosecution version---Senior Medical Officer, who had conducted the post-mortem examination on the dead body of the deceased persons, while appearing as witness noted blackening on the injuries sustained by the deceased persons---Blackening occurred when a shot was fired from a distance of 6 to 12 inches and vanished if the distance was more than three feet---Medical evidence being in direct conflict with the ocular evidence, it was also not safe to rely on the statements of the eye-witnesses, in circumstances---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Ishaq v. The State 2007 SCMR 108 and Amin Ali and another v. The State 2011 SCMR 323 rel.

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

----Ss. 302, 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Non-recording of conviction---Scope---Prosecution case was that the accused party made firing upon complainant party, due to which three persons died---Perusal of charge showed that the Trial Court framed the charge to the extent of three accused persons not only under S. 302, P.P.C., but also for offences under Ss. 148, 149 & 109, P.P.C.---Judgment of the Trial Court revealed that the said accused persons were convicted under S. 302(b), P.P.C., only---Trial Court did not record the conviction and sentence under Ss. 148, 149 & 109, P.P.C., against the said accused persons---Trial Court was duty bound to record the findings with reasons in respect of each offence charged in relation to each of accused persons and to follow it with an operative order of conviction or acquittal as the case may be---In the present case, the Trial Court did not record the findings of conviction or acquittal in respect of offences under Ss. 148, 149 & 109, P.P.C., as such, the Trial Court had failed to perform its legal duty---Non-recording of conviction under Ss. 148, 149 & 109, P.P.C. implied acquittal of the said accused persons from the charges mentioned above---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Karl John Joseph and another v. The State PLD 2005 Kar. 4 and Shera and 6 others v. The Crown PLD 1954 FC 141 rel.

(f) Criminal trial---

----Evidence---Direct evidence---Conviction---Scope---Unless direct or substantive evidence was brought on record, conviction could not be recorded on the basis of any type of evidence howsoever convincing it might be.

Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 12 rel.

(g) Criminal trial---

----Benefit of doubt---Principle---If there was a single circumstance, creating reasonable doubt regarding the prosecution case that would be sufficient to give benefit to the accused.

Muhammad Akram v. The State 2009 SCMR 230 and Muhammad Mansha v. The State 2018 SCMR 772 rel.

Javed Iqbal Bhatti, Ms. Saiqa Javed, Muhammad Shafique Baloch, Muhammad Jawaz Zafar and Muhammad Talha Mushtaq for Appellants.

Muhammad Nawaz Shahid, D.P.G. for the State.

Mahram Ali Bali for the Complainant.

2022 P Cr. L J 916

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram, J

Mst. SHAHANA BIBI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 8092-B of 2020, decided on 24th February, 2021.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 34, 82 & 83---Qatl-i-amd, common intention, act of a child under seven years of age and act of a child above seven and under twelve of immature understanding---Allegation against accused was that she served the tea as prepared by co-accused and wife of complainant and she died after taking the tea---Prosecution had not alleged that the accused was involved in the preparation of poisonous tea nor was it discernable from the perusal of the evidentiary material produced before the Court that the co-accused needed any help of the accused in preparation of the poisonous tea---Such type of allegations were very easy to level but very difficult to prove---Accused and her co-accused were related to each other and in that milieu, spreading the net wide by the complainant party so as to falsely entangle the accused in the criminal case appeared to be a possibility which could not safely be ruled out of consideration---Prima facie reasonable grounds were available to believe that case of accused required further inquiry---Another aspect of the case was that the accused at the time of her arrest was admittedly only twelve years of age and of female gender---Section 82 of P.P.C. deemed children under 10 years of age incapable of forming an intent to commit a crime---Section 83 of P.P.C. exempted child above 10 years of age and under 14, who had not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion from criminal responsibility---Petition for grant of post-arrest bail was accepted, in circumstances.

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

----S. 497---Bail---Expression "reason to believe"---Scope---Court while considering bail application has to tentatively look to the facts and circumstances of the case and once it draws the inference that no reasonable ground exists for believing that the accused has committed a non-bailable offence, it has the discretion to release the accused on bail---Court, in order to ascertain whether reasonable grounds exist or not, should confine itself to the material placed before it by the prosecution to see whether some perceptible evidence is available against the accused, which, if left un-rebutted, may lead to inference of guilt---Reasonable grounds are not to be confused with mere allegations or suspicions nor with tested and proved evidence, which the law requires for a person's conviction for an offence---Term "reason to believe" can be classified at a higher pedestal than mere suspicion and allegation.

Ch. Umar Hayat for Petitioner.

Ch. Akhtar Ali Bodla for the Complainant/Respondent No. 2.

2022 P Cr. L J 934

[Lahore]

Before Aalia Neelum, J

HAYAT ULLAH KHAN and 3 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Revision No. 23807 of 2020, decided on 16th February, 2021.

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

----Ss. 324, 337-F(iii), 148 & 149---Attempt to commit qatl-i-amd, ghayr-jaifah-mutalahimah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Delay of one and half hour in lodging FIR---Scope---Prosecution case was that the accused made firing upon the complainant party, as a result of which nephew of the complainant sustained firearm injury---Motive behind the occurrence was previous murderous enmity between the parties---Record revealed that the incident took place on 16.01.2016 at 10:00 a.m.---Incident was reported to the police by complainant through his oral statement and according to the police karwai endorsed at the end of the oral complaint was recorded by at the place of the occurrence at 11:00 a.m.---On the basis whereof, formal FIR was chalked out on the same day at 11:30 a.m.---Medico Legal Certificate revealed that injured was brought to the RHC at 12:35 (not mentioned a.m. or p.m.) on 06-01-2016 and injured witness was medically examined at 12:40 (not mentioned a.m. or p.m.)---On perusal of the injury statement prepared by SHO, it revealed that particulars of FIR were mentioned thereon whereas FIR was registered at 11:00 a.m. on 16-06-2016, which created doubt about the time of reporting the occurrence and time of occurrence---Circumstances established that there was no evidence at all to prove the charged against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 324, 337-F(iii), 148 & 149---Attempt to commit qatl-i-amd, ghayr-jaifah-mutalahimah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Dishonest improvement made by witnesses---Scope---Prosecution case was that the accused made firing upon the complainant party, as a result of which nephew of the complainant sustained firearm injury---Injured witness made dishonest improvements by giving specific role to the accused, which created reasonable doubt about the deposition of injured witness---Prosecution case was that after recoding statement of the complainant at 11:00 a.m. at place of occurrence, SHO prepared injury statement of the injured witness---If it was so, then recording of complaint became highly doubtful as name of the accused was not mentioned against Banam and space for said purpose was left blank in injury statement---Not possible for the witnesses to identify the accused persons from a distance of 71 Karams and in presence of 08 feet height Sarkandas and reasonable height of wheat crop---Said fact also created doubt about the genuineness of the version given by the complainant and the injured prosecution witness---Question of their being truthful witnesses became highly doubtful---Prosecution witnesses i.e. the complainant, injured witness, Scribe of FIR and Investigating Officer, who had been proved to be not truthful, could not have been relied upon---Circumstances established that there was no evidence at all to prove the charged against the accused---Appeal against conviction was allowed, in circumstances.

Amin Ali and another v. The State 2011 SCMR 323 rel.

(c) Criminal trial---

----Witness---Witness testified falsely---Effect---If a witness who testifies falsely about one matter will not be credible to testify about any matter.

Mehar Abdul Shakoor for Petitioners.

Muhammad Nauman Siddique, D.P.G. with Shafi Ullah, S.I. for the State.

Complainant in person.

2022 P Cr. L J 949

[Lahore (Multan Bench)]

Before Muhammad Tariq Nadeem, J

Mst. SANGEETA---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 4035-B of 2021, decided on 13th July, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497--- Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotics---Bail, grant of---Pregnant woman---Detention of minor along with mother---Scope---Accused was alleged to have been found in possession of 1550 grams of charas---Report of Woman Medical Officer revealed that the accused person's minor baby boy aged about 1 year was detained along with her in the jail---Accused was in fragile condition and was also in advanced stage of pregnancy who required proper medical care and caution, therefore, she was entitled to claim that the child to whom she would give birth should be born in free atmosphere and not in prison, thus the accused was also entitled to be admitted to bail on that sole ground---Accused had no antecedents and credentials of criminal activity and was no more required by the police, hence, incarceration of the accused would not serve any useful purpose to the prosecution---Petition for grant of bail was accepted, in circumstances.

Mst. Asmat Parveen v. The State and another PLD 2021 Lah. 105 rel.

Mst. Nusrat v. The State 1996 SCMR 973; Mst. Latifan Bibi v. The State 2006 PCr.LJ 251; Sadiq Waqas v. The State and another 2012 PCr.LJ 841; Ghulam Sakina and others v. The State 1991 PCr.LJ 1316; Mst. Nasreen v. The State 1998 MLD 1350; Mst. Javeria v. The State 2017 MLD 1367; Mst. Yasmeen v. The State 1989 SCMR 269; Mst. Tahira Naqvi v. The State 2001 YLR 2173; Tahira Bibi v. The State and another 2012 YLR 2607; Mst. Parveen Bibi v. The State 2013 YLR 913; Syed Khalid Hussain Shah v. The State and another 2014 SCMR 12 and Nisar Ahmed v. The State and others 2014 SCMR 27 ref.

Javaid Shaukat for Petitioner.

2022 P Cr. L J 976

[Lahore]

Before Ali Baqar Najafi and Sardar Ahmad Naeem, JJ

MUHAMMAD IBRAHIM and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 8689 of 2021, decided on 19th January, 2022.

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

----Ss. 11-N, 11-H & 11-J---Funding arrangements---Fund raising---Appreciation of evidence---Scope---Allegation against accused was that he was collecting funds for a proscribed organization whereas case against co-accused was that he gave funds to a proscribed organization---Police officials, on information, had secretly parked their vehicle behind a shop and in their view co-accused had handed over Rs. 1000/- and obtained a receipt along with pamphlet---Accused persons were arrested red handed---Writing of the accused on subscription book was proved through handwriting expert's report---No mala fide of the police witnesses was even alleged to cause aspersion to their credibility---Display of different heads on the pamphlet was not essential as the fact remained that the proscribed organization had caused damage not only to the State institutions but targeted the State functionaries and had also intensified the wave of terrorism in the past which would not have been possible without the financial support---Prosecution had proved the case against the accused persons on the basis of direct evidence beyond reasonable doubt---Appeal was dismissed, in circumstances.

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

----Ss. 11-N, 11-H & 11-J---Funding arrangements---Fund raising---Scope---Inciting public to raise funds for Jihad is not allowed to individuals in an Islamic State as this may be considered as "Baghawat"---At the most it may be a job of the State to collect national funds for a declared war, if essential, which cannot be raised privately by any organization.

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

----S. 11-H---Fund raising---Scope---Under S. 11-H(2)(a) of Anti-Terrorism Act, 1997, a person who receives money or other property with an intention or reasonable cause to suspect that it be used for the purposes of terrorism or by terrorist organization concerned in terrorism will be convicted and sentenced under S. 11-N of Anti-Terrorism Act, 1997, for a term not less than 5 years and if a person professes to belong to a proscribed organization will be sentenced for imprisonment not exceeding 6 months.

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

----S. 11-H---Fund raising---Scope---Under S. 11-H(3) if a person provides money or other property for the purposes of terrorism or to a terrorist organization will be punished under S. 11-N for a term not less than 5 years and fine not exceeding 25 million rupees.

Javed Iqbal Malik-I and Intizar Hussain for Appellants.

Rai Iftikhar Hussain, D.P.G. with Muhammad Ashraf, Inspector CTD, Mianwali for Respondents.

2022 P Cr. L J 1005

[Lahore]

Before Muhammad Amjad Rafiq, J

MUHAMMAD RIAZ---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 76975, Criminal Revision No. 424 and P.S.L.A. No.113 of 2017, decided on 11th November, 2021.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Un-natural witnesses---Scope---Accused were charged for committing murder of the deceased by firing---Ocular account of the incident had been furnished by two eye-witnesses, including complainant---Complainant was the resident of a chak---Distance between the residence of complainant and place of occurrence was one kilometre and similar was the position with eye-witness---No plausible explanation had come on record by which they could justify their presence at the place of occurrence at the relevant time---Presence of complainant and eyewitness was further doubted for the reason that though according to the complainant the occurrence took place at 9.00 a.m. and he had not deposed that who told him about the earlier altercation and even their presence at the crime scene according to site plan was at distance from where one could not view the hitting of fire with exactitude---After the occurrence, complainant shifted victim to hospital situated at a distance of 14/15 kilometres from the place of occurrence where he succumbed---According to Medical Officer who had conducted the autopsy, the dead body was received in the mortuary on the same day at 5.00 p.m.---Complete documents were received from the police at 6.30 p.m. and the post-mortem was conducted at 6.40 p.m.---Had the complainant and eyewitness been present at the time and place of occurrence such unexplained and protracted delay would never have occurred and the police would not have taken so long to prepare and produce the relevant documents to the doctor for autopsy---Said circumstances were found sufficient to disbelieve the statements of witnesses---Circumstances established that the prosecution had failed to prove its case against the accused---If prosecution had failed and the statement of the accused under S. 342, Cr.P.C. was accepted in entirety, the court was then to give due effect to the statement of the accused, under the law, whether in favour of or against the accused---Appeal against conviction was dismissed, in circumstances.

Azhar Iqbal v. The State 2013 SCMR 383 and Nasir Mehmood v. The State 2015 SCMR 423 ref.

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

----Ss. 302(b) & 34---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, common intention---Appreciation of evidence---Withholding material evidence---Scope---Accused were charged for committing murder of the deceased by firing---Record showed that the place where from deceased proceeded to fetch praali was 7/8 acres from the place of occurrence---Complainant in clear terms stated that on the day of alleged occurrence only deceased and another person went to collect praali prior to the present occurrence---Complainant did not go to collect praali in the company of deceased and the other person---Exactly same had been the stance of accused in his statement under S. 342, Cr.P.C.---Most natural and independent witness could be said another person, whose presence had been admitted by the accused as well, but statement of that witness was withheld by the prosecution, though he was put for cursory statement---Circumstances established that the prosecution had failed to prove its case against the accused---If prosecution had failed and the statement of the accused under S. 342, Cr.P.C. was accepted in entirety, then the court was to give due effect to the statement of the accused, under the law, whether in favour of or against the accused---Appeal against conviction was dismissed.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Conspiracy---Scope---Accused were charged for committing murder of the deceased by firing---Though two witnesses were produced on the aspect of alleged conspiracy---According to said witnesses one week prior to the murder of deceased they heard the voices of accused, wherein accused persons were asking co-accused to commit the murder of deceased---Considering that both the said witnesses were relatives of the complainant and the deceased, it was totally unbelievable that when both the said witnesses, according to them, had heard the conversation wherein, clearly plan under discussion was to commit the murder of deceased, then how they could desist to report such an important factor to the close relative of said deceased prior to the occurrence---In that view of the matter, Court had no doubt whatsoever to hold that said piece of evidence was in fact self-made creation, with no actual basis---Circumstances established that the prosecution had failed to prove its case against the accused---If prosecution had failed and the statement of the accused under S. 342, Cr.P.C. was accepted in entirety, the court was then to give due effect to the statement of the accused, under the law, whether in favour of or against the accused---Appeal against conviction was dismissed.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence--- Recovery of weapon of offence from the accused---Reliance---Scope---Accused were charged for committing murder of the deceased by firing---Though recovery of a .12 bore repeater was shown to have been effected from the accused but it remained admitted position that no crime empties were recovered from the place of occurrence and working condition of such gun as reported by the office of Forensic Science Agency after its analysis, even if believed, was inconsequential in the circumstance---Circumstances established that the prosecution had failed to prove its case against the accused---However, if prosecution had failed and the statement of the accused under S. 342, Cr.P.C., was accepted in entirety, the court was then to give due effect to the statement of the accused, under the law, whether in favour of or against the accused---Appeal against conviction was dismissed, in circumstances.

(e) 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---Plea of self-defence---Scope---Accused were charged for committing murder of the deceased by firing---Accused pleaded that deceased was murdered in self-defence---Accused had not adduced the evidence nor produced witnesses in his defence, therefore, his plea of taking life of deceased, in the circumstances he portrayed in his statement under S. 342, Cr.P.C., could not be relied upon for reaching to a conclusion---If prosecution had failed and the statement of the accused under S. 342, Cr.P.C., was accepted in entirety, the court was then to give due effect to the statement of the accused, under the law, whether in favour of or against the accused---Appeal against conviction was dismissed, in circumstances.

Ali Ahmad v. The State PLD 2020 SC 201 rel.

Miss Bushra Qamar, Muddasar Naveed Chatha, Nazir Abbas, Zafar Malik, Liaqat Bashir Mughal and Hamza Nadeem Tarrar for Appellant.

Miss Noshi Malik, Deputy Prosecutor General for the State.

Muhammad Aslam Gondal for the Complainant.

2022 P Cr. L J 1022

[Lahore (Multan Bench)]

Before Muhammad Waheed Khan and Ali Zia Bajwa, JJ

QURBAN HUSSAIN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 442 of 2014, heard on 15th December, 2021.

(a) Constitution of Pakistan---

----Art. 13---Criminal Procedure Code (V of 1898), S. 403---General Clauses Act (X of 1897), S. 26---Protection against double punishment and self-incrimination---Person once convicted or acquitted not to be tried for the same offence---Provisions as to offences punishable under two or more enactments---Nemo debet bis vexari pro una et eadem causa---Applicability---Scope---Autrefois acquit---Autrefois convict---Scope---Article 13 of the Constitution, S. 403 of Cr.P.C. and S. 26 of the General Clauses Act, 1897 are based on the ancient maxim of "nemo debet bis vexari pro una et eadem causa" which connotes that "no person should be twice disturbed of the same cause" and common law principle, which the accused can use as a shield in the form of pleas of "autrefois acquit" which means "formerly acquitted" and "autrefois convict" which means "formerly convicted"---Double jeopardy means that no person should be periled twice in respect of the same matter---Reading of the said enactments provisions of law showed that the principles of autrefois acquit and autrefois convict contained in S. 403(1), Cr.P.C., forbid a new trial after a conviction or acquittal on the basis of the same facts---No court, according to S. 403, Cr.P.C., shall try any person who was already tried by a court of competent jurisdiction on the same facts, irrespective of whether he was acquitted or convicted---Section 26 of the General Clauses Act, 1897, provides that where an act or omission which constitutes an offence under two or more different enactments, then the accused shall be liable to be prosecuted under either or any of said enactments, however, the accused shall not be liable to be vexed twice for the same offence---Article 13(a) of the Constitution places an embargo on subsequent prosecution and punishment for the same offence.

Abdul Malik v. The State PLD 2006 SC 365 and Nazir Ahmed v. Capital City Police Officer 2011 SCMR 484 rel.

(b) Constitution of Pakistan---

----Art. 13---Criminal Procedure Code (V of 1898), S. 403---General Clauses Act (X of 1897), S. 26---Protection against double punishment and self-incrimination---Persons once convicted or acquitted not to be tried for the same offence---Provisions as to offences punishable under two or more enactments---Scope---Doctrine of double jeopardy provides a procedural defense to an accused---For accused involved in criminal case, such is a crucial constitutional and statutory protection and it applies regardless of the severity of the alleged crime.

(c) Words and phrases---

----"Double jeopardy"---Defined.

Black's Law Dictionary; Collins Dictionary and Britannica, double jeopardy rel.

Qazi Sadar-ud-Din for Appellant.

Shahid Aleem, Additional Prosecutor General for the State.

2022 P Cr. L J 1050

[Lahore]

Before Muhammad Amjad Rafiq, J

TARIQ IRSHAD---Petitioner

Versus

SPECIAL JUDGE and others---Respondents

Criminal Revision No. 42994 of 2021, decided on 28th July, 2021.

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

----S. 249-A---Power of Magistrate to acquit accused at any stage---Second FIR---Civil and criminal proceedings---Scope---Accused assails dismissal of his application under S. 249-A, Cr.P.C.---Counsel for accused contended that the instant FIR was replica of earlier FIR, which was quashed by the High Court; that second FIR on same facts was barred under the law; that civil proceedings between the parties were also pending; that both civil and criminal proceedings could not go side by side and requests for stay of criminal proceedings till the decision of civil litigation by declaring that criminal proceedings were dependent upon the outcome of civil litigation---Second FIR was based on entirely different facts and premise---Even the nature of documents was different; therefore, it could not be termed as replica or verbatim of earlier FIR---Second FIR was proceed-able under the law---Question of inheritance was pending before the civil court, if the proof failed, party would lose the inheritance, would be deprived of the property and nothing more---Even after a criminal trial, a civil action on the same cause of action was not barred; neither principle of res judicata was applied nor question of autrefois acquit, autrefois convict (previously acquitted and previously convicted), arises---Order passed by Trial Court on application of accused was well reasoned and based on established principles of law---Criminal revision being devoid of merit was dismissed accordingly.

Rana Saeed Ullah v. Inspector General of Police 2013 YLR 2513; Shah Fahad and others v. The State 2014 YLR 2241 and Muhammad Anwar Khan v. Ghulam Farid 2014 YLR 2244 distinguished.

Muhammad Shafi v. Deputy Superintendent of Police and others PLD 1992 Lah. 178 ref.

(b) Administration of justice---

----Civil and criminal proceedings---Scope---Disciplinary and criminal proceedings can go side by side and there is no bar for their simultaneous prosecution.

Seema Fareed and others v. The State and another 2008 SCMR 839; Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192; Rafique Bibi v. Muhammad Sharif and others 2006 SCMR 512; M. Aslam Zaheer v. Ch. Shah Muhammad and another 2003 SCMR 1691; Talib Hussain v. Anar Gul Khan and 4 others 1993 SCMR 2177 and State through Prosecutor-General, Punjab v. Jahangir Akhtar and others 2018 SCMR 733 rel.

(c) Torts---

----Civil and criminal proceedings---Scope---If an offence is also an actionable wrong, affected person is not precluded to claim damages even though accused stood acquitted from criminal charge on same facts and such claim would neither be hit by principle of res judicata nor by double jeopardy.

(d) Administration of justice---

----Civil and criminal proceedings--- Scope--- Standard of appraisement of evidence in criminal and civil cases is altogether different and findings of criminal court are not binding on civil court.

(e) Administration of justice---

----Civil and criminal proceedings---Scope---Civil and criminal proceedings go side by side due to their ultimate outcome and difference in standard of proof---Even after civil proceedings, there is no bar for initiation of criminal proceedings and vice versa; evidence recorded in one proceeding cannot be read in other proceedings except in some cases where any question in criminal proceedings wholly and entirely depends upon the determination by civil court.

Abdul Ghafoor Sheikh for Petitioner.

Malik Khalid Shafiq, Assistant Attorney General with Sohail Sub-Inspector/FIA.

2022 P Cr. L J 1067

[Lahore (Multan Bench)]

Before Safdar Saleem Shahid, J

RIAZ AHMAD---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE/EX-OFFICIO JUSTICE OF PEACE ROJHAN DISTRICT RAJANPUR and 3 others---Respondents

Writ Petition No. 9343 of 2021, decided on 24th June, 2021.

(a) Punjab Healthcare Commission Act (XVI of 2010)---

----Ss. 19, 22 & 23---Criminal Procedure Code (V of 1898), Ss. 154, 22-A & 22-B---Medical negligence---Scope---Petitioner assailed order passed by Ex-officio Justice of Peace whereby SHO was directed to record version of the complainant under S. 154, Cr.P.C.---Allegation levelled by the complainant through his application was that his daughter aged three years had died due to the negligence of petitioner---Punjab Healthcare Commission Act, 2010 had provided that if there was any negligence on the part of any person relating to health, he would be dealt with under the Act---Under S. 19(b) of the Punjab Healthcare Commission Act, 2010, medical negligence meant a case where a patient sustained injury or died as a result of improper treatment in a healthcare establishment and, in case of death, determined on the basis of medical autopsy report---Punjab Healthcare Commission Act, 2010, barred prosecution of any person on the allegation of negligence---Daughter of complainant was a serious patient of brain tumor and negligence, if any, on the part of petitioner could not be prima facie fixed by the police through investigation and for that the complainant had to approach to the concerned forum---Constitutional petition was allowed and the order passed by Ex-officio Justice of Peace was set aside.

(b) Punjab Healthcare Commission Act (XVI of 2010)---

----Ss. 19, 22 & 23---Criminal Procedure Code (V of 1898), S. 154---Medical negligence---Information in cognizable cases---Special and general law---Scope---Special enactment always prevail over the general law and in presence of the special law to deal with the negligence of the practitioners being available, without exhausting the remedy, no criminal proceedings can be initiated---Once it is held by the Pakistan Medical and Dental Council that practitioner was guilty of negligence and professional misconduct, criminal law as well as civil law can be set in motion against him by forwarding a complaint to the Council for proper legal action under the law without being prejudiced by any observation made by the police or the Court.

Shifa International Hospitals Ltd. Through Chairman and C.E.O. v. Pakistan Medical and Dental Council (PMDC) and 3 others 2011 CLC 463 ref.

Ch. Umar Hayat for Petitioner.

Malik Aamir Manzoor Awan and Aziz-ur-Rehman for Respondent No.4.

2022 P Cr. L J 1088

[Lahore (Multan Bench)]

Before Muhammad Waheed Khan and Farooq Haider, JJ

ABID ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 312-J of 2019, heard on 7th April, 2021.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Safe custody---Scope---Accused was alleged to have been found in possession of 1250 grams of charas---Complainant had deposited the samples in the Forensic Laboratory and after sampling for analysis, the remaining portion of case property from the applicable items was sealed and handed over by Forensic Laboratory to the evidence submitting person but the prosecution did not produce any witness to prove that the case property was delivered back to Moharir or anybody else---Safe custody of the case property/sample, after sampling by the Forensic Laboratory till production in the Court, could not be proved---Since prosecution had failed to prove its case against the accused beyond shadow of doubt, therefore, there was no need to discuss the defence version--- Appeal against conviction was allowed, in circumstances.

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

----S. 9---Possession of narcotics---Safe custody---Scope---If safe custody of allegedly recovered substance/case property has not been proved in narcotics cases, then, there is no need to discuss other merits of the case and it straightaway leads to the acquittal of the accused.

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

----Art. 133--- Cross-examination--- Incomplete cross-examination---Effect---Where statement of complainant was recorded in a case by the Trial Court and his cross-examination was reserved but subsequently he did not make himself available for cross-examination though efforts were made to procure his attendance, High Court observed that his statement without cross-examination could not be termed as legal statement and had lost its evidentiary value, therefore, could not be relied upon being unreliable piece of evidence.

Shafique Ahmad Chaudhry for Appellant.

Riaz Ahmad Saghla, Additional Prosecutor General for the State.

2022 P Cr. L J 1102

[Lahore (Multan Bench)]

Before Sadaqat Ali Khan and Shehram Sarwar Ch., JJ

MUHAMMAD EJAZ alias AJJU---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 452 and C.S.R. No. 1 of 2016, decided on 7th September, 2021.

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

----Ss. 302(b), 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Sentence, reduction in---Accused was charged that he along with co-accused committed murder of nephew of the complainant by firing---Complainant and his maternal nephew while claiming themselves to be the eyewitnesses of the occurrence stated in their statements before the trial court regarding role of the accused that he made fire shot with his pistol hitting on the left side of chest of deceased---Second fire shot made by co-accused hit on the abdomen of deceased---Fire shots made by remaining co-accused with their pistols hit on right thigh, knee and shin of deceased---After the occurrence, accused was apprehended with motorcycle at the spot by Police Constable who had supported both the eye-witnesses---Said three witnesses were cross-examined at length but their evidence could not be shaken during the process of cross-examination---Said witnesses corroborated one another on all material aspects of the case---Witnesses had established their presence at the time of occurrence at the place of occurrence with their stated reasons---Evidence of said witnesses was straightforward, trustworthy and confidence inspiring---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, accused along with his co-accused was attributed firearm injuries on the person of deceased---Not discernible as to which of the accused was responsible for the fatal injuries to the deceased---Generally sentence of death was withheld by way of abundant caution, in circumstances---Sentence was altered from death to imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b), 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Sentence, reduction in---Discrepancies in the statements of witnesses---Scope---Accused was charged that he along with co-accused committed murder of nephew of the complainant by firing---Discrepancies pointed out in the statements of the witnesses by the defence were minors and general in nature, occurred in every case when the witnesses were cross-examined after a long time of the occurrence as in the present case---Said discrepancies were not fatal to the prosecution case---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, accused along with co-accused was attributed firearm injuries on the person of deceased---Not discernible as to which of the accused was responsible for the fatal injuries to the deceased---Generally sentence of death was withheld by way of abundant caution, in circumstances---Sentence was altered from death to imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b), 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Sentence, reduction in---Medical evidence supported the ocular account---Scope---Accused was charged that he along with co-accused committed murder of nephew of the complainant by firing---Medical evidence had been furnished by Medical Officer, who during post-mortem examination had observed firearm injury on the person of the deceased attributed to the accused which along with other injuries was ante-mortem in nature and was sufficient to cause death in ordinary course of nature---Medical evidence had fully supported the ocular account furnished by the eyewitnesses---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, accused along with co-accused was attributed firearm injuries on the person of deceased---Not discernible as to which of the accused was responsible for the fatal injuries to the deceased---Generally sentence of death was withheld by way of abundant caution, in circumstances--- Sentence was altered from death to imprisonment for life--- Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b), 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Sentence, reduction in---Recovery of weapon of offence and crime empties---Reliance---Scope---Accused was charged that he along with co-accused committed murder of nephew of the complainant by firing---Accused was apprehended by Police Constable/witness with pistol just after the occurrence and Investigating Officer/witness, who made his formal arrest took into possession pistol .30-bore---Report of Forensic Science Agency in that respect showed that crime empties recovered from the place of occurrence had been matched with the same---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, accused along with his co-accused was attributed firearm injuries on the person of deceased---Not discernible as to which of the accused was responsible for the fatal injuries to the deceased---Generally sentence of death was withheld by way of abundant caution, in such circumstances---Sentence was altered from death to imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b), 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Sentence, reduction in---Motive was proved---Scope---Accused was charged that he along with co-accused committed murder of nephew of the complainant by firing---Motive of the occurrence was murder enmity---Father of the accused was murdered by deceased etc. who was also murdered which was not denied---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, accused along with his co-accused was attributed firearm injuries on the person of deceased---Not discernible as to which of the accused was responsible for the fatal injuries to the deceased---Generally sentence of death was withheld by way of abundant caution, in circumstances---Sentence was altered from death to imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b), 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Sentence, reduction in---Act of terrorism---Scope---Accused was charged that he along with co-accused committed murder of nephew of the complainant by firing---Motive behind the occurrence was that before the present occurrence, father of the accused was murdered and they got registered case against the deceased and others, due to that grudge, present occurrence took place---Record showed that accused was tried by Special Judge/Anti-Terrorism Court, as occurrence took place within the premises of the court in the chamber of an Advocate---Accused was convicted and sentenced in offence under S. 7(a), Anti-Terrorism Act, 1997, but same could not be sustained because occurrence took place on previous private vendata i.e. enmity of the murders---Mere firing at one's personal enmity in the backdrop of a private vendata or design did not ipso facto bring the case within the purview of S. 6 of Anti-Terrorism Act, 1997, so as to brand the action as terrorism, unless there was a design or object contemplated by S. 6 of Anti-Terrorism Act, 1997, which was missing in the present case---Case was rightly been tried by Anti-Terrorism Court but the said Court could not have convicted and sentenced the accused for an offence under S. 7(a) of the Anti-Terrorism Act, 1997, as it had separately convicted and sentenced the accused for the offence of murder, etc. committed as ordinary crimes---Conviction and sentence of the accused in offence under S. 7(a) of Anti-Terrorism Act, 1997, was set aside---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, accused along with his co-accused was attributed firearm injuries on the person of deceased---Not discernible as to which of the accused was responsible for the fatal injuries to the deceased---Generally sentence of death was withheld by way of abundant caution, in circumstances---Sentence was altered from death to imprisonment for life---Appeal was dismissed with said modification in sentence.

Amjad Ali and others v. The State PLD 2017 SC 661; Ahsan Shahzad and another v. The State and others 2019 SCMR 1165; Muhammad Yaqoob v. The State PLD 2019 SC 580; Ali Gohar and others v. Pervaiz Ahmed and others PLD 2020 SC 427; Sadiq Ullah and another v. The State and another 2020 SCMR 1422 and Atta-ur-Rehman and another v. The State 2018 SCMR 372 rel.

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

----Ss. 302(b), 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Sentence, reduction in---Rioting armed with deadly weapon---Scope---Accused was charged that he along with co-accused committed murder of nephew of the complainant by firing---On account of acquittal of co-accused, the remaining proclaimed offenders could not be convicted for the offence under S. 148, P.P.C. as same pertained to rioting defined under S. 146, P.P.C.---Conviction and sentence of the accused in offence under S. 148, P.P.C. was set-aside, in circumstances---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, accused along with co-accused was attributed firearm injuries on the person of deceased---Not discernible as to which of the accused was responsible for the fatal injuries to the deceased---Generally sentence of death was withheld by way of abundant caution, in circumstances---Sentence was altered from death to imprisonment for life---Appeal was dismissed with said modification in sentence.

Badar Raza Gillani for Appellant.

Syed Nadeem Haider Rizvi, D.D.P.P. for the State.

2022 P Cr. L J 1121

[Lahore]

Before Shehram Sarwar Ch. J

SANA ULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 1590 of 2011, heard on 9th March, 2022.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delayed FIR---Chance witness---Un-natural conduct---Scope---Accused was alleged to have thrown the deceased in a canal within the presence of later's mother and uncle---First Information Report was lodged with a delay of eleven hours and five minutes---Presence of witnesses on the spot at the relevant time was doubtful in nature because had they been present on the spot they would have tried to rescue the deceased or to catch hold of the accused---Story cooked up by the prosecution was improbable and did not appeal to a prudent mind---Complainant (mother of deceased) was a chance witness---No convincing or plausible reason was assigned by her for her presence at the place of occurrence---No motive was set out in the FIR or stated before the Trial Court---During the course of investigation, nothing was recovered at the instance of the accused---Appeal was allowed, conviction and sentence awarded to the accused was set aside and he was acquitted to the charge, in circumstances.

(b) Criminal trial---

----Witness---Chance witness---Scope---Testimony of a chance witness ordinarily is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time---Presumption under the law would operate about his absence from the crime spot---Testimony of a chance witness may be relied upon, provided some convincing explanations appealing to a prudent mind for his presence at the crime spot are put forth, when the occurrence took place otherwise his testimony would fall within the category of suspect evidence and cannot 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 ref.

(c) 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 weaknesses of the case of the defence.

(d) Criminal trial---

----Benefit of doubt---Scope---Single circumstance creating doubt regarding the prosecution is sufficient to give benefit of doubt to the accused.

Muhammad Akram v. The State 2009 SCMR 230 ref.

Muhammad Younas Bhullar along with Appellant (on bail) for Appellant.

Sh. Muhammad Nauman Siddique, Deputy Prosecutor General along with Bilal, SI for the State.

Complainant in person.

2022 P Cr. L J 1150

[Lahore (Rawalpindi Bench)]

Before Ch. Abdul Aziz and Raja Shahid Mehmood Abbasi, JJ

Syed SHAUKAT ABBAS HAMDANI and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 2291-E, 2438-E, 2455-E and Criminal Revision No. 31 of 2010, heard on 6th September, 2021.

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

----S. 9(a)(vi)---Misuse of authority---Appreciation of evidence---Principle of consistency---Applicability---Acquittal of co-accused---Hand writing comparison, absence of---Accused was an official of Capital Development Authority and was convicted and sentenced to imprisonment for 10 years by Trial Court on the allegations of misuse of his authority---Validity---Prosecution did not get compared handwriting available on withdrawal slips in order to establish that amount was withdrawn and then deposited by same person---Co-accused was acquitted by Trial Court regarding his asset beyond means--- In absence of any proof that amounts deposited by accused or any other person on his behalf in his account were outcome of corruption or corrupt practices or it was a legitimate amount---High Court set aside the conviction and sentence awarded to accused and acquitted him of the charge, as prosecution failed to prove mens rea which was an essential component of S. 9(a)(vi) of National Accountability Ordinance, 1999--- Appeal was allowed accordingly.

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

----S. 14---Innocence---Burden to prove---Principle---Burden to prove innocence under S. 14 of National Accountability Ordinance, 1999, rests with accused but initial burden to make up a prima facie case always lies with prosecution.

Muhammad Waqas Magray for Appellant (in Criminal Appeal No. 2291-E of 2010).

Rai Tajamal Hussain for Appellants (in Criminal Appeal No. 2438-E of 2010) with Appellant in person (in Criminal Appeal No. 2455-E of 2010).

Hasnain Khursheed, Special Prosecutor NAB.

2022 P Cr. L J 1188

[Lahore (Multan Bench)]

Before Ali Zia Bajwa, J

AMEER BAKHSH---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and others---Respondents

Writ Petition No. 16880 of 2021, heard on 24th December, 2021.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 154---Justice of Peace, powers of---Information in cognizable cases---Scope---Petitioner assailed the dismissal of his application under S. 22-A, Cr.P.C.---Petitioner contended that respondent lady was his wife, she filed a suit for dissolution of marriage and got ex-parte decree, and on the next day of which, she contracted marriage with respondent without observing period of iddat, thus committed zina---Petitioner moved application before the Justice of Peace for the registration of FIR, but his application had been dismissed---Scope---Marriage of respondents could not be termed as a void (batil) marriage rather same would be an irregular (fasid) marriage---After holding that marriage of respondents was an irregular marriage, next point to be considered by the Court was to see as to whether such marriage amounted to commission of cognizable offence, as alleged by the petitioner---Under S. 4 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, the word 'married' qualified by the word 'validly' and a valid marriage was one which was effected abiding by all the Injunctions of Islam regarding Nikah, meaning thereby that any marriage which had been solemnized in an invalid manner, whether irregular or void, fell out of the phrase validly married as used in S. 4 of Ordinance, 1979---Such marriage could not exclude the sexual intercourse from the definition of 'Zina'---Situation had altogether been changed after the promulgation of Women (Criminal Laws Amendment) Act, 2006, by which word validly was consciously omitted by the Legislature---As per S. 4 of the Ordinance, 1979, a man and a woman are said to commit zina if they wilfully have sexual intercourse without being married to each other---Irregular marriage might have its own consequences under Muslim Personal Law but the same could not be treated as void and union of respondents, in consequence of Nihak, could not be regarded as a cognizable offence, as defined under S. 4 and punishable under S. 5 of the Ordinance, 1979, entailing penal consequences---No irregularity or illegality in the impugned order was found---Petition was dismissed, in circumstances.

Mst. Zahida Shaheen and another v. The State 1994 SCMR 2098; Kundan Mai v. The State PLD 1988 FSC 89; Fatima Bibi v. Station House Officer, Police Station Ichhra, Lahore and 9 others PLD 2005 Lah. 126 and Mst. Sughran v. Station House Officer and 2 others 2004 YLR 1229 rel.

Allah Ditta Kashif for Petitioner.

Haji Dilbar Khan Mahar, Assistant Advocate-General for the State.

Mian Muhammad Yaseen for Private Respondents.

2022 P Cr. L J 1214

[Lahore]

Before Aalia Neelum and Farooq Haider, JJ

SHER BAZ alias SHAHBAZ---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No. 57051 of 2021, decided on 20th September, 2021.

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

----S. 540---Power to summon material witness or examine person present---Re-summoning of witness---Filing of application at belated stage---Scope---Accused assailed order passed by trial court whereby it allowed the application of prosecution for re-summoning of Magistrate on the ground that controversy as to the date on which the application for identification parade was filed needed to be addressed---Held; contention of accused that the court could not exercise power of re-summoning any witness once that power was exercised could not be accepted nor could the power be whittled down merely on the ground that the prosecution had discovered laches at belated stage---Steps which the Trial Court took in the case for re-summoning witness could not be spurned down---Revision petition was dismissed.

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

----S. 540---Power to summon material witness or examine person present---Scope---Perusal of S. 540, Cr.P.C. goes to show that at any stage of proceedings, the Court has ample power to summon and examine a person as a witness or recall or re-examine any person already examined.

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

----S. 540---Power to summon material witness or examine person present---Scope---Oversight or mistake during conducting of case cannot be understood as lacuna and so can be corrected---Lacuna in prosecution case is not to be equated with the fallout of an oversight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses---Adage "to err is human" is the recognition of the possibility of making mistakes to which humans are proved---Lacuna in the prosecution must be understood as the inherent weakness in the matrix of the prosecution case---Advantage of lacuna should normally go to the accused in the trial of the case, but an oversight in the prosecution cannot be treated as irreparable lacuna---Function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.

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

----S. 540---Power to summon material witness or examine person present---Scope---Power of the court is plenary to summon or even recall any witness at any stage of the case if the court considers it necessary for a just decision.

2022 P Cr. L J 1233

[Lahore (Bahawalpur Bench)]

Before Syed Shahbaz Ali Rizvi and Farooq Haider, JJ

MUHAMMAD AKHTAR and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 398 and 405 of 2016, heard on 18th June, 2019.

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

----S. 9(c)--- Recovery of narcotic substance--- Appreciation of evidence---Benefit of doubt---Prosecution case was that twenty five bags of bhang weighing one maund each was recovered from the possession of the accused persons---As per fard biyan/complaint that allegedly 25-bags of bhang were recovered from the possession of the accused persons and the same were taken into possession by complainant in presence of two recovery witnesses vide recovery memo---Recovery witness during cross-examination stated that the alleged bhang was not recovered from the exclusive possession of any of the accused---Similarly, other recovery witness stated that as the accused present in the court were present besides the Boras therefore, he presumed that they were the owners of those Boras---Informer did not point out the place of occurrence---From the perusal of the said portions of statements of recovery witnesses, it had been crystal clear that the alleged 25-bags of bhang were not recovered from the sole possession of the accused persons rather the same were lying on the bank of the road and recovered from there, which was an open place and accessible to everyone---Complainant deposed before the court that bhang was not recovered from exclusive possession of accused but was recovered from all the persons present in the court---Prosecution could not produce any witness to prove that said bhang was brought by present accused at alleged place of recovery, when brought and from whom brought---Circumstances established that the prosecution failed to prove its case against the accused---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court, 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)---Recovery of narcotic substance---Appreciation of evidence---Benefit of doubt----Chemical analysis---Delay of about seven months in sending the samples for chemical analysis---Effect---Prosecution case was that twenty five bags of bhang weighing one maund each was recovered from the possession of the accused persons---Record showed that the bhang was sent to the Forensic Science Agency with the delay of about seven months---No explanation whatsoever had been given by the prosecution---Although rule in that regard was directory yet in peculiar facts and circumstances of the case, said delay raised eyebrows---Circumstances established that the prosecution failed to prove its case against the accused---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

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

----S. 9(c)--- Possession of narcotics--- Appreciation of evidence---Benefit of doubt---Safe custody and transmission of samples of the narcotic from the police to the Chemical Examiner was not established---Effect---Prosecution case was that twenty five bags of bhang weighing one maund each was recovered from the possession of the accused persons---Statement of Moharir clearly revealed that he only received twenty five sealed parcels of samples which he statedly transmitted to the office of Forensic Science Agency and never received remaining case property---Case property was neither received by Moharir nor kept by him in safe custody---Report of Forensic Science Agency itself got exhibited by the prosecution, did not reflect that said parcels of samples were sent back from the Forensic Science Agency, yet same had been produced in the court---Said parcels of samples were never deposited in the office of Forensic Science Agency---Safe custody of parcels of samples from point/date of recovery to its receipt in Forensic Science Agency had not been proved, in circumstances---Safe custody of case property from recovery to its production in the court had not been proved---Proving unbroken chain of safe custody of case property and parcel of sample was necessary for conviction in narcotics case, because recovery in such cases was not mere corroboratory piece of evidence rather it constituted the charge and entailed punishment---If said unbroken chain of safe custody had not been proved, then it was fatal for the case of prosecution---Circumstances established that the prosecution had been failed to prove its case against the accused---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

The State through Regional Director ANF v. Imam Bakhsh 2018 SCMR 2039 and Abdul Ghani and others v. The State and others 2019 SCMR 608 rel.

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

----S. 9(c)--- Possession of narcotics--- Appreciation of evidence---Maxim: falsus in uno falsus in omnibus---Applicability---Co-accused persons of the present accused were allegedly present with the accused as their companions at the place of occurrence but they had been acquitted by the Trial Court vide impugned judgment---Same case of prosecution and same set of witnesses had not been believed against them---Falsus in uno falsus in omnibus would be applicable in deciding criminal cases---Co-accused persons when acquitted then, same set of witnesses could not be relied upon against present accused persons---Circumstances established that the prosecution failed to prove its case against the accused---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

Notice to Police Constable Khizer Hayat son of Hadait Ullah: In the matter of PLD 2019 SC 527 rel.

Syed Zeeshan Haider, Muhammad Imtiaz Baloch and Muhammad Sharif Bhatti for Appellants.

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

2022 P Cr. L J 1254

[Lahore (Multan Bench)]

Before Muhammad Tariq Nadeem, J

JAMSHAID AHMAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 3867-B of 2021, decided on 13th July, 2021.

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

----S. 498---Penal Code (XLV of 1860), Ss. 186, 354, 382, 384, 506(2), 148 & 149---Obstructing public servant in discharge of public functions, assault or criminal force to woman with intent to outrage her modesty, theft after preparation made for causing death, hurt or restraint in order to commit theft, extortion, criminal intimidation, rioting, armed with deadly weapon, common object---Pre-arrest bail, grant of---Delayed FIR---Non-availability of medical evidence---Rule of consistency---Scope---Complainant held up the FIR with a postponement of two days for which he had not outfitted any clarification---Complainant had explicitly claimed that the accused slapped two prosecution witnesses however, they did not get themselves medically examined---Clinical proof was imperative for certification of the visual record---Co-accused had been granted bail after arrest by the Magistrate---Role attributed to the accused was almost identical to that of his said co-accused---Prosecution lacked sufficient incriminating material to connect the accused with the commission of alleged offences and chances of his false implication with deliberation after consultation could not be ruled out---Accused had joined the police investigation and reportedly there was no misuse of concession of pre-arrest bail, therefore, the accused had made out a case for grant of pre-arrest bail---Petition for grant of pre-arrest bail was accepted, in circumstances.

Khair Muhammad and another v. The State through P.G. Punjab and another 2021 SCMR 130 rel.

Muhammad Razam v. Zafar Ullah and another 1986 SCMR 1380 and Fida Hussain v. State and others 2010 MLD 313 ref.

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

----Ss. 503 & 506---Criminal intimidation---Scope---Danger simpliciter does not establish criminal intimidation except if it is proposed to cause or causes an individual or any one in whom he is intrigued to do any demonstration which he lawfully will undoubtedly do, or to discard to do any demonstration which that individual is legitimately qualified for doing, as the method for keeping away from execution of such danger.

Syed Ali Asghar Shah v. The State 1988 PCr.LJ 270; Manzoor Ahmad and others v. The State 2010 MLD 291 and Muhammad Riaz alias Dinga and others v. The State and another 2011 PCr.LJ 615 ref.

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

----S. 498---Pre-arrest bail---Scope---Concession of pre-arrest bail being an extra ordinary relief is to be granted to protect the innocent persons from the victimization and humiliation at the hands of police through abuse of law for ulterior motive---Even otherwise, if an accused person has a good case for post arrest bail mere at the wish of complainant, he cannot be sent behind the bars for few days by dismissing his application for pre-arrest bail.

Shahzada Qaiser Arfat alias Qaiser v. The State and others PLD 2021 SC 708 rel.

Sheikh Jamshaid Hayat for Petitioner.

2022 P Cr. L J 1268

[Lahore (Multan Bench)]

Before Ali Zia Bajwa, J

IRFAN alias IMRAN alias KADU---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 478 of 2012, heard on 8th September, 2021.

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

----S. 376---Rape---Appreciation of evidence---Benefit of doubt---Presence of the witnesses at the time and place of occurrence was doubtful---Scope---Accused was charged for committing rape with the mentally retarded daughter of the complainant---Ocular account of the occurrence had been furnished by maternal uncle and cousin of the complainant---Both the said witnesses were related inter-se, as well as to the complainant and victim---In that background, their presence at the place of occurrence at the relevant time and response shown by them on hearing the hue and cry raised by the victim, as well as their reaction to rescue the victim and catch hold of the perpetrator, when admittedly he was not armed with any firearm weapon, was of pivotal importance---Statements of the said witnesses were at variance qua their reaction on attracting to the place of occurrence and seeing the accused allegedly in naked condition---One of the witnesses claimed that they put effort to apprehend the accused, however, he fled away---Another important aspect of the case was that although both the prosecution witnesses were closely related to the victim but on reaching house of the complainant, they opted to wait for his return and didn't report the matter to the police promptly---Record did not disclose whether they had attempted to make any effort whatsoever to establish contact with the complainant through phone to inform him about such a shocking occurrence---Both the prosecution witnesses were inconsistent with regard to distance between the place of occurrence and house of the victim---All the said facts when taken conjointly created dents with regard to presence of the prosecution witnesses at the place of occurrence as claimed by them---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

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

----S. 376---Rape---Appreciation of evidence---Benefit of doubt---Medical evidence---Scope---Accused was charged for committing rape with the mentally retarded daughter of the complainant---According to prosecution version was that occurrence took place at 3:00 p.m.---Medical Officer medically examined the victim on next day at 4:20 p.m.---Important aspect of the case was that at the time of medical examination of the victim, the Medical Officer obtained vaginal swabs, which were dispatched to the Centre for Applied Molecular Biology Laboratory along with her Shalwar, blood samples of the victim and the accused---DNA report available on record suggested that sperm fractions in vaginal swabs and stains on the shalwar did not match with the profile of the accused rather sperm fractions were of some unknown person---DNA profile revealed that sperm fractions obtained from vaginal swabs and stains on the shalwar of the prosecutrix were of one unknown male, which meant that although victim was subjected to sexual assault by some unknown person but it was not the accused---When it was observed by the Forensic Scientist that the sperm fraction extracted from vaginal swabs was identical to the sperm fraction extracted from the stains available on shalwar of the victim, which were of some other person rather than that of the accused, it shall prove fatal to the prosecution case---In the present case best possible evidence available was DNA test, which did not support the prosecution version, rather it was sufficient to demolish the edifice of prosecution case---Although DNA report was exhibited in evidence and was also put to accused under S. 342, Cr.P.C. but trial judge did not utter a single word qua that report, either to accept it or discard the same, while pronouncing the impugned judgment of conviction---Such indifferent attitude of the Trial Court, which resulted in conviction of present accused, was in conflict with the fundamental norms of justice and right to fair trial as guaranteed under Art. 10-A of the Constitution---High Court observed that every court of law was obliged to consider entire evidence available on the record before pronouncing a judgment of conviction or acquittal---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Ali Haider alias Papu v. Jameel Hussain and others PLD 2021 SC 362; Naveed Asghar and 2 others v. The State PLD 2021 SC 600 and State of U.P. v. Anil Singh AIR 1988 SC 1998 rel.

(c) Criminal trial---

----Benefit of doubt---Principle---Not necessary that there should be several circumstances, rather one reasonable doubt was sufficient to acquit an accused, not as a matter of grace but as a right.

Ayub Masih v. The State PLD 2002 SC 1048; Najaf Ali Shah v. The State 2021 SCMR 736 and The State through P.G. Sindh and others v. Ahmed Omar Sheikh and others 2021 SCMR 873 rel.

Ghulam Farid Gurmani for Appellant.

Ansar Yasin, Deputy Prosecutor General for the State.

Nemo for the Complainant.

2022 P Cr. L J 1293

[Lahore]

Before Tariq Saleem Sheikh, J

MARATAB MUKHTAR---Petitioner

Versus

GOVERNMENT OF THE PUNJAB and others---Respondents

Writ Petition No. 27790 of 2021, heard on 3rd March, 2022.

Criminal Procedure Code (V of 1898)---

----Ss. 464 & 465---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Constitution of Pakistan, Art. 199---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Application of petitioner for constituting Provincial Standing Medical Board had been turned down by the Magistrate---Scope---Petitioner claimed that he sustained firearm injuries at the hands of respondent who was armed with .30-bore pistol---Medico-Legal Certificate of the petitioner issued by Medical Officer showed that injuries were caused by firearm---Respondent challenged that Medico-Legal Certificate before the Area Magistrate who ordered the petitioner's re-examination by the District Standing Medical Board---Said District Standing Medical Board gave an opinion that the injuries were not by firearm---Petitioner moved the Magistrate for making a reference to the Provincial Standing Medical Board---Magistrate declined the request---Validity---Petitioner had alleged that one of the respondents exerted political pressure on the District Standing Medical Board to procure the impugned report but had not furnished any details---Allegation was, therefore, rejected being vague and unsubstantiated---District Standing Medical Board's opinion was deficient in material particulars---Firstly, it had mentioned that the petitioner's clothes which he wore at the time of the incident did not relate to the use of firearm but had not explained how---Secondly, there was no suggestion that the petitioner's injuries were fabricated---District Standing Medical Board had not stated what type of weapon could have been possibly employed if it was not firearm---As adumbrated, that was a case of two versions, one set out in the FIR by said respondent and the other by the petitioner's side---Reference to the Provincial Standing Medical Board was necessary to dig out the truth which was the basic object of every inquiry and trial---Petition was accepted and re-examination of the petitioner by the Provincial Standing Medical Board was ordered, in circumstances.

Muhammad Rizwan v. The State and others 2017 MLD 1828; State of Himachal Pradesh v. Jai Lal and others (1999) 7 SCC 280; State of Haryana v. Bhagirath and others AIR 1999 SC 2005 and Mrs. Karen Louise Oakley v. South Cambridgeshire District Council [2017] EWCA Civ 71 rel.

Hassan Iqbal Warraich for Petitioner.

Mudassar Elahi Warraich, Assistant Advocate General, with Dr. Awais Gohar, Additional Secretary Technical, Mohsin Ehsan and Aleem Cheema, Law Officers, P&SHD and Dr. Ghulam Shabbir Tahir, Medical Superintendent, DHQ Hospital, Sargodha for Respondents Nos. 1 - 4 and 6.

Mehr Saifullah Lak for Respondent No. 5.

Date of hearing: 3rd March, 2022.

"The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public."

2022 P Cr. L J 1318

[Lahore (Multan Bench)]

Before Sohail Nasir and Ahmad Nadeem Arshad, JJ

MUNAWWAR IQBAL alias LALU---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos. 581, 1131, 1136-J, 1137-J, 1138-J and 1140-J of 2019 and 608 of 2021, heard on 24th November, 2021.

Criminal Procedure Code (V of 1898)---

----S. 397---Sentence in case of conviction of several offences at one trial---Sentences to run concurrently---Scope---Accused assailed his conviction under Ss. 9(b) & 9(c) Control of Narcotic Substances Act 1997---Accused had been convicted and sentenced in all the cases by one and the same court---Although accused was convicted on one and the same date by one and the same Trial Court, but the moment he was convicted in second case, he was to be considered to be sentenced in earlier case and that would go on till he was convicted in the last case---Trial Court while convicting the accused in all cases skipped the said provision of S. 397, Cr.P.C.---Accused deserved for the benefit thereof---Appeals were dismissed with direction by the High Court that accused would be entitled for benefit under S. 397, Cr.P.C. and his sentences in all the cases would run concurrently.

Shaista Bibi and another v. Superintendent Central Jail Mach and 2 others PLD 2015 SC 15 and Rahib Ali v. The State 2018 SCMR 418 rel.

Prince Rehan Iftikhar Sheikh for Appellant.

Shahid Aleem, Additional Prosecutor General for the State.

2022 P Cr. L J 1327

[Lahore]

Before Muhammad Tariq Nadeem, J

MUHAMMAD SAIFULLAH CHEEMA---Petitioner

Versus

UMER HAYAT and 2 others---Respondents

Criminal Miscellaneous No. 56789-CB of 2021, decided on 18th October, 2021.

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

----S. 497(5)---Penal Code (XLV of 1860), S. 406---Criminal breach of trust---Bail, cancellation of---Scope---Prosecution sought cancellation of bail granted to accused persons---Prosecution case was that the accused persons had misappropriated the share of complainant in agricultural produce---Dispute between the parties was of civil nature and the complainant was trying to get the same resolved through criminal proceedings, which could not be allowed---Entrustment of property was sine qua non to attract S. 406 of P.P.C. which was lacking in the case---Broken promise did not constitute a criminal offence---Petition for cancellation of bail was dismissed, in circumstances.

Shahid Imran v. The State and others 2011 SCMR 1614 ref.

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

----S. 406---Criminal breach of trust---Scope---Broken promise does not constitute a criminal offence.

Shahid Imran v. The State and others 2011 SCMR 1614 ref.

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

----S. 497(5)---Cancellation of bail---Scope---Considerations for grant of bail and those for its cancellation are entirely different---Grounds which are taken into consideration for cancellation of bail, detailed.

Ordinarily following grounds are taken into consideration for cancellation of bail.

(1) That the accused has misused the concession of bail and is causing fear and alarm to the complainant and the prosecution witnesses:

(2) That there is likelihood of witnesses being won over and their evidence being tampered with;

(3) That there is likelihood of repetition of the commission of crime which the accused had allegedly committed;

(4) That the accused was likely to abscond; and

(5) That the order granting bail was arbitrary, capricious and against the evidence with the prosecution.

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

----S. 497(5)---Cancellation of bail---Scope---Once bail is granted on merits by the court of competent jurisdiction, very strong and exceptional circumstances are required to cancel the same.

Abdul Rasheed Khan v. Zahoor Ahmed Malik and others PLD 2011 SC 210 ref.

Sami Ullah and another v. Laiq Zada and another 2020 SCMR 1115; Mir Muhammad and others v. NAB through Chairman and others 2020 SCMR 168; Gulshan Ali Solangi and others v. The State through P.G. Sindh 2020 SCMR 249 and Muhammad Yaqoob v. Senior Superintendent of Police Gujranwala and 2 others PLD 2000 Lah. 421 distinguished.

Barrister Usman G. Rashid Cheema for Petitioner.

2022 P Cr. L J 1334

[Lahore (Multan Bench)]

Before Sadaqat Ali Khan and Shehram Sarwar Ch., JJ

MUHAMMAD SAJID---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 513-J of 2018 and Murder Reference No. 23 of 2017, heard on 8th September, 2021.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of about nine hours and forty five minutes in lodging the FIR---Scope---Accused was charged that he along with co-accused committed murder of the daughter of complainant---Record showed that the occurrence in the case allegedly took place at 04:00 a.m. (morning) whereas the matter was reported to the police on the same day at 01:45 p.m. (noon)---Distance between police station and the place of occurrence was eleven miles---Delay of about nine hours and forty five minutes in reporting the crime to the police without any plausible explanation---Complainant and witnesses did not utter even a single word about the said delay---Inordinate delay in setting the machinery of law in motion spoke volumes against the veracity of prosecution version---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.

Altaf Hussain v. The State 2019 SCMR 274 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 thirteen hours in conducting post-mortem examination of the dead body of the deceased---Scope---Accused was charged that he along with co-accused committed murder of the daughter of complainant---Undisputedly, the post-mortem examination of the dead body of the deceased was conducted about thirteen hours after the occurrence---Such noticeable delay normally occasioned due to incomplete police papers necessary to be handed over to the Medical Officer to conduct the post-mortem examination of dead body of the deceased, which happened only when the complainant and police remained busy in consultation and preliminary inquiry regarding the culprits in such cases of un-witnessed occurrence---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.

Irshad Ahmed v. The State 2011 SCMR 1190 and Nazeer Ahmed v. The State 2016 SCMR 1628 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Chance witnesses---Scope---Accused was charged that he along with co-accused committed murder of the daughter of complainant---Admittedly, complainant had not seen the incident and her testimony was based on hearsay evidence, therefore, the same was excluded from consideration---Ocular account in the case consisted of two witnesses, who were related to the deceased being her maternal cousin and paternal uncle respectively and were chance witnesses because they were neither residents of the place of occurrence nor had any place of business over there---Case of prosecution, in the FIR as well as before the Trial Court, was that the occurrence took place in the house of accused at odd hours of night and at the time of incident said witnesses were present there but none of them tried to capture the accused---Had said witnesses been present at the spot, they could have easily overpowered the accused because it was not the case of the prosecution that at the time of incident, accused was armed with any firearm---No convincing or plausible reason was assigned by witnesses for their presence at the place of occurrence---Eye-witnesses had failed to establish their presence on the place of occurrence at relevant time---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.

(d) Criminal trial---

----Witness--- Chance witness--- Scope--- Testimony of a chance witness ordinarily was not accepted unless justifiable reasons were shown to establish his presence at the crime scene at the relevant time.

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

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Motive not proved---Scope---Accused was charged that he along with co-accused committed murder of the daughter of complainant---Motive behind the occurrence as alleged in the FIR and stated before the Trial Court was that the accused and his mother used to quarrel with deceased because of her previous divorce and due to that grudge the accused along with co-accused committed the murder of the deceased---Investigating Officer had stated before Trial Court in his cross-examination that the complainant party did not produce any independent witness in order to prove the motive part---Quarrel between the spouses was not unusual---No independent witness qua motive was produced by prosecution before the Trial Court during trial---Prosecution had failed to prove motive against 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.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence---Scope---Accused was charged that he along with co-accused committed murder of the daughter of complainant---In the present case, rope/string was recovered at the instance of the accused, however, the same was immaterial because it was ordinary thing easily available in the market---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.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Medical evidence---Scope---Accused was charged that he along with co-accused committed murder of the daughter of complainant---Medical evidence produced by the prosecution was not of much avail to the prosecution because the murder in issue had remained un-witnessed---Medical evidence could not point an accusing finger towards any of the culprits implicated in the case---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 Saleem v. Shabbir Ahmad and others 2016 SCMR 1605 rel.

Prince Rehan Iftikhar Sheikh for Appellant.

Adnan Latif Sheikh, Deputy Prosecutor General for the State.

Nemo for the Complainant.

2022 P Cr. L J 1349

[Lahore]

Before Farooq Haider, J

MUHAMMAD IBRAHIM---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal Revision No. 49779 of 2021, heard on 7th October, 2021.

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

----S. 540---Penal Code (XLV of 1860), Ss. 302, 324, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Application for summoning the Ballistic Expert as witness was dismissed---Scope---Record showed that Medical Officer appeared during trial---Statement of said witness reflected that certain questions relating to the field of forensic science were asked from said witness but he did not give detailed explanation in his reply to said questions while clearly stating that he was not Ballistic Expert---When said questions were asked from said witness then neither those were objected by prosecution nor disallowed by the Trial Court---Meaning thereby said questions were related to facts of the case i.e. relevant---Trial Court did not compel said witness to reply said question then Trial Court was of the view and satisfied that answers to said questions could only be given by the Ballistic Expert---When application for summoning Ballistic Expert as court witness was filed before the Trial Court then there was no occasion for disallowing said application---Court had straightaway observed that in peculiar facts and circumstances of the case, said questions were relevant and reply of the same was necessary for just decision of the case---Said questions could be answered by Ballistic Expert---In the peculiar facts and circumstances of the case, summoning and examining of Ballistic Expert as a court witness was necessary for just decision of the case and the same would not cause prejudice to any party of the case because when he would be summoned and examined as court witness, then both parties would be offered opportunity of cross-examining him---Revision petition was allowed, in circumstances.

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

----S. 540---Summoning of witness--- Purpose and scope--- For summoning any witness under S. 540, Cr.P.C., availability of his name in the calendar of witnesses was not necessary---Absence of name of witness in the calendar of witnesses did not debar the court from summoning said witness---Consideration for summoning of any witness in a case under S. 540, Cr.P.C. was that his evidence was necessary for just decision of the case.

Ansar Mehmood v. Abdul Khaliq and another 2011 SCMR 713; Chairman, NAB v. Muhammad Usman and others PLD 2018 SC 28; Ibrahim alias Ibro alias Khalifa v. The State 1968 SCMR 1240; Karam Din v. Abdul Aziz and 11 others PLJ 2004 SC 642 and The State v. Muhammad Yaqoob and others 2001 SCMR 308 rel.

Malik Muhammad Waqas for Petitioner.

Muhammad Moeen Ali, Deputy Prosecutor General for the State.

Ghulam Yasin Tahir for Respondent No. 2/Complainant.

2022 P Cr. L J 1371

[Lahore]

Before Syed Shahbaz Ali Rizvi, J

DAD KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 55111-B of 2021, decided on 27th September, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497---Customs Act (IV of 1969), Ss. 2(s), 16, 156(1)(77), 156(1)(85), 156(1)(89), 156(1)(92), 157 & 187---Smuggling, assault on customs official, carrying smuggled goods and intimidating customs officials---Bail, refusal of---Desperate conduct---Scope---Allegation against accused was that when the trailer loaded with container of smuggled goods was signaled to stop, he along with co-accused while armed with their respective weapons came at the spot, attacked the customs staff, started firing to snatch the container and during scuffle an Intelligence Customs Officer was injured---Held; though the offences punishable under the Customs Act, 1969 with which the accused was charged did not fall within the prohibitory clause of S. 497, Cr.P.C. and in such like cases, grant of bail was a rule, yet there were exceptional circumstances available in the case---Violent, aggressive and desperate purported conduct of the accused disentitled him to the grant of post-arrest bail---No mala fide on the part of the complainant, the recovery witnesses and the injured Customs Intelligence Officer could be surfaced during the arguments---Petition for grant of bail was dismissed, in circumstances.

Asghar Ali Gill for Petitioner.

Ms. Amna Parveen, Special Prosecutor Customs.

Nisar Ahmad Virk, Deputy Prosecutor General.

2022 P Cr. L J 1382

[Lahore]

Before Muhammad Ameer Bhatti, C.J. and Tariq Saleem Sheikh, J

MUHAMMAD ZUBAIR WASEEM---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Nos. 47481-B and 46985-B of 2021, decided on 8th September, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 365-A---Police Order (22 of 2002), Art. 155(c)---Kidnapping or abducting for extorting property, valuable security---Misconduct by police officers---Bail, grant of---Contradictory statements---Scope---Accused persons were alleged to have abducted complainant's brother and demanded ransom amount---Place of abduction according to complainant was the abductee's house whereas the abductee had described his residence at another district---Abductee in his statement under S. 164, Cr.P.C. had alleged that the accused persons had withdrawn certain amount from his account through ATM but no material was collected by the Investigating Officer in that regard---Complainant had alleged that he had received phone call for ransom from the cell number of abductee whereas the abductee had stated that the accused persons had never talked directly to his brother---Such contradictions had brought the case of accused persons within purview of further inquiry---Two of the co-accused persons having identical role were enlarged on pre-arrest bail, as such, the accused persons also deserved the same relief---Petitions for grant of bail were accepted, in circumstances.

Ch. Farooq Mahmood Kahloon, Lala Nasir Ali Mughal and Rashid Sohail Mehar for the Petitioner (in Crl. Misc. No.47481-B of 2021).

Ch. Muhammad Hussain, Vice Counsel for the Petitioner (in Crl. Misc. No.46985-B of 2021).

Ch. Sarfraz Ahmad Khatana, Deputy Prosecutor General, with M. Riaz, Inspector for the State.

2022 P Cr. L J 1396

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi and Ch. Abdul Aziz, JJ

IFTIKHAR ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 343 and Capital Sentence Reference No. 5 of 2019, decided on 1st February, 2022.

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

----Ss. 376 & 506---Rape, criminal intimidation---Appreciation of evidence---Delay of two days in lodging FIR---Scope---Accused was charged for committing rape with the daughters of complainant and intimidated with dire consequences if his misdeeds were reported to anyone---Complainant though approached police for reporting the crime through written application after two days of the incident but such delay was properly explained during trial, thus could not be used to the detriment of prosecution---According to the explanation, complainant was flabbergasted to see the event and since perpetrator was her real brother, thus she approached mother who further advised to maintain silence for the time being---Since the mother of the complainant remained unmoved in next two days probably to save the skin of her son, hence the application for registration of case was moved so late---Even if the said explanation was discarded still the reluctance of complainant to approach police as the unfortunate saga was destined to have long lasting stigma on the future of her daughters---If at all the story of crime was nothing but a jumble of lies knitted with some sinister design of settling personal grouse, the complainant should have approached the police on the same day when she conceived the design of getting a false case registered against the accused---Delay of two days in reporting the crime to police shed no doubt upon the prosecution case, in circumstances---Even otherwise, the delay in reporting the crime in rape cases became insignificant as families showed reluctance to come forward to promptly report the matter because of trauma, the victims suffered and due to shame or dishonour in having invasively examined by a doctor---Circumstances established that the prosecution had proved its case against the accused without any shadow of doubt---Appeal was dismissed accordingly.

Zahid and another v. The State 2020 SCMR 590 rel.

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

----Ss. 376 & 506---Rape, criminal intimidation---Appreciation of evidence---Ocular account---Scope---Accused was charged for committing rape with the daughters of complainant and intimidating with dire consequences if his misdeeds were reported to anyone---Complainant appeared in the witness box with the claim of having seen the accused committing rape of her daughter---Such stance of the complainant was amply supported by both the victims through their respective depositions before the Trial Court---Girls/victims who though were minors but while appearing in the Court stood firm and narrated the detail of their miseries and went on to depose about vaginal penetration---Father of both the victims had a son from his previous marriage and during trial an attempt was made to hold him responsible for the allegation of rape but both the victims vociferously discarded it---Victims even during trial budged not a single pace from their stance of having been sexually mutilated by their paternal uncle/accused---Evidence of complainant as well as of the two victims had been eloquently examined but did not come across any legal infirmity about their veracity---Testimony of a victim showed that she not only narrated the ordeal of her sexual sufferings without any ambiguity but she also responded to the cross-examination with coherent answers; it could safely be gathered from the deposition of said victim that she was in no manner handicapped to appear as a witness so as to be adjudged as incompetent to testify in terms of Art. 3 of Qanun-e-Shahadat, 1984---In the absence of any legal disability of said victim in terms of Art. 3, her deposition was admissible and could be based for upholding the conviction---Circumstances established that the prosecution had proved its case against the accused without any shadow of doubt---Appeal was dismissed accordingly.

Muhammad Ismail and another v. The State 1995 SCMR 1615; Mst. Razia alias Jia v. The State 2009 SCMR 1428; The State v. Muhammad Boota 2014 YLR 306 and Mst. Imam Sain and others v. The State 2015 YLR 17 rel.

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

----Ss. 376 & 506---Rape, criminal intimidation---Appreciation of evidence---Medical evidence---Scope---Accused was charged for committing rape with the daughters of complainant and intimidating with dire consequences if his misdeeds were reported to anyone---Medical evidence in that case was furnished by Medical Officer who examined the victim of rape---So far as one victim was concerned, the Medical Officer observed slight redness of vagina, anus and opined about hymen as ruptured---Case of other victim was no different and according to Medical Officer, her hymen was not intact rather ruptured, old torn and found vagina loose due to multiple attempts---From the symptoms so observed by Medical Officer it could inevitably be held that both the girls were subjected to rape and as a necessary corollary, their depositions rang true---During medical examination of victims vaginal and anal swabs were taken which along with their clothes later were forwarded to Forensic Science Agency for DNA analysis---In-depth perusal of DNA report unfolded that from the trouser and shirt of a victim, the semen stains were detected which matched with the DNA profile of the accused---Though the internal and external vaginal swabs were not found to have some semen stains but it was quite natural as the accused must have resorted to safe sex, realizing the consequences of conceiving the pregnancy---Sexual mutilation of both the girls was satisfactorily proved from their confidence inspiring depositions and supporting medical evidence, according to which their hymens were found ruptured---Circumstances established that the prosecution had proved its case against the accused without any shadow of doubt--- Appeal was dismissed accordingly.

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

----Art. 3---Child witness---Competency---Scope---While adjudging the competency to testify in terms of Art. 3 of Qanun-e-Shahadat, 1984, a distinction is to be drawn between a child witness and a child victim---So far as, a child who witnessed a crime committed against some other person, his power to observe the incident and ability to transform it in deposition called for a vigilant judicial observance---Such child witness could on occasions be influenced through tutoring for narrating a false account of the incident, thus his evidence was to be subjected to a strict scrutiny of appraisal---On the other hand, a child who himself fell victim to a crime more so of sexual assault and successfully narrated his sufferings, beside competently standing the test of cross-examination by responding rationally to the questions put to him, his deposition was to be generally accepted---Circumstances established that the prosecution had proved its case against the accused without any shadow of doubt---Appeal was dismissed accordingly.

Raja Khurram Ali Khan and 2 others v. Tayyaba Bibi and another PLD 2020 SC 146 rel.

Muhammad Ilyas Siddiqui for Appellant.

Sajjad Hussain Bhatti, Deputy Prosecutor General for the State.

2022 P Cr. L J 1437

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh and Farooq Haider, JJ

Mst. KANEEZ MAI---Petitioner

Versus

JUDGE, ANTI-TERRORISM COURT and others---Respondents

Writ Petition No. 716 of 2020, decided on 22nd February, 2021.

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

----Ss. 200, 201, 202, 203 & 204---Examination of complainant---Magistrate not competent to take cognizance of the case---Procedure---Postponement of issue of process---Dismissal of complaint---Issue of process---Scope---After receipt of complaint, if complaint is made in writing to a Magistrate, who is not competent to take cognizance of the same, he shall return the complaint for presentation to the proper court under S. 201 of Cr.P.C.---However, after receipt of complaint by the Magistrate, who is competent to take cognizance of the case, Magistrate, at the time of taking cognizance on a complaint, has to at once examine the complainant upon oath and reduce the substance of the examination to writing, which shall be signed by the complainant as well as Magistrate---Thereafter, Court can postpone the issuance of process for compelling the attendance of the person complained against and either inquire into the case itself or direct any inquiry or investigation to be made by the Justice of Peace or by a police officer or by such other person for the purpose of ascertaining the truth or falsehood of the complaint---Court may dismiss the complaint if after statement of the complainant recorded on oath and result of investigation or inquiry, if any, under S. 202, Cr.P.C., in judgment of the Court there is no sufficient ground for proceeding---If Court considers that there is sufficient grounds for proceeding, then it shall issue process for attendance of the accused in the complaint.

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

----S. 19---Criminal Procedure Code (V of 1898), S. 190---Procedure and powers of Anti-Terrorism Court---Cognizance of offences by Magistrate---Scope---Anti-Terrorism Court directly takes cognizance of the case triable by it without being sent to it under S. 190 of Cr.P.C.

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

----S. 19---Criminal Procedure Code (V of 1898), S. 200---Procedure and powers of Anti-Terrorism Court---Examination of complainant---Scope---Petitioner had filed a complaint before the Anti-Terrorism Court while clearly mentioning in the same that her two minor paternal grand-daughters were abducted on gun point and thereafter ransom was received for release of the minors, which was paid by the petitioner but even then they were not released---Proper course to be adopted for Judge, Anti-Terrorism Court after receipt of the complaint was to at once examine the complainant upon oath under S. 200, Cr.P.C. and then to proceed further in accordance with law---Judge, Anti-Terrorism Court, had adopted method after receipt of complaint by dismissing the same after hearing preliminary arguments of the counsel---Impugned order was not sustainable in the eyes of law and the same was set aside---Matter was remanded to the Judge, Anti-Terrorism Court, for proceeding with the complaint in accordance with law---Constitutional petition was disposed of accordingly.

Hafiz Mian Muhammad Riaz for Petitioner.

Haji Dilbar Khan Mahar, Assistant Advocate General, Punjab.

2022 P Cr. L J 1451

[Lahore]

Before Muhammad Tariq Nadeem, J

SHAHBAZ alias GILLU---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 560-J of 2016, heard on 11th October, 2021.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt--- Delay of about two hours and forty minutes in lodging the FIR---Scope---Accused were charged that they in furtherance of their common object while armed with deadly weapon committed murder of the father of the complainant by firing---Motive behind the occurrence was that the accused persons wanted to compel complainant party for compromise in murder case of cousin of complainant which was registered against the acquitted accused and present accused and on their denial, the occurrence took place---As per contents of FIR, the alleged incident qua murder of father of the complainant took place at 09:50 p.m.---Matter was reported to the police at 12:30 a.m. about two hours and forty minutes after the incident---Distance between police station and the place of occurrence was nine kilometres---No plausible explanation for the said delay had been brought on record---While appearing before the Trial Court the prosecution witnesses did not utter even a single word about the said delay---Said delay in setting the machinery of law into motion spoke volumes against the veracity of prosecution version---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt--- Appeal against conviction was allowed, in circumstances.

Mst. Asia Bibi v. The State and others PLD 2019 SC 64; Muhammad Rafique v. The State 2014 SCMR 1698 and Altaf Hussain v. The State 2019 SCMR 274 rel.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt--- Delay of about nine hours in conducting post-mortem---Scope---Accused were charged that they in furtherance of their common object while armed with deadly weapon committed murder of the father of the complainant by firing---Record showed that post-mortem examination on the dead body of deceased was conducted on the following day at 07.05 a.m.---Medical Officer had opined that time between the death and post-mortem examination was eight to nine hours---Such was a case of delayed post-mortem, which casted serious doubt---High Court observed that such noticeable delay was normally occasioned due to incomplete police papers necessary to be handed over to the Medical Officer to conduct the post-mortem examination on dead body of the deceased which happened only when the complainant and police remained busy in consultation and preliminary inquiry regarding the culprits in such cases of un-witnessed occurrence---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Sufyan Nawaz and another v. The State and others 2020 SCMR 192; Irshad Ahmad v. The State 2011 SCMR 1190; Muhammad Ashraf v. The State 2012 SCMR 419 and Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327 rel.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Ocular account not proved---Scope---Accused were charged that they in furtherance their common object while armed with deadly weapon committed murder of the father of the complainant by firing---Ocular account of the incident in issue had been furnished by complainant and other witness as they were son and brother of the deceased, respectively---Said witnesses were residents of the same house where the deceased was residing---Evidence of said witnesses was not worthy of reliance on the ground that they had made false statement against the accused in order to wider the net because there was only one fire shot injury on the person of deceased---Both the witnesses with mala fide intention had ascribed the one injury to the accused which was an exit wound---Said fact indicated that they were not present at the time and place of occurrence---Said facts clearly demonstrated that both the witnesses were not truthful witnesses, thus, their present at the place of occurrence was highly doubtful and not believable---Witnesses were inimical towards accused due to the previous criminal litigation and were closely related to the deceased---Evidence of said witnesses was discarded---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Presence of eye-witnesses at the place of occurrence was doubtful---Scope---Accused were charged that they in furtherance of their common object while armed with deadly weapon committed murder of the father of the complainant by firing---Possession memo revealed that Investigating Officer secured four crime empties of .12 bore gun and 85 cartridges of Kalashnikov from the place of occurrence---Scaled site plan showed that the eye-witnesses were present at point No. 5 which was more closer to the assailants than the deceased---Witnesses were completely at the mercy of assailants but except the deceased none other had received any scratch---Said witnesses, therefore, were not present at the place of occurrence at the relevant time---Ocular account was not synchronized with the medical evidence--- Appeal against conviction was allowed, in circumstances.

Mst. Rukhsana and others v. Sajjad and others 2017 SCMR 596 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---Benefit of doubt---Source of light not taken into possession---Scope---Accused were charged that they in furtherance of their common object while armed with deadly weapon committed murder of the father of the complainant by firing---Although it had been narrated by eye-witnesses that they had seen the accused in the light of bulb but the Investigating Officer had not taken into possession any source of light---Prosecution had failed to establish the fact of availability of source of light and in absence of its inability to do so, the existence of such a light source could not be presumed---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt--- Appeal against conviction was allowed, in circumstances.

Gulfam and another v. The State 2017 SCMR 1189 rel.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Co-accused was acquitted on the basis of same set of evidence---Scope---Accused were charged that they in furtherance of their common object while armed with deadly weapon committed murder of the father of the complainant by firing---Record showed that the co-accused was acquitted of the charge by the Trial Court while extending benefit of doubt to him---According to the prosecution story co-accused was attributed fatal fire shot at the body of deceased but he had been acquitted by the Trial Court from the charge through the impugned judgment---Prosecution story revealed that role attributed to the accused was that he caused fire shot of Kalashnikov on the body of deceased which landed on the left side of lateral to abdomen and that was an exit wound as per opinion of Medical Officer as well as post-mortem report of the deceased---Eye-witnesses produced by the prosecution were capable of falsehood---No appeal either by the State or by the complainant against the acquittal of co-accused had been filed, as confirmed by the Deputy Prosecutor General---Admittedly, once prosecution witnesses were disbelieved with respect to a co-accused then they could not be relied upon with regard to the other accused unless they were corroborated by evidence coming from independent source and would be unimpeachable in nature but that was not available in the present case---Appeal against conviction was allowed, in circumstances.

Liaqat Ali and others v. The State 2021 SCMR 455 and Tariq Mehmood v. The State 2021 SCMR 471 rel.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Motive not proved---Scope---Accused were charged that they in furtherance of their common object while armed with deadly weapon committed murder of the father of the complainant by firing---Motive behind the occurrence was stated to be that the accused and his co-accused wanted to compel complainant party for compromise in murder case of complainant's cousin which was registered against acquitted accused and the present accused and on their denial the accused and his co-accused wanted to kill them so that the murder case of complainant's cousin might not be persued---No documentary evidence in support of the motive part was available---Prosecution had failed to prove the motive setup by it---Appeal against conviction was allowed, in circumstances.

Noor Muhammad v. The State 2010 SCMR 97 rel.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence on the pointation of accused---Reliance---Scope---Accused were charged that they in furtherance of their common object while armed with deadly weapon committed murder of the father of the complainant by firing---Record showed that the recovery of Kalashnikov at the pointation of accused was of no avail to the prosecution because there was no report of Forensic Science Agency with respect to said Kalashnikov---Recovery of weapon of offence was only a corroborative piece of evidence, and conviction could not be based merely on the corroborative piece of evidence---Prosecution had failed to connect the neck of the accused with the crime in any manner whatsoever---Appeal against conviction was allowed, in circumstances.

Akbar Ali and others v. The State and others 2021 SCMR 104; Naved Asghar and 2 others v. The State PLD 2021 SC 600 and Sardar Bibi and another v. Munir Ahmad and others 2017 SCMR 344 rel.

(i) Criminal trial---

----Benefit of doubt---Principle---Benefit of doubt must go to the accused as matter of right and not of grace.

Muhammad Mansha v. The State 2018 SCMR 772 and Muhammad Imran v. The State 2020 SCMR 857 rel.

Dr. Muhammad Ramzan Wattoo for Appellant.

Sultan Asghar Chattha, Deputy Prosecutor General for the State.

Complainant in person.

2022 P Cr. L J 1466

[Lahore]

Before Muhammad Tariq Nadeem, J

ALI RAZA---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 46912-B of 2021, decided on 9th August, 2021.

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

----S. 497--- Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Qanun-e-Shahadat (10 of 1984), Art. 38---Possession of narcotics---Statement to police officer not to be proved---Bail, grant of---Accused not in active possession---Scope---Accused was apprehended while accompanying co-accused who was carrying charas weighing 1520 grams---Narration of the FIR disclosed that recovery of the narcotic was affected from co-accused and the accused was only accompanying him---Mere fact that the accused was accompanying the principal accused did not establish that the contraband was in his active possession or even he had any knowledge about it---Accused was found connected in the case only on the statement of co-accused that charas was being supplied to him by petitioner, which was inadmissible in evidence and could not be relied upon---Admission of an accused before police could not be used against him under Art. 38 of the Qanun-e-Shahadat, 1984---Accused was awaiting his trial, the conclusion of which was not in sight in near future, as such, his further detention in jail would serve no useful purpose for the prosecution---Petition for grant of bail was allowed, in circumstances.

The State v. Syed Abdul Qayum 2001 SCMR 14 and Raja Muhammad Younas v. The State 2013 SCMR 669 rel.

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

----S. 29---Presumption from possession of illicit articles---Scope---General rule is that there is presumption that mens rea, an evil intention or a knowledge of wrongfulness of the act is an essential ingredient in every offence---Prosecution is duty bound to prove that the accused was knowingly in control of something in the circumstances, which showed that he was assenting to being in control of it.

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

----Art. 129(b)---Accomplice is unworthy of credit---Scope---Evidence of an accomplice is ordinarily regarded as suspicious; therefore, extent and level of corroboration has to be assessed keeping in view the peculiar facts and surrounding circumstances of the case.

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

----S. 497---Bail---Scope---Mere levelling of allegations of heinous offence is not sufficient to keep the accused behind the bars, once accused succeeds to establish that his case calls for further inquiry and probe.

Gul Hassan Dero v. The State 2000 PCr.LJ 657; Hadi Bux alias Hadoo v. The State 2000 PCr.LJ 714; Gul Zaman v. The State 1999 SCMR 1271; Tahir v. The State 2000 PCr.LJ 949; Dad Khan v. The State 2020 SCMR 2062; Noman alias Noma v. The State 2020 PCr.LJ Note 40; Shaukat Ali v. The State and others 2017 PCr.LJ 1020 and Atif-ur-Rehman v. The State and another 2021 SCMR 324 ref.

(e) Words and phrases---

----"Possession"--Meaning.

Black's Law Dictionary, Tenth Edition, Page 1351 and Muhammad Siddique J Jal ADA v. The State 1985 PCr.LJ 659 rel.

Afrasiab Mohal for Petitioner.

2022 P Cr. L J 1492

[Lahore (Rawalpindi Bench)]

Before Ch. Abdul Aziz and Sultan Tanvir Ahmed, JJ

MUHAMMAD SHAHID---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 234 of 2020, heard on 12th July, 2021.

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

----S. 9(c)---Transportation of narcotics---Nexus of accused with vehicle, proof of---Scope---Where accused was apprehended while sitting in a vehicle from which 10 cans of sulfuric acid were recovered, nexus between the accused and the vehicle was incumbently required to be proved in such cases---Vehicle was registered in the name of another person, who was not associated in the investigation on the pretext that his address was incomplete---Prosecution witnesses had omitted to mention that the accused was seated in the cabin of the vehicle or at its rear portion---Such shortcoming had gained importance when seen in the context that the vehicle was parked on the road side---Failure of prosecution in establishing nexus was sufficient ground for acquittal---Accused was acquitted of the charge, in circumstances.

Ayaz alias Imran v. The State 2021 YLR 1613 and Habib-ur-Rehman v. The State 2020 PCr.LJ 1688 ref.

Qaisarullah and others v. The State 2009 SCMR 579 rel.

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

----S. 9(c)---Possession of narcotics---Proof of exclusive and absolute possession of place of recovery, requirement of---Scope---Sulfuric acid was secured on the indication of accused from a shop---For providing credibility to the recovery it was obligatory for prosecution to prove that the accused was in exclusive and absolute possession of the shop and success in that respect would have established a strong connection between the accused and recovered substance---No documentary evidence was secured by the investigating agency to prove the ownership of accused regarding the shop or his actual/physical possession---No endeavour, even frail in nature, was made to prove that accused was tenant in the premises or was having control of the shop in some other capacity---Doubt had emerged about the actual owner of the recovered substance---Accused was acquitted of the charge, in circumstances.

Muhammad Imran v. The State 2011 SCMR 1954 rel.

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

----Ss. 6, 2(s), 2(za) & 2(k)---Prohibition of possession of narcotic drugs--- Narcotic drug--- Psychotropic substance--- Controlled substance---Scope---Embargo is imposed under S. 6 for manufacturing, extracting, preparing possessing, etc., the narcotic drug, psychotropic or controlled substance---So far as, the term "narcotic drug" is concerned, it is defined in S. 2(s) as coca leaf, cannabis heroin, opium, poppy straw and all manufactured drugs---Term "psychotropic substance" is defined in S. 2(za) as the substance specified in the Schedule to Control of Narcotic Substances Act, 1997 and such substances as the Federal Government may by notification in the official gazette declare to be a psychotropic substance---"Controlled substance", in S. 2(k) is defined as any substance which may be used for the production or manufacture of narcotic drugs or psychotropic substance---Section 6 also provides an exception and paves way for possessing these substances for the purposes of medical, scientific or industrial purposes but in the manner and subject to the conditions specified either under Control of Narcotic Substances Act, 1997, or through any other law for the time being in force.

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

----Ss. 6, 2(s), 2(za) & 2(k)--- Control of Narcotic Substances (Regulation of Drugs of Abuse, Controlled Chemicals, Equipment and Materials) Rules, 2001, R. 2(xxxvii) & Sched. V, Div. II---Prohibition of possession of narcotic drugs---Narcotic drug---Psychotropic substance---Controlled substance---Toxic chemical inhalants---Scope---Sulfuric acid does not come within the purview of narcotic drug as defined in S. 2(s)---Similarly, in reference to psychotropic substance as elaborated in S. 2(za), it is noticed that approximately 85 items are mentioned in the Schedule annexed with the Control of Narcotic Substances Act, 1997, but sulfuric acid is not included therein---As regards, controlled substance it is defined in S. 2(k) as any substance which may be used for the purpose of production or manufacture of narcotic drugs and such definition has relevancy to the proposition under consideration---Since sulfuric acid is used for the manufacture of narcotic drugs or psychotropic substance, thus it comes within the purview of controlled substance as defined in S. 2(k)---Sulfuric acid is also mentioned as controlled substance in Schedule V, Division II of Control of Narcotic Substances (Regulations of Drugs of Abuse, Controlled Chemicals, Equipment and Materials) Rules, 2001---Unlawful possession of sulfuric acid comes within the purview of S. 6 of the Control of Narcotic Substances Act, 1997.

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

----Ss. 9, 21, 51 & 29---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotics---Power of entry, search, seizure and arrest without warrant---No bail to be granted in respect of certain offences---Presumption from possession of illicit articles---Search to be made in presence of witnesses---Scope---Element of stringency spells out from Control of Narcotic Substances Act, 1997, as is evident from prohibition of bail under S. 51, power of police to enter and search premises without warrant under S. 21, exclusion of S. 103, Cr.P.C., in recovery proceedings, competency of official witnesses in search/seizure and from the presumption to be drawn under S. 29---Legislative strictness leaves little room for the defence to dislodge the case of prosecution in Control of Narcotic Substances Act, 1997---High Court observed that if menace of drugs is not catered, it is destined to destroy our coming generations as well as the social fabric---At the same time, society is not oblivious of the fact that often an innocent person is grilled in a narcotic case either by mistake or with some sinister design---To achieve the ultimate goal of safe administration of justice, the statutory stringency of Control of Narcotic Substances Act, 1997 is to be reciprocated through circumspective appraisal of prosecution evidence---Emergence of reasonable doubt from the review of prosecution case must entail consequences of an acquittal.

Ameer Zeb v. The State PLD 2012 SC 380 rel.

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

----S. 29---Presumption from possession of illicit articles---Scope---Negative language is couched in S. 29 of Control of Narcotic Substances Act, 1997, and if examined with casual approach it implies that the primary burden to disprove the allegations rests upon the shoulders of accused which is not correct exposition of law---Primary onus is on prosecution to prove its case and such burden includes the obligation to establish a strong and undeniable nexus between the recovered substance and the accused facing trial---Only the success of prosecution in establishing a tie between the recovered substance and accused will bring in action S. 29 of Control of Narcotic Substances Act, 1997.

Muhammad Noor and others v. The State 2010 SCMR 927 and Muhammad Imran v. The State 2011 SCMR 1954 ref.

Ameer Zeb v. The State PLD 2012 SC 380 rel.

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

----S. 9---Possession of narcotics---Scope---In order to make an accused liable under S. 9, it is incumbent that the substance recovered from him must be proved to be in contravention of Ss.6,7 & 8.

Muhammad Zahid Aman for Appellant.

Asif Riaz Butt, Special Prosecutor ANF along with Muhammad Tariq, Joint Director ANF, Mirza Abdul Rehman Assistant Director Law ANF and Qaiser Rasool, SI ANF/Investigating Officer for the State.

2022 P Cr. L J 1525

[Lahore]

Before Farooq Haider, J

MUHAMMAD UMAR FAROOQ SALEEM---Petitioner

versus

The STATE and another---Respondents

Criminal Miscellaneous No. 52463-B of 2021, decided on 9th September, 2021.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 498-A---Pre-arrest bail---Bail not to be granted to a person not in custody, in court or against whom no case is registered---Non-appearance of accused---Non-submission of bail bonds---Effect---Accused seeks pre-arrest bail but neither has he appeared before the Court nor has he deposited the bail bonds in compliance of the Court's order---Personal appearance of the accused is mandatory in a petition seeking pre-arrest bail---Ad-interim bail is granted in a pre-arrest bail application on the first hearing to simply ensure that the accused will be present on all the subsequent dates of hearing in the pre-arrest bail matter---Accused person's presence is required throughout the proceedings of the pre-arrest bail petition and the fact that he had appeared on the first date does not in any manner lessen the rigours of S. 498-A, Cr.P.C., or absolve the responsibility of the accused from appearing in person before the Court---Pre-arrest bail petition is dismissed for absence of accused as well as non-submission of bail bonds.

Nemo for Petitioner.

Ch. Muhammad Mustafa, Deputy Prosecutor General with Arshad, S.I. with Record for the State.

2022 P Cr. L J 1542

[Lahore]

Before Malik Shahzad Ahmad Khan and Muhammad Tariq Nadeem, JJ

MUHAMMAD NAWAZ---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 99880 and Murder Reference No. 605 of 2017, heard on 8th November, 2021.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of eight hours in lodging the FIR---Scope---Accused were charged that they in furtherance of their common intention committed murder of the daughter of the complainant by firing---Record showed that occurrence took place at 9.00 a.m., but the FIR had been lodged at 05.00 p.m. with the delay of eight hours from the time of occurrence---Distance between the police station and the place of occurrence was nine kilometres---In order to cover the said delay in lodging the FIR, the eye-witnesses stated that in fact, they first took the victim in injured condition to the Hospital where the doctor after examining referred the injured to other hospital---Neither the doctor who first examined the deceased in injured condition at Hospital had been produced in the witness box nor any Medico-legal Report regarding the Examination of deceased in injured condition and her referral to the other hospital had been produced in the prosecution evidence---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of eleven hours and forty five minutes in conducting the post-mortem examination on the dead body of the deceased---Scope---Accused were charged that they in furtherance of their common intention committed murder of the daughter of the complainant by firing---Post-mortem examination on the dead body of the deceased was conducted with the delay of eleven hours forty five minutes from the occurrence---Court witness/Medical Officer had stated that deceased in injured condition was referred to other hospital due to her precarious condition but she admitted that she was herself on leave and the hospital staff had referred the deceased to other hospital---Said witness did not mention the name of any member of the staff who had referred the deceased to the other hospital nor any such staff of the hospital appeared in the witness box before the Trial Court---Statement of Medical Officer regarding the referral of deceased by the staff of the Hospital to other hospital was hearsay evidence---Evidence of Medical Officer was contradictory to the statement of complainant and eye-witness because both the said witnesses of the prosecution stated that in fact deceased in injured condition was referred to other hospital by the doctor---Eye-witnesses did not state that the staff of Hospital referred her to the other hospital as claimed by Medical Officer---Delay in conducting the post-mortem examination on the dead body of the deceased was suggestive of the fact that the eye-witnesses of the prosecution were not present at the spot at the relevant time and the said delay had been consumed in procuring the attendance of fake eye-witnesses---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances.

Irshad Ahmad v. The State 2011 SCMR 1190; Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327; Muhammad Ashraf v. The State 2012 SCMR 419; Muhammad Ilyas v. Muhammad Abid alias Billa and others 2017 SCMR 54 and Zafar v. The State and others 2018 SCMR 326 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---Scope---Accused were charged that they in furtherance of their common intention committed murder of the daughter of the complainant by firing---If the eye-witnesses were present at the spot at the time of occurrence, then they would have provided the medical aid to the deceased in order to save her life and stopped her bleeding because injury sustained by deceased was on her right thigh which was a non-vital part of her body---Even Medical Officer stated that if any injured in such case remained unattended for one to two hours then his/her death might occur on account of loss of blood---In order to establish their presence at the spot at the relevant time and to show that eye-witnesses tried to stop the bleeding of deceased, complainant stated that the Medical Officer had bandaged the wound of the injured and thereafter, referred her to the other hospital---Medical Officer stated that wounds of the deceased were neither stitched nor bandaged---Eye-witnesses were not present at the spot at the relevant time and death occurred on account of her excessive bleedings as she remained un-attended for a considerable period---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence---Contradictions---Scope---Accused were charged that they in furtherance of their common intention committed murder of the daughter of the complainant by firing---According to the prosecution case, only one fire shot made by the accused landed on the right thigh of deceased but according to the medical evidence there was also an incised wound measuring 4 cm x 1.7 cm on the lower part of left leg and bone under the said injury was also exposed---Said injury had not been explained by any of the prosecution's witnesses---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances.

Muhammad Ali v. The State 2015 SCMR 137; Irfan Ali v. The State 2015 SCMR 840 and Usman alias Kaloo v. The State 2017 SCMR 622 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Medical evidence---Scope---Accused were charged that they in furtherance of their common intention committed murder of the daughter of the complainant by firing---Site plan, showed that accused made fire shot with .12 bore gun at deceased from a distance of only four feet but according to medical evidence, there was no blackening, burning or tattooing around the entry wound---No wade of the empty was recovered from the entry wound which further contradicted the prosecution case---In order to justify their presence at the spot, the prosecution's eye-witnesses stated that they along with deceased went to the fields in order to cut fodder but neither any cut fodder nor any sickle had been recovered from the spot at the time of the inspection by the Investigating Officer---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Motive not proved---Scope---Accused were charged that they in furtherance of their common intention committed murder of the daughter of the complainant by firing---Motive behind the occurrence was that accused wanted to marry with deceased but the complainant party refused to give the hand of deceased to the accused and fixed her marriage with some one else but neither any wedding card of the said proposed marriage had been produced in the prosecution evidence nor the person to whom she was to be married appeared in the witness box to prove the alleged motive---Motive alleged by the prosecution had not been proved---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of gun 12 bore on the pointation of accused---Reliance---Scope---Accused were charged that they in furtherance of their common intention committed murder of the daughter of the complainant by firing---Record showed that .12 bore gun was recovered on the pointation of the accused---No date of arrest of the accused had been brought on record by the prosecution through the statement of any of the prosecution witnesses---Under circumstances, it was not determinable as to whether empty recovered from the spot was sent to the office of Forensic Science Agency after the arrest of the accused or the same was sent to the said office before his arrest---Such circumstances were not safe to rely upon the prosecution evidence---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances.

(h) Criminal trial---

----Recovery of empty---Reliance---If the empty was sent to the office of Forensic Science Agency after the arrest of the accused then it was not safe to rely upon the positive report of Forensic Science Agency and recovery of weapon from the possession of the accused.

Jehangir v. Nazar Farid and another 2002 SCMR 1986; Ali Sher and others v. The State 2008 SCMR 707 and Mushtaq and 3 others v. The State PLD 2008 SC 1 rel.

(i) 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.

Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Muhammad Akram Qureshi and Sheeba Qaiser for Appellant.

Munir Ahmad Sial, Deputy Prosecutor General for the State.

Anas Bin Ghazi, Muhammad Shahbaz Sharif and Sagheer Ahmad for the Complainant.

2022 P Cr. L J 1576

[Lahore (Rawalpindi Bench)]

Before Sohail Nasir, J

AQIL ZAMAN alias AQEEL---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 430 of 2020, heard on 22nd June, 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---Benefit of doubt---Contradictions and improvements made by complainant in his statement---Scope---Accused was charged that he along with his co-accused persons made firing upon the complainant party as a result brother of complainant was hit and died---Record showed that in complaint on the basis of which FIR was recorded, there were allegations that accused made a fire that hit on the right side of abdomen of deceased whereas a fire made by co-accused (since acquitted) on complainant but did not hit him---Statement of Investigating Officer was that on the same day complainant made a supplementary statement where he stated that another fire was made by co-accused that hit on the knee of the deceased---In earlier trial co-accused persons were acquitted by Trial Court, who did not believe the supplementary statement and was of the view that complainant was responsible for improvements in his statement, while assigning the second fire on deceased to co-accused---Said acquittal order was not interfered by High Court in appeal filed by complainant---Circumstances established that the prosecution had not been able to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Conduct of the complainant---Scope---Accused was charged that he along with his co-accused persons made firing upon the complainant party as a result brother of complainant was hit and died---Conduct of complainant was a strong barrier in his way for granting him a stamp of truth---If Court found that he made a supplementary statement, how it could be ignored that said portion of allegation had already been disbelieved---If, it was considered that there was no supplementary statement at all and the complaint was correctly recorded because it was read over to the complainant before he signed it, then the question arose that how deceased received second fire arm injury on his knee---In that situation, it would be a case of serious contradiction in medical and ocular account beside improvements made by complainant during trial to bring his testimony in line with medical evidence and when it was so, on that ground alone his statement was liable to be rejected---Circumstances established that the prosecution had not been able to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Sardar Bibi and another v. Munir Ahmad and others 2017 SCMR 344; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 and Muhammad Arif v. The State 2019 SCMR 631 rel.

(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---Delay of five hours in conducting post-mortem of deceased---Effect---Accused was charged that he along with his co-accused persons made firing upon the complainant party as a result brother of complainant was hit and died---Record showed that the post-mortem was conducted by Medical Officer, who observed fire arm injury on the left nipple and fire arm injury on the left knee joint---According to Medical Officer, dead body was brought before him at 05:00 p.m. in the hospital and he conducted the post-mortem examination---Said witness stated that he examined the post-mortem report where the time of post-mortem examination was recorded as 10:00 p.m.---If the dead body was in the hospital at 05:00 p.m. why the post-mortem was conducted after five hours---No explanation in that regard had been furnished by the prosecution---Circumstances established that the prosecution had not been able to prove its case against the accused beyond any shadow of doubt--- Appeal against conviction was allowed, in circumstances.

Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327 and Irshad Ahmed v. The State 2011 SCMR 1190 rel.

(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---Delay of half an hour in lodging the FIR---Scope---Accused was charged that he along with his co-accused persons made firing upon the complainant party as a result brother of complainant was hit and died---Record showed that it was a case of prompt FIR and there were multiple reasons for holding so---FIR showed that it was registered at 05:30 p.m. with regard to the occurrence, which took place at 05:00 p.m.---Statement of Police Constable was very important, who had taken the dead body for post-mortem examination---According to said witness, he received dead body along with papers at 10:00 p.m.---If it was so then how Medical Officer could claim that he received the dead body at 05:00 p.m.---Complaint indicated that it was completed at 05:30 p.m. and before its completion Investigating Officer had prepared all the documents which included injuries statement and inquest report which he handed over to said Police Constable for post-mortem examination---Court found no difficulty to hold that complaint was not recorded at 05:30 p.m. but much later to that, say near to 10:00 p.m.---Circumstances established that the prosecution had not been able to prove its case against the accused beyond any shadow of doubt--- 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---Weapon of offence recovered on the pointation of accused---Reliance---Scope---Accused was charged that he along with his co-accused persons made firing upon the complainant party as a result brother of complainant was hit and died---Accused was arrested on 07.10.2019---On 10.10.2019 at his instance from his house a pistol 30 bore was recovered and taken into possession vide a recovery memo---Prosecution could not prove exclusive possession of accused or his exclusive knowledge with regard to place of recovery, which was a house---Pistol was lying in crockery box---Case of prosecution was not that either the house or room or the crockery box was under key and lock---Even otherwise when ocular account had been disbelieved, the recovery and the expert report, however strong might be, could not be a base for recording conviction---Circumstances established that the prosecution had not been able to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Abdul Majeed v. The State 2011 SCMR 941 and Nasrullah alias Nasro v. The State 2017 SCMR 724 rel.

Muhammad Ilyas Siddiqui for Appellant.

Malik Jawwad Khalid for the Complainant.

Ms. Maimoona Ehsan-ul-Haq, DDPP for the State.

2022 P Cr. L J 1594

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad and Sohail Nasir, JJ

SHAGUFTA SARWAR, ADPP---Petitioner

Versus

SPECIAL JUDGE ANTI-TERRORISM COURT and others---Respondents

Writ Petition No. 17809 and Criminal Revision No. 311 of 2021, decided on 15th November, 2021.

Penal Code (XLV of 1860)---

----Ss. 387 & 506---Anti-Terrorism Act (XXVII of 1997), S. 6---Putting person in fear of death or grievous hurt in order to commit extortion, criminal intimidation, act of terrorism---Appreciation of evidence---Accused was produced before the Anti-Terrorism Court for his physical remand with the opinion of Public Prosecutor that offence under S. 387, P.P.C. fell under the definition of S. 6(2)(k) of Anti-Terrorism Act, 1997---Anti-Terrorism Court while showing its disagreement with the opinions of the Public Prosecutor turned down the request of the Investigating Officer and directed him to produce the accused before the Area Magistrate and also passed derogatory remarks against the prosecution institution---Validity---Record showed that there were two parts of the impugned order in first portion, the Judge made serious observations directly or indirectly relating to entire Prosecution Service whereas, in the second part, he was of the view that prosecution had no role whatsoever in the process of investigation---Both the areas of the impugned order could not sustain as there was no material at all available with the learned Judge to make such derogatory, insulting and offensive remarks against any Prosecutor or the Prosecution Department, however, it appeared that Judge was not cognizant of the fact that the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006) was still holding the field giving various powers to the Prosecutors to be used from day one when FIR was recorded in police station---Intervention of independent Prosecution serving agency was not ceremonial or the role of the Prosecutor was not of a post office but to have a check on the working of the Investigating Officers at the right time and right place for the reason that the ultimate responsibility of the Prosecutors was to ensure effective prosecution---Powers lied with the court to agree or disagree with the said opinion (in accordance with law) but under no circumstance it was within the domain of the court to sit over the powers of the Prosecutors in a way as evident from the impugned order passed by the Judge who without applying judicial mind and closing his eyes observed that any wrong opinion amounted to interference in the investigation---Judge skipped the provision of S. 18 of the Act that no suit, prosecution or other legal proceedings would lie against the Prosecutor in respect of anything done or attempted to be done by him in good faith---In fact the Judge Anti-Terrorism Court (ATC) had impinged upon the authority of the Prosecutors and crossed its limits while giving unethical, biased and prejudiced observations in particular when there was no material at all in support of those remarks---Learned Judge was vested with no authority to restrain or restrict the statutory powers available to the Prosecutors---Petitions were allowed by setting aside stricture/remarks and recommendations recorded by the Judge.

Nadeem alias Deema v. District Public Prosecutor, Sialkot and 7 others 2012 PCr.LJ 1823 rel.

Mehroze Aziz Niazi for Petitioners.

2022 P Cr. L J 1615

[Lahore]

Before Sardar Ahmad Naeem and Syed Shahbaz Ali Rizvi, JJ

MUHAMMAD ASLAM and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 197314, 135870, Criminal Revision No. 185427 and Murder Reference No. 32 of 2018, heard on 29th November, 2021.

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

----Ss. 302(b), 393 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Benefit of doubt---Presence of the eye-witnesses at the spot was doubtful---Chance witness---Scope---Accused were charged for committing murder of the brother-in-law of the complainant during robbery---Admittedly, complainant was not an eye-witness of the subject occurrence which, as per prosecution's case, was witnessed by other two witnesses---Said witnesses were not the residents of locality---Complainant, during cross conceded that one eye-witness was his cousin while the other eye-witness was a friend of his cousin---Both the said eye-witnesses purportedly were going to visit at the relevant time when on their way, they witnessed the occurrence---Facts transpired that both the witnesses were not only related witnesses but the chance witnesses as well which required strict scrutiny of their testimony---Circumstances established that the prosecution remained unable to prove its case against the accused beyond the shadow of a reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 393 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Benefit of doubt---Delay in post-mortem---Scope---Accused were charged for committing murder of the brother-in-law of the complainant during robbery---Medical Officer stated that dead body was received in the dead house at 02.35 p.m. and the police papers were received at 05.50 p.m. thereafter, autopsy was conducted at 06.00 p.m.---Conversely, the statement of Investigating Officer revealed that dead body of deceased when he reached in the hospital, was lying outside the emergency ward, he observed the same, drafted injury statement, prepared inquest report and handed over the same to Police Official for further transmission to the mortuary for post-mortem examination purpose---If statement of Investigating Officer was taken as true then why the Medical Officer received the police papers at 05.50 p.m. separately from the dead body, was a question that remained unanswered by the prosecution---Circumstances established that the prosecution remained unable to prove its case against the accused beyond the shadow of a reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 393 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Test identification parade---Infirmities---Accused were charged for committing murder of the brother-in-law of the complainant during robbery---According to the prosecution's case, the test identification parade of all the four accused was conducted jointly---All the four accused/suspects were placed in four rows each at Sr. No.4 which stood admitted by the prosecution witnesses---Said fact could possibly be a mark to help the witnesses for their identification---No credibility could be attached to such identification parade proceedings---Special Judicial Magistrate also conceded that the suspects/accused persons raised objection regarding the veracity of the test identification parade by maintaining that they were shown to the witnesses when they were in police custody at police station even their photographs were shot there---Identification of accused in such a manner and the ocular account furnished by the prosecution in the case was not trustworthy---Circumstances established that the prosecution remained unable to prove its case against the accused beyond the shadow of a reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 393 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Recovery of weapon of offence and crime empties---Reliance---Scope---Accused were charged for committing murder of the brother-in-law of the complainant during robbery---Crime empties taken into possession were sent to the Forensic Agency i.e. with the delay of eight days without any reasonable explanation and the day when accused along with his co-convicts, per record, was apprehended by the Investigating Officer---Said fact rendered the veracity of positive report of the Forensic Science Agency doubtful and consequently made the evidence of recovery inconsequential---Circumstances established that the prosecution remained unable to prove its case against the accused beyond the shadow of a reasonable doubt--- Appeal against conviction was allowed, in circumstances.

Jehangir v. Nazar Farid and another 2002 SCMR 1986; Israr Ali v. The State 2007 SCMR 525 and Ali Sher and others v. The State 2008 SCMR 707 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---If there was a single circumstance which created reasonable doubt regarding the prosecution case, the same would be sufficient to give benefit of the same to the accused.

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

Ms. Sheeba Qaisar for Appellants.

Ms. Maida Sobia, Deputy Prosecutor General for the State.

Muhammad Ajmal Adil and Ch. Muhammad Wasif Shahzad for the Complainant.

2022 P Cr. L J 1641

[Lahore]

Before Muhammad Tariq Nadeem, J

IJAZ alias JUJJI---Petitioner

Versus

The STATE and another---Respondents

Writ Petition No. 80463 of 2021, decided on 26th January, 2022.

Criminal Procedure Code (V of 1898)---

----Ss. 35, 397 & 561-A---Constitution of Pakistan, Art. 199---Sentence on offender already sentenced for another offence---Scope---Petitioner was undergoing two sentences of life imprisonment along with other sentences awarded in two cases, however, sentences had not been treated as concurrent sentences---Record showed that no order regarding the sentences awarded in two different case shall run concurrently had been passed---Section 35, Cr.P.C subject to S. 71 of P.P.C. empowered not only the Trial Court to hand down several punishment/sentences to a person charged for multiple offence in same trial and in its discretion direct that sucha conviction/sentence might run concurrently---Section 397, Cr.P.C. revealed that procedure to be observed for the sentences awarded to an accused in cases regarding sentences to run consecutively or concurrently should be passed at the time of deciding the case---If for any reason or there to some inadvertent mistake the same was not passed, the matter could be settled by invoking the jurisdiction of High Court---Section 397, Cr.P.C., further provided that when a person was sentenced at a time when he was already undergoing imprisonment, then his subsequent sentence was to commence upon the expiration of the earlier sentence unless the Court had specifically given directions that subsequent sentence was to run concurrently with the previous sentence---Said section dealt with various sentences passed in a single trial of two or more offences---Sentences were to run consecutively unless the Court directed otherwise---Section 397, Cr.P.C., perfectly covered the present case---Section 35, Cr.P.C subject to S. 71 of P.P.C. empowered not only the trial Court to hand down several punishment/sentences to a person charged for multiple offence in same trial and in its discretion direct that such conviction/sentence might run concurrently even the Appellate Court while hearing the appeal against the conviction might direct several sentences/punishment handed down in same trial to run concurrently---Section 397, Cr.P.C. enabled and empowered the trial and or appellate revisional court, as the case may be, in a subsequent trial or in appeal or revision arising out of subsequent trial to order for the consolidation of sentence in subsequent trial with the sentence(s) handed down in earlier trial(s) as may be maintained or modified in appeal/revision arising therefrom---If earlier conviction was not brought to the notice of the Trial Court at the time of handing down the subsequent conviction/sentence the trial or Appellate/Revisional Court could exercise such jurisdiction even after the sentence of imprisonment in subsequent trial was announced in exercise of its inherent jurisdiction under S. 561-A, Cr.P.C. read with S. 397, Cr.P.C., provided, of course, where the trial or superior courts of appeal had specifically and consciously ordered the sentences either in same trial or in subsequent trial to run consecutively---Court, in circumstances, had jurisdiction under S. 561-A read with S. 35 and or S. 397, Cr.P.C., as the case may to order such multiple sentences in same transaction/trial or in a separate and subsequent trial and so also that considering the sentences of the petitioner to consecutive would not serve the interest of justice rather the same would be contrary to the law---Petition was allowed and the sentences passed against the petitioner in two FIRs was ordered to run concurrently.

Mst. Shahisa Bibi and another v. Superintendent Central Jail, Mach and 2 others PLD 2015 SC 15; Sajjad Ikram and others v. Sikandar Hayat and others 2016 SCMR 467; Rahib Ali v. The State 2018 SCMR 418 and Sajjad Ikram and others v. Sikandar Hyat and others 2016 SCMR 467 rel.

Rai Bashir Ahmad for Petitioner.

2022 P Cr. L J 1657

[Lahore]

Before Syed Shahbaz Ali Rizvi, J

BILAL MOEEN BUTT alias BILAL HUSSAIN BUTT---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 49770-B of 2021, decided on 30th September, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, grant of---Further inquiry---Circumstances suggesting honest intention while issuing cheque---Effect---Accused was alleged to have dishonestly issued a cheque which was dishonoured on its presentation to the Bank---Transactions between accused and complainant revealed that a regular and smooth business relationship existed between the parties---Accused had been paying due amounts to the complainant---Dishonest intention of the accused at the time of issuance of subject cheque, in the peculiar circumstances of the case, was a question that required determination by the Trial Court after recording of evidence---Case of accused was one of further inquiry---Offence alleged against the accused did not fall within the prohibitory clause of S. 497, Cr.P.C.---Accused was admitted to post-arrest bail, in circumstances.

Muhammad Tallal Dar for Petitioner.

Irfan Zia, Deputy Prosecutor General along with Amin, ASI with Record for the State.

2022 P Cr. L J 1695

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi and Ch. Abdul Aziz, JJ

WASI HAIDER---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 281 and Murder Reference No. 29 of 2019, heard on 20th September, 2021.

(a) Police Rules, 1934---

----R. 25.39---Inquest report---Purpose and scope---Investigating officer was to draw a report in duplicate and in prescribed format mentioning the apparent cause of death, marks of violence observed on the corpse, the weapon with which there appeared to have been inflicted and the brief facts of the case gathered from the witnesses---Corpse was to be forwarded to Medical Officer for autopsy along with a report prescribed to be prepared in the format mentioned in R. 25.39 of Police Rules, 1934---Purpose of providing inquest report to doctor before the post-mortem examination was designed at countering the possibility of tampering with police record.

(b) Administration of justice---

----If things are to be done in a particular manner, same should be done in that manner alone.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Consultation and deliberation in preparing complaint---Scope---Accused was charged for committing murder of the mother of complainant---Motive behind the occurrence statedly was the dispute over a shop---Record showed that the incident took place at 10.15 p.m.---Complaint was drafted at 2.30 a.m., whereas autopsy was conducted at 3.00 a.m.---Question arose that if at all before holding of autopsy the complaint was complete in all respects then why its contents were not mentioned in the column of inquest report meant for the brief facts---Till holding of autopsy the complaint was still in process of preparation apparently through consultation and deliberation---Circumstances established that the prosecution remained unsuccessful in proving its case against accused beyond shred of any ambiguity---Appeal against conviction was allowed, in circumstances.

Mst. Yasmeen v. Javed and another 2020 SCMR 505 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Night time occurrence---Source of light---Scope---Accused was charged for committing murder of the mother of complainant---In a case of homicide having occurred in the dark hours of night, it was obligatory upon the prosecution to prove the source of light so as to exclude all hypothesis of false implication and incorrect attribution of role to an accused---Absence of light at the crime scene gave rise to the possibilities of false implication through mistaken identification and incorrect attribution of role to an accused---Emphasis was laid by the courts that in cases of night occurrences, the prosecution must prove the source of light---However, it was not a statutory requirement to prove the source of light, rather was a rule of caution with object to administer justice beyond shred of all uncertainties---Circumstances established that the prosecution remained unsuccessful in proving its case against accused beyond shred of any ambiguity---Appeal against conviction was allowed, in circumstances.

Usman alias Kaloo v. The State 2017 SCMR 622; Mst. Yasmeen v. Javed and another 2020 SCMR 505; Zahir Yousaf and another v. The State and another 2017 SCMR 2002 and Azhar Mehmood and others v. The State 2017 SCMR 135 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Dishonest improvements made by witnesses---Scope---Accused was charged for committing murder of the mother of complainant---In the present case, the incident occurred at about 10.15 p.m. and deceased suffered bullet injury while standing in the courtyard of the house, whereas the accused was located in the street---At the relevant time, there was no light in the neighbourhood due to electricity load-shedding and that fact was even admitted by eye-witness---Eye-witness realized the importance of light and they accordingly claimed to have captured the visuals of incident in the light of electricity bulb installed at a Bank, situated in the same street---Frailty of such claim of eye-witnesses was exposed from the statement of Police Officials who described the intervening distance between the Bank and crime scene as 65 to 68 paces---Even otherwise, that source of light was introduced by both the eye-witnesses through dishonest improvements made by them in their court statements---Statement of draftsman could safely be termed as final nail in the coffin of prosecution case, so far as it related to the availability of light at the spot---Draftsman noted no point in site plan to pinpoint the availability of light around the crime scene---Circumstances established that the prosecution remained unsuccessful in proving its case against accused beyond shred of any ambiguity---Appeal against conviction was allowed, in circumstances.

(f) Criminal trial---

----Witness---Dishonest improvement made by witness---Scope---Witness who makes improvement in his court statement, infact compromises his own integrity rendering him not worthy of any credence.

Muhammad Arif v. The State 2019 SCMR 631 rel.

(g) Criminal trial---

----Site plan---Scope---Eye-witness could not be discredited based on the contents of scaled site plan but if it was proved that the site plan was prepared under his directions, it would attain credibility and could be used by the court for ascertaining the existence or non-existence of any aspect/fact.

Imran Ashraf and 7 others v. The State 2001 SCMR 424 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence---Confliction---Scope---Accused was charged for committing murder of the mother of complainant---Record showed that during the trial, both the eye-witnesses deposed that accused was armed with carbine but such description of weapon was neither mentioned in FIR nor in the private complaint---Improvement regarding the description of weapon was with a specific purpose apparently to bring ocular account in conformity with the police investigation, as during spot inspection four empty shell of SG cartridge of point 12 calibar were secured through recovery memo---Unfortunately, the dishonest improvement pertaining to the nature of weapon further damaged the prosecution case as it fetched a conflict between medical and ocular account---Nature of injuries observed by Medical Officer did not commensurate with the theory of crime advanced by the prosecution canvassing the use of .12-bore weapon, instead it appeared that some weapons other than .12-bore calibar was used for the commission of crime---High Court observed that glaring anomaly was discernible from the ocular account and medical evidence---Purpose of collecting medical evidence in a case against human body, primarily, was aimed at providing assistance to the Court in arriving at just conclusion by using it for scrutinizing the ocular account---Any noticeable conflict between the medical and ocular account would be destined to discredit the case of prosecution---Circumstances established that the prosecution remained unsuccessful in proving its case against accused beyond shred of any ambiguity---Appeal against conviction was allowed, in circumstances.

Abdul Jabbar and another v. The State 2019 SCMR 129; Muhammad Ali v. The State 2015 SCMR 137 and Nazeer Ahmed v. The State 2016 SCMR 1628 rel.

(i) 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 was charged for committing murder of the mother of complainant---Motive behind the occurrence statedly was the dispute over a shop---Dispute about the shop was pending between witness/uncle of complainant and acquitted accused and neither present accused nor deceased were party to the conflict---If at all, the incident occurred due to the motive put forth by the prosecution, then witness/uncle of complainant should have been the victim in the case, rather than a household lady---Motive behind the commission of offence was discarded---Circumstances established that the prosecution remained unsuccessful in proving its case against accused beyond shred of any ambiguity---Appeal against conviction was allowed, in circumstances.

Muhammad Ilyas Siddiqi for Appellant.

Qasim Shahzad for the Complainant.

Sajjad Hussain Bhatti, D.P.G. for the State.

2022 P Cr. L J 1753

[Lahore]

Before Muhammad Amjad Rafiq, J

MUHAMMAD SHAHZAD and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 642 and Criminal Revision No. 380 of 2017, heard on 16th November, 2021.

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

----Ss. 302, 324, 34, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Injured witness---Scope---Accused were charged for making firing upon the complainant party, due to which one person of the complainant party was hit and died, whereas the other become injured---Prosecution for ocular account had put injured and took help from previous statement of complainant recorded in an earlier case for corroboration, yet it was lurking on legal premises with respect to its method of tendering into evidence---Before embarking upon testimony of injured, role of accused with respect to injury on the head of deceased was examined in the light of medical evidence and position of parties at the crime scene---Entry wound on left pinna of ear was notpossible from point of presence of accused and the deceased with stated positions who were facing each other, when the witness deposed that they alighted from their bikes---Other stance of turning back the bikes though was not proved, yet for the sake of argument, if it was considered that seeing the assailant, deceased tried to turn back and in that position received the fire, then deceased must have fallen from the motor bike and corresponding injuries due to fall should have been on his person which were missing in the post mortem report and deposition of doctor---Injured was also sitting at rear seat but did not have such injuries on his person---Injured admitted that both the parties related inter se and developed enmity was also evident---Injured witness faced certain confrontation during his deposition before the court which he could not justifiably accounted for---Said witness admitted that near the place of occurrence, number of people resided but none of them came forward to support the prosecution version---Accused also claimed his marriage with sister of that witness who was later divorced yet that fact was denied by said witness---Similarly, said witness denied the suggestion that he in fact committed the murder of deceased, which was the first version of accused before Investigating Officer, yet prosecution could not rebut those facts due to non-appearance of Investigating Officer---Injured witness admitted that he and a witness were resident of another village while deceased and complainant were resident of another place which was at a distance of 1 x 1½ kilometer from the place of occurrence---Injured resident of ¾ acres from the place of occurrence and was aware of the area and the people around him---Injured, he reached the hospital after four hours despite he was seriously injured---Though Medical Officer had observed duration of his injury about six hours which created serious doubt about time and place of occurrence---Yet place of occurrence could also be not proved because of the reason that Investigating Officer as well as draftsman could not appear as being dead---Transposition of statement of draftsman was not according to law and secondary evidence for Investigating Officer did not establish the fact under discussion---Testimony of that witness with stammered presentation did not ring true particularly when he had already stood disbelieved in the previous trial for his own injuries---Evidence of injured could not be stretched against the accused for sustaining the conviction and sentence--- Appeal against conviction was allowed, in circumstances.

Ishtiaq Hussain and another v. The State and others 2021 SCMR 159 and Nazir Ahmad v. Muhammad Iqbal and another 2011 SCMR 527 rel.

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

----Ss. 302, 324, 34, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Longstanding absconsion of accused---Scope---Accused were charged for making firing upon the complainant party, due to which one person of the complainant party was hit and died, whereas the other become injured---As to the question of longstanding absconsion of accused was concerned; no evidence was brought on record by the prosecution in the form of warrants or proclamation nor any witness was produced in that respect---Only a bald question was asked about proceedings under S. 512 of Cr.P.C which was denied by the accused---Even copies of such proceedings were not brought on the record---Prosecution had failed to establish his wilful absconsion in the case for which the accused could not be held responsible, in circumstance---Appeal against conviction was allowed, in circumstances.

Shahid Azeem and Mudassar Naveed Chatha for Appellants.

Rai Asif Mehmood, Deputy Prosecutor General for the State.

Rai Munir Zafar Sangra for the Complainant.

2021 P Cr. L J 1770

[Lahore (Rawalpindi Bench)]

Before Ch. Abdul Aziz, J

Mian ANSAR HAYAT---Petitioner

Versus

The STATE and 10 others---Respondents

Criminal Miscellaneous No. 1983-M of 2021, heard on 12th November, 2021.

Criminal Procedure Code (V of 1898)---

----Ss. 173 & 439---Penal Code (XLV of 1860), Ss. 506(ii), 427, 148 & 149---Criminal intimidation, mischief causing damage to the amount of fifty rupees, rioting armed with deadly weapon, unlawful assembly---Cancellation report---Petitioner had lodged FIR under Ss. 506(ii), 427, 148 & 149, P.P.C., against respondents---Police, after investigating the matter, prepared a cancellation report and submitted the same before the Judicial Magistrate---Judicial Magistrate did not concur with the cancellation report---Respondent preferred a criminal revision petition against the decision of the Magistrate which was accepted---Validity---Judicial Magistrate in his capacity as such generally exercised judicial powers but often passed an order in his administrative capacity---Only the judicial orders passed by the Judicial Magistrate could be challenged through a criminal revision whereas the administrative orders since were not delivered as a criminal court thus were not revisable and their vires could be examined under S. 561-A Cr.P.C.---On the same premises, a distinguishing line is drawn in R. 2 of Chapter 11-D of High Court (Lahore) Rules and Orders through the use of words administrative and judicial orders---Order upon a cancellation report submitted by the police since was passed by the Judicial Magistrate not in reference to some express provision of Cr.P.C. rather in accordance with High Court (Lahore) Rules and Orders and Police Rules, 1934, thus, by no stretch could be termed as judicial in nature---Petition was accepted by setting-aside the order passed by revisional court, in circumstances.

Muhammad Sharif and 8 others v. The State and another 1997 SCMR 304; Sakhawat Ali v. The State and another 2003 YLR 245; Iftikhar Hussain v. Senior Special Judge ACE and 3 others 2015 PCr.LJ 1103 and Ahsan Ullah v. Illaqa Magistrate and 5 others 2014 YLR 113 ref.

Bahadur and another v. The State and another PLD 1985 SC 62; Arif Ali Khan and another v. The State and 6 others 1993 SCMR 187; Muhammad Sharif and 8 others v. The State 1997 SCMR 304; Sher Muhammad Unar and others v. The State PLD 2012 SC 179; Sakhawat Ali v. The State and another 2003 YLR 245; Iftikhar Hussain v. Senior Special Judge ACE and 3 others 2015 PCr.LJ 1103 and Ahsan Ullah v. Illaqa Magistrate and 5 others 2014 YLR 113 rel.

Muhammad Asad Hayat for Petitioner.

Malik Altaf Hussain Kandwal and Ch. Afrsyab Khan for Respondents.

Ms. Memoona Ehsan-ul-Haq, Deputy District Public Prosecutor assisted by Irfan Ahmad Khan Niazi, Assistant Advocate General, Punjab with Aamir, SI for the State.

2022 P Cr. L J 1793

[Lahore (Multan Bench)]

Before Anwaarul Haq Pannun, J

RIAZ HUSSAIN---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 1229-M of 2011, decided on 27th October, 2020.

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

----S. 404---Right of appeal---Scope---Appeal is a statutory right of aggrieved individual or authority---Such right cannot be exercised on any analogy unless expressly conferred upon under some law.

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

----Ss. 382-A, 426 & Chapt. XXVIII---Appeal, filing of---Procedure---Convict either can file appeal against his conviction and sentence being on bail under S. 382-A, Cr.P.C or he can seek his release on bail under S. 426, Cr.P.C. during pendency of his appeal, while under custody---Unless convict is either on bail by way of postponement of his sentence in terms of S. 382-A, Cr.P.C. or he is confined in terms of the provisions of Chapt. XXVIII, Cr.P.C. (of execution), no appeal against judgment of conviction can be entertained.

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

----S. 337-Y(1a)---Criminal Procedure Code (V of 1898), Ss. 382-A, 417(2)(A) & 561-A---Diyat, Arsh and Daman Fund Rules, 2007, R. 11---Daman, return of---Executed sentence---Accused after conviction by Trial Court deposited amount of Daman and filed appeal---Lower Appellate Court allowed appeal and acquitted the accused---Applicant was injured witness who was aggrieved of direction issued by Trial Court to return amount of Daman received by him---Validity---In absence of any express provision of law, it was not lawful for a Court to allow convict to deposit such amount of "Diyat, Arsh and Daman" under protest for his release except as required under S. 337-Y(1a), P.P.C.---Any departure from such procedure amounted to act without lawful authority not liable to sustain in law---Accused upon pronouncement of conviction and awarding punishment of "Daman" by Trial Court immediately deposited the amount and secured his release---Punishment of accused was not postponed in the manners contemplated by S. 382-A, Cr.P.C, rather it stood executed---Appeal filed by accused was incompetent and Lower Appellate Court had failed to examine such aspect of maintainability of appeal, as the Court was bound to examine question of maintainability before passing any order thereon---Order of acquittal was of no consequences as the same was illegal, without jurisdiction and could not sustain in the eye of law---High Court set aside order directing applicant to reimburse amount of "Daman" as such order was illegal---Application was allowed accordingly.

Abid Hussain and another v. Chairman, Pakistan Bait-ul-Mal and others PLD 2002 Lah. 482; Government of Punjab, Lahore v. Abid Hussain and others PLD 2007 SC 315; Mst. Ubaida v. Makhdoom Abrar Ahmad and 2 others 1986 PCr.LJ 539; Sakhawat Ali v. The State 1999 PCr.LJ 450; Faiz Muhammad v. A. Rauf and others 1999 PCr.LJ 864; The State v. Muhammad Umar alias Chotoo 2003 PCr.LJ 216; Attaullah v. Abdur Razaq and another PLD 2002 SC 534; Muhammad Adnan alias Dana v. The State and others 2015 SCMR 1570 and Dr. Waqar Hussain v. The State 2000 SCMR 735 rel.

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

----S. 561-A---Inherent jurisdiction of High Court---Object, purpose and scope---Inherent powers under S. 561-A, Cr.P.C, enable High Court to make an order which is deemed appropriate for giving effect to any order passed under Criminal Procedure Code, 1898, or prevent abuse of process of any Court or otherwise to secure ends of justice.

Muhammad Usman Sharif Khosa and Dr. Malik M. Hafeez for the Petitioner.

Muhammad Abdul Wadood, Additional Prosecutor General for the State.

2022 P Cr. L J 1811

[Lahore (Bahawalpur Bench)]

Before Farooq Haider, J

ALI SHAHZAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 391-J of 2015, heard on 12th June, 2019.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---No justification for the presence of witnesses at the spot---Scope---Accused were charged for committing murder of the son of complainant---Accused had quarrel, due to said grudge, they had committed murder of son of complainant---Admittedly, complainant was not resident of the place of occurrence rather his residence was one kilometer away from the spot---Complainant was having no place of job over there---No plausible reason could come on record for his presence at the place of occurrence at the relevant time, therefore, he was the chance witness---Prosecution's own case was that both accused persons were empty handed, question arose that if complainant (father of deceased), cited eye-witness/maternal nephew of the complainant and cousin of the complainant were present at the time and place of occurrence, then why they did not intervene and rescue the deceased from the clutches of two empty handed accused persons---Neither complainant nor any other cited eye-witness was present there at the relevant time---Said fact further got support from the perusal of post-mortem report, which revealed that eyes of the deceased were found open at the time of autopsy---Had complainant (father of the deceased), cousin of the deceased and uncle of the deceased been present over there at the time and place of occurrence, then they had certainly closed eyes of the deceased---In the application for registration of FIR, it is not mentioned that both the witnesses were present at the relevant time at the place of occurrence, rather perusal of same revealed that when operative part of occurrence had already taken place, then they attracted at the place of occurrence after hearing noise---Not mentioned in said application that both of them had seen entire occurrence---Circumstances established that prosecution had failed to prove charge against accused in the case---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

(b) Criminal trial---

----Witness---Dishonest improvements---Scope---If a witness introduces some sort of dishonest improvement, then his statement does not remain reliable rather same is liable to be thrown away.

Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Muhammad Mansha v. The State 2018 SCMR 772 and Muhammad Arif v. The State 2019 SCMR 631 rel.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Scope---Accused were charged for committing murder of the son of complainant---Prosecution witnesses even had contradicted each other on very important aspect that who provided first information to police about the occurrence---One claim of prosecution was that complainant through application provided first information to police about the occurrence, but the complainant took the somersault and stated that eye-witness informed the police about the occurrence---Complainant in his statement stated that application for registration of case was got drafted by an unknown person and he produced said application to Investigating Officer in the hospital---Eye-witness stated that application was got drafted by Investigating Officer---Investigating Officer did not own that he had written said application, however, it could be safely gathered that acceptance of one stance with respect to providing information to police and registration of case resulted rejection of the other---Claim of the complainant through application that both accused persons were apprehended by public at the spot, if it was so, then why they were not handed over to police on the same day---Even any such person of the public had not been produced before the Court---As per statement of Investigating Officer, accused were not arrested from the spot or on the day of occurrence---Complainant had also mentioned false statement in the application in that regard---Circumstances suggested that the testimony of complainant was tainted piece of evidence, neither confidence inspiring nor reliable---Circumstances established that prosecution failed to prove charge against accused in the case---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Muhammad Nadeem alias Banka v. The State 2011 SCMR 1517 rel.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of four hours and forty five minutes in lodging FIR---Effect---Accused were charged for committing murder of the son of complainant---Record showed that police had brought dead body in the hospital---If complainant and other cited eye-witnesses were accompanying the dead body at that time, then why case was not got registered then and there and why application for registration of case was moved (as per own case of prosecution)---None of the cited eye-witnesses including complainant was present at the time and place of occurrence, none of them carried deceased to the hospital and that time was consumed for cooking up false story and engaging/procuring the witnesses---Circumstances established that prosecution had failed to prove charge against accused in the case---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

(e) Criminal trial---

----Medical evidence---Scope---Medical evidence could only show nature, locale and description of the injury but could not tell that who caused it---Medical evidence was mere supportive and not corroboratory piece of evidence.

Sajjan Solangi v. The State 2019 SCMR 872 rel.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Non-securing of blood from place of occurrence---Scope---Accused were charged for committing murder of the son of complainant---Injury statement of deceased prepared by the prosecution showed that injury was having blood and post mortem report also revealed availability of clotted blood at said injury---However, no blood had been secured from the stated place of occurrence---Had any injury been caused due to alleged falling of the deceased there, then blood must have been available at the place of occurrence---Non-securing of the blood from place of occurrence established the fact that as a result of said alleged falling, no injury was received by the deceased---Circumstances established that prosecution had failed to prove charge against accused in the case---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Maxim: Falsus in uno falsus in omnibus---Applicability---Two accused persons were nominated in FIR for committing murder of the son of the complainant---Record showed that one of the accused persons had been acquitted---Evidence of the prosecution witnesses, which had not been believed against co-accused in the case could not be believed against the present accused---Present accused also deserved acquittal on that score as well---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Raja Muhammad Sohail Iftikhar for Appellant.

Khalid Parvez Uppal, Deputy Prosecutor General for the State.

Rehan Zafar for the Complainant.

2022 P Cr. L J 1828

[Lahore]

Before Muhammad Amjad Rafiq, J

SANA ULLAH KHAN---Appellant

Versus

The STATE and 3 others---Respondents

Criminal Appeal No. 60190 of 2020, decided on 8th November, 2021.

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

----Ss. 3 & 8-A---Constitution of Pakistan, Art. 199---Criminal Procedure Code (V of 1898), S. 439---Prevention of illegal possession of property---Appeal against acquittal---High Court's powers of revision---Constitutional petition---Maintainability---Scope---When the complaint is dismissed under S. 203, Cr.P.C. or against other interlocutory orders passed during the proceedings, the revisional jurisdiction can be invoked yet challenging acquittal in revisional jurisdiction has no room in the eyes of law---As such, the complainant can at the most assail such acquittal through constitutional petition which is always available to the aggrieved if there is no other efficacious remedy.

All Swat Paper's case 2019 PCr.LJ 225 and Mian Sharif Shah v. Nawab Khan and 5 others PLD 2011 Pesh. 86 ref.

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

----S. 8-A---Appeal---Word "any"---Scope---Word "any" cannot be inferred to include an order of acquittal.

Anant Kumar Parshotam v. Members of The Managing Committee, Swami Narayan Temple Trust and others 2021 PCr.LJ Note 38 ref.

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

----S. 8-A---Appeal---Scope---Section 8-A of Illegal Dispossession Act, 2005, provides right of appeal only against the conviction that may be of any kind either of imprisonment or fine, or both, as such, the word "any" has been used---Previously, no right of appeal was available in the Illegal Dispossession Act, 2005, therefore, the legislator felt necessary to give right of appeal against conviction recorded under the Act, as such, S. 8-A was inserted---Similarly, the right of appeal against the order under S. 8(1) was also provided through the same amendment.

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

----S. 8-A---Criminal Procedure Code (V of 1898), S. 439---Appeal---High Court's powers of revision---Scope---Legislature has not provided right of appeal against all orders passed under the provisions of the Illegal Dispossession Act, 2005---For reference, here are the orders which can be passed during proceedings under the Act on a complaint, but no appeal is provided there-against: (a) dismissal of complaint under S. 203, Cr.P.C., when there is no sufficient ground; (b) taking cognizance of complaint and summoning of accused; (c) direction to the police to arrest the accused as authorized under S. 4(3) of the Act; (d) order of attachment of property under S. 6 of the Act; (e) order of eviction and mode of recovery of possession as an interim relief under S. 7 of the Act; (f) rejection of application under S. 265-K, Cr.P.C.; (g) on conclusion of trial, award of compensatory costs to the person complained against if the complaint is found false, frivolous or vexatious under S. 5(4) of the Act---Legislature has not felt the necessity to provide a right of appeal against such orders because they are regulated under the provisions of Code of Criminal Procedure and most suitable remedy is to invoke revisional jurisdiction of the High Court---Unlike appeal, the revision is not regarded as a matter of right, yet revision against an order of acquittal cannot be entertained when there is specific prohibition under S. 439(4)(a) of Cr.P.C. because the High Court cannot convert a finding of acquittal into one of conviction.

Habib Bank Limited v. The State PLD 1988 Kar. 49 ref.

(e) Appeal---

----Right of appeal---Scope---Right of appeal is a statutory right and is not inherent with advent of law or constitution of a Court---Unless a right of appeal is specifically granted it cannot be inferred or borrowed from implied interpretation of any law. Hart Mean v. The State PLD 1958 Dacca 333; Habib Bank Limited v. The State PLD 1988 Kar. 49 and The State v. Mst. Fazeelat Bibi PLD 2010 Lah. 498 ref.

(f) Appeal---

----Appeals are concerned with correcting error; mechanisms for error correction are an important feature of developed legal systems: developed legal systems make provision for correcting error---Error, in the sense of good faith, differences of opinion about finding the facts or about formulating or applying rules of law, is expected as a regular occurrence---Error correction, as an overarching value, in turn serves a number of distinct functions.

(g) Appeal---

----Primary function of the modern right of appeal is to protect against miscarriages of justice---Second function of criminal appeal is to maintain consistency in trial courts---Third, appeals serve important institutional functions; they provide legitimacy to the criminal justice system as a whole---Public confidence in the administration of justice increases when miscarriages do not occur and when courts dispense criminal justice consistently and fairly---Fourth, appeals are the primary way in which judges, as public officials subject to oversight, are held accountable for their performance---Finally, appeals allow questions of law to be settled.

(h) Appeal---

----Remedy of appeal as a request especially to a court of law to change a previous decision; timely resort by an unsuccessful party in a lawsuit or administrative proceeding to an appropriate superior court empowered to review a final decision on the ground that it was based upon an erroneous application of law; an application for the judicial examination by a higher tribunal of the decision of any lower tribunal.

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

----S. 404---Unless otherwise provided, no appeal to lie---Scope---Section 404, Cr.P.C. clearly shows that only in the cases which are being dealt with under the Code of Criminal Procedure, the appeal would be provided under the Code, whereas, special law has been dealt with separately, so, unless and until the relevant special law gives a right of appeal, it cannot be imported or inferred as an inherent right.

State Life Insurance Corporation of Pakistan through Chairman and others v. Mst. Sardar Begum and others 2017 SCMR 999; Mughal Surgical (Pvt.) Ltd. and others v. Presiding Officer, Punjab Labour Court No.7 and others 2006 SCMR 590; Shaikh Gulzar Ali & Co. Ltd. and others v. Special Judge, Special Court of Banking and another 1991 SCMR 590; Defence Housing Authority and others v. Rao Imran Nasir 2021 CLC 310; Messrs Brecast Industries (Pvt.) Limited through Director/Chief Executive Officers v. Housing Building Finance Corporation through Managing Director 2020 CLD 557; All Swat Paper Chips and Pops owners Association District Swat through President v. Bakht Afsar Ex-Deo District Shangla Amir Jamat Islami PK-87 Shangla and 5 others 2019 PCr.LJ 225; Mian Sharif Shah v. Nawab Khan and 5 others PLD 2011 Pesh. 86; Collectorate of Sales Tax and Federal Excise, Faisalabad v. Messrs Zaheer Soap Factory, Faisalabad 2011 PTD (Trib.) 429; The State v. Ahmed Rasool and another PLD 2004 Kar. 348; Commissioner of Income-Tax v. Garware Nylons Ltd. 1997 PTD 442; Sardar Muhammad Khan v. Muhammad Afsar Khan and 3 others 1991 PCr.LJ 508; Wahid Bus and Mailsi Transport Co. Ltd. v. Afzal Transport Co. Ltd., Multan and others PLD 1966 (W.P) Lahore 684 and Hart Mean v. The State PLD 1958 Dacca 333 ref.

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

----Ss. 418 & 439---Appeal on what matters admissible---High Court's powers of revision---Scope---Appeal is preferred on question of law as well as on facts as per S. 418, Cr.P.C., whereas, in revision only correctness, legality and propriety of any finding, sentence or order is to be examined, yet revision cannot be filed against acquittal particularly when it is prohibited under S. 439(4)(a), Cr.P.C. because High Court cannot convert a finding of acquittal into one of conviction.

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

----Ss. 417, 249-A & 265-K---Appeal in case of acquittal---Scope---Order of acquittal whether passed after full dressed trial or under S. 249-A or 265-K, Cr.P.C. can only be challenged through appeal before the High Court as per S. 417, Cr.P.C.

Bashir Ahmad v. Zafar-ul-Islam and others PLD 2004 SC 298; Liaqat Ali v. Muhammad Saleem Shahzad 2000 YLR 629 and Ahmad Din v. Haseeb Ullah and 3 others 2008 PCr.LJ 1067 ref.

Amir Abdullah Khan Niazi for Appellant.

2022 P Cr. L J 1846

[Lahore]

Before Ali Baqar Najafi and Sardar Muhammad Sarfraz Dogar, JJ

TEREZE HLUSKOVA and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 19382 and 23646 of 2019, decided on 1st November, 2021.

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

----S. 9(c)---Possession of narcotics---Withholding best evidence---Non-production of CCTV footage---Non-production of sample-bearer---Safe custody---Scope---Prosecution case was that the accused was apprehend at the airport while attempting to smuggle narcotics---Complainant had failed to show any official document on the basis of which he was permitted to perform his duties at the airport---Distance between Customs House and airport was 15 kilometers but he took almost 12 hours to reach there---Lady Constable who had searched the accused was not produced as a witness, as such, best evidence was withheld---Investigating Officer had not investigated as to how and when the luggage and narcotics were shifted from airport to Customs House---Investigating Officer had not taken CCTV footages at the airport during investigation though admitted that cameras were installed outside and inside of the airport---CCTV footage in such like incident was mandatory, which ruled out the possibility of false implication to a good extent---Investigating Officer had not stated that he had delivered the samples in the office of Chemical Examiner---Prosecution had failed to bring home the guilt against the accused---Appeal was allowed, conviction was set aside and the appeal filed by the prosecution against acquittal of co-accused was dismissed, in circumstances.

Attaullah v. The State through A.G. Khyber Pakhtunkhwa and another 2020 SCMR 451; Mst. Sakina Ramzan v. The State 2021 SCMR 451; Faizan Ali v. The State 2019 SCMR 1649 and Akhtar Iqbal v. The State 2015 SCMR 291 ref.

Ikramullah and others v. The State 2015 SCMR 1002 rel.

Sardar Asghar Mehmood Dogar, Sardar Abdul Qudoos Dogar and Saif-ul-Malook for Appellants (in Criminal Appeal No. 19382 of 2019).

Major (Retd.) Aftab Ahmad Khan, Legal Advisor for Customs for the State.

2022 P Cr. L J 1852

[Lahore]

Before Malik Shahzad Ahmad Khan and Muhammad Amjad Rafiq, JJ

ADNAN---Appellant

Versus

The STATE---Respondent

Jail Appeal No. 173747 and Murder Reference No. 44 of 2018, heard on 7th March, 2022.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Delay of thirty three hours and twenty five minutes in conducting the post-mortem of the deceased---Scope---Accused was charged for committing murder of the nephew of the complainant by inflicting churri blows---Property dispute was the motive behind the occurrence---Record showed that the occurrence took place at 08:20 a.m., and as per contents of the FIR, the matter was reported to the police and formal FIR was lodged on the same day at 09:30 a.m.---However, post-mortem examination on the dead body of deceased was conducted on the next day at 05:45 p.m., and as such, there was delay of 33 hours and 25 minutes from the occurrence in conducting the post-mortem examination---Medical Officer stated that dead body was brought to the department at 11:30 a.m., but the police documents were received on next day at 05:30 p.m.---Evidently, the police papers were not completed for conducting the post-mortem examination on the dead body of deceased and the said delay in preparation of police papers and conducting the post-mortem examination on the dead body of deceased was suggestive of the fact that the said delay was consumed in procuring the attendance of fake eye-witnesses---Circumstances established that the prosecution had failed to prove its case against the accused beyond the shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances.

Muhammad Ilyas v. Muhammad Abid alias Billa and others 2017 SCMR 54; Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327; Sufyan Nawaz and another v. The State and others 2020 SCMR 192; Zafar v. The State and others 2018 SCMR 326 and Muhammad Ashraf v. The State 2012 SCMR 419 rel.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Presence of eye-witness at the spot was doubtful---Chance witnesses---Scope---Accused was charged for committing murder of the nephew of the complainant by inflicting churri blows---Ocular account of the occurrence had been furnished by complainant and ex-wife of the accused---Occurrence in the case took place inside the house of the deceased---Both the eye-witnesses were admittedly not residents of the house, where the occurrence took place---Both the eye-witnesses of the prosecution stated that they came to the house of deceased on the day of occurrence as deceased wanted to marry ex-wife---Complainant along with his brother came to the house of the deceased in order to discuss the issue of said marriage---Other blood relations and family members of deceased had gone to attend a marriage ceremony to the other city on the day of occurrence and said fact was brought on the record during the cross-examination of the complainant---Question arose that if on the day of occurrence the issue regarding the marriage of deceased was to be discussed, why on the said day, all the family members of deceased including his two brothers, who were residing in the house of occurrence, proceeded to other city to attend the marriage ceremony and in their place, complainant, along with his brother, who were paternal uncles of the deceased had come to the house of occurrence to discuss the matter of marriage---No valid reason of presence of ex-wife in the house of occurrence at the time of occurrence, had been given by the prosecution---Ex-wife of accused who was real maternal uncle of deceased and as such, ex-wife fell within the prohibited degree for the deceased therefore, they could not contract marriage with each other---As per statement of ex-wife, her marriage with the accused was dissolved and the occurrence took place after about seven days which meant that even 'Iddat' period of the lady had not expired on the day of occurrence---Both the eye-witnesses were chance witnesses and they could not establish any valid reason for their presence at the spot at the time of occurrence---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Sufyan Nawaz and another v. The State and others 2020 SCMR 192 and Muhammad Irshad v. Allah Ditta and others 2017 SCMR 142 rel.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Unnatural conduct of eye-witnesses---Scope---Accused was charged for committing murder of the nephew of the complainant by inflicting churri blows---Record showed that the conduct of the prosecution eye-witnesses was highly unnatural---Accused was not armed with any formidable weapon like firearm at the time of occurrence and according to the prosecution case, he was armed with 'churri'---Complainant party was comprising of four members including deceased and said fact was admitted by complainant---Complainant and his brother were real paternal uncles of the deceased and they along with deceased were three adult male members of the complainant party but they did not try to save the deceased at the time of occurrence and gave free hand to the accused to inflict, as many as, nine injuries (as per post-mortem report) on the body of the deceased---As per site plan, there was a distance of only 13 feet between the prosecution eye-witnesses and the accused but they did not try to intervene during the occurrence or apprehend the accused after the occurrence---Eye-witnesses stood like silent spectators and gave free hand to the accused to inflict the injuries to their kith and kin---Conduct of the prosecution eye-witnesses, who were closely related to deceased was highly unnatural therefore, their presence at the spot was highly doubtful, hence their evidence was not worthy of reliance---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

Liaquat Ali v. The State 2008 SCMR 95; Pathan v. The State 2015 SCMR 315 and Zafar v. The State and others 2018 SCMR 326 rel.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence---Confliction---Accused was charged for committing murder of the nephew of the complainant by inflicting churri blow---As per contents of the FIR, accused inflicted only one injury on the abdomen of deceased with the help of churri---According to the post-mortem report and medical evidence furnished by Medical Officer, there were as many as nine injuries on the body of the deceased---Both the prosecution eye-witnesses made dishonest improvements in their statements to bring their evidence in line with the medical evidence while stating that the accused inflicted churri blows which landed on the left nipple, ribs, abdomen, left flank, left arm, back side of left shoulder and on different parts of the body of the deceased---Both the prosecution eye-witnesses were confronted with their previous statements and dishonest improvements made by them were duly brought on the record---Record showed that the prosecution story as set forth in the FIR was in conflict with the medical evidence and in order to cover the weakness in the prosecution case, the eye-witnesses made dishonest improvements in their statements to bring their statements in line with the medical evidence and as such, evidence of prosecution eye-witnesses was not worthy of reliance---Circumstances established that the prosecution had failed to prove its case against the accused beyond the shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

Muhammad Ali v. The State 2015 SCMR 137; Irfan Ali v. The State 2015 SCMR 840; Usman alias Kaloo v. The State 2017 SCMR 622; Nadeem alias Kala v. The State and others 2018 SCMR 153 and Akhtar Ali and others v. The State 2008 SCMR 6 rel.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Motive was not proved---Scope---Accused was charged for committing murder of the nephew of the complainant by inflicting churri blows---Contents of the FIR show that motive behind the occurrence was that there was a dispute of property between sister of the accused and mother of deceased and deceased as the said sister of accused contracted second marriage after the death of father of deceased---No suit filed or pending between deceased and sister of the accused had been produced in the prosecution evidence---No application before any forum which was moved regarding the said dispute of property had been brought on the record by the prosecution---Apart from the said motive, prosecution also alleged another motive of proposed marriage of ex-wife of accused with deceased---Said lady was the best witness to prove the said second motive of the prosecution but her evidence in respect of second motive of the prosecution was self-contradictory---Although ex-wife stated that deceased called her as he wanted to marry her but at the same time she denied the suggestion that she took divorce from the accused to marry deceased---As the evidence of ex-wife about the second motive of the prosecution was self-contradictory, therefore, the said motive had not been proved by the prosecution---High Court observed that it seemed that as ex-wife was divorced by the accused therefore, she tried to implicate the accused in the case through the second motive of the prosecution, whereas, the complainant who was paternal uncle of the accused was annoyed due to second marriage of mother of the accused with someone therefore, witnesses tried to implicate the accused in the present occurrence which appeared to be unseen---Although lady had stated about the first motive of the prosecution regarding the property dispute between the deceased and the accused but she did not allege the said motive in her statement recorded by the police and the improvements made by her in respect of the motive were also duly brought on the record---Second motive alleged by the prosecution did not appeal to a prudent mind that deceased wanted to marry with the wife of his real maternal uncle which fell under prohibited degree for him---Both the motives alleged by the prosecution could not be proved in this case---Circumstances established that the prosecution had failed to prove its case against the accused beyond the shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Recovery of churri (crime weapon) from the possession of accused---Reliance---Scope---Accused was charged for committing murder of the nephew of the complainant by inflicting churri blows---Recovery witness stated that the churri was recovered from a street near wall of Government Tube well under the bricks---Said churri was not recovered from the house or place which was in exclusive possession of the accused and the same was recovered from a street which was accessible to the public---Churri was allegedly recovered after 16 days from the occurrence and during the said period, the accused had ample opportunity to wash away the blood from churri---Furthermore, churri was deposited in the office of Forensic Science Agency after one month and ten days from the occurrence therefore, the blood, if any, on the same must have disintegrated in the meanwhile---Evidence qua recovery of churri and positive report of Forensic Science Agency were of no avail to the prosecution---Circumstances established that the prosecution had failed to prove its case against the accused beyond the shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

Basharat and another v. The State 1995 SCMR 1735 and Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 rel.

(g) Criminal trial---

----Benefit of doubt---Principle---If there was a single circumstance which created doubt regarding the prosecution case, the same was sufficient to give benefit of doubt to the accused.

Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Aiyan Tariq Bhutta for Appellant.

Munir Ahmad Sial, Deputy Prosecutor General along with Musharaf, Assistant Sub-Inspector for the State.

Nemo for the Complainant.

2022 P Cr. L J 10

[Peshawar]

Before Rooh-ul-Amin Khan and Ijaz Anwar, JJ

REHMAT GUL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 989-P of 2019, decided on 10th February, 2021.

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

----S. 9(c)---Possession of 18 kg of charas---Appreciation of evidence---Prosecution case was that 18 kilograms of charas was recovered from a vehicle driven by the accused---Record showed that the complainant/Seizing Officer and recovery witness had furnished straight forward and truthful account of the occurrence---Both the witnesses had been subjected to lengthy and taxing cross-examination but nothing favourable to defence could be brought from their months---Said witnesses remained stuck to their stance and corroborated each other on all material particulars of the occurrence such as the day, date, time and place of occurrence, the mode and manner of arrest of the accused and recovery of contraband charas from secret cavities of the vehicle, which was in the exclusive possession and control of the accused at the relevant time being driven by him---No doubt, the witnesses were Police Officials but nothing in black and white was available on file to show their ill will or enmity with the accused to falsely implicate him in case---Circumstances established that the prosecution had proved the guilt of the accused through cogent and confidence inspiring evidence---Appeal against conviction was dismissed accordingly.

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

----S. 9(c)---Possession of 18 kgs. of charas---Appreciation of evidence---Safe custody and transmission of samples of the narcotic from the police to the Chemical Examiner---Scope---Prosecution case was that 18 kilograms charas was recovered from a vehicle driven by the accused---Testimony of all the witnesses including the Seizing Officer and the Investigating Officer were consistent with each other on the fact that samples and contraband narcotic were brought by two Constables to Police Station from the spot and handed over to Moharrir of the Police Station---Daily diaries also substantiated the testimony of Seizing Officer, Investigating Officer and Moharrir of the Police Station--- Murasila which was the first written document at the spot showed presence of said Constables with the Seizing Officer at the time of occurrence---Prosecution had proved the chain of circumstances under which the samples along with case property was shifted from the spot to the Police Station, produced before the Investigating Officer, then kept in safe custody and onward transmission to the Forensic Science Laboratory for chemical analysis---All the witnesses had been subjected to lengthy and taxing cross-examination by the defence but nothing beneficial to accused was extracted from them nor any doubt was created in prosecution's case,regarding tampering with the samples or that the samples were not in safe custody---Positive Forensic Science Laboratory Report qua samples further strengthened the prosecution case---Circumstances established that the prosecution had proved the guilt of the accused through cogent and confidence inspiring evidence--- Appeal against conviction was dismissed accordingly.

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

----Ss. 32 & 27---Criminal Procedure Code (V of 1898), S. 516-A---Police Rules, 1934, Rr. 22.16 & 22.18---Articles connected with narcotics---Disposal of seized articles---Notice to accused prior to the destruction of narcotics---Scope---Allegedly, at the time of destruction of the case property, no notice was given to the accused, hence, the accused had been prejudiced in his defence---Such objection was not tenable because on the one hand, that objection had neither been raised by the defence at the time of cross-examination of Judicial Magistrate who destroyed the case property or in the cross-examination of Police Official, who produced the case property before Judicial Magistrate for destruction---On the other hand, notice to accused at the time of destruction of the case property, particularly, narcotics was not the requirement of S. 33(4) of the Control of Narcotic Substances Act, 1997---Circumstances established that the prosecution had proved the guilt of the accused through cogent and confidence inspiring evidence--- Appeal against conviction was dismissed accordingly.

Naseer Ahmed v. The State 2004 SCMR 1361 and Fida Muhammad v. The State 2006 PCr.LJ 316 rel.

Ms. Farhana Naz Marwat for Appellant.

Mujahid Ali Khan, A.A.G. for the State.

2022 P Cr. L J 101

[Peshawar]

Before Lal Jan Khattak and Syed Arshad Ali, JJ

MUHAMMAD SAFDAR---Petitioner

Versus

CHAIRMAN NAB and 3 others---Respondents

Writ Petition No. 4576-P of 2020, decided on 27th April, 2021.

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

----S. 9 (a)(v)---Constitution of Pakistan, Art. 199---Constitutional petition---Assets beyond known sources of income---Determination---High Court while exercising Constitutional jurisdiction pertaining to grant or otherwise of bail before arrest cannot hold whether a particular asset has come to holder of public office or to any other person through his known legal sources of income or otherwise.

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

----Ss. 9(a)(v) & 9(b)---Constitution of Pakistan, Art. 199---Pre-arrest bail, grant of---Mala fide---Presumption of innocence--- Petitioner was accused of holding assets beyond known sources of his income---Plea raised by petitioner was despite repeated appearances, National Accountability Bureau (NAB) had been calling him time and again due to mala fide reasons---Validity---High Court while exercising its Constitutional jurisdiction was to see whether or not there was anymala fide on the part of NAB authorities to arrest accused and whether or not a prima facie case for grant of extra ordinary concession of admitting him to bail before arrest was made out---If Constitutional Court in the light of record had reached to the conclusion that mala fide was reflected from intended NAB's move to arrest accused and latter also succeeded in setting up a prima facie case in his favour then in such like situation, it was primary duty and legal obligation of Court to grant relief to the citizen so that he could be protected from unjust and arbitrary arrest---If despite element of mala fide on the part of NAB to nab accused, the latter was not admitted to bail before arrest and allowed to be grilled by the former's investigators for maximum period of 90 days by putting him behind the bars then centuries old jurisprudence developed by Courts of law regarding presumption of innocence of accused unless proven guilty would die down and would be meaningless---In response to various call up notices, petitioner appeared before Combined Investigation Team and presented before it his point of view regarding allegations pertaining to accumulation of assets beyond his known sources of income---Reply so submitted by petitioner to Combined Investigation Team was documented one and it would be seen by the relevant forum whether plea of accused and his defence was correct or otherwise---Petitioner had prima facie answered through documents all queries of NAB put to him through numerous call up notices---Apart from responding to NAB's queries through various documents, he was regularly attending High Court and did not misuse his interim order whereby ad-interim bail before arrest was granted to him which aspect could not be overlooked while deciding bail application--- Bail was allowed, in circumstances.

PLD 2020 SC 456 rel.

Barrister Syed Mudasser Ameer, Manzoor Khan Khalil and Akhunzada Asad Iqbal for Petitioner.

Syed Azeem Dad, ADPG, Muhammad Ali and Haider Ali, Special Public Prosecutors for NAB.

2022 P Cr. L J 173

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

SALIH MUHAMMAD alias SAWAL and others---Appellants

Versus

The STATE through A.A.G. and others---Respondents

Criminal Appeal No. 353-M and Criminal Revision No. 69-M of 2019, decided on 19th May, 2021.

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

----Ss. 302(b) & 34---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, common intention---Appreciation of evidence---Dying declaration of complainant---Scope---Accused were charged for committing murder of the complainant/deceased---Motive for the occurrence was disclosed as a dispute arising out of some loan transaction of Rs. 14,000/----In support of dying declaration, prosecution had been relying upon statement of Sub-Inspector (SI), who had recorded the dying declaration in shape of Murasila and statement of Medical Officer as well as statement of brother of the deceased/complainant---Prosecution had also been relying upon the consciousness certificate as well as report of initial medical examination of injured by same Medical Officer---In support thereof Medical Officer had been examined, who in his cross-examination stated that during examination the patient was serious and in trauma---Said witness also admitted that certificate neither borne his signature nor his seal---Certificate borne signature of a doctor but same could easily be said to be different from the signature present on report of medical examination of the deceased---Medical Officer had also disowned said signature---Doubtful as to who had signed the certificate as a doctor---Even the Medical Officer who claimed to have given consciousness certificate had also stated that during initial examination of the patient he had been serious and in trauma---After receiving major injuries to brain, lungs and main vessels associated therewith, it was hard to believe that he would have retained his conscious and given the statement in as much detailed as recorded in the Murasila---Sub-Inspector who had recorded the 'Murasila' admitted that the consciousness certificate had not been signed by him and further added that it had in-fact been signed by his assistant/Head Constable---Said Head Constable had not been examined as witness in the trial---Dying declaration in the case in hand had not at all been reliable and worthy of reliance---Factum of dying declaration could not be proved by the prosecution---Complainant had also a brother and relatives in his company and he was also prone to tutoring and consultation---Dying declaration could not therefore be relied upon in such circumstances and same had been of no help to the case of prosecution---Prosecution had failed to bring home of the accused---Appeal was allowed.

Farman Ali and 3 others v. The State PLD 1980 SC 201 and Faqir Said v. The State and another 2020 YLR 1169 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Chance witnesses---Scope---Accused were charged for committing murder of the complainant/deceased---Prosecution had been relying upon statement of two eye-witnesses including brother of the deceased complainant---Brother of the complainant/witness stated that on the day of occurrence he had been going to bazaar on foot as he had been serving in a shop there---In the meanwhile, his deceased brother had passed beside him while driving his tractor, went ahead and took a turn---Said witness further stated that as soon as his brother took the turn he heard fire shots and thereby speeded up his pace---Other eye-witness was also stated to be going there and had seen the occurrence---Said witness also stated that complainant had been fully in senses and conscious and had reported the matter in the hospital to the Police Official on duty---Motive was also stated to be a dispute over fourteen thousand rupees---In his cross-examination, the witness stated that he had been residing in a separate house from the deceased---Said witness had suddenly happened to have witnessed the occurrence and had been a chance witness---Brother of complainant/eye-witness though stated that he had been serving in a shop and had been going to bazaar on foot but such an explanation was not sufficient to fully establish presence of the witness at the scene of crime, right at the time of commission of the offence---Unnatural that witness had been going on foot while his brother had been driving a tractor to same destination, neither the brother had asked the witness to board the tractor nor he had boarded the same---Explanation given by the said witness was not found believable---Other eye-witness had also given a similar narration---Said witness had not stated that the brother of deceased had also been present at the time of occurrence and witnessed the crime---Said witness had not been specifically named in the FIR to have seen the occurrence---Said witness was also a chance witness as he had also reached the place of occurrence per chance---Witness could not satisfactorily explain the reason of his presence at the spot at the time of commission of the offence---Testimonies of said witnesses could not therefore safely be relied upon for convicting the accused on a capital charge--- Appeal against conviction was allowed, in circumstances.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 and Mst. Shazia Parveen v. The State 2014 SCMR 1197 rel.

(c) Criminal trial---

----Recovery---Evidentiary value---Recovery was a corroborative piece of evidence---Conviction might not solely be based upon corroboratory evidence.

Muhammad Afzal alias Abdullah and others v. The State and others 2009 SCMR 639; Imran Ashraf and 7 others v. The State 2001 SCMR 424 and 2007 SCMR 1427 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence--- Recovery of weapon of offence on the pointation of accused---Reliance---Scope---Accused were charged for committing murder of the complainant/deceased---Record showed that the recovery had been effected after three days of the occurrence---However, the same had been shown to be containing blood in such quantity that it had been found sufficient for blood grouping---Forensic Science Laboratory Report had been showing that weapon of offence had been containing human blood and of the same group and matching with blood group found on the blood stained earth and blood stained shirt of the deceased---Likewise, the recovery of rifle on pointation of the co-accused from his landed property had also been found doubtful for the reason that according to marginal witness of the recovery memo the place of recovery could be covered within 05/10 minutes from the main road---Recovery had been effected after three days of the occurrence then how was it possible that the rifle had been lying in open field for long three days and same had not been spotted by anyone---Such recoveries and Forensic Science Laboratory Reports had not been free from doubts as well---Circumstances established that the prosecution had not been able to bring home guilt of the accused---Appeal was allowed.

(e) 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.

Jehanzeb Buneri for Appellants (in Criminal Appeal No. 353-M of 2019).

Shams Buneri for the Complainant (in Criminal Appeal No. 353-M of 2019)..

Shams Buneri for Petitioners (in Revision No. 69-M of 2019).).

Raza-ud-Din Khan, Additional A.G. for the State (in Criminal Appeal No. 353-M and Criminal Revision No. 69-M of 2019).

2022 P Cr. L J 213

[Peshawar]

Before Rooh-ul-Amin Khan and Ishtiaq Ibrahim, JJ

SANAULLAH BABAR---Appellant

Versus

The STATE/NATIONAL ACCOUNTABILITY BUREAU through Chairman NAB and others---Respondents

Eh. Criminal Appeal No. 83-P of 2009, decided on 3rd March, 2021.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(iv) & 32---Assets beyond known sources of income---Appreciation of evidence---Benami holding of properties---Proof---Death of accused---Legal heirs, impleading of---Accused was alleged to have assets beyond his known sources of income purchased in the names of his wife and son---Accused was convicted and sentenced by Trial Court and the properties were also forfeited---During pendency of appeal accused died and High Court arrayed his legal heirs as appellants in appeal---Widow and son of deceased accused claimed to be owners of the properties forfeited by Trial Court, as the same were purchased by their own independent sources of income---Validity---Details of properties purchased and sold by deceased accused revealed that spouses had purchased land and plots on meager amount and sold out the same on handsome price which had boasted their income quickly---Findings of Trial Court with regard to guilt of deceased accused were based on mere presumptions and assumption---Assumptions and presumption how high might be could not be a substitute of evidence---Deceased accused through evidence led by him in defence had successfully rebutted allegation of prosecution---Prosecution failed to prove its case through cogent and confidence inspiring documentary and oral evidence---Even a shred of evidence was not brought by prosecution to prove corruption and corrupt practices of deceased accused and widow while they were serving in service of Pakistan---High Court set aside sentence of fine imposed by Trial Court to the extent of forfeiture of properties in the name of deceased accused and his dependents including his widow and son---Appeal was allowed accordingly.

Ghani ur Rehman v. National Accountability Bureau, Criminal Appeal No.170/2003 and Hakim Ali Zardari's case 2007 MLD 910 rel.

Qazi Muhammad Anwar, Senior Advocate Supreme Court for Appellant.

Hashmat Jahangir, ADPG for Respondents/NAB.

2022 P Cr. L J 249

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J

ESLAM WAZIR---Petitioner

Versus

NEK DAR KHAN and another---Respondents

Criminal Revision No. 30-M of 2020, decided on 16th October, 2020.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 353, 427, 109 & 34---Criminal Procedure Code (V of 1898), Ss. 233, 234 & 235---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, mischief causing damage to the amount of fifty rupees, abetment, common intention---Appreciation of evidence---Application for framing of a single charge in the two cases filed by accused was declined---Effect---Section 233, Cr.P.C., laid down the general principle that for every distinct offence, of which any person was accused, there should be a separate charge, and every such charge should be tried separately---General rule had been provided as separate framing of charge for each independent offence or offences, as well as its separate trial---Exceptions had no doubt been provided in Ss. 234, 235, 236 & 239 Cr.P.C., but same would be construed as exceptions to the general rule and could only be resorted to when a case was fully covered under the four corners of exceptions provided therein---Section 234, Cr.P.C. was discretionary in nature, which was evident from use of the words 'may be' and therefore same had been left to the discretion of the court, for the reason that the court would see whether facts and circumstances of offences allowed framing of a simple charge---Joinder of charges in offences carrying capital punishment at different places and times could hardly be taken to be a reasonable exercise of discretion vested in the court by S. 234, Cr.P.C.---One could not perceive that a person committing offence of murder of different persons within a span of one year might be tried together---Such an interpretation would obviously offend against the general rule enshrined in S. 233, Cr.P.C.---Section 235, Cr.P.C., provided that if in one series of acts so connected together as to form the same transaction, more offences than one were committed by same person, he might be charged with and tried at one trial for every such offence---In the present case, stories of the two FIRs showed that the offences were independent in nature and same could hardly be termed as forming same transaction---Offences under Ss. 302 & 324, P.P.C. in respect of which FIR had been registered stood completed at the spot---Accused left and while travelling in the motorcar noticed the police party at a different place and time and made firing upon them,in respect of which another FIR had been registered---Except the factum of arrest of accused/petitioner, and recovery of firearm (weapon of offence), rest of the evidence of the two cases were not common and had been independent from each other---Two transactions could not be called so connected together as to form the same transaction---Trial Court had exercised its discretion in a matter, which fell in its discretionary powers---Exercise of discretion by the Trial Court could neither be termed as illegal, perverse, arbitrary, nor resulting into any injustice or prejudice to the accused---Interference in order of the Trial Court being not justified, criminal revision petition was dismissed accordingly.

Nadir Shah v. State 1980 SCMR 402; Shah Nawaz v. The State 1992 SCMR 1583; State through Prosecutor General, Camp Office, Karachi v. Ramesh M. Udeshi, Senior Secretary, Board of Revenue (land Utilization) Sindh and others PLD 2003 SC 891; Zahid Ali and 2 others v. The State 1986 MLD 2477; 1973 SCMR 542; 1991 MLD 1973; 2005 PCr.LJ 806; State v. Mirza Azam Beg, P.C.S. and another PLD 1964 (W.P) Lahore 339; PLD 1965 (W.P) Peshawar 65; Zia-ul-Haq v. The State 1973 PCr.LJ 457; Ghulam Farooq alias Ghulam Qasim v. The State 2000 MLD 1504 and Ramesh M. Udeshi v. The State 2002 PCr.LJ 1712 ref.

Muhammad Arshad Naseem v. The State 2004 PCr.LJ 371; The State v. Mirza Azam Beg, P.C.S. and another PLD 1964 (W.P) Lahore 339; Zia-ul-Haq v. The State 1973 PCr.LJ 457; Ghulam Farooq alias Ghulam Qasim v. The State 2000 MLD 1504 and Ramesh M. Udeshi v. The State 2002 PCr.LJ 1712 rel.

Shabbir Hussain Gigyani for Petitioner (via video link).

Syed Abdul Haq for Respondent No. 1.

Sohail Sultan, Assistant A.G. for the State.

2022 P Cr. L J 274

[Peshawar (Bannu Bench)]

Before Sahibzada Abdullah, J

ZAHIDULLAH---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 74-B of 2021, decided on 30th June, 2021.

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

----Ss. 324 & 337-F---Attempt to commit qatl-i-amd, ghayr-jaifah, badi'ah---Appreciation of evidence---Benefit of doubt---Scope---Accused was convicted for having attempted at the life of the complainant by making a fire shot---Site plan depicted that at the time of incident the complainant was going to rescue his womenfolk from the clutches of the persons who were busy in beating them and the accused was shown to be sitting in ambush on the top of a nearby hill---In such eventuality when the complainant was proceeding towards the womenfolk then it was his chest which was exposed to the accused as by the time he allegedly received the firearm injury he had not crossed the place where the accused was shown present---Entry wound did not find its exit to the front and it belied the stance of the complainant---Investigating officer had not associated any independent witness to confirm as to what the complainant had stated---Impugned judgment was set aside and the appeal was allowed.

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

----S. 410---Appeal---Duty of Appellate Court---Scope---Bounden duty of the court of appeal to apply its judicious mind and scan the available record as an appeal is the continuation of the proceedings.

Khalid Riaz Khattak for Appellant.

Muhammad Younas Khattak for Respondents.

Arshad Hussain Yousafzai, Assistant A.G. for the State.

2022 P Cr. L J 309

[Peshawar]

Before Lal Jan Khattak and Musarrat Hilali, JJ

WIQAR AHMED KHAN and another---Petitioners

Versus

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

Writ Petition No. 6535-P of 2019, decided on 14th December, 2021.

National Accountability Ordinance (XVIII of 1999)---

----S. 19---Criminal Procedure Code (V of 1898), Ss. 161 & 173---Constitution of Pakistan, Art. 199---Constitutional petition---Criminal Trial---Documentary evidence---Witness not named in calendar of witnesses---Statement under S. 161, Cr.P.C. not recorded---Effect---Dispute was with regard to permission granted by Trial Court to produce prosecution witness whose only designation was mentioned in calendar of witnesses and statement under S. 161, Cr.P.C. was recorded by investigating officer---Validity---Held, it was not the document which was to play its role in a case but the linchpin to decide case was always legal and intrinsic value and worth of the contents of the document which were adjudged by the Courts of law according to Qanun-e-Shahadat, 1984---Not necessary that the official, who was called to produce a particular document in his custody was cited in calendar of witnesses by his family name---Such was sufficed if the witness was listed for prosecution as its witness through his designation---Custodian of records come and go who do not have permanent postings at particular stations---Investigating officer could collect any document from any person under S. 19(b) of National Accountability Ordinance, 1999, if the same had relevancy with the case--- It was not necessary that statement under S. 161, Cr.P.C. of producer of the document be recorded---Investigating officer, under S. 19(c) of National Accountability Ordinance, 1999, could examine a person acquainted with facts and circumstances of the case---Only in the latter situation, recording of statement under S. 161, Cr.P.C. was necessary while in the former situation no legal obligation lied on investigating officer to resort to legal provision under S. 161, Cr.P.C.---High Court declined to interfere in order passed by Trial Court--- Constitutional petition was dismissed, in circumstances.

Barrister Syed Mudasser Ameer for Petitioners.

Riaz Mohmand, ADPG, NAB for Respondents.

2022 P Cr. L J 372

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim, J

Mst. HAFSA---Petitioner

Versus

KHAN BACHA and another---Respondents

Criminal M. (B.C.A.) No. 96-M of 2020, decided on 29th October, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 376, 496-A & 342---Khyber Pakhtunkhwa Child Protection and Welfare Act (XIII of 2010), S. 53---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Rape, wrongful confinement, illegal marriage, sexual abuse with child and illegal weapon---Bail, cancellation of---Fresh ground---Non-submission of Challan---Effect---Complainant was 8/9 years of girl who was sexually abused by accused---Accused was released on bail on the ground that challan was not submitted---Validity---Submission or non-submission of Challan under S. 173, Cr.P.C. in a case was never considered as fresh ground for bail in such heinous offence--- Post arrest bails were exhaustively been dealt with in S. 497, Cr.P.C. which too nowhere empowered the Courts for grant of bail to accused on the ground of submission or non-submission of Challan by prosecution---Trial Court was not properly assisted regarding such legal propositions and as such passed the order without showing any justification on the record---High Court directed to take accused in custody and recalled the bail granting order to him---Bail was cancelled, in circumstances.

The State through Advocate General NWFP v. Zubair and 4 others PLJ 1986 SC 369 and Syed Bashir Shah/Mubashar Shah v. The State 2020 PCr.LJ 147 rel.

Ms. Shehnaz for Petitioner.

Razauddin Khan, A.A.G. for the State.

Respondent No. 1 in person along with Said Karim Shalman.

2022 P Cr. L J 402

[Peshawar]

Before Syed Arshad Ali, J

NORAB KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 230-P of 2021, decided on 19th July, 2021.

(a) Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019)---

----S. 9(d)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Scope---Allegation against the accused was that 5000 grams of charas were recovered from the motorcycle which was being driven by the accused---Record showed that according to the FIR and statement of the complainant, the murasila was sent to the Police Station through a Constable but the prosecution had not recorded his statement for the reason best known to them---Complainant in his examination-in-chief stated that from each envelope 05 grams charas were separated for the purpose of Forensic Science Laboratory whereas perusal of murasila and FIR showed that 10/10 grams were separated from 05 envelopes which created serious doubt in the prosecution case---Recovery witness in his cross-examination stated that they came back to the Police Station on the same day at about 06:00 p.m. whereas Investigating Officer in his cross-examination stated that after conducting the entire proceedings on the spot, he returned to the Police Station at 07:00 p.m. on the same day while Moharrir in his cross-examination stated that at about 06:00/06:30 p.m. the samples were brought by the Investigating Officer and thereafter he received the same---Circumstances established that the prosecution evidence was discrepant, contradictory and could not be considered sufficient for basing conviction of the accused---Appeal against conviction was allowed, in circumstances.

(b) Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019)---

----S. 9(d)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Delay of about twenty seven days in sending the sample for analysis---Effect---Allegation against the accused was that 5000 grams of charas were recovered from the motorcycle which was being driven by the accused---Occurrence had taken place on 22.07.2020 while as per statement of Moharrir the samples were handed over to Head Constable for onward transmission to the Forensic Science Laboratory on 27.07.2020, whereas the samples were received in the Forensic Science Laboratory on 19.08.2020 with a considerable delay of twenty seven days---Prosecution could not offer any plausible explanation for such delay---Samples of contraband were allegedly taken to the Forensic Science Laboratory by a Constable but the said constable was not examined by the prosecution in court to authenticate the delivery and safe transit of samples to the Forensic Science Laboratory---Record was silent about the safe custody of the contraband in the Police Station---In case of any doubt in the safe custody of the sample during its transportation from the place of recovery till it reached in the hands of experts, the same would vitiate the entire prosecution case---Circumstances established that the prosecution evidence was discrepant, contradictory and could not be considered sufficient for basing conviction of the accused---Appeal against conviction was allowed, in circumstances.

Imam Bakhsh's case 2018 SCMR 2039; Zubair Khan v. The State 2021 SCMR 492; Mst. Sakina Ramzan v. The State 2021 SCMR 451; Mst. Razia Sultana v. The State and another 2019 SCMR 1300 and Zahir Shah alias Shat v. The State through Advocate General, Khyber Pakhtunkhwa 2019 SCMR 2004 rel.

Noor Alam Khan and Fawad Afzal Khan Safi for Appellant.

Muhammad Nisar Khan, A.A.G. for the State.

2022 P Cr. L J 449

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

RASHID KHAN---Appellant

Versus

STATE through A.A.G. and another---Respondents

Criminal Appeal No. 476-M of 2019, decided on 17th February, 2021.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Presence of eye-witnesses at the time of occurrence at the spot was justified---Scope---Accused was charged for committing murder of his wife/sister of complainant due to strained relations---Occurrence was witnessed by complainant and two other witnesses who had gone to the house of accused for reconciliation between the spouses as the relations between them were not cordial---Complainant appeared before the Trial Court and reiterated in his examination-in-chief the contents of his report---Other eye-witness also supported the allegation against the accused by stating that he had gone to the house of accused along with complainant and other eye-witness for patching up the matter between the spouses during which the accused committed murder of his wife by firing---No doubt, the complainant and other eye-witnesses were residents of a village which was at a walking distance of 40/45 minutes from the village where the occurrence took place---Complainant had explained that he and other eye-witnesses were present in the house of accused for the purpose of compromise between his sister and her husband---Said version of the complainant, being in accordance with the prevailing customs in the area for patching up domestic resolutions, stand to reason, as such, their presence on the spot at the time of occurrence could not be doubted---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Related and interested witnesses---Scope---Accused was charged for committing murder of his wife/sister of complainant due to strained relations---No doubt, both the eye-witnesses were closely related to deceased being her real brother and real uncle respectively---Testimony of said witnesses, which was otherwise trustworthy and confidence inspiring could not be discarded mere on the ground that they were closely related to deceased---Such was not a rule of universal application that a person not related to deceased would always speak the truth and a witness closely related to the deceased would necessarily tell lie in his favour---Rather it was the intrinsic worth of the evidence of a witness which was required to be considered and his relation with the deceased would not come in the way of his evidence---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Abid Ali and 2 others v. The State 2011 SCMR 208 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of incriminating material---Reliance---Scope---Accused was charged for committing murder of his wife/sister of complainant due to strained relations---Admittedly, deceased was wife of the present accused and he committed her murder inside his house as per prosecution version---Investigating Officer had collected blood stained sand as well as seven crime empties of 30 bore and a bullet-hit silver bowl from the room where the occurrence took place---Recovery memos in that regard were available on record---One of the marginal witnesses was produced in support of the said recoveries who had supported the same in his statement and nothing could be from him on the record during his cross-examination to create a doubt regarding the genuineness of the recovery memos---Both the eye-witnesses had stated in their cross-examination that they along with abandoned witness were present inside the room of deceased and they were sitting on a mat at the time of conversation whereafter the occurrence took place---Place of occurrence i.e. a room in the house of accused was established---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Unnatural conduct of accused---Scope---Accused was charged for committing murder of his wife/sister of complainant due to strained relations---In the present case, the lady was done to death through firing---Accused, being her husband neither shifted her to hospital for saving her life nor he reported the incident to police rather he went abroad soon after the occurrence and made his entry to Pakistan after three long years---Neither accused had recorded his statement on oath to raise the plea that he was not present in his house at the time of occurrence nor he had uttered a single word in that regard during his examination under S. 342, Cr.P.C.---Even the defence had not put a single suggestion to that effect while cross-examining the witnesses to cast shadow of doubt on his presence in the house at the time of occurrence---Said conduct of the accused and his silence to explain what had happened to his wife had made his position very much suspicious which had lightened the burden of prosecution to a great extent---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Saeed Ahmad v. The State 2015 SCMR 710 and Ansar Mehmood v. Abdul Khaliq and another 2011 SCMR 713 rel.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Medical evidence---Scope---Accused was charged for committing murder of his wife/sister of complainant due to strained relations---Prosecution case was also supported by medical evidence---Medical report revealed that there were 06 entry wounds on the body of deceased which meant that it was a clear cut case of Qatl-i-amd---No doubt, in cases where medical evidence was doubtful with regard to the nature of death as homicide or suicide, in such like situation the benefit could be given to the inmates of the house---Injuries referred above led to an irresistible conclusion that it was a case of homicide---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Ocular account supported by site plan---Scope---Accused was charged for committing murder of his wife/sister of complainant due to strained relations---Investigating Officer had recovered seven empties of 30 bore and three damaged bullets from the room where the deceased was done to death through firing---Contents of site plan and statements of eye-witnesses also supported each other---No conspicuous disparity could be found between the ocular account and site plan---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Non-recovery of weapon of offence---Effect---Accused was charged for committing murder of his wife/sister of complainant due to strained relations---Although the crime weapon had not been recovered in the present case---However, non-recovery of crime weapon in view of abscondence of the accused for more than three years was not harmful to the prosecution case because recovery of crime weapon after such long period could not be expected---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Khalida Bibi v. Nadeem Baig PLD 2009 SC 440 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Delay in lodging the FIR---Scope---Accused was charged for committing murder of his wife/sister of complainant due to strained relations---Complainant stated that he was present at the time when his sister was shot dead by the present accused---When there was no apprehension of mistaken identity of the assailant, the delay caused in lodging the report would not damage the prosecution case most particularly when nothing had been brought on the record to suggest false implication of the accused on the basis of ill-will or mala fide---Accused went abroad soon after the occurrence and returned to Pakistan after more than three years---Accused had offered no explanation except the bald statement that he had gone there for earning his livelihood---Long and unexplained abscondence of accused further corroborated his involvement in commission of the offence---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Ayaz Ali Shah v. The State 1997 SCMR 1296 rel.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Mitigating circumstances---Scope---Accused was charged for committing murder of his wife/sister of complainant due to strained relations---Complainant alleged that there was a dispute regarding a cow between the spouses and it appeared that because of the said motive the accused shot dead his wife through firing---Motive set up by prosecution had not been proved, however, the accused could not be acquitted on the sole ground of absence of motive or failure of prosecution to prove the same---Said gap could be considered towards mitigation of the sentence---Trial Court had already taken lenient view while awarding the sentence of life imprisonment to the accused---Appeal against conviction was dismissed accordingly.

State/Government of Sindh through Advocate-General, Sindh, Karachi v. Sobharo 1993 SCMR 585 rel.

Shabbir Hussain Gigyani for Appellant/convict.

Haq Nawaz Khan, Assistant A.G. for the State.

Rahim Zada for the Complainant.

2022 P Cr. L J 517

[Peshawar]

Before Lal Jan Khattak and S M Attique Shah, JJ

MUNTAZIR KHAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 833-P of 2020, decided on 30th March, 2021.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Night time occurrence---Source of light---Scope---Accused were charged for committing murder of the brother of the complainant---Motive behind the occurrence was that 18/19 years back, sister of the accused had eloped with the deceased---In the present case, the complainant/brother and son of the deceased had charged the accused persons for the murder of the deceased by firing at him with their respective Kalashnikovs---Both the said witnesses in their respective statements had stated that they identified the accused in the light of electric bulb---Distance from the place of bulb and that of complainant or accused had not been mentioned therein, from which it could be ascertained that a person from such a distance could be identified or not---Moreover, said witnesses did not utter a single word that where the bulb was lit at the time of occurrence---Investigating Officer prepared the site plan at the instance of eye-witnesses, wherein the bulb had been shown to be affixed on the wall of the house of another person and was allegedly lit at the time of occurrence---Said witness had not been produced before the court in order to establish that at the time of occurrence, it was lit or otherwise---Circumstances established that the prosecution had failed to prove its case in the mode and manner as alleged---Appeal against conviction was allowed, in circumstances.

Allah Ditta v. The State PLD 1960 SC (Pak) 18; Zalay Mir v. The State 1997 PCr.LJ 510; Sher Akbar v. Mst. Sajida and another YLR 2011 1014 and Hayatullah v. The State and another YLR 2018 Note 43 ref.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Site plan---Scope---Accused were charged for committing murder of the brother of the complainant---In the site plan, the distance between the house of accused and the place of occurrence had been mentioned as 35 paces---Distance between the accused and eye-witnesses had been shown as 13/14 paces---No point had been allotted to the house of accused in the site plan, whereas the house of accused and that of the person where bulb was lit had been shown opposite to each other of the thoroughfare---Investigating Officer had not given distance between point, where the bulb was lit, and where the complainant and eye-witness had been shown respectively---Distance between points allotted to accused and witnesses respectively had been shown as 13/14 paces respectively, whereas the distance between the house of the accused and place of occurrence had been mentioned as 35 paces---When the same was added with the distance of complainant and accused i.e. 13/14 paces, that came 48/49 paces (140 feet)---From such a long distance recognition of accused was not possible---Complainant during cross-examination stated that the distance between the spot and that of his house might be 250/300 paces---Neither house of complainant nor such distance had been shown in the site plan by the Investigating Officer, which was prepared at his instance---Circumstances established that the prosecution failed to prove its case in the mode and manner as alleged---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of crime empties, blood stained earth and bulb---Scope---Accused were charged for committing murder of the brother of the complainant---Record showed that during spot inspection the Investigating Officer recovered blood-stained earth from the place of deceased, four empties of 7.62 bore and a bulb of 100 watt---Complainant did not utter a single word qua recovery of the bulb, which was alleged to be lit at the time of occurrence---Empties of 7.62 bore, so recovered from the crime spot, were not sent to the Forensic Science Laboratory to ascertain as to whether the same were fired from one weapon or more than one weapon---Although, both the eye-witnesses had forwarded the ocular account of occurrence, but both in their respective cross-examination stated that they could not say that with whose fire shot the deceased was hit---Accused, at the time of arrest of the accused, no crime weapon had been recovered either from his direct or indirect possession nor he had made any discovery---Circumstances established that the prosecution miserably failed to prove its case in the mode and manner as alleged---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Unnatural conduct of eye-witnesses---Scope---Accused were charged for committing murder of the brother of the complainant---Deceased was real brother and father of the eye-witnesses; albeit, the pronounced aspect of the case was that neither, they had lifted the dead body of the deceased from the spot; nor, could they name those persons who attracted to the spot after the occurrence and lifted the dead body of the deceased to the police station---Held, it was not appealable to a prudent mind being against the natural human conduct---Both the eye-witnesses in their respective statements had stated that no firing was made upon them and only deceased was fired at---When both the accused were duly armed with Kalashnikovs, then why they had not fired at the eye-witnesses, knowing well that they would become witnesses of the occurrence and would depose against them during the trial---On mere direct charge of the accused by the eye-witnesses without strong corroboration of their testimony, conviction of the appellant would be against the principles of administration of justice---Circumstances established that the prosecution failed to prove its case in the mode and manner as alleged---Appeal against conviction was allowed, in circumstances.

(e) Criminal trial---

----Absconsion---Scope---Mere absconsion of accused would not be enough to sustain his conviction.

Muhammad's case 1986 SCMR 823 rel.

Astaghfirullah, Yaseenullah and Nasrumin Allah for Appellant.

Omer Farooq, A.A.G. for the State.

Shabbir Hussain Gigyani for the Complainant.

2022 P Cr. L J 580

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmed, JJ

SAQIB KHAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 292-M of 2020, decided on 27th May, 2021.

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

----Ss. 376 & 377---Rape, unnatural offence---Appreciation of evidence---Accused, a Juvenile---Sentence, reduction in---Medical evidence---Scope---Accused was charged for committing rape with the minor daughter of complainant---Medical Officer, after examining the victim, had given her detailed reports which were explicit in terms and clearly verified that hymen of the victim was absent and tear was found on her anal region, hence, there remained no doubt to conclude that the victim was subjected to forceful vaginal as well as anal intercourse---Said Medical Officer was thoroughly cross-examined on each and every aspect of the case but nothing was brought on record to create a doubt with regard to her observations regarding the victim she had recorded in her reports---Medical evidence was of pivotal importance and could rightly be considered against the accused---Accused was arrested on the same night from his house and was medically examined by Medical Officer who had confirmed in his report that the accused by that time had developed secondary sexual characteristics and had attained puberty---Circumstances established that the prosecution had proved its case against the accused, however appeal was partially allowed by reducing sentence of imprisonment to ten years---Accused, being a juvenile, would be released on probation for the remaining period of sentence

Muhammad Asif and another v. The State 2006 SCMR 338 rel.

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

----Ss. 376 & 377--- Rape, unnatural offence---Appreciation of evidence---Accused, a Juvenile---Sentence, reduction in---Ocular account---Scope---Accused was charged for committing rape with the minor daughter of complainant---Although prosecution had not examined the victim apparently because of her tender age, however, complainant, mother of victim had lodged the report in her presence on the basis of information she had received from her immediately after the occurrence---Complainant and her brother-in-law had stated that they had found blood stains on shalwar of the victim and she was crying because of pain---Both the said witnesses had been significantly cross-examined but they had remained firm in their narrations with regard to all the events followed by the occurrence, hence, the natural mode of their narrations excluded all the possibilities of concoction or pre-planning for enrobing an innocent person in a false case---Circumstances established that the prosecution had proved its case against the accused, however appeal was partially allowed by reducing sentence of imprisonment to ten years, being a juvenile, accused would be released on probation for the remaining period of sentence.

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

----Ss. 376 & 377---Rape, unnatural offence---Appreciation of evidence---Accused, a Juvenile---Sentence, reduction in---Recovery of cot on the pointation of accused---Reliance---Scope---Accused was charged for committing rape with the minor daughter of complainant---Record showed that the Investigating Officer had taken into possession the cot on pointation of the accused from his baitak on which he had subjected the minor to rape---Happenings which had occurred after the occurrence substantiated statement of the victim before her mother---Circumstances established that the prosecution had proved its case against the accused, however appeal was partially allowed by reducing sentence of imprisonment to ten years, being a juvenile, accused would be released on probation for the remaining period of sentence.

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

----Ss. 376 & 377--- Rape, unnatural offence---Appreciation of evidence---Accused, a Juvenile---Sentence, reduction in---Conduct of witnesses---Scope---Accused was charged for committing rape with the minor daughter of complainant---Possibility of false implication of the present accused in the case on the basis of ill-will was ruled out for the reason that there was no evidence of previous enmity between the parties nor the defence had confronted complainant or her brother-in-law, who had verified the report, with any suggestion in that regard---Even otherwise false implication of accused in such like cases could not be expected from parents of the victim because of shame and humiliation in society as obviously as result of such disclosure the victim would carry the stigma with her for the whole of her life---Thrashing of the entire evidence on record, there was no possibility of false implication of the accused in the present case---Testimony of witnesses came under the principle of res gestae and the same was admissible in evidence under Art. 19 of the Qanun-e-Shahadat, 1984---Complainant and uncle of the victim had explained all aspects of the occurrence and their statements were also corroborated by medical and other circumstantial evidence---Testimony of said witnesses being straightforward, trustworthy and confidence inspiring connected the accused with occurrence---Circumstances established that the prosecution had proved its case against the accused, however appeal was partially allowed by reducing sentence of imprisonment to ten years, being a juvenile, accused would be released on probation for the remaining period of sentence.

Riasat Ali and another v. The State PLD 1991 SC 397 rel.

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

----Ss. 376 & 377--- Rape, unnatural offence--- Appreciation of evidence---Accused, a Juvenile---Sentence, reduction in---Delay in lodging the FIR---Scope---Accused was charged for committing rape with the minor daughter of complainant---Admittedly, father of the victim was abroad for his livelihood and complainant was totally dependent upon her in-laws---Keeping in view nature of the offence as well as social and domestic issues connected therewith, reluctance of the complainant, being a rustic villager, to disclose the matter could not be ignored---Delay in lodging the report had no adverse bearing on the case of prosecution, in circumstances---Circumstances established that the prosecution had proved its case against the accused, however appeal was partially allowed by reducing sentence of imprisonment to ten years, being a juvenile, accused would be released on probation for the remaining period of sentence.

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

----Ss. 376 & 377--- Rape, unnatural offence--- Appreciation of evidence--- Accused, a Juvenile--- Sentence, reduction in---Administration of justice---Juvenile offender---Sentence, quantum of ---Scope---Accused was charged for committing rape with the minor daughter of complainant---Admitted fact that the accused was a juvenile offender of 13/14 years of age and was legally entitled to get the concessions available to him under the Juvenile Justice System Act, 2018---Record further showed that accused was first offender and bore no history of his involvement in such like offences---Parties had patched up the matter through intervention of the local elders and parents of the victim had pardoned him in the name of Almighty Allah---Parents of victim were present in person before the Court and stated that they were no more interested in prosecution of the accused---Compromise deed was produced---Though, the offences were non-compoundable, however, compromise was in the best interests of both the parties because by that way the enmity between them, which had sprouted because of the occurrence, could be eliminated---Held, it was just and proper to consider the compromise coupled with juvenility of the accused and circumstances of the case for the purpose of mitigation of the sentence awarded to him by Trial Court---Appeal was partially allowed by reducing sentence of imprisonment to ten years, however being a juvenile, accused would be released on probation for the remaining period of sentence.

Moinuddin and others v. The State and others PLD 2019 SC 749 rel.

Qazi Faqihuddin Siddiqi for Appellant/convict.

Inayat Ullah Khatir for the State.

Complainant Salma along with her husband Hussan Maab in person.

2022 P Cr. L J 616

[Peshawar (D.I. Khan Bench)]

Before Abdul Shakoor and Sahibzada Asadullah, JJ

ALLAH WASAYA and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 25-D of 2012 with Criminal M. No. 15-D of 2021, decided on 28th June, 2021.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of one hour and forty-five minutes in lodging the FIR---Scope---Accused were charged for committing murder of the brother of the complainant by firing---Motive for the occurrence was stated to be previous blood-feud---Record transpired that the occurrence allegedly took place at 7:45 a.m., whereas the matter was reported at the spot by complainant at 9:30 a.m. i.e. with a delay of almost one hour and forty-five minutes---Said fact was fatal to the prosecution case---Circumstances established that the prosecution failed to prove its case against the accused person beyond any shadow of doubt--- Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Unnatural conduct of eye-witnesses---Scope---Accused were charged for committing murder of the brother of the complainant by firing---Record showed that right from the time of occurrence till the time when the matter was reported, no effort was made to shift the dead body of deceased to the hospital or to the police station, which is unbelievable to an ordinary prudence, rather same created serious doubt regarding presence of complainant and eye-witness on the spot at the time of occurrence---Circumstances established that the prosecution failed to prove its case against the accused person beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

(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 time and place of occurrence doubtful---Accused were charged for committing murder of the brother of the complainant by firing---Ocular account was furnished by complainant and an eye-witness---Complainant while appearing in the witness box narrated the incident, however, same was belied by the site plan, for the reason that if he was present on the spot, then keeping in view the alleged motive, he would not have been spared by the assailants as no one dare to create evidence against him---Witness had never stated the purpose of his presence on the spot at the relevant time---Site plan showed neither house of the deceased nor that of the complainant---If the complainant was accompanying the deceased at the relevant time, then he had been shown in the site plan at proper point while the deceased was shown in the site plan at the point he was accompanying his brother towards School, but according to the site plan, he had already crossed the accused and was at a distance of 50 paces from the deceased when the occurrence allegedly took place---Conduct of complainant and witnesses coupled with report made on the spot led that it was an unseen occurrence and the witnesses were not present at the time of occurrence---Alleged eye-witness had not named the complainant in his Court statement and also denied his examination by police under S. 161, Cr.P.C.---Presence of both the eye-witnesses on the spot at the time of occurrence was shrouded in mystery, therefore, same could not be relied upon for sustaining conviction on a capital charge---Circumstances established that the prosecution failed to prove its case against the accused person beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Confessional statement of accused---Scope---Accused were charged for committing murder of the brother of the complainant by firing---Accused had confessed his guilt before the Judicial Magistrate---While going through the statement of that witness, it was clear that accused was not medically examined before producing him before the Judicial Magistrate---Judicial Magistrate also admitted that he did not direct the medical examination of the accused nor did he examine his body---Needless to say that the Investigating Officer admitted in his cross-examination that after producing both the accused before the Judicial Magistrate, their handcuffs were removed on his direction and he was also sent out of the Court, meaning thereby that confession of one accused was recorded in the presence of other accused---Such fact created serious doubt on its voluntariness---Circumstances established that the prosecution failed to prove its case against the accused person beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Ghani Bakhsh v. The State PLD 1975 SC 187 and Muhammad Ismail v. The State 2017 SCMR 713 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence and crime empties---Reliance---Scope---Accused were charged for committing murder of the brother of the complainant by firing---Six empties of 7.62 bore and an empty of 30 bore were recovered from the spot, while one .30 bore pistol with magazine containing five rounds of .30 bore were recovered from possession of the accused---Empties were recovered on the day of occurrence, while the alleged weapon of offence was recovered from the accused after more than fifteen days, which were sent together to the Forensic Science Laboratory, which was not a safe course and it smacked of foul play on the part of Investigating Officer for the reason that till recovery of weapon the empties remained in their custody in police station---Law required that empty recovered from the spot should be sent to the laboratory without any delay, failing which such recovery was not free from doubt and could not be used against the accused---Circumstances established that the prosecution failed to prove its case against the accused person beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

(f) Criminal trial---

----Benefit of doubt---Principle---Even a single doubt if found reasonable would be sufficient to acquit the accused, giving him/them benefit of doubt because bundle of doubts were not required to extend the legal benefit to the accused.

Riaz Masih alias Mithoo v. State 1995 SCMR 1730 rel.

Ghulam Hur Khan Baloch for Appellants.

Rehmatullah, Assistant A.G. for the State.

Saif ur Rehman Khan for Respondents.

2022 P Cr. L J 659

[Peshawar]

Before Qaiser Rashid Khan, C.J.

MUHAMMAD SAQIB---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Petitions Nos. 4188-P and 4189-P of 2021, decided on 6th December, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497---Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), S. 9(d)---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Transportation of narcotics---Unlicensed possession of arms---Driver of vehicle---Bail, refusal of---Scope---Prosecution case was that during the course of nakabandi laid by the police at the spot a motor car was stopped for the purpose of checking, wherein, the accused was found on the driving seat while two accused persons were occupying the front and rear seats respectively---After some interrogation, they were de-boarded from the vehicle and one of them was found to be in possession of .30 bore pistol with 25 live cartridges and 3600 grams of charas was recovered from secret cavities of the vehicle---Driver of the vehicle was in full command and control of the same, therefore, he could not feign ignorance about the presence of huge quantity of narcotic stashed in the secret cavities of the vehicle in respect of which the Forensic Laboratory's report was also in affirmative---As such, he being prima facie connected with the commission of offence was held disentitled to the concession of bail---Other accused persons were prima facie qualified for the grant of bail qua their involvement in the commission of offence---Application of driver was dismissed whereas that of other accused persons was allowed.

Muhammad Arif Khan for Petitioner.

Syed Sikandar Hayat Shah, A.A.G. for the State.

2022 P Cr. L J 707

[Peshawar]

Before Musarrat Hilali, J

Mst. HUSNA BIBI---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous B.A. No. 3281-P of 2021, decided on 25th October, 2021.

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

----S. 497---Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), S. 9(d)---Possession of narcotics---Bail, grant of---Non-availability of report of Forensic Laboratory---Scope---Accused was alleged to have been found in possession of 3280 grams of heroin---Complainant had found the accused standing on roadside with a shopping bag in her hand---Shopping bag was searched on suspicion wherefrom allegedly narcotics were recovered---Accused, a lady was searched by police on public road in presence of all male police personnel, the norms of decency could not have been observed---Question was that how the accused, who was pregnant of six months, was searched on roadside where there was no prior information of her being involved in trafficking narcotics---Accused was sent to women police station after a delay of 3 hours during which she remained in exclusive male police custody as no female constable was shown to have been associated with the proceedings---Situation was extremely intolerable, undesirable and against the statute and executive directions---Despite lapse of 65 days, the prosecution had failed to produce the Forensic Laboratory's report of the contraband allegedly recovered from the accused---Bail petition was allowed, in circumstances.

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

----S. 52---Mode of searching women---Scope---Under the provisions of Criminal Procedure Code, a woman is entitled to special treatment in matters of body search---Section 52 of the Criminal Procedure Code provides that whenever it is necessary to cause a woman to be searched, the search shall be made by another woman with strict regard to decency---High Court observed that under no circumstances a male police personnel shall actually touch the person of a woman for making search or arrest.

Umer Zafran for Petitioner.

Mujahid Ali Khan, Additional A.G. for the State.

2022 P Cr. L J 786

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

GHAFFAR KHAN and another---Appellants

Versus

The STATE and another---Respondents

Criminal A. No. 238-M and Criminal Revision No. 48-M of 2020, decided on 27th May, 2021.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Presence of the eye-witnesses at the place of occurrence was justified---Scope---Accused were charged for committing murder of the father of complainant---Motive behind the occurrence was altercation over family women---Ocular account of the occurrence had been furnished by the complainant and her brother---Said eye-witnesses were natural eye-witnesses of the occurrence being residents of the same house where the occurrence took place---Said witnesses had recorded consistent statements wherein they had not only confirmed presence of each other in the same house at the time of occurrence---Said witnesses had also supported each other with regard to the time of arrival of the accused to their house as well as the time of occurrence---Nothing was brought on record during their cross-examination to create a slightest doubt with regard to their presence in the same house at the time when the deceased was given stone blows by accused---Statement of complainant could be given extra credence for the reason that though she had lost her father in the same occurrence but she had charged her husband despite of cordial relations with him as nothing to the contrary had been brought on the record to that effect---Mere relationship between witnesses and deceased was not a ground to discard their evidence---Since both the eye-witnesses had established their presence on the spot at the time of occurrence and their testimony had not been shattered, therefore, their statements being corroborated by medical and other circumstantial evidence were worth reliance and could safely be relied upon---Circumstances established that the prosecution had proved its case against the accused, however, the sentence of life imprisonment was reduced to fourteen years, in circumstances---Appeal against conviction was partially allowed with said modification in sentence.

Anwar Shamim and another v. The State 2010 SCMR 1791 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Medical evidence---Scope---Accused were charged for committing murder of the father of complainant---Complainant stated before police while reporting the matter that her husband/accused hit her father with stone due to which he sustained serious injuries on his head causing his death while he was being taken to hospital for treatment---Medical Officer had reported two wounds on head of the deceased, hence medical evidence was in conformity with the contents of FIR---Occurrence took place in hilly area as was evident from site plan and photographs of the spot available on record where stones were abundantly available one of which lying nearby was lifted by accused and hit therewith the deceased during the scuffle---Blood-stained stone with which the deceased was hit and clothes of the deceased had been taken into possession besides the Investigating Officer had also collected blood-stained earth from the spot---Said objects had been examined through Forensic Science Laboratory and Serologist had opined in his report that it was human blood of the same group---Circumstantial evidence on record duly corroborated the complainant's version and also validly confirmed the mode and manner of the occurrence to the extent that deceased was killed through blows of stone in his residential house---Circumstances established that the prosecution had proved its case against the accused, however, the sentence of life imprisonment was reduced to fourteen years, in circumstances---Appeal against conviction was partially allowed with said modification in sentence.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Scope---Accused were charged for committing murder of the father of complainant---Admitted fact on record was that the accused had come to the house of deceased unarmed just for the purpose to take the complainant back to their house despite disagreement of the deceased, hence, he entered into altercation with them which turned into a sudden fight---Said mode and manner of the occurrence suggested that neither the accused had come there with any pre-planning nor they had the intention to kill the deceased---High Court observed that all that had happened was at spur of the moment wherein stone was used by accused and the blows thereof took the life of deceased---If the accused had the intention to kill the deceased he would have come there duly armed with any kind of weapon i.e pistol, knife etc.---Parties belonged to same caste and they had female relations with each other besides there was nothing on record to suggest previous enmity or hatred between them---Conviction of the said accused under S. 302(b), P.P.C. by Trial Court was not a correct conclusion rather the act of the said accused fell within the definition of qatl shibh-i-amd which was an offence under S. 315, P.P.C. punishable under S. 316, P.P.C.---Undoubtedly accused had hit the deceased with stone and such blows did not cause death in ordinary course of nature---Record showed that the occurrence took place in house of deceased where, as per evidence, his sons and daughters were present, as such, he was in dominant position over the accused---Refusal of deceased to let his daughter go with them also showed his stubborn attitude which led to the incident---Such circumstances showed that something had happened between the parties prior to the occurrence which had not been brought on record---In absence of any evidence to suggest pre-planning or intention on the part of accused to commit murder of the deceased, the safe and just conclusion was that the accused was liable under S. 316, P.P.C. instead of S. 302(b), P.P.C.---Circumstances established that the prosecution had proved its case against the accused, however, the sentence of life imprisonment was reduced to fourteen years, in circumstances---Appeal against conviction was partially allowed with said modification in sentence.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Delay of four and half hours in lodging the FIR---Scope---Accused were charged for committing murder of the father of complainant---Though the report was lodged with delay of four and half hours but as per contents of FIR, the distance between the place of occurrence and police station was about 18/20 kilometres---Place of occurrence was a hilly area where the family of deceased resided seasonally for the purpose of grazing herds---According to the statements of eye-witnesses, walking distance between place of occurrence and a village was of one and half hours and no facility of road was available between the said village whereas the distance from said village to police station could be covered in two hours through a vehicle---Total distance between the spot and police station could be covered in three and half hours and the delay, being well explained, was not fatal to the prosecution case---Circumstances established that the prosecution had proved its case against the accused, however, the sentence of life imprisonment was reduced to fourteen years---Appeal was partially allowed with said modification in sentence.

Mujahid Farooq for the appellants/convicts (in Criminal A. No. 238-M of 2020).

Haq Nawaz Khan, Assistant A.G. for State (in Criminal A. No. 238-M of 2020).

Islam Shah for the Complainant (in Criminal A. No. 238-M of 2020).

Islam Shah for Petitioner (in Criminal Revision No. 48-M of 2020).

Haq Nawaz Khan, Assistant A.G. for State (in Criminal Revision No. 48-M of 2020).

Mujahid Farooq for Respondents/convicts (in Criminal Revision No. 48-M of 2020).

2022 P Cr. L J 821

[Peshawar (Bannu Bench)]

Before Sahibzada Asadullah, J

Mst. BINA SHAHZADA---Petitioner

Versus

RAUF KHAN and others---Respondents

Criminal M.Q. No. 4-B of 2021, decided on 1st April, 2021.

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

----S. 145---Procedure where dispute concerning land is likely to cause breach of peace---Dispute of civil nature---Un-partitioned property---Scope---Petitioner alleged that she was dispossessed from her owned property and sought restoration of her possession over the suit house as well as the property---Validity---Petitioner was admittedly an issueless widow and the property for which the complaint was filed was the property of her husband jointly owned with the respondents---Petitioner could only inherit 1/4th share from the legacy of her deceased husband---Station House Officer of Police, in his report, had not mentioned any aspect of breach of peace---Patwari had reported that the property was jointly owned and no partition had taken place---Foremost requirement for initiation of proceedings under S. 145, Cr.P.C. was the existence of dispute but in the present case dispute was only of civil nature---No apprehension of breach of peace existed---Petitioner had taken contradictory stance regarding the exact date of her dispossession---Jurisdiction of the criminal court could not be invoked except on the ground of likelihood of breach of peace---Petitioner had failed to point out any illegality or infirmity committed by both the courts below while passing impugned judgments---Petition was dismissed.

Municipal Committee Kohat v. Mst. Piari AIR 1947 Peshawar 8; Shamsuddin Ismail and others v. The State and others PLD 1969 Kar. 515; Shamshamir Khan v. The State and 6 others PLD 1999 Pesh. 70; Chaudhary Munir v. Mst. Surriya and others PLD 2007 SC 189; Husein Ali J. Merchant v. The State and 2 others 2003 YLR 1742 and Muhammad Iqbal Jaffer v. The State and 6 others PLJ 1989 Cr.C (Karachi) 448 rel.

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

----S. 145---Procedure where dispute concerning land is likely to cause breach of peace---Scope---Section 145, Cr.P.C. is a beneficial section enacted with the express object of preserving the peace---For the attainment of said object emergency provision for attaching the subject-matter of dispute has been provided in it---Under this section the criminal court can only pass a temporary order and the rights of the parties in fact are to be settled by the civil courts---Judicial requirements for assumption of jurisdiction under S. 145, Cr.P.C. are; (a) existence of a dispute; (b) such dispute is likely to cause breach of peace; (c) dispute is concerning land, water, building, markets, fisheries, crops or other produce of the land, the rents or profits of such property; and (d) dispossession if alleged is within two months prior to the initial order passed by the Magistrate.

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

----S. 145---Procedure where dispute concerning land is likely to cause breach of peace---Scope---Provisions of S. 145, Cr.P.C. are designed to meet an emergent situation only causing threat to the peace and the same cannot be used for settling the rights of the parties on their claim of title.

Husein Ali J. Merchant v. The State and 2 others 2003 YLR 1742 rel.

Matiullah Jan Khan for Petitioner.

Shakirullah Khan for Respondents.

Shahid Hamid Qureshi, A.A.G. for Official Respondents.

2022 P Cr. L J 872

[Peshawar]

Before Lal Jan Khattak and Musarrat Hilali, JJ

SHAHID NADEEM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 592-P of 2021, decided on 2nd December, 2021.

(a) 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 4915 grams opium and 9964 grams charas was recovered from the vehicle of accused---Record showed that the Investigating Officer of the case had stated in his cross-examination that the murasila was sent to the police station along with the accused and the case property while contradicting him, the complainant had stated in his cross-examination that only murasila was handed over to constable along with other documents for taking them to the police station while the case property, the vehicle and the accused were taken by him to the police station and same was statement of constable---Investigation Officer of the case had admitted in his cross examination that the site plan and statements under S. 161, Cr.P.C. of the witnesses were recorded on his dictation by an ASI who was present with him on the spot but his name, he didn't remember whereas the complainant and marginal witness to the recovery memo had stated in their depositions before the court that the Investigating Officer through his own hand writing had prepared the site plan and recorded the statements of the witnesses on the spot---Said contradictions in the statements of the prosecution witnesses were neither minor in nature nor could be ignored and same suggested that the occurrence had not taken place in the mode and manner narrated in the FIR and deposed by the prosecution witnesses before the court---No doubt, huge quantity of contraband had been recovered in the case along with the vehicle but recovery of huge quantity of narcotics was not the only criteria to convict the accused charged with trafficking of the contraband unless the indictment was proved by the prosecution beyond reasonable doubt through confidence inspiring and worth reliable evidence which was not in the present case--- 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 trial---

----Benefit of doubt---Principle---In order to bring home guilt in narcotic cases, prosecution must bring reliable evidence in support of its charge---Single doubt in the case against an accused would be sufficient to acquit him instead of existence of series of contradictions.

Ms. Zohra Durrani for Appellant.

Muhammad Inam Yousafzai, Additional A.G. for the State.

2022 P Cr. L J 901

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

LAIQ ZADA---Appellant

Versus

The STATE and another---Respondents

J. Cr. A. No. 110-M of 2019, decided on 6th October, 2021.

Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 512---Qatl-i-amd---Appreciation of evidence---Recording of statement in absence of accused---Scope---Accused was charged for committing murder of his wife/daughter of complainant by firing due to unknown motive---Record showed that the report of Medical Officer, who had examined the dead body of the deceased, was considered by the Trial Court only on the strength of her transposed statement recorded during proceedings under S. 512, Cr.P.C.---Medical Officer was not examined before the Trial Court---Medical Officer was alive and posted at a Hospital---No doubt, several summons were issued in the name of the Medical Officer, however, coercive measures for procuring her attendance were not adopted by the Trial Court---Statement of said Medical Officer was recorded during proceedings under S. 512, Cr.P.C. and was transposed to the present trial on the basis of an unjustified ground on record that she could not be traced---Such transposition would not be conclusive because the witness was alive, healthy and still serving at a Hospital---Perusal of record transpired that the Trial Court had not taken concrete steps for procuring attendance of the said prosecution witness---Essential precautions to be taken before allowing transposition of statement of a witness had not at all been taken into consideration by the Trial Court---Reading of her statement as evidence of the prosecution would definitely have the potential of causing prejudice to the case of the accused, in circumstances---Witness was admittedly alive and the only factor that she was posted at a Hospital was not a satisfactory excuse of the prosecution qua her not production before the Court---No substantial evidence was brought on record by the prosecution to prove that the transposed witness was living abroad or due to any other valid reason, she was unable to appear before the Trial Court during trial---Procuring attendance of the transposed witness was neither impossible, nor inconvenient for the prosecution---Case, in circumstances, was remanded to the Trial Court with the direction to pass an appropriate order regarding transposition of her statement recorded during proceedings under S. 512, Cr.P.C.

Naseer Khan v. Said Qadeem and others 2020 SCMR 293 and Ibraheem Khan v. The State through A.A.G. and another 2021 YLR 995 rel.

Barrister Asad-ur-Rehman for Appellant.

Haq Nawaz Khan, A.A.G. for the State.

Rahman Ali Khan for Respondent.

2022 P Cr. L J 929

[Peshawar]

Before Musarrat Hilali and Ijaz Anwar, JJ

MUHAMMAD KHURAM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 942-P of 2020, decided on 30th November, 2021.

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

----S. 9(c)---Transportation of narcotics---Appreciation of evidence---Benefit of doubt---Delayed FIR---Scope---Accused was convicted for having been apprehended while transporting 25 kilograms of charas and 3 kilograms of opium---Report regarding the occurrence was not recorded on the spot and the same was recorded on the next day reason for which was given that there was no proper arrangement for measurement of narcotics---Case property and accused were handed over to the security personnel present at the Customs Intelligence and Investigation office for the night---Strong possibility of placing the narcotics in the motorcar during the night existed, which aspect of the case had created serious doubt in the story of prosecution---Complainant had completed the entire proceedings in his office in presence of his subordinates, who were shown marginal witnesses to the recovery memo---Columns of number of FIR and time of report were left blank which columns were later on filled in with hand writing---Material contradictions were observed in the statements of prosecution witnesses---Prosecution had failed to bring home the charge against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 154---Information in cognizable cases---Delayed FIR---Scope---Object of recording of murasilla or registration of FIR, apart from setting law into motion, is to provide base for carrying out investigation in the right direction---No doubt, there are no hard and fast rules as to the duration of time consumed in the registration of FIR, but such prompt measure would rule out the possibility of deliberation, consultation and enquiry before furnishing the information---Element of delay in lodging the crime report is treated with caution because there is a tendency to involve innocent people during the interval---Longer the intermission, greater are the chances of false implication, therefore, it is necessary for the prosecution to at least come forward with plausible explanation for the delay caused.

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

----S. 9--- Possession of narcotics--- Safe custody---Forensic Laboratory's report---Scope---Prosecution, in order to place reliance on the Forensic Laboratory's report, is required to establish continuous chain of custody of the sample and its safe transmission to the laboratory coupled with requisite protocol by the laboratory.

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

----S. 9---Possession of narcotics---Safe custody---Scope---Where safe custody of the recovered substance or safe transmission of samples of recovered substance is not established by the prosecution, it cannot be held that the prosecution had succeeded in establishing its case against the accused.

State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 ref.

Mst. Sakina Zaman v. The State 2021 SCMR 451; 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.

Malik Nasrum Minallah for Appellant.

Haider Nawaz Khattak, SPP for the State.

2022 P Cr. L J 945

[Peshawar]

Before Ijaz Anwar, J

IRFAN---Petitioner

Versus

The STATE---Respondent

Criminal M. B.A. No. 2230-P of 2021, decided on 6th September, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497---Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), S. 9---Recovery of 1050 grams of Crystal methamphetamine (ICE) from the possession of accused---Bail, refusal of---1050 grams of amphetamine was shown recovered from the accused-petitioner---Recovered substance was subjected to physical and chemical analysis, its test revealed the sample as 'amphetamine'---In view of the clear wordings of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 (the Act) amphetamine being declared as psychotropic substance, as such, its punishment would be dealt with under the provisions of S. 9 of the Act---In terms of S. 9(d) of the Act, if the quantity of narcotic substance exceeded the limit of 01 KG, the punishment provided was death, imprisonment for life or imprisonment for a term which might be extended to 14 years and with fine---Case of the accused-petitioner was, thus, hit by the prohibitory clause of S. 497, Cr.P.C, besides, as demonstrated by the Chemical Examiner before the court that amphetamine was also a controlled drug and being locally manufactured, it was a most dangerous to the human health---Bail application was dismissed, in circumstances.

Noor Alam Khan and Shabina Noor for Petitioner.

Muhammad Nisar Khan, A.A.G. along with Muhammad Bilal Khan, Government Analyst/Chemical Examiner for the State.

2022 P Cr. L J 967

[Peshawar]

Before Lal Jan Khattak and Syed Arshad Ali, JJ

AJDAR ALI---Appellant

Versus

The STATE---Respondent

J. Cr. A. No. 26-P of 2019, decided on 10th June, 2021.

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

----S. 302(b)---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence and crime empties---Reliance---Scope---Accused was charged for committing murder of the father of complainant---Accused was arrested at 06.10 p.m. by the local police and from his possession the pistol .30 bore was recovered and accordingly FIR under S. 15 of Khyber Pakhtunkhwa Arms Act, 2013 was registered---Forensic Science Laboratory Report regarding the recovered empties of .30 bore from the spot had matched the .30 bore pistol which was recovered from the possession of present accused---Size of firearms four entry wounds with corresponding exit wounds on the dead body of the deceased indicated use of one weapon of offence and four empty shells of .30 bore recovered by the Investigating Officer from the scene of occurrence during spot inspection also supported the prosecution version---Forensic Science Laboratory Report also confirmed that four .30 bore crime empties were fired from one and the same .30 bore weapon---Circumstances established that the prosecution had proved its case against the accused without and shadow of doubt---Appeal was dismissed accordingly.

(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---Record showed that the complainant was the only eye-witness of the occurrence who at the relevant time was aged about 18/19 years old---Said witness was a natural witness and his presence along with his father at the relevant time inspired confidence---Not only promptitude in registration of the FIR but the absence of motive to falsely implicate the present accused belied the impression regarding the non-presence of that witness at the time of occurrence, who appeared before the Court and reaffirmed the mode and manner of occurrence which he had narrated in the FIR---Even at the time of recording his statement before the Court he did not disclose the motive for the occurrence which indeed was known to the deceased and the accused as explained in the confessional statement of the accused---Medical evidence was in line with the prosecution case followed by the confession of the accused---Circumstances established that the prosecution had proved its case against the accused without and shadow of doubt---Appeal was dismissed accordingly.

(c) Criminal trial---

----Witness---Cross-examination---Discrepancies---Scope---Court would always look at the overall structure of the prosecution case in order to see whether the evidence of the witnesses otherwise coincide with the other circumstances of the case---If the evidence given by witnesses coincide with the other circumstances of the case then any confusion if created through some contradiction or confusion in his cross-examination would be of no help to the accused because a witness at times may either be confused by a vigilant/shrewd lawyer escaping the attention of the Presiding Officer or even the State Counsel and will thus be able to extract something favouring or less favouring the accused without letting the witness know the purpose of the said question.

Roshan and 4 others v. The State PLD 1977 SC 557 and Leela Ram (D) through Duli Chand v. State of Haryana and another AIR 1999 SC 3717 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---FIR was lodged with promptitude---Scope---Accused was charged for committing murder of the father of complainant---Record showed that the occurrence had taken place at 04:10 p.m.---Report was lodged at 04:40 pm on the same day with promptitude---Accused was directly named in the FIR by the complainant as single accused who had no motive to falsely implicate him---Circumstances established that the prosecution had proved its case against the accused without and shadow of doubt---Appeal was dismissed accordingly.

Ali Gohar Durrani for Appellant.

Umar Farooq, A.A.G., for the State.

Muhammad Saeed Khan for the Complainant.

2022 P Cr. L J 1000

[Peshawar]

Before Rooh-ul-Amin Khan and S M Attique Shah, JJ

MUHAMMAD TAIMUR---Petitioner

Versus

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

Writ Petition No. 2658-P of 2021, decided on 5th October, 2021.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a) & 9(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, refusal of---Prima facie case---Accused persons were arrested for cheating members of public at large by floating websites with fake identities and had received millions of Rupees---Validity---Principal accused posing himself as Chief Executive Officer of a fake company fully facilitated his co-accused in raising significant funds by depriving unsuspected real estate, digital and foreign currency investors under the guise of returning profit at a high rate---In the month of November, the company account went off-line and a notification reading as 'System is hacked" was posted instead---Sufficient documentary evidence was brought on record by investigating officer which prima facie showed principal accused as master mind of mega scam, who was creator/owner of websites in question---Principal accused with the connivance and collusion of co-accused induced innocent people for investment in fake company and thereby deprived them from their hard earned money worth millions of Rupees---High Court declined to interfere in the matter as both the accused persons were prima facie connected with commission of offence---Bail was refused, in circumstances.

Barrister Syed Mudasser Ameer, Barrister Waqar Ali and Shebar Khan for Petitioner.

Syed Azeem Dad, D.P.G. and Muhammad Ali, ADPG along with Anwar Ahmad Butt, Assistant Director NAB/I.O. for NAB.

2022 P Cr. L J 1070

[Peshawar]

Before Lal Jan Khattak and Ishtiaq Ibrahim, JJ

RIAZ and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 712-P of 2020, decided on 14th September, 2021.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Presence of eye-witnesses at the spot was doubtful---Chance witnesses---Scope---Accused were charged for committing murder of the son of complainant by firing---Prosecution had examined complainant/ mother of deceased and paternal cousin of the deceased as eye-witnesses---Record showed that when the statement of complainant place in juxtaposition with the site plan and Murasila/FIR, a clear disparity could be seen among the said three pieces of evidence with regard to the place of occurrence---Murasila showed that the complainant mentioned the place of occurrence as her land---Contrary to that, in the site plan the deceased had been shown as ridge between the land of some other person and the non-metalled thoroughfare leading to his house---Keeping in view the contradictions between the site plan, statement of the complainant and Murasila, it could safely be concluded that complainant was not present at the time of occurrence---Testimony of complainant could not be safely relied upon against the accused---Other eye-witness claimed that he had witnessed the accused persons committing murder of the deceased through firing---Said witness, being resident at a distance of about 04 kilometres from place of occurrence as per statement of the complainant, was a chance witness because he had not established his presence on the spot with reasons---Eye-witness stated that altercation between deceased and the accused persons continued for 5/6 minutes during which he watched them from a distance of 30 feet but did not interfere in their altercation and remained silent spectator---Eye-witness though claimed to have shifted the dead body to hospital but he did not identify the deceased before the Medical Officer nor produced his clothes allegedly stained with the blood of deceased to Investigating Officer---Said unusual conduct of the eye-witness casted doubt on his presence on the place of occurrence at the relevant time---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Mst. Sughra Begum and another v. Qaisar Pervez and others 2015 SCMR 1142 and Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Contradictions and dishonest improvements in the statements of witnesses---Effect---Accused were charged for committing murder of the son of complainant by firing---Statements of both the eye-witnesses were suffering from glaring contradictions but they had also dishonestly improved their statements recorded during investigation---Said witnesses did not agree in their statements regarding the place of residence of a witness and in that regard the complainant had tried to suppress the fact that the said witness was resident of other place---Complainant also stated during the trial that her son had got out of the house on the phone call of accused, however, the FIR was lacking her said narrations---Complainant specified the crime weapons as Kalashnikovs when appeared before the trial Court though in the FIR she had stated that the accused persons had fired at the deceased with firearms---Similar dishonest improvements were made by witness with regard to time of occurrence, nature of the weapons and verification of the complainant's report when he was duly confronted by defence counsel with his statement under S. 161, Cr.P.C.---Improvements so made by both the eye-witnesses, being deliberate and dishonest, casted further doubt on their veracity---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Akhtar Ali and others v. The State 2008 SCMR 6 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Consultation and deliberation in lodging the FIR---Scope---Accused were charged for committing murder of the son of complainant by firing---Occurrence took place at 12:00 noon, which was statedly reported on the same day at 1:00 p.m.---Medical Officer conducted post-mortem at 12:50 p.m. i.e ten minutes prior to lodging of the report---According to author of Murasila, he reached hospital at 1:00 p.m., recorded the report and prepared the injury sheet as well as inquest report of the deceased and thereafter referred the dead body to Medical Officer under the escort of Police Official for post-mortem---Said witness must have consumed some time on preparation of the mentioned three documents, then how the Medical Officer could conduct the post-mortem without intimation of police in shape of injury sheet and inquest report---Times mentioned by both the Medical Officer and author of Murasila in their respective reports appeared to have been mentioned fictitiously---Record showed that police recorded the report after conducting preliminary investigation and the complainant nominated the present accused after consultation and deliberation---Duration of death of two hours as mentioned by the Medical Officer in the post-mortem report---On calculating the said duration of death of the deceased from the time of post-mortem the occurrence must have taken place at 10:50 a.m. which had dishonestly been suppressed by prosecution---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Preliminary inquiry---Scope---Accused were charged for committing murder of the son of complainant by firing---Complainant had admitted arrest of 5/6 accused by police on the spot soon after the occurrence---Police had visited the spot soon after the occurrence and it appeared that by that time complainant had no knowledge about the assailants---Report was wilfully delayed by police by concealing the real facts and preliminary inquiry was conducted whereafter the complainant charged the present accused after speculation and deliberation---Though preliminary inquiry by itself' was not a sufficient ground for disbelieving the prosecution story but in such situation presence of the eye-witnesses became doubtful and the Courts were required to scrutinize the evidence with great care and caution for arriving at a fair conclusion---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

State through Advocate General N.W.F.P Peshawar v. Shah Jehan PLD 2003 SC 70 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Medical evidence---Scope---Accused were charged for committing murder of the son of complainant by firing---Medical evidence revealed that the deceased had sustained 03 entry wounds; one on his right eyebrow while the remaining two inlet wounds were found on middle of the right ear which could further be clarified from the pictorial annexed with the post-mortem report---Medical Officer, though had not mentioned the dimension of the entry wounds, however, when both the accused were allegedly armed with Kalashnikovs and they made firing at the deceased, it could safely be held from the recoil of the weapons and the distance between the accused and deceased that it was a one man job and one weapon had been used in the commission of the offence---Locale of the said injuries and direction of the inlet and exit wounds also suggested that it was the doing of one person which could be clarified from post-mortem report and pictorial appended with it---Exaggeration of the charge by complainant and false implication of innocent persons in the case could not be ruled out, in the circumstances---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence and crime empties---Scope---Accused were charged for committing murder of the son of complainant by firing---Record showed that crime weapons Kalashnikovs were recovered on the pointation of the accused---Forensic Science Laboratory Report showed that the same had not matched with the five empties of 7.62 bore recovered from the spot---Earlier Forensic Science Laboratory Report regarding the crime empties showing the same empties to have been fired from different weapons was also of no avail to prosecution in absence of trustworthy direct and circumstantial evidence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive was not proved---Effect---Accused were charged for committing murder of the son of complainant by firing---Complainant though had disclosed the motive as land dispute with the accused but except placing on file the revenue record, complainant had produced no evidence to that effect rather she admitted that no suit was pending regarding the alleged disputed property---Statement of complainant, mentioned that the accused had purchased the land adjacent to her land, however, she denied the suggestion of her annoyance over the said purchase by accused and their false implication in the case---When, in circumstances, the accused were purchasers of the land adjacent to the land of complainant, the motive was naturally attributable to complainant side and not to the accused to kill the deceased, rather their false implication by complainant in view of the said motive could not be ruled out---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

(h) Criminal trial---

----Motive---Scope---Motive is a double-edged weapon which cuts both sides.

Muhammad Ashraf and 2 others v. The State 1998 SCMR 279 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Absconsion of accused---Scope---Accused were charged for committing murder of the son of complainant by firing---Although the accused had remained absconders for about 1-1/2 months---Prosecution had failed to prove the charge against accused persons through ocular account and other circumstantial evidence of convincing nature---Conviction of the accused could not be recorded solely on the ground of their abscondence which had always been considered as corroborative evidence.

Basharat and another v. The State 1995 SCMR 1735 rel.

Mian Sher Akbar Bacha, Syed Abdul Fayaz and Syed Mubashir Shah (Swabi) for Appellants.

Khalid Rehman, A.A.G. for the State.

Munsif Saeed for Respondent No. 2.

2022 P Cr. L J 1098

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

ZAFARULLAH alias ZAFROL---Appellant

Versus

The STATE through A.A.G. and 4 others---Respondents

Criminal Appeals Nos. 35-M and 50-M of 2017, decided of 8th September, 2020.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 337-F(i), 337-F(ii), 337-D, 186 & 353---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-damiyah, badiah, jaifah, obstructing public servant in discharge of public functions, assault or criminal force to deter public servant from discharge of his duty, unlicensed possession of arms, act of terrorism---Appreciation of evidence---Prosecution case was that the police party raided the house of the accused, who was proclaimed offender, surrounded the house and warned him to come out, however, he started firing on Police Officials with his pistol, thereby causing serious injuries to four Police Officials, out of which one died, police also fired in their defence as result of which accused was hit and was arrested in injured condition---Record showed that on the application of accused, cross case was registered against Police Officials wherein he charged the Police Officials for attempting at his life by causing him firearm injuries in the same occurrence---Record also showed that only medical report of the injured accused was exhibited in support of which Medical Officer was examined who in his statement had referred to the Medico-Legal Report along with other reports of the injured Police Officials examined by him on the same day---Neither the remaining important documents of the cross case were exhibited in the case nor the respective witnesses were examined---Duty of the defence to have brought on the record the relevant documents of the other file to the file of the present case---Even at the same time the trial Court as well as the prosecution were supposed to bring on the record the real facts of the case and all the available material which had not been done---In absence of the important evidence/documents of the cross case, matter could not be adjudged---Without discussing merits of the case lest it prejudice the case of either side and for doing substantial justice in the matter, remand of the case had become imperative---Appeal was allowed by setting aside impugned judgment and the case was remanded for decision afresh after recording statements of all the essential witnesses.

Rashid Ali Khan for Appellant (in Criminal Appeal No. 35-M of 2017).

Sohail Sultan, Assistant A.G. for State.

Sohran Khan son of the deceased in person (in Criminal Appeal No. 35-M of 2017).

Rashid Ali Khan for Respondent/Convict (in Criminal Appeal No. 50-M of 2017).

2022 P Cr. L J 1177

[Peshawar]

Before Rooh-ul-Amin Khan and Ijaz Anwar, JJ

JOHAR ALI---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 163-P of 2018, decided on 9th December, 2021.

(a) 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 complainant at the spot---Chance witness---Scope---Accused were charged for committing murder of the cousin of complainant by firing---Motive behind the occurrence was previous blood feud between the parties---Occurrence had taken place at 06.45 p.m., which had been reported by complainant at 08.10 p.m. wherein he had charged the accused along with absconding co-accused for committing murder of deceased with firearms---Complainant, alleged eye-witness, was real cousin of the deceased---Though, evidence of complainant could not be discarded on the sole ground that he was close relative and interested witness, but necessary caution had to be observed in accepting his evidence because it was generally approved proposition that in case of rivalries and enmities, there was general tendency that a person from victim side would pose himself as eye-witness of the occurrence and would rope in the influential members of rival side for participating in the assault with a particular designed role---Veracity of said witness had to be examined with utmost care and caution, particularly, with regard to his presence at the spot at the time of occurrence when he had not disclosed the purpose of his visit to the spot---In the initial report the complainant had not stated a single word as to when and how he met the deceased and they both reached the spot---Complainant had also not disclosed the purpose of his visit to the spot---Complainant was also a chance witness---Circumstances established that the prosecution had failed to prove the guilt of the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

(b) Criminal trial---

----Witness---Chance witness---Scope---For conviction of an accused person it would be highly unsafe to rely upon testimony of a chance witness when remained uncorroborated---For conviction of accused on capital charge on the basis of testimony of chance witness, the court had to be at guard and corroboration had to be sought for relying upon such evidence.

Anwar Begum v. Akhter Hussain 2017 SCMR 1710 and Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Contradictions in the statement of complainant---Scope---Accused were charged for committing murder of the cousin of complainant by firing---Initial report showed that the complainant along with witness was sitting with the deceased prior to the occurrence and no sooner they left the deceased, the accused arrived in a motorcar and opened fire at the deceased, but in his court statement, he had not stated a single word about presence of witness when he was allegedly sitting with the deceased---Complainant stated in cross-examination that he had mentioned in the initial report that after the death the deceased was shifted to hospital in vehicle---Said part of his statement also negated his report wherein he had mentioned that deceased sustained injuries and he succumbed to injuries on the way to hospital---Complainant while further contradicting his report deposed that the dead body of deceased was lying on the surface of barren land which was not cultivable---Complainant took the dead body of deceased from the spot and reached to the hospital within half an hour approximately---Said part of his cross-examination was total departure from his initial report, wherein he had stated that deceased was shifted in injured condition from the spot---Complainant further deposed that he was illiterate, therefore, could not sign---Murasila revealed that it also bore thumb impression of the complainant and not his signature---Contrary, in examination-in-chief complainant while blowing hot and cold stated that he signed the recovery memos in respect of blood and bloodstained articles taken into possession by the Investigating Officer from the spot in his presence bearing his signatures---Initial report showed that complainant had not levelled any allegation of firing against the accused at him and witness despite the fact that he was the real cousin of the deceased and on equal footing for the accused---Letting of the complainant by the accused who was at their mercy was also beyond the comprehension of a prudent mind---Had complainant been present at the spot, at the time of occurrence, the strong probability was that he would not have been spared by the accused so as to leave no evidence behind them---Circumstances established that the prosecution had failed to prove the guilt of the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

(d) Criminal trial---

----Weapon---Non-disclosure of kind of weapon---Scope---Non-disclosure of bore of the weapons used in the commission of the offence despite the fact that the complainant could identify different bores was strong circumstance which made the presence of witness at the time of occurrence highly doubtful.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive not proved---Scope---Accused were charged for committing murder of the cousin of complainant by firing---Motive behind the occurrence was previous blood feud between the parties---Except bald statement of complainant, not a single evidence had been brought on record either by the complainant or Investigating Officer in proof of the motive---Such state of affairs suggested that motive was not proved---Circumstances established that the prosecution had failed to prove the guilt of the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

(f) Criminal trial---

----Motive---Scope---Prosecution though was not called upon to establish motive in every case, yet once it had setup a motive and failed to establish the same was to suffer consequences and not the defence.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Medical evidence---Scope---Accused were charged for committing murder of the cousin of complainant by firing---Medical evidence was not supporting the version of the complainant---Complainant had charged three accused for indiscriminate firing at the deceased, whereas, as per post mortem report all the entrance wounds sustained by the deceased were having one and the same dimension of 1/2 inch---Investigating Officer had not sent the alleged crime empties to the Forensic Science Laboratory, therefore, it remained shrouded in mystery as to whether occurrence was the job of one person or more than one---Circumstances established that the prosecution had failed to prove the guilt of the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

(h) Criminal trial---

----Witness---Presence of eye-witness at the spot---Scope---Any eye-witness, who claimed his presence at the spot, must satisfy the mind of the court through some physical circumstances or through some corroborative evidence in support of his presence at the spot at the time of occurrence.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of bloodstained grass and garments of the deceased---Scope---Accused were charged for committing murder of the cousin of complainant by firing---Recovery of bloodstained grass and bloodstained garments of the deceased coupled with positive Serologist Report in respect thereof and post-mortem report of the deceased, proved the unnatural death of the deceased with firearm at the place as alleged by the prosecution---Said supporting and corroborative pieces of evidence by no stretch of imagination told the name(s) of the culprits---Such pieces of evidence were always taken in aid of the direct evidence and not in isolation---Circumstances established that the prosecution had failed to prove the guilt of the accused beyond shadow of doubt---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.

(j) Criminal trial---

----Absconsion---Scope---Abscondence alone could not sustain conviction.

Amir Gul v. The State 1981 SCMR 182 rel.

(k) Criminal trial---

----Evidence---Standard of evidence---Scope---Accused person was presumed to be innocent till the time he was proved guilty beyond reasonable doubt---Said presumption of innocence continued until the prosecution succeeded in proving the charge against the accused beyond reasonable doubt on the basis of legally admissible, confidence inspiring, trustworthy and reliable evidence.

(l) Criminal trial---

----Benefit of doubt---Principle---One substantial doubt is enough for acquittal of the accused. [p. 1187] N

Muhammad Zaman v. The State and others 2014 SCMR 749 rel.

Mian Arshad Jan for Appellant.

Muhammad Nisar, A.A.G. for the State.

Respondent No. 2 in person.

2022 P Cr. L J 1222

[Peshawar (D.I. Khan Bench)]

Before S M Attique Shah and Sahibzada Asadullah, JJ

IRFAN ALI---Appellant

Versus

The STATE and another---Respondents

Criminal A. No. 5-D of 2019, decided on 27th September, 2021.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Scope---Allegation against the accused was that he committed murder of the son of complainant---Record showed that initially the Investigating Officer collected different suspects from the surrounding area and one of them being accused whose foot matched to the mould collected from the spot by the tracer---Police Official who collected the foot prints from the spot with the help of plaster of paris was examined---Said witness stated that soon after the recovery of the dead body he was informed and directed to reach the place of incident where on arrival he found hundreds of people present there, along with the Police Officials including the Investigating Officer---High Court observed that surprisingly, when a good number of people were present there, how the tracer could collect and separate the one which matched with the foot of the accused---If it was admitted that a host of people was present there, then instead of one, the tracer should have collected numerous and in that eventuality it was incumbent upon the Investigating Officer to invite those people to identify their foot prints with those collected from the spot---Investigating Officer did not take pain to indulge in such an exhaustive exercise and that lack of interest on part of the Investigating Officer reacted upon the veracity of the collected evidence from the spot---Circumstances established that the prosecution could not succeed in bringing home guilt against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of rickshaw on the pointation of accused persons---Joint recovery---Scope---Allegation against the accused was that he committed murder of the son of complainant---Record showed that the local police allegedly recovered the rickshaw on joint pointation of the accused---Recovery effected on joint pointation of the accused was inadmissible in evidence and could not be relied upon---Circumstances established that the prosecution could not succeed in bringing home guilt against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Last seen evidence---Scope---Allegation against the accused was that he committed murder of the son of complainant---Witness of last seen evidence stated that at Maghrib Qaza Wela, he had seen the rickshaw of the deceased along with two unknown persons---One of them was driving the rickshaw, whereas the other was sitting on the rear seat with the deceased, on query he was told that they were going to a village on a special trip---Said witness stated that on following day, he came to know regarding missing of deceased along with his rickshaw---Said witness further stated that he came to know regarding the death of the deceased and as such, he attended his funeral ceremony---Held, it was yet to know that when the witness had seen the deceased, that too, in company of accused, what stopped him to convey the same to the father of the deceased, either on the day when he lastly saw the deceased with the accused or when he came to know regarding the death of the deceased---Said witness when had not contacted father of the deceased and had not shared his information with him, then how the local police came to know that said witness was the person who lastly saw the deceased in company of the accused and that how the local police reached to his house and recorded his statement under S. 161, Cr.P.C.---During cross-examination, said witness disclosed that he was informed by the complainant to reach Central Prison to attend the identification parade and that on the following day he reached there---Prosecution was to explain that whether said witness had lastly saw the deceased in the company of the accused and as to whether while making his statement, he disclosed the physical features of the accused---Conduct of said witness was not above board, as his presence, at the time when he lastly saw the accused and deceased together, was not established on the record---Circumstances established that the prosecution could not succeed in bringing home guilt against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, common intention---Appreciation of evidence---Test identification parade---Scope---Allegation against the accused was that he committed murder of the son of complainant---Record showed that the accused remained in constant custody with police and even when father of the deceased reached court and recorded his statement under S. 164, Cr.P.C. on the day when the accused were arrested, the presence of the identifier with the complainant at the time of charging the accused could not be ruled out---Even no precautions were taken by the Investigating Officer to conceal the visibility of the accused from the complainant and the identifier---As the complainant and others constantly used to visit the police station, where the accused were confined, so the possibility could not be excluded of their having seen the accused prior to the identification parade---Identification parade so conducted had no evidentiary value, through an interested witness---Circumstances established that the prosecution could not succeed in bringing home guilt against the accused---Appeal against conviction was allowed, in circumstances.

Mian Sohail Ahmad and other v. The State and others 2019 SCMR 956 rel.

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

----Ss. 302 & 34---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, common intention---Appreciation of evidence---Withholding best evidence---Scope---Allegation against the accused was that he committed murder of the son of complainant---Record showed that a witness was mentioned in the calendar of witnesses and was the person who allegedly saw the deceased in the company of the accused was not produced during trial---Even said witness was not invited to participate in the identification parade---Said witness was an independent witness---High Court observed that non-production of said witness helped in forming an opinion that he was not ready to support the false claim of the complainant---Other three witnesses were the best witnesses if the accused were put to identification from those witnesses, but the Investigating Officer did not take into consideration that material aspect of the case---Circumstances established that the prosecution could not succeed in bringing home guilt against the accused--- Appeal against conviction was allowed, in circumstances.

Shiekh Muhammad Adeel and Ms. Sania Noor for Appellant.

Kamran Hayat Miankhel, Additional A.G. for the State.

Malik Hidayatullah Utrah for Respondent.

2022 P Cr. L J 1291

[Peshawar]

Before Musarrat Hilali, J

HAMEED KHAN---Petitioner

Versus

The STATE---Respondent

Criminal Revision No. 214-P of 2021, decided on 10th January, 2022.

Penal Code (XLV of 1860)---

----Ss. 302, 311, 338-C & 299(ee) [as amended under Criminal Law (Amendment) (Offences in the name or pretext of Honour) Act (XLIII of 2016)]---Criminal Procedure Code (V of 1898), S. 439---Qatl-i-amd, Isqat-i-Janin and Fasad-fil-Arz---Compounding of offence---Accused murdered his real mother in the name of honour---Before initiation of trial accused sought his acquittal on the basis of compromise---Trial Court declined to compound the offence---Validity---Fasad-fil-Arz was a serious form of crime, which was defined under S. 299(ee), P.P.C., which included offences committed in the name or on the pretext of honour---Object to amend Penal Code, 1860, and Criminal Procedure Code, 1898, through Criminal Law (Amendment) (Offences in the name or pretext of honour) Act, 2016, was to deter and prevent offences in the name or pretext of honour---Convict in honour killing cases was to face life imprisonment even if legal heirs of victim arrived at compromise with the convict and had pardoned him---High Court in exercise of revisional jurisdiction declined to interfere in the order passed by Trial Court as there was no illegality or irregularity in refusing compounding of offence---Revision was dismissed, in circumstances.

Syed Mubashir Shah for Petitioner.

Niaz Muhammad Khan, A.A.G. for the State.

2022 P Cr. L J 1342

[Peshawar]

Before Lal Jan Khattak and Musarrat Hilali, JJ

Captain (R) MUHAMMAD SAFDAR---Petitioner

Versus

INSPECTOR GENERAL OF POLICE, KHYBER PAKHTUNKHWA, CENTRAL POLICE OFFICE, CPO, PESHAWAR and 5 others---Respondents

W.P. No. 2843-P of 2021, decided on 22nd December, 2021.

Penal Code (XLV of 1860)---

----Ss. 121, 121-A, 124-A, 131, 153, 505 & 511---Criminal Procedure Code (V of 1898), S. 196---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of FIR---Permission of Federal Government, absence of---Petitioner was alleged to have committed offences of waging or attempting to wage war or abetting waging of war against Pakistan, sedition, abetting mutiny, or attempting to seduce a soldier/sailor/airman from his duty, wantonly giving provocation with intent to cause riot and making statements conducing to public mischief---Validity---Provisions of Ss. 121, 121-A & 124-A, P.P.C. with which petitioner was charged fell under Chapter VI of Penal Code, 1860---Complainant was not competent under S. 196, Cr.P.C. to lodge FIR against petitioner---Nothing was produced by authorities to show that complainant was ever authorized by either of the two governments to book petitioner---Mala fide on the part of complainant against petitioner existed who without getting any forensic test of video viral on social media through which he came to know about indulgence of petitioner in so-called anti-state activities, got registered case against petitioner---No report of Forensic Science Laboratory was even produced before High Court to show that no editing was found in video clip which complainant had downloaded from internet regarding petitioner's press talks expressing his venom against government and others---High Court in exercise of Constitutional jurisdiction quashed FIR registered against petitioner---Constitutional petition was allowed accordingly.

Abdul Latif Afridi, Manzoor Khan Khalil, Sajeed Khan Afridi and Akhunzada Asad Iqbal for Petitioner.

Mujahid Ali Khan, A.A.G. for the Respondents.

2022 P Cr. L J 1385

[Peshawar]

Before Musarrat Hilali, J

MUHAMMAD ZABIT---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 468-P of 2021, decided on 16th July, 2021.

(a) Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019)---

----S. 9(c)---Criminal Procedure Code (V of 1898), Ss. 265-E & 412---Possession of narcotics---No appeal in certain cases when accused pleads guilty---Scope---Accused was convicted and sentenced to suffer rigorous imprisonment for four years for having been found in possession of 360 grams of charas---Accused had submitted an application before the Trial Court wherein by waiving the right of trial and right of appeal, he had pleaded guilty and left himself at the mercy of the Trial Court---On the same day, charge was framed and on his own plea, accused was convicted---Where the Court intended to award maximum punishment, the accused had to be forewarned about the implication of the charge and the effect of guilty plea---Court had to disclose its mind to the accused that even if he pleaded guilty, the Court was not going to take lenient view and if the accused stood still by his position then the Court would decide the case according to the nature of the charge---Accused was not found guilty rather he had pleaded guilty only to come out from the rigors of the prolonged trial---Merits of the case revealed that if the accused had not pleaded guilty and claimed trial, he would have been acquitted---Nothing was on record to show that the Trial Court before awarding the impugned sentence had satisfied itself that the plea of guilt was made by the accused after the charge had fully been explained to him and that the accused understood the charge, its implication and that the same was voluntary---Sentence awarded to the accused being harsh was reduced to the period he had already spent in custody.

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

----S. 265-E---Criminal trial---Plea---Scope---Procedure in cases where the accused "plead guilty" is different from the procedure adopted in the cases where the accused "plead not guilty"---Where the accused pleads guilty, no further proceedings in respect of the offence is conducted and after looking into the nature of the offence by taking a lenient view the minimum sentence (if prescribed by the statute) is awarded---Where the Court intends to award maximum punishment, the accused shall be forewarned about the implication of the charge and the effect of pleading guilty---Court shall disclose its mind to the accused that even if he pleads guilty, it is not going to take lenient view and if accused still stands by his position then the Court shall decide the case according to the nature of the charge.

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

----S. 412---No appeal in certain cases when accused pleads guilty---Scope---When an accused pleads guilty and is convicted, there shall be no appeal except as to the extent and legality of the sentence.

Sardar Ali Khan for Appellant.

Ms. Sophia Noreen, Assistant A.G. for the State.

2022 P Cr. L J 1408

[Peshawar]

Before Rooh ul Amin Khan and Ijaz Anwar, JJ

INAYAT-UR-REHMAN---Appellant

Versus

The STATE and others---Respondents

Jail Criminal Appeal No. 1185-P of 2018, decided on 3rd February, 2022.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Sentence, reduction in---Ocular account supported by medical evidence---Scope---Accused was charged for committing murder of the husband of complainant by firing---Ocular account of the incident had been furnished by complainant and her son---Complainant while appearing as witness reiterated the same story in her examination-in-chief, as set forth by her in the initial report---Complainant had been subjected to lengthy and taxing cross-examination, but nothing beneficial to defence, could be extracted from her mouth---Complainant remained stuck on her stance as set forth by her in the initial report, rather, in her cross-examination the events which remained un-clarified during her examination-in-chief, had been clarified from her by the defence itself---Nothing had been extracted from her mouth so as to suggest false implication of the accused by substituting the real culprit---Complainant had reported the occurrence with promptitude i.e. within one hour and fifteen minutes, eliminating the possibility of consultation and deliberation on her part in making report---Meeting of the complainant and her conversation with the accused prior to occurrence inside the house not only eliminated the possibility of mistaken identity but also established the presence of accused and complainant at the house---Even otherwise, it did not appeal to a prudent mind that complainant would substitute a real culprit for murder of her husband by charging innocent person---Medical Officer had conducted autopsy on the dead body of the deceased and as per his statement and autopsy report, the deceased had sustained solitary firearm entrance wound with corresponding exist which resulted into his unnatural death---Medical evidence also supported the ocular account furnished by complainant---Circumstances established that the prosecution had proved its case against the accused, however, due to some mitigating circumstances, life imprisonment was converted into imprisonment for ten years--- Appeal was dismissed with said modification in sentence.

(b) Criminal trial---

----Substitution---Scope---Substitution of real culprit charged directly and singularly was a rare phenomenon in the system of criminal justice.

Allah Ditta v. The State PLD 2002 SC 52 and Muhammad Iqbal v. The State PLD 2001 SC 222 rel.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Sentence, reduction in---Recovery of weapon of offence from the possession of accused and crime empty from the spot---Reliance---Scope---Accused was charged for committing murder of the husband of complainant by firing---Record showed that accused was arrested on the same day of occurrence along with .30 bore pistol without number and five live rounds---Arresting Police Officer and recovery witness had been subjected to lengthy cross-examination by defence but nothing of the sort to make the recovery of the pistol doubtful had been extracted from their mouths---Said witnesses had furnished consistent statements and had corroborated each other on every aspect of the recovery i.e. the day, date, time and place of arrest of the accused and recovery of .30 bore pistol from his possession---Record revealed that the crime pistol along with .30 bore empty was sent to the Forensic Science Laboratory for analysis, report whereof showed that the crime empty had been fired from the pistol recovered from the accused at the time of his arrest---Said pieces of circumstantial evidence further corroborated the ocular version of complainant---Circumstances established that the prosecution had proved its case against the accused, however, due to some mitigating circumstances, life imprisonment was converted into imprisonment for ten years---Appeal was dismissed with said modification in sentence.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Sentence, reduction in---Motive proved---Scope---Accused was charged for committing murder of the husband of complainant by firing---Motive behind the occurrence was stated to be that the accused was teasing and compelling the son of complainant for keeping illicit relation with him, complainant and deceased went to the house of the accused to complain him about his illegal demand, due to which the occurrence took place---Said victim appeared as witness and his testimony to the extent of motive part was very much relevant---Said witness while appearing as witness deposed that accused was having a Karyana shop in a Mohallah adjacent to his house---Victim used to visit his shop and when he felt that the accused was having bad eye on him, he left visiting his shop---Accused then told him that he had some outstanding against him, therefore, he should keep friendly relation with him---Victim disclosed it to his father and on the day of occurrence his parents went to the house of the accused for complaint where the occurrence took place---Testimony of said witness to the extent of motive part corroborated the testimony of complainant---Circumstances established that the prosecution had proved its case against the accused, however, due to some mitigating circumstances, life imprisonment was converted into imprisonment for ten years---Appeal was dismissed with said modification in sentence.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Sentence, reduction in---Related and interested witness---Scope---Accused was charged for committing murder of the husband of complainant by firing---No doubt, complainant was widow of deceased, who appeared as a solitary eye-witness, but it would not advance the case of defence because general public in society, always felt reluctant to depose against the culprit due to fear of earning enmity etc---No evidence, whatsoever, had been brought by the defence to prove any enmity or grudge of complainant with the accused---Mere relationship of complainant with the deceased would not detract her veracity, as she had absolutely no motive of her own to involve the accused falsely by letting off the real culprit---Circumstances established that the prosecution had proved its case against the accused, however, due to some mitigating circumstances, life imprisonment was converted into imprisonment for ten years---Appeal was dismissed with said modification in sentence.

Khizar Hayat v. The State 2011 SCMR 429; Saeed Akhtar and others v. The State 2000 SCMR 383 and Amal Sherin and another v. The State through A.G. PLD 2004 SC 371 rel.

(f) Criminal trial---

----Witness---Related and interested witness---Reliance---Scope---Testimony of a witness which was trust worthy and inspiring confidence could not be discarded on mere ground of his close relation with the deceased---Close relative, if proved to be the natural and truthful witness of the occurrence, could not be termed as interested witness---Statement of a witness on account of being interested could only be discarded if it was proved that he/she had ulterior motive on account of enmity or any other consideration.

(g) Criminal trial---

----Witness---Solitary statement of eye-witness---Scope---Conviction could be recorded on the testimony of a solitary eye-witness provided it was true, trustworthy, confidence inspiring and his/her testimony was corroborated by strong circumstantial evidence, because what was required by the court was the determination of veracity and credibility of a witness and not the number and relationship.

Zar Bahadar's case 1978 SCMR 136; Muhammad Ahmad and another v. The State and others 1997 SCMR 89; Muhammad Mansha v. The State 2001 SCMR 199; Dildar Hussain v. Muhammad Afzaal alias Chala and 3 others PLD 2004 SC 663 and Farooq Khan v. The State 2008 SCMR 917 rel.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Mitigating circumstances---Sentence, reduction in---Scope---Accused was charged for committing murder of the husband of complainant by firing---Admittedly, the accused had not gone behind the deceased for his murder---Had the complainant not visited the house of the accused for making complaint, the accused might not infuriate and the occurrence might not happen---Occurrence had taken place at the spur of moment without premeditation of the accused---Accused on the complaint of the complainant in front of his family members got infuriate, picked up his pistol and fired only one shot on the deceased with which the deceased was hit on his left buttock---Accused had not repearedthe act of firing---From the spot only one empty had been shown recovered and as per autopsy report the deceased had sustained only solitary firearm entry wound---Keeping in view the sudden mode of the incident without premeditation or pre-planning on the part of the accused, his case fell within the exception (4) of the previous S. 300, P.P.C., which by that time was punishable under S. 304, P.P.C.---Converting the conviction of the accused from S. 302(b), P.P.C., to S. 302(c), P.P.C., his sentence was reduced from life imprisonment to ten years rigorous imprisonment---Appeal was dismissed with said modification in sentence.

The State v. Muhammad Hanif and 5 others 1992 SCMR 2047 rel.

Shabbir Hussain Gigyani for Appellant.

Muhammad Nisar, A.A.G. for the State.

Nemo for the Complainant.

2022 P Cr. L J 1472

[Peshawar]

Before Musarrat Hilali, J

RIAZ---Petitioner

Versus

Mst. RAEELA and others---Respondents

Criminal Revision No. 140 of 2021, decided on 16th September, 2021.

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

----Art. 150---Question by party to his own witness---Scope---Where prosecution witness in an unguarded moment had deposed something which was unfavourable to the prosecution and no such material was available on the record showing that the witness was deliberately suppressing the truth or had changed his loyalty and the intention was clear, High Court observed that in absence of all such circumstances, the discretion to allow the party to re-examine his own witness could not be allowed.

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

----Art. 150---Question by party to his own witness---Scope---Hostile witness is one who, from the manner in which he gives his evidence, shows that he is not telling the truth and resiles from his earlier statement given during investigation and damages the case of the calling party while an unfavourable witness is one who without any hostile intention gives evidence which is contrary to the interest of the prosecution.

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

----Art. 150---Question by party to his own witness---Scope---Cross-examination is a valuable right of an accused to test the veracity and accuracy of a prosecution witness's evidence given in the examination-in-chief and to elicit from the witness any fact which may be favourable to the accused---Witness can be allowed to be treated as hostile only during examination-in-chief and not after he was cross-examined by the other party---If the opportunity of cross-examination of his own witness in such like cases is given, it would destroy the very purpose of cross-examination---No doubt, under Art. 150 of Qanun-e-Shahadat, 1984, the prosecution has the right to request the Trial Court for declaring a witness as hostile if the witness resiles from his previous statement recorded during investigation or any other proceedings, however, the Court shall not exercise its discretion of declaring a witness hostile unless the Court is satisfied that the elements of hostility are exhibited during examination-in-chief or the witness is not speaking truth for the party he is deposing and his design is obvious then the Court by using its judicial discretion can permit cross-examination of the said witness---It may not be out of place to mention here that the testimony of a hostile witness is not totally washed out from the record of the case and that part of the statement of the witness which corroborates the prosecution version can still be taken into consideration.

Shabbir Hussain Gigyani for Petitioner.

Samiullah Jan, A.A.G. for the State.

2022 P Cr. L J 1527

[Peshawar]

Before Lal Jan Khattak and Ishtiaq Ibrahim, JJ

RIAZ and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 713-P of 2020, decided on 14th September, 2021.

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

----Art. 40---Criminal trial---Joint recovery---Proof---Recovery of incriminating articles on joint pointing of two or more accused persons is inadmissible under Art. 40 of Qanun-e-Shahadat, 1984.

Ghulam Mustafa v. Ali Nawaz and 2 others 2020 MLD 1260 rel.

(b) Khyber Pakhtunkhwa Arms Act (XXIII of 2013)---

----S. 15---Criminal Procedure Code (V of 1898), S. 103---Recovery of unlicensed weapon--- Appreciation of evidence--- Recovery proceedings---Failure to associate public witnesses---Acquittal in murder case---Accused persons were convicted by Trial Court and sentenced to imprisonment for three years---Validity---Investigating officer failed to offer any plausible explanation to justify non-associating private witnesses with recovery of unlicensed weapons from the house of one accused---Prosecution failed to prove charge of murder against accused persons and they were acquitted by High Court in said case---High Court set aside conviction and sentence awarded to accused persons as prosecution failed to prove its case against accused persons beyond reasonable doubt--- Appeal was allowed in circumstances.

Syed Abdul Fayaz, Syed Mubashir Shah and Mian Sher Akbar Bacha for Appellants.

Khalid Rehman, A.A.G. for the State.

2022 P Cr. L J 1560

[Peshawar]

Before S M Attique Shah and Muhammad Naeem Anwar, JJ

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

Versus

SAID BAHAR---Respondent

Criminal Appeal No. 485-P of 2020, decided on 23rd December, 2020.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6---Transportation of narcotics---Report or result of test or analysis---Appreciation of evidence---Benefit of doubt---Contradictory statements---Safe custody---Scope---Accused was alleged to have been transporting 12000 grams charas and 4000 grams heroin---Trial Court acquitted the accused---Occurrence had not taken place in the mode and manner as structured by the prosecution---Moharrir stated that he had handed over samples to a constable for onward transmission to the Forensic Laboratory while the alleged sample-bearer stated that samples were not handed over to him---Even application for sending the samples to the Forensic Laboratory was not drafted---Apart from the safe custody and safe transmission of the samples, the report of Forensic Laboratory did not bear the test protocols that were applied to carry out the tests---Prosecution had not been able to prove its case against the accused beyond any shadow of doubt, thus, accused was rightly acquitted of the charge---Appeal was dismissed.

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.

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

----S. 9---Possession of narcotics---Safe custody---Scope---Where safe custody of the recovered substance or safe transmission of samples of the recovered substance is not established by the prosecution then it cannot be held that the prosecution had succeeded in establishing its case against the accused.

State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 rel.

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

----S. 417---Appeal against acquittal---Scope---Scope of interference in appeal against acquittal is most narrow and limited because in case of acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence that an accused shall be presumed to be innocent unless proved guilty---Simple is that the presumption of innocence is doubled and the Courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, based on gross violation of law, suffering from the errors of grave mis-reading or non-reading of the evidence.

Rab Nawaz Khan, A.A.G. for Appellant.

Malik Nasruminallah for Respondent.

2022 P Cr. L J 1610

[Peshawar]

Before Syed Arshad Ali and Muhammad Naeem Anwar, JJ

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

Versus

GUL ZAMAN---Respondent

Criminal Appeal No. 913-P of 2020, decided on 14th December, 2020.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6---Possession of narcotics---Report or result of test or analysis---Appreciation of evidence---Safe custody---Non-production of sample-bearer---Scope---Accused was alleged to have been found in possession of 3045 grams of charas---Samples were received by the Forensic Laboratory after a delay of three days---Sample-bearer was not examined before the Trial Court despite the fact that his name was cited in the calendar of witnesses---Person who had actually delivered the samples to the Forensic Laboratory, as per record, was an important witness of the prosecution, but, unexpectedly, neither his name was mentioned in the list of witnesses nor he was produced before the Trial Court---Moharrir of the police station was not produced before the Court to substantiate safe custody of the contraband---Safe custody of the recovered substance or safe transmission of samples of the recovered substance was not established by the prosecution through any independent evidence---Report of Forensic Laboratory was not accompanied by the requisite protocol of the tests applied---Appeal against acquittal was dismissed.

Qaiser Javed Khan v. The State through Prosecutor General Punjab, Lahore and another PLD 2020 SC 57 and Khair-ul-Bashar v. The State 2019 SCMR 930 rel.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039; Ikramullah and others v. The State 2015 SCMR 1002 and Amjad Ali v. The State 2012 SCMR 577 ref.

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

----S. 417---Appeal against acquittal---Scope---Once an accused person is acquitted then strong and exceptional grounds would be required for setting aside the judgment of acquittal---Standard of appraisal of evidence in an appeal against acquittal is somewhat different than an appeal against conviction, because accused is presumed to be innocent in law and if after regular trial he is acquitted he earns a double presumption of innocence and heavy burden lies on the prosecution to invalidate such presumption.

Rab Nawaz Khan, A.A.G. for Appellant.

Nemo for Respondent.

2022 P Cr. L J 1690

[Peshawar]

Before Lal Jan Khattak and Ishtiaq Ibrahim, JJ

DOCTOR KHAN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Application No. 926-P of 2022, decided on 5th July, 2022.

Criminal Procedure Code (V of 1898)---

----S. 426(2-B)--- Supreme Court Rules, 1980, O. XXII, R. 11---Suspension of sentence pending appeal---Scope---Accused sought suspension of his sentence and release on bail till final disposal of appeal before the Supreme Court---Accused was sentenced to imprisonment for life by High Court under S. 9(c) of the Control of Narcotic Substances Act, 1997---Held; High Court became functus officio after ruling on a lis---Until and unless it could be shown why a petition for the suspension of the sentence could not be lodged in the first instance before the Supreme Court, the High Court's jurisdiction did not revive---When the Supreme Court had already taken cognizance of the matter and while High Court had already dismissed the appeal and had maintained his conviction recorded by the Trial Court and when there was no legal impediment in the way of the accused to approach the Supreme Court, it would not be proper to suspend the sentence awarded to the accused and confirmed by the High Court---Application was dismissed.

Jairam Das v. King-Emperor AIR 1945 PC 94; Anwarul Huq v. National Accountability Bureau PLD 2009 SC 388 and Sattu Khan v. The State 1988 SCMR 24 ref.

Asghar Ali Khan for Petitioner.

Muhammad Nisar Khan, A.A.G. for the State.

2022 P Cr. L J 1730

[Peshawar (Mingora Bench)]

Before Muhammad Naeem Anwar and Muhammad Ijaz Khan, JJ

HABIB ULLAH and others---Petitioners

Versus

CHAMAN and others---Respondents

Criminal M. (Q.P.) No. 82-M of 2016, decided on 31st May, 2022.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 8 & 8-A---Illegal dispossession---Restoration of possession---Civil litigation, pendency of---Petitioners/accused persons were aggrieved of order passed by Trial Court restoring possession to respondents/complainants---Validity---Merely on the basis of civil litigation, legal proceedings in criminal matter neither could be terminated nor transfer of possession in terms of S. 8 of Illegal Dispossession Act, 2005 could be declared illegal---In order to constitute an offence under provisions of S. 3 of Illegal Dispossession Act, 2005 complainant was to disclose existence of unlawful act (actus reus) and criminal intent (mens rea)---Act of petitioners/accused persons by dispossessing respondents/complainants who were occupant of property with a categorical stance that on a particular date they were illegally dispossessed by petitioners/accused persons was proved not only through oral but also through documentary evidence---Such order was maintained up to Supreme Court---Once Trial Court found commission of offence, i.e. dispossession of respondents/complainants Trial Court rightly ordered that position be restored/handed over to respondents/complainants---Petitioners/accused persons wanted to stay execution proceedings---High Court declined to quash order of restoration of possession passed by Trial Court---Constitutional petition was dismissed, in circumstances.

Shaikh Muhammad Naseem's case 2016 SCMR 1931 and Mst. Gulshan Bibi and others' case PLD 2016 SC 769 rel.

Abdul Halim Khan for Petitioners.

Saeed Ahmad, A.A.G. for Official Respondents.

Aurangzeb for Private Respondents.

2022 P Cr. L J 1788

[Peshawar (Mingora Bench)]

Before Muhammad Naeem Anwar and Muhammad Ijaz Khan, JJ

MEHBOOB ALI---Petitioner

Versus

STATE through Additional Advocate-General and 3 others---Respondents

Writ Petition No. 209-M with Interim Relief, decided on Ist March 2022.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B & 154---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of FIR---Principle---Petitioner was aggrieved of registration of FIR against him on the basis of order passed by Ex-officio Justice of Peace---Validity---Registration of FIR was to pass multiple phases of investigation where authenticity of allegation or innocence of accused or any mala fide on part of complainant could be checked by investigating officer---Such was premature to quash FIR soon after its registration, while exercise jurisdiction under Art. 199 of the Constitution---High Court could quash FIR, provided that if on the face of record there was question of jurisdictional defect or legal authority of person who was registering FIR or where there was some grave violation of law e.g. if law required that Court would take cognizance of an offence upon complaint but FIR was registered or where if allegations made in FIR even if believed, they would not constitute an offence---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

Dr. Ghulam Mustafa v. The State and others 2008 SCMR 76; Dr. Sikandar Ali Mohi-ud-Din v. Station House Officer and others 2021 SCMR 1486; Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan PLD 1971 SC 677; 1994 SCMR 2142; 2010 SCMR 624 and 2016 SCMR 447 rel.

2022 P Cr. L J 1822

[Peshawar]

Before Qaiser Rashid Khan, CJ

AKHTAR ZAMAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Application No. 1882-P of 2022, decided on 11th August, 2022.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 466---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd and common intention---Release of lunatic pending investigation or trial---Bail, refusal of---Absconsion of accused---Involvement of accused in several FIRs---Scope---Accused sought bail on medical grounds---Accused was arrested after about five years---After that, his bail applications were dismissed on merits upto to High Court---Neither any plea of the alleged mental sickness was agitated by him in the first round nor even any medical history in that regard was brought before any forum---During trial, it was on the request of the accused pleading some mental ailment, the Medical Board was constituted which declared him to be a normal person---Somehow, within a span of barely seven months, the accused again pleaded to have some mental problem and in turn the second Medical Board was constituted---Subsequent Medical Board included same members except one---However, this time around, the accused was declared to be a patient of bipolar affective disorder and thus not fit to face trial---Keeping in view the conflicting opinions of two Medical Boards and his previous criminal history to be involved in several different FIRs, the accused could not press into service subsection (1) of S. 466, Cr.P.C. for his release on bail---Trial Court had rightly ordered to refer him to the Mental Ward of the Police and Services Hospital and in the meanwhile had adjourned the trial proceedings sine die---Such proceedings could be revived as and when the accused was declared to be fit by the Medical Board after his recovery from such ailment---No case was made out for the grant of bail to the accused on medical grounds---Petition for grant of bail was dismissed.

Syed Abdul Fayaz and Ijaz Muhammad Khan for Petitioner.

Mujahid Ali Khan, Additional Advocate-General for the State.

Hussain Ali for the Complainant.

2022 P Cr. L J 52

[Balochistan]

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

RIFAT BIBI---Appellant

Versus

ABID SHAH and another---Respondents

Criminal Acquittal Appeal No. 31 of 2019, decided on 16th September, 2020.

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

----S. 377---Unnatural offence---Appreciation of evidence---Appeal against acquittal---Limitation---Scope---Accused was charged for committing carnal intercourse with the nephew of the complainant---Record showed that the appeal had been filed under S. 417-A, Cr.P.C., and the limitation for filing such appeal was thirty (30) days from the date of passing of order/judgment---In the present case, the impugned judgment was passed on 27.12.2018 and the appeal, was filed before High Court on 18.02.2019 after fifty-three (53) days which was barred by time---Neither the appellant filed application under S. 5 of the Limitation Act, 1908 for condonation of delay nor explained each and every day of delay in filing of the appeal---Appeal was dismissed being barred by law of limitation.

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

----S. 5---Condonation of delay---Scope---Delay of each day had to be satisfactorily explained, as after expiry of limitation period a vested right was created in favour of the other party which could not be easily brushed aside as the law always helped the vigilant and not the indolent.

Lt. col. Nasir Malik v. Additional District Judge Lahore, 2016 SCMR 1821 rel.

(c) Criminal trial---

----Evidence--- Solitary statement of victim--- Scope--- Conviction could be recorded on the solitary statement of the victim provided that the same was corroborated by the other circumstantial evidence, particularly, with the opinion rendered by the medical witness.

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

----S. 377---Unnatural offence---Appreciation of evidence---Appeal against acquittal--- Accused was charged for committing carnal intercourse with the nephew of the complainant---Record showed that neither the complainant nor anyone else was eye-witness of the alleged occurrence---Neither first condition of the eye-witness nor the second condition with regard to corroboration of the medical evidence with the solitary statement of the victim was produced in the trial court---Appellant had failed to point out any defect in the impugned judgment, therefore, the appeal against acquittal being devoid of merits was accordingly dismissed in limine.

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

----S. 377---Unnatural offence---Appreciation of evidence---Appeal against acquittal---Medical evidence---Scope---Medical jurisprudence---Procedure to check sodomy---Principles---Accused was charged for committing carnal intercourse with the nephew of the complainant---Medical witness rendered his observation that there was no penetration, browse on anal and tenderness on anal canal---During cross-examination, Medical witness stated that due to warm infections, the child had scratches on his anal canal and during cross-examination further stated that in expert opinion no sodomy was committed and it was only an attempt---Witness stated during cross-examination that there were no injuries on the knees of the victim and no injuries on his person---Section 377, P.P.C., provided that the offences would be completed when the carnal intercourse was taken place---Law provided that for constituting an offence under said section and to establish the carnal intercourse, the penetration was a condition precedent, therefore, the explanation provided in S. 377, P.P.C., stated that "penetration was sufficient to constitute the carnal intercourse---Victim was silent about penetration, while the opinion rendered by the Medical witness was not conclusive---Medical jurisprudence provided a complete procedure for examining the victim of sodomy---Medical opinion rendered by a Medical witness was not in line with the procedure contemplated in the medical jurisprudence, therefore, it was instructed to produce the relevant procedure for medical examination of the victim of sodomy as provided in the Medical Jurisprudence---In the present case, Medico Legal Report stated about the tenderness of anal region which under the medical jurisprudence could be caused due to constipation or in case of irregular bowel habits---Doctor had also failed to use the Proctoscopy instrument in order to obtain the anal swab and did not notice any abrasion or injury on the anal region of the alleged victim---Statement of victim was silent about penetration, thus without obtaining the anal swab of the victim and in the absence of positive report with regard to semen-stained clothes of the victim and the accused and without getting blood group of accused in order to match the semen stains found on the victims clothes, on mere tenderness of the anal region no conclusive opinion could be rendered as to whether sodomy had been committed or not---Sample was taken from the shalwar of the accused but no report of Forensic Expert was produced before the court, which created a reasonable doubt in the prosecution case---Accused was also of 11/12 years, and the victim was of 8/9 years and there were no such injuries on the person of the victim---Said aspect of the case also caused reasonable doubt in the prosecution---Appellant had failed to point out any defect in the impugned Judgment, therefore, the appeal against acquittal being devoid of merits was accordingly dismissed in limine.

(f) Appeal against acquittal---

----Double presumption of innocence---Interference---Scope---Acquittal carried with it double presumption of innocence---Acquittal order could be reversed only when found blatantly perverse, resting upon fringes of impossibility and resulting into miscarriage of justice---Same could not be set aside merely on the possibility of a contra view.

Ahsan Rafique Rana for Appellant.

2022 P Cr. L J 167

[Balochistan (Sibi Bench)]

Before Muhammad Hashim Khan Kakar and Abdul Hameed Baloch, JJ

MUHAMMAD SALEEM and 5 others---Petitioners

Versus

STATION HOUSE OFFICER POLICE STATION CITY SIBI and 3 others---Respondents

Criminal Petition No. (s) 23 of 2019, decided on 18th November, 2020.

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

----Ss. 22-A & 22-B---Ex-officio Justice of Peace---Powers of---Directions to Investigating Officer---Scope---Respondent filed an application before the Ex-officio Justice of Peace contending that FIR was not registered according to the contents of his application for registration of FIR due to which his case was badly dented---Ex-officio Justice of Peace allowed the application and directed the Investigating Officer to make entries of necessary details in the challan and statements of witnesses---Held, power conferred under S. 22-A(6), Cr.P.C. to the Ex-officio Justice of Peace was for dealing with cases of non-registration of FIR, transfer of investigation and neglect, failure or excess committed by police authorities---Justice of Peace could not suggest the procedure or give direction to do certain acts and suggest a particular procedure of investigation---Constitutional petition was accepted and the order passed by Justice of Peace was set aside.

Bilal Ahmed v. Justice of the Peace/Sessions Judge, Rawlakot 2016 PCr.LJ 771 rel.

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

----Ss. 22-A & 22-B---Ex-officio Justice of Peace---Powers of ---Scope---Ex-officio Justice of Peace can pass order where the police authorities fail to register an FIR; he can transfer investigation from one officer to another or he can issue directions where it is found that the police authorities have failed to perform their functions and duties---Ex-officio Justice of Peace was not to issue direction to the police for registration of FIR in a mechanical manner.

Hasnain Iqbal Minhas for Petitioners.

Muhammad Nasir Marri for Respondents Nos. 3 and 4.

Abdul Mateen, Deputy Prosecutor General for Officer Respondents.

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2022 P Cr. L J 360

[Balochistan (Sibi Bench)]

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

MEERAN BAKHSH alias MATRU---Appellant

Versus

The STATE---Respondent

A.T.A. Criminal Appeal No. (s) 69 of 2020, decided on 23rd November, 2020.

Penal Code (XLV of 1860)---

----Ss. 302(c) & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 7(a) & 21-L---Qatl-i-amd, common intention, acts of terrorism---Appreciation of evidence---Punishment for an absconder---Accused was charged for committing murder of the deceased---Accused were declared proclaimed offenders and were convicted---Scope---Record transpired that no charge was framed against the accused under S. 21-L of Anti-Terrorism Act, 1997---Record also reflected that no evidence was recorded to prove the ingredients of S. 21-L of the Act---Trial Court also failed to formulate point for determination regarding the offence under S. 21-L of the Act, in the impugned order---No evidence to show that absconsion of the accused was intentional and no finding had been recorded by the Trial Court to the effect that accused was fugitive of the law---Procedure adopted by the trial judge in convicting and sentencing the accused under S. 21-L of the Act, appeared to be absolutely illegal---Accused, indeed had been convicted and sentenced for an offence punishable under S. 21-L of the Act, in a cursory manner by the trial judge on adopting the procedure, which was violative of Arts. 9 & 10(1) of the Constitution, and S. 10(11-A) of the Act, which could not be consented---Appeal against conviction was allowed and the case was remanded to the Trial Court to frame charge under S. 21-L of the Act, against the accused as well as for the alleged offence and to further proceed in accordance with the law.

Mir Akhlaq Ahmed and others v. The State 2008 SCMR 951 rel.

Ali Hassan Bugti for Appellant.

2022 P Cr. L J 392

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Abdul Hameed Baloch, JJ

ARSHAD KHAN and 3 others---Petitioners

Versus

MUHAMMAD SULEMAN and 2 others---Respondents

Criminal Revision Petition No. 72 of 2019, decided on 13th July, 2020.

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

----Ss. 302 & 34---Criminal Procedure Code (V of 1898), S. 345 ---Qatl-i-amd, common intention---Compounding of offences---Scope---Complainant lodged FIR against the petitioners for committing murder of his daughter---Parties, during the trial, moved application under S. 345, Cr.P.C., along with compromise deed and stated that they have amicably settled the matter outside the court---Father and mother of deceased appeared before the Trial Court and while confirming the contents of the compromise deed, stated that they had pardoned the accused/petitioners in the name of Al-mighty Allah and had waived their right of qisas---Both the legal heirs of deceased stated that the deceased was having two children from her ex-husband, a girl aged about 12 years and a boy aged about 11 years; however, they did not know whereabouts of their grandchildren---Consequently the Investigating Officer and complainant was called, who deposed that they did not know the whereabouts of the children of deceased---Trial Court had kept the case adjourned for almost six months but the children of deceased did not appear and finally accepted the compromise vide impugned orders---In respect of diyat amount of minors the accused persons were directed either to deposit amount of diyat for minors amounting to Rs.13,70,500/- or to submit surety/ security bond for a period of five years equal to diyat amount---Petitioners being aggrieved of the impugned orders in respect of diyat amount filed the present petition---Validity---Record depicted that the legal heirs of deceased submitted the compromise deed voluntarily---Complainant/father of deceased and mother of deceased appeared before the Trial Court and recorded their statements in presence of petitioners and their counsel, wherein they categorically narrated the names of minor legal heirs of deceased---On the basis of their statements, the Trial Court passed the order directing the accused to submit surety/security in lieu of diyat amount of minors or to deposit total diyat amount i.e. 1370,500---Petitioners had not objected the diyat amount, whereupon finally the Trial Court acquitted the petitioners through final order---Principle of estoppel under Art. 114 of the Qanun-e-Shahadat, 1984 came into play---Petitioners neither raised objection before the Trial Court nor filed any appeal against the orders of the Trial Court---Compromise was effected with the permission of the court, thereafter, the Trial Court acquitted the accused---Admittedly, the compromise attained finality---Accused/petitioners had no right to detract from the compromise---Once the compromise was effected, the accused or complainant were not allowed to resile from the same---Petitioners contended that if the court set-aside the order to the extent of submission of surety/security and exclude the minors from the legal heirs then they had no objection in respect of compromise---Law did not allow pick and choose in the order/document nor the portion which favoured would be accepted and the portion which did not favour would be rejected---Court could not exclude the legal heirs of a deceased from their shares in diyat amount, rather the minor orphans needing more care could not be deprived from their rights---Since the petitioners were acquitted on the basis of compromise, they could challenge the share of minors---Revision was dismissed accordingly.

Emperor v. Jiwan Singh AIR 1930 Allahabad 408 and Dharichhan Singh and others v. Emperor AIR 1939 Patna 141 rel.

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

----Ss. 435, 439(5) & 417---Revision against the order of acquittal---Maintainability---Section 439(5), Cr.P.C. described that if an appeal lay and no appeal was brought, no proceedings by way of revision would be entertained---Petitioners had been acquitted of the charge on the basis of compromise by the Trial Court, thus, the remedy of appeal was available to the petitioners/accused---Revision was not maintainable against the order of acquittal, however remedy of filing appeal under S. 417(2), Cr.P.C. was available---No revision was competent before that court--- Revision was dismissed accordingly.

Abdul Majeed v. Messrs H. Ghulam Muhammad and Brothers Ltd. 1995 PCr.LJ 1369 and Muhammad Bashir v. Fazal Hussain 2002 PCr.LJ 513 rel.

Khalil Ahmed Panezai for Petitioners.

Ahmed Sheriyar for Respondents.

Muhammad Yunus Mengal, Additional P.G. for the State.

2022 P Cr. L J 497

[Balochistan]

Before Muhammad Ejaz Swati and Rozi Khan Barrech, JJ

HALEEM KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 71 and Criminal Revision No. 3 of 2020, decided on 27th April, 2021.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Informant was not examined---Scope---Accused was charged for committing murder of his brother, his wife and nephew---Record showed that the FIR was lodged with an hour and five minutes of the occurrence and accused was specifically nominated therein---Complainant did not appear before the court as a prosecution witness, as he was not traceable---First Information Report was not a substantive piece of evidence, so it was not fatal to the prosecution case that the person who transcribed the FIR was not examined, especially as it was exhibited in evidence---Circumstances established that the prosecution had successfully proved its case against the accused beyond reasonable doubt---Appeal against conviction was dismissed accordingly.

Muhammad Akram v. State 2006 SCMR 1567 rel.

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

----S. 154---First Information Report---Purpose and scope---First Information Report was not meant to decide the guilt or innocence but to activate the law enforcing agencies to immediately move for collection/preservation of evidence.

Sikandar v. The State and another 2006 SCMR 1786 rel.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Solitary statement of injured/eye-witness---Scope---Accused was charged for committing murder of his brother, his wife and nephew---Injured witness had consistently adhered to the prosecution version word by word and fully supported the prosecution case giving all necessary details---Said witness faithfully deposed what was witnessed by him and his version could not be impeached or shattered despite lengthy cross-examination---Said witness described the role played by the accused in the commission of the offence and lent full strength to the prosecution story---No doubt it was a case of solitary witness but the solitary witness itself was not a demerit or disqualification as could call for its repudiation, when otherwise it rang true and inspired confidence---Circumstance established that the prosecution had successfully proved its case against the accused beyond reasonable doubt---Appeal against conviction was dismissed accordingly.

(d) Criminal trial---

----Witness---Statement of solitary witness---Scope---Conviction can be based on the statement of solitary eye-witness provided the same was confidence inspiring and the intrinsic worth of the same rang true and satisfied the conscious of the court.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Ocular account supported by medical evidence---Scope---Accused was charged for committing murder of his brother, his wife and nephew---Record showed that the medical evidence was in complete harmony with the ocular testimony of injured witness---No conflict could be pointed out to create a dent in the prosecution case---Medical Officer produced a medical certificate of the injured, medical certificate of the male deceased and medical certificate of the female deceased, according to which the deceased and the injured received injuries by means of sharp edged weapon---Other corroborative piece of evidence with the ocular evidence was the blood-stained earth, blood-stained clothes of the deceased and injured, which was taken into possession by police in the presence of the witnesses---Investigating Officer sent the parcels of the recovered blood stained earth, clothes of the deceased and the injured, as well as the blood stained crime weapon, i.e. blood stained cleaver/toka, to the Forensic Science Laboratory and obtained a positive report---Said recoveries had been duly proved through recovery witnesses and nothing adverse could be achieved despite cross-examination---Circumstance established that the prosecution had successfully proved its case against the accused beyond reasonable doubt---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b) & 324---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Confession, retraction of--- Scope--- Accused was charged for committing murder of his brother, his wife and nephew---Confessional statement of the accused was recorded under S. 164, Cr.P.C., before Judicial Magistrate, which was retracted by him during the trial---Accused was arrested and his confessional statement was recorded after fifteen days---Such delay had not been plausibly explained by the prosecution, which had highly injured its credibility---Perusal of the confessional statement revealed that its maker stated that he was tortured by the police---Torture by the police even for one day casted serious doubt about the voluntariness of the confession---Said piece of evidence was of no help to the prosecution case---Even if the confessional statement of the accused was excluded from consideration, it had been observed that direct evidence in the form of ocular account furnished by eye-witness/injured witness was inspiring confidence, which was supported by the medical evidence---Circumstance established that the prosecution had been successfully proved its case against the accused beyond reasonable doubt---Appeal against conviction was dismissed accordingly.

Bangul Mari for Appellant.

Fazl-ur-Rehman, State Counsel.

2022 P Cr. L J 549

[Balochistan]

Before Muhammad Ejaz Swati and Rozi Khan Barrech, JJ

Syed MOHSIN ALI---Appellant

Versus

The STATE through Deputy Prosecutor General (DPG), National Accountability Bureau (NAB), Balochistan---Respondent

Criminal Ehtesab Appeal No. 6 of 2018, decided on 24th May, 2021.

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

----S. 9---Penal Code (XLV of 1860), Ss. 405 & 415---Corruption and corrupt practices---Criminal breach of trust---Cheating---Expression 'public at large'---Scope---Accused was convicted for fraudulently receiving money from the members of the public under the guise of a fake housing scheme without any allotment or delivery of physical possession of plots to the allottees and dishonestly converting it to his own use---Accused had purchased a piece of land measuring 23 acres wherein a housing scheme was announced and the payment of the said land was to be completed in five years---Total number of persons who had sought booking in the scheme were 412---During this period, a dispute arose between accused and vendor---Vendor had obtained stay orders from the Civil Court, as such the accused had failed to develop the scheme---Out of 412 only 10 allottees had appeared before the Court---Two of the said witnesses had admitted in cross-examination that they had not paid the complete consideration amounts to the accused---Investigating Officer had admitted that the scheme had not matured due to civil litigation---Legislature from the expression "public at large" had intended to focus the public at macro level---Expression did not aim at the offences committed at the micro level---Prosecution in order to attract the mischief of S. 9(a)(ix) and (x) of National Accountability Ordinance, 1999, was obliged to bring on record that the accused was found guilty of defrauding the public at large scale---Prosecution had only produced ten witnesses and such a small faction of the society did not fall within the definition of expression "public at large"---Case was one of civil dispute based upon alleged breach of the agreement for which remedies laid somewhere other than in a criminal court---Appeal was accepted and the impugned judgment was set aside.

Rafiq Haji Usman v. Chairman, NAB and another 2015 SCMR 1575 rel.

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

----S. 415---"Cheating"---Scope---Person inducing or luring the other to deliver him any property for any consideration must be doing so with the preconceived intention of not fulfilling the obligation arising out of such arrangement resulting in receiving any property---Initial intention to deceive must be established in order to justify a conviction of cheating.

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

----S. 405---"Criminal breach of trust"---Scope---To constitute the offence of criminal breach of trust, the element of entrustment of property or money which is dishonestly misappropriated or disposed of in violation of any direction prescribed by law or the mode in which such trust was to be discharged or in the context of any contract etcetera, must be established---However, an arrangement when one person receives money or investment from another person for carrying on business per se will not attract the entrustment of property as provided under S. 405, P.P.C.

(d) Interpretation of statutes---

----If an expression is not defined in any law, then its dictionary meaning can be followed and adopted.

Chairman Pakistan Railway Government of Pakistan v. Shah Jehan Shah PLD 2016 SC 534 rel.

(e) Words and phrases---

----"Public"---Meaning---Relating or belonging to an entire community, state or nation.

Black's Law Dictionary, 9th Edition rel.

(f) Words and phrases---

----"At large"---Meaning---Free; unrestrained; not under control; not limited to any particular place, person, matter or question.

Black's Law Dictionary, 9th Edition rel.

Syed Ayaz Zahoor for Appellant.

Aminuddin Bazai, D.P.G. NAB for the State.

2022 P Cr. L J 695

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Abdul Hameed Baloch, JJ

MUHAMMAD UMAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 21 of 2020, decided on 9th July, 2020.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Ocular account corroborated by medical evidence---Scope---Accused was charged for committing murder of the brother of complainant by firing---Ocular account of the incident had been furnished by three witnesses including complainant---Record showed that application for registration of the case was submitted by complainant, wherein he specifically named the accused for making firing upon deceased which resulted into bullet injuries upon the person of the deceased---Complainant in his application stated that at the time of occurrence eye-witnesses were present---Said witnesses in their testimony had correctly stated the date, time and venue of occurrence and manner of occurrence---Said witnesses were related to the accused---Complainant fully corroborated the contents of fard-e-biyan---Statements of eye-witnesses were in line with each other---Role of firing was specifically assigned to the accused by the witnesses---Record transpired that the accused had suggested that deceased had enmity with another person, but in that regard neither the accused recorded his statement under S. 340(2), Cr.P.C., nor produced any evidence---Mere suggestion to the witness could not be a ground to discard the statement of truthful witness---Medical evidence produced by the prosecution fully corroborated the ocular account furnished by the prosecution witnesses---Complaint transpired that the deceased sustained fire arm injuries---Statements of ocular witnesses were unison and had corroborated each other---Despite cross-examination the defence had failed to shatter the statements of ocular witnesses---Circumstances established that accused had failed to make out a case in his favour---Appeal against conviction being devoid of merit was dismissed, in circumstances.

Noor Muhammad v. The State 2010 SCMR 97; Muhammad Akram v. The State 2009 SCMR 230; Faryad Ali v. The State 2008 SCMR 1086 and Khalid alias Khalidi v. The State 2012 SCMR 327 ref.

Allah Ditta v. The State PLD 2002 SC 52 and Mazhar Ellahi v. The State 2020 SCMR 586 rel.

(b) Criminal trial---

----Witness---Related witness---Scope---Mere relationship of a witness with deceased was no ground to discard his testimony if he otherwise appeared to be truthful and his presence at the venue of occurrence was probable---Mere relationship of witness would not dub him as interested witness because interested witness was one who had a motive to falsely implicate the accused, was biased, partisan or inimical towards the accused---Related witness, particularly in murder cases, might be found more reliable because on account of his relationship with the deceased he would not let go the real culprit or substitute the real person---Evidence of related witness, who was not found inimical and was confidence inspiring, would hardly need any corroboration.

Muhammad Akram v. The State 2015 YLR 116; Abdul Rauf's case 2003 SCMR 522 and Khadim Hussain's case PLD 2010 SC 669 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Delay of about thirty five minutes in lodging the FIR---Scope---Accused was charged for committing murder of the brother of complainant by firing---Record showed that complainant promptly registered the FIR---Medico-Legal Certificate showed that the injured was brought by complainant to the hospital---Presence of the complainant was not disputed at the place of occurrence---First Information Report was registered by the complainant, who was also eye-witness, deposed consistently the facts mentioned in the FIR, as such there was no reason to discard the FIR which was promptly lodged---Appeal against conviction was dismissed, in circumstances.

(d) Criminal trial---

----Witness---Solitary statement of a witness---Scope---Conviction could be based on sole statement of witness if found reliable---Even the prosecution could not be bound to produce each witness whose name appeared in the column of witnesses in the challan.

(e) Criminal trial---

----Minor contradictions--- Scope--- Minor contradictions were not sufficient to make the case of prosecution doubtful.

Qaisar Khan v. The State 2009 SCMR 471 rel.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Recovery of weapon and crime empties---Scope---Accused was charged for committing murder of the brother of complainant by firing---Rule of prudence was that the recovery of crime weapon and empties was not mandatory requirement of law---Same was corroborative piece of evidence---In absence of such corroborative evidence in respect of those incriminating articles which related to ancillary proceedings of investigation, would have no direct impact on ocular account---Same would not be fatal to the trustworthy, credible and confidence inspiring direct evidence.

Saleh Muhammad alias Hashim Marri v. The State 2013 PCr.LJ 692 rel.

(g) Criminal trial---

----Motive, not proved---Scope---Failure to prove motive is not fatal to the story of prosecution.

Nizamuddin v. The State 2010 SCMR 1752 rel.

Muhammad Amir Rana and Zahoor Hassan Jamote for Appellant.

Muhammad Younas Mengal, Additional Prosecutor General for the State.

2022 P Cr. L J 713

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Abdullah Baloch, JJ

STATE through Prosecutor General Accountability, NAB---Appellant

Versus

NISAR HUSSAIN SHAH and another---Respondents

Criminal Acquittal Ehtesab Appeal No. 6 of 2013, decided on 28th August, 2020.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 14 (c) & 32---Assets beyond known sources of income---Appreciation of evidence---Appeal against acquittal---Onus to prove---Defective investigation---Duty of Investigating officer---Accused was alleged to have acquired assets beyond his known sources of income by misusing his authority---Accountability Court acquitted the accused of the charge---Validity---Accused owned the assets with the assertion that those were lawfully purchased by him through his legal means---By owning the assets though burden shifted on accused but still it was prosecution who had to establish that sources shown by accused firstly during inquiry/investigation and secondly before Accountability Court, were not legal or not in conformity with his properties---Investigating officer on each occasion failed to properly investigate the matter---Investigating Officer was obliged to investigate each and every aspect of case keeping in view the defence version taken by accused at the time of investigation---Prosecution was supposed to have discovered and proved the known sources of accused--- Scope of interference in appeal against acquittal was narrow and limited as in acquittal presumption of innocence was significantly added to the cardinal rule of criminal jurisdiction and accused was presumed to be innocent until proved guilty and such presumption of innocence was doubled---High Court declined to interfere in judgment of acquittal passed by Accountability Court in favour of accused---Appeal was dismissed, in circumstances.

Muhammad Hashim Babar v. State 2010 SCMR 1697; Ghani-ur-Rehman v. National Accountability Bureau PLD 2011 SC 1144 and The State v. Abdul Khaliq and others PLD 2011 SC 554 rel.

Jaffar Raza, Special Prosecutor NAB for Appellant.

Abuzar Haider and Malik Azeem for the State.

2022 P Cr. L J 853

[Balochistan (Sibi Bench)]

Before Nazeer Ahmed Langove and Rozi Khan Barrech, JJ

AURANGZAIB and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. (s) 72 and (s) 73 of 2020, decided on 12th February, 2021.

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

----S. 9(c)---Possession of Narcotics---Appreciation of evidence---Prosecution case was that sixty eight kilograms of baked charas was recovered from the secret cavities of the vehicle driven by the accused, while co-accused was sitting in front seat of the said vehicle---Prosecution had produced three witnesses to prove the charge against the accused---All the said witnesses were consistent on all material aspects---No distinct discrepancy was noticed to spoil the credibility of their testimony---Said witnesses were subjected to cross-examination by the defence, but their testimony was not shattered---Mode and manner of arrest of accused leading to the recovery of narcotic had been proved---Prosecution evidence was unanimous with regard to the arrest of the accused, place of occurrence, quality of the recovered charas and to that extent, the evidence of the prosecution was also inspired confidence---Recovery of narcotic had been effected from the vehicle which was driven by the accused, hence he had been found responsible for transporting huge quantity of narcotic having prior knowledge of the same in his vehicle---In the present case, no proof of enmity with the complainant and the prosecution witnesses had been brought on record, thus, in the absence thereof, the competence of prosecution witnesses being officials was rightly believed---Witnesses were not at all questioned about any previous ill-will or enmity with the accused whereby they could have been falsely nabbed and charged for the possession of sixty eight kilograms of charas---Accused had failed to produce any tangible material to rebut the trust worthy and confidence inspiring evidence of the prosecution witnesses---Circumstances established that the prosecution had successfully proved the guilt of the accused---Appeal against conviction was dismissed accordingly.

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

----S. 9(c)---Possession of Narcotics---Appreciation of evidence---Liability of driver of vehicle containing narcotic---Scope---Person who is on driving seat of the vehicle shall be held responsible for transportation of narcotics.

Kashif Amir v. State PLD 2010 SC 1052 rel.

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

----Ss. 9 & 25---Criminal Procedure Code (V of 1898), S. 103---Mode of making searches and arrest---Search to be made in presence of witnesses---Scope---Defence objected that no private witness was joined in recovery proceedings except police officials, which is a violation of S.103, Cr.P.C.---Application of S. 103, Cr.P.C., had been excluded by S. 25 of the Act, 1997, in narcotic cases.

Zafar v. The State 2008 SCMR 1254 rel.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4(2)---Seizure of Narcotic---Appreciation of evidence---Chemical analysis---Delay in sending samples of contraband for analysis---Effect---Prosecution case was that sixty eight kilograms charas was recovered from the secret cavities of the vehicle driven by accused---Samples were sent to the Chemical Examiner with delay of six days and were kept at police station---Dispatching of sample beyond 72 hours was not a sine qua non---Mere delay in sending the sample to the laboratory was not at all fatal to the prosecution case because Rr. 4 & 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, did not place any bar on the Investigating Officer to send the samples beyond 72 hours of seizure or recovery of the contraband---Provisions in that respect were directory and not mandatory---Nothing was available on record to establish that the parcels were ever tampered with---Evidence led by the prosecution established that when the parcel was received by the said agency same was intact---Even otherwise on the day of recovery the Investigation Officer handed over the parcel of recovered narcotics to official witness/ASI, who after registering the same in Register No. 19 kept the same in Malkhana in safe custody and handed over the same to other official witness who deposited the same to Forensic Science Laboratory and obtained the report---Circumstances established that the prosecution had successfully proved the guilt of the accused---Appeal against conviction was dismissed accordingly.

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

----S. 9(c)---Possession of Narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that sixty eight kilograms of baked charas was recovered from the secret cavities of the vehicle driven by the accused, while co-accused was sitting in front seat of the said vehicle---Record showed that no recovery, whatsoever, had been affected from co-accused and the alleged contraband was recovered from the secret cavities of the vehicle---Prosecution had failed to establish that the co-accused was in the knowledge of the narcotic or that the same was exposed to him---Co-accused was a mere passenger and having no link either with the accused or the vehicle which was used in the crime---Prosecution had simply proved presence of the co-accused in the vehicle---Mere presence of co-accused in the vehicle would not involve him in the case---prosecution had failed to prove its case against the co-accused---Appeal against conviction to the extent of co-accused was allowed, in circumstances.

Qaisarullah v. State 2009 SCMR 579 rel.

Ahsan Rafiq Rana for Appellants.

Jameel Akhter Gajani, A.P.G. for the State.

2022 P Cr. L J 887

[Balochistan]

Before Abdullah Baloch, J

NASEEM KHAN KASI---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION QUETTA and another---Respondents

Criminal Miscellaneous Quashment No. 313 of 2020, decided on 28th December, 2020.

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

----S. 561-A---Inherent powers of High Court---Quashing of FIR---First Information Report, outcome of civil dispute---Scope---Accused sought quashing of FIR registered against him under Ss. 186, 353, 147, 148 & 149, P.P.C.---Perusal of record reflected that the demolishing of construction of scheme was being carried out in presence of law enforcing agencies, thus the allegations of interference in the discharge of official duties by the accused was very illogical---First Information Report seemed to be an outcome of civil dispute in between the parties, thus resulted into criminal litigation---No incriminating material was available on record to be based for conviction of accused---Provisions of S. 561-A, Cr.P.C. conferred inherent powers to the High Court to make such orders as were necessary to give effect to any order under the Code or to prevent abuse of process of law to secure the ends of justice---Such powers were very wide and could be exercised by the High Court at any time---Even from the plain reading of FIR, in the present case, no offence was made out---First Information Report was quashed, in circumstances.

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

----S. 561-A---Inherent powers of High Court---Quashing of FIR---Alternate remedy--- Scope--- Court in its inherent powers under S. 561-A, Cr.P.C., ordinarily does not interfere with the police investigation in a cognizable offence and more particularly when alternate course of action is available under S. 249-A or 265-K, Cr.P.C., before the Trial Court, however, simultaneously it is the prime duty of the High Court to guard the citizen from any abuse of process of law.

Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122 rel.

Afzal Harifal, Mohibullah and Riaz Akhtar Tareen for Petitioner.

Sardar Ahmed Haleemi for the Complainant.

Saeed Ahmed Kakar, State Counsel.

2022 P Cr. L J 913

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

ELECTION COMMISSION OF PAKISTAN through District Election Commissioner, Quetta---Appellant

Versus

MUNIR AHMED KHAN KAKAR and others---Respondents

Criminal Acquittal Appeals Nos. 337, 338, 339, 340, 405, 406, 407, 408, 409, 410, 411, 412, 413, 414, 415, 416, 417, 418, 419, 420, 421, 422, 423, 424, 425, 426, 427, 428 and 429 of 2019, decided on 13th December, 2019.

Criminal Procedure Code (V of 1898)---

----S. 247---Elections Act (XXXIII of 2017), S. 134---Illegal practice---Complaint, dismissal for non-prosecution---Election Commission filed complaints against respondents but Trial Court dismissed the complaints due to non-prosecution---Validity---Provisions of Chapter XX, Cr.P.C. provided procedure for trial of case by Magistrate, wherein under S. 247, Cr.P.C. the Magistrate was empowered to dismiss complaint on non-appearance of complainant with certain restriction---Where the offence of which accused was charged was either cognizable or non-compoundable, Court could not dismiss the complaint on non-appearance---High Court set aside the orders of dismissing complaints for non-prosecution and the same were remanded to Trial Court for decisions on merits---Appeal was allowed accordingly.

Yahya Bakhtiar v. Mir Shakeel-ur-Rehman PLD 1998 Quetta 37 and Nasreen Akhtar v. Mian Abbas, SHO 2016 PCr.LJ 578 rel.

Syed Abdullah Agha for Appellant.

Yahya Baloch, Additional Prosecutor General for Respondents.

2022 P Cr. L J 1018

[Balochistan (Sibi Bench)]

Before Nazeer Ahmed Langove and Rozi Khan Barrech, JJ

SAEED AHMED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. (s) 57 of 2020, decided on 11th February, 2021.

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

----S. 9(c)---Transportation of narcotics---Appreciation of evidence---Scope---Accused was apprehended while transporting 8000 grams of charas---Prosecution witnesses were consistent on all material aspects---No distinct discrepancy was noticed to spoil the credibility of their testimony and they were subjected to cross-examination by the counsel of accused but their testimony was not shattered---Mode and manner of arrest of the accused leading to recovery of narcotics was proved---Recovered charas was sent to the Forensic Laboratory within 72 hours and no delay was caused, therefore, safe custody of the contraband was not doubtful---Forensic Laboratory after conducting a chemical test with complete protocol (description thereof was available in the report) had found the sample to be charas---Once prosecution had led ample evidence and discharged the initial onus of proof then it was the accused who had to dislodge the presumption of guilt against him---No possibility of false implication of the accused existed---Prosecution had successfully established the guilt of the accused and he was rightly convicted by the Trial Court---Appeal against conviction was dismissed, in circumstances.

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

----S. 9---Transportation of narcotics---Scope---Held, person who is on the driving seat of the vehicle shall be held responsible for transportation of narcotics.

Kashif Amir v. State PLD 2010 SC 1052 rel.

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

----S. 25---Criminal Procedure Code (V of 1898), S. 103---Search and arrest---Mode---Search to be made in presence of witnesses---Scope---Applicability of S. 103, Cr.P.C. has been excluded by S. 25 of the Control of Narcotic Substances Act, 1997.

Zafar v. The State 2008 SCMR 1254 rel.

Anwar-ul-Haq Chaudhry appearing on behalf of Muhammad Ayub Tareen for Appellant.

Abdul Mateen, D.P.G. for the State.

2022 P Cr. L J 1083

[Balochistan]

Before Abdul Hameed Baloch, J

JUMA KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 50 of 2021, decided on 27th September, 2021.

Penal Code (XLV of 1860)---

----Ss. 320, 337-G, 427 & 279---Qatl-i-khata by rash and negligent driving, hurt by rash and negligent driving, mischief and thereby causes loss or damage to the amount of fifty rupees or upward, rash driving or riding on a public way---Appreciation of evidence---Prosecution case was that the accused while driving car hit a motorcycle, upon which a man and a lady, received serious injuries and resultantly man expired---Record revealed that none of the prosecution witnesses stated that the accused was driving rashly and negligently---Sole ocular witness/injured lady did not state that the accused was driving rashly and negligently, she only stated the fact of the occurrence---Occurrence had not been denied---Collusion between car and motorcycle had to determine factor because mere high speed could not put responsibility of driver for the accident until and unless established that the accused was driving rashly and negligently---Court had to see contributory negligence of the driver of the second vehicle/motorcycle as well---In the present case, the Trial Court had overlooked that aspect and passed the impugned judgment which was based on presumption---Appeal against conviction was allowed, in circumstances.

Farmanullah's case 2007 PCr.LJ 1393; Mian Muhammad Latif v. The State PLD 1966 SC 201 and Khair Muhammad Shah v. State 2018 PCr.LJ 914 rel.

Ajmal Khan Kasi for Appellant.

Saeed Kakar, State Counsel.

2022 P Cr. L J 1126

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ

NOOR AHMED alias AHMED AGHA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 354 and Murder Reference No. 19 of 2019, decided on 15th March, 2021.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence--- Benefit of doubt--- Circumstantial evidence---Scope---Accused was charged for committing murder of the brother of complainant---Record showed that on 26.03.2019 at about 5:30 to 6:00 p.m., the victim left with the accused in order to collect his outstanding amount---At about 7:19 p.m., the victim informed the witness about the purpose of leaving with the accused and instructed him to attend his shop---Thereafter victim neither contacted with said witness nor came back---On 27.03.2019, the officials of levies thana informed the complainant that the dead body of his brother/deceased was found---Complainant reached the hospital and there he found the dead body of his brother/deceased---Complainant suspected that his brother had been murdered by the accused---Witness stated in his statement that on 26.03.2019, he contacted the deceased through telephone at 5:30 to 6:00 p.m., who told him that he was going to collect his outstanding amount to accused and on the next date he knew that the murder of the deceased had been committed---Another witness stated in his statement that on 26.03.2019 at 7:30 p.m., the deceased called him through mobile phone and told that he was going to collect his outstanding amount from accused and further told that accused was not trustworthy---On the next day he knew about the murder of the deceased having been committed---None of the said witnesses stated a single word in their statement, either they had seen the accused with the deceased on 26.03.2019, and they only stated that they contacted the deceased through mobile phone who told them that he was going to collect his outstanding amount from accused---Statements of witnesses were not found up to the mark---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.

Imran alias Dolay v. The State and others 2015 SCMR 155; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 and Naheed Akhtar v. The State 2015 YLR 1279 rel.

(b) Criminal trial---

----Confession, retraction of---Scope---Retracted judicial confession could be made the basis for awarding conviction and sentence, however, if the case was merely based on the circumstantial evidence, then the judicial confession must be corroborated by unimpeachable, independent evidence, particularly, in a case where the accused had to be held responsible for the capital charge.

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

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, common intention---Appreciation of evidence---Confessional statement of accused---Infirmities---Accused was charged for committing murder of the brother of complainant---Judicial Magistrate while recording statement and issuing certificate had not given sufficient time for reflection before recording statement under S. 164, Cr.P.C., as it was incumbent upon her to have had given sufficient time of reflection---Judicial Magistrate did not state a single word in her statement that she had given sufficient time of reflection---Judicial Magistrate failed to observe the pre-cautions held to be necessary before recording confessional statement---Certificate issued by her as envisaged under S. 364(2), Cr.P.C., lacked the time of reflection---Said facts and circumstances had not only made the statement of the Judicial Magistrate unreliable but worthy of no credence too; as such, no explicit reliance could be placed thereupon---Perusal of the confessional statement showed that Questions put to the maker and certificate did not suggest that handcuffs of the confessor were removed prior to making a confession---Judicial Magistrate did not state a single word in her statement that either she removed the handcuffs of the accused while recording the statement---Statement under S. 164, Cr.P.C., of the accused, the same could not be said as voluntary and appeared to be inadmissible in the eye of law as the Judicial Magistrate, in cross-examination, had admitted that the accused gave his judicial confession on oath and that oath administered to the accused was violative of S. 5 of the Oaths Act, 1873---Confession, therefore, was recorded in contravention of S. 5 of the Oaths Act, 1873---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.

Gulab Khan and another v. The State PLD 1971 Kar. 299; Muhammad Bakhsh v. The State PLD 1956 SC (Pak) 420; Azeem Khan v. Mujahid Khan and another 2016 SCMR 274; Muhammad Parvez and others v. The State 2007 SCMR 670; Muhammad Ali v. The State 2008 PCr.LJ 87 and Muhammad Yousuf v. The State 1995 SCMR 351 rel.

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

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, common intention---Appreciation of evidence---Delay of fifteen days in recording the confessional statement of accused---Effect---Accused was charged for committing murder of the brother of complainant---Record showed that accused was produced before the Judicial Magistrate, fifteen days after his arrest for recording his statement under S. 164, Cr.P.C.---Such delay had not plausibly been explained by the prosecution, which had highly injured its credibility, and the same could not be accepted as confidence inspiring against 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.

Naqeebullah's case PLD 1978 SC 21; Khalid Javed and another v. The State 2003 SCMR 1419; Shoukat Saeed v. The State PLD 1978 Quetta 1 and Pato and another v. The State 2012 MLD 1358 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence on the pointation of accused and crime empties---Reliance---Scope---Accused was charged for committing murder of the brother of complainant---Another circumstantial piece of evidence relied upon by the Trial Court was the recovery of .30 bore pistol allegedly recovered from the place of occurrence on the pointation of the accused---Prosecution case was that during the course of the investigation, the accused disclosed about the occurrence and on his pointation .30 bore pistol along with two magazines and two live cartridges were recovered near the place of occurrence---Pistol recovered from near the place of occurrence, i.e., pond of rainy water on the pointation of accused was inconsequential---Facts remained that there was a positive ballistic report (which was not exhibited in the case) and the same was placed on the record by the Investigation Officer in the case of 13-E of Arms Ordinance, 1965 against the accused before the Trial Court---In the present case, it was obligatory upon the Investigating Officer to have had sent the two crime empties recovered from the crime scene as soon as possible/without any delay to the Forensic Science Laboratory without waiting for the recovery of the crime weapon---Record showed that the crime empties were secured from the crime scene on the day of the murder of the deceased but retained the same in its possession, whereas the crime weapon allegedly recovered on the next day, whereafter the empties and alleged crime weapon were sent together along with two empties to the Forensic Science Laboratory for ballistic analysis, which had diminished its evidentiary value because it gave rise to manipulation and padding---Investigating Officer sent the said parcels on 01.04.2019, whereof question arose that in between such period of time, commencing from 28.03.2019 up till 01.04.2019, where the said parcel of the empties and pistol were kept lying, creating suspicion into the recovery itself---Prosecution had failed to offer an explanation to such effect, therefore, the entire proceedings had become dubious---Neither the alleged recovered pistol nor empties and report of firearm expert were produced 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.

Naqeebullah and others v. The State 2020 MLD 1492 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Call Data Record---Scope---Accused was charged for committing murder of the brother of complainant---Investigating Authority had taken into possession the CDR data of the deceased's mobile and there was nothing on record in respect of the CDR of the accused who had not called the deceased, further, it was not clarified as to whether the telephone/SIMNumber was in the name of the deceased and accused, as the same fact had not been established through the record---Even assuming the location of the mobile of both the accused and deceased in the same area on 26.03.2019 might be for other reason and not for the offence; therefore, just by placing mobile data on the record would hardly be of any use to the prosecution---CDR produced and relied by the prosecution was neither attested nor signed by the issuing authority, nor any witness was either associated during the investigation nor produced before the court, thus also could not be relied on as a valid 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.

(g) Criminal trial---

----Medical evidence---Scope---Medical evidence was only confirmatory or supporting in nature and was never held to be corroboratory evidence to identify the culprits.

(h) Criminal trial---

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

Muhammad Mansha v. The State 2018 SCMR 772 rel.

Sarwar Khan Kakar and Muhammad Khalid Kakar for Appellant (in Criminal Appeal No. 354 of 2019).

Muhammad Saleem Lashari, Kamal Khan Kakar and Waleed Baloch for the Complainant (in Criminal Appeal No. 354 and Murder Reference No. 19 of 2019).

Mrs. Noor Jahan Kahoor, Additional Prosecutor General for the State (in Criminal Appeal No. 354 and Murder Reference No. 19 of 2019).

Sarwar Khan Kakar and Muhammad Khalid Kakar for Accused (in Murder Reference No. 19 of 2019).

2022 P Cr. L J 1208

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

MUHAMMAD NABI alias NABIKHO---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 465 and Criminal Revision No. 41 of 2019, decided on 13th April, 2021.

(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 brother of complainant by firing---Ocular account had been furnished by two eye-witnesses---Complainant of the case reiterated the contents of his fard-e-bayan---According to complainant he was present in his show room, when he received telephonic call with regard to murder of his brother by the accused---Said witness had failed to mention as to who was the witness, who made phone call to him and informed about the occurrence---Though, that witness had brought the law into motion, but fact remained that he had not witnessed the crime, thus being hearsay evidence his statement was not helpful to the case of prosecution---Even none of the witnesses deposed that they had informed the complainant to believe his statement---Both the alleged eye-witnesses had failed to justify their presence at the place of occurrence, when the crime had taken place---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Un-natural conduct of eye-witnesses---Scope---Accused was charged for committing murder of the brother of complainant by firing---Ocular account had been furnished by two eye-witnesses---Record showed that the conduct of both the said witnesses was unnatural, as both the witnesses knew the accused and the deceased, but despite such fact when at the first instance only there was only quarrelling, the witnesses did not intervene and try to save and separate them---Conduct of witnesses again unnatural as according to the witnesses, the accused after making firing escaped from the place of occurrence and the injured himself went towards the mortuary of Mosque---Not acceptable for a prudent mind that an injured persons being nearer to death and already knew to the witnesses,but despite such fact they did not render any help or assistance to the injured rather they let the injured to move to another place himself---Statements of both the witnesses again unnatural, when after the commission of crime neither they called the police nor informed the legal heirs of deceased rather witness was claiming that he informed the police about the occurrence---Unnatural conduct of the witnesses rendered their statements as doubtful and conviction could not be based upon such evidence, which otherwise was not trustworthy---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Contradictions in the statement of witness---Scope---Accused was charged for committing murder of the brother of complainant by firing---Witness who was not eye-witness of the occurrence, according to him when he was present nearby the Mosque of the graveyard, when an injured person came over there, who disclosed his name and he further disclosed that he was injured by the accused by means of fire arm---Statement of that witness did not appear to be trustworthy---Place of occurrence and the Mosque were at the distance of few paces and being a calm area firing was also made at the relevant time, but said witness did not see the assailant and the alleged eye-witnesses while to the contrary the deceased himself arrived there and informed him about the occurrence---Again the conduct of said witness was unnatural, thus not reliable to make basis for conviction---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Crime weapon was recovered on the disclosure of accused---Reliance---Scope---Accused was charged for committing murder of the brother of complainant by firing---Record showed that the Investigating Officer had recorded the disclosure of the accused and also got recovered the crime weapon allegedly used in the crime on the pointation of accused beneath of a stone from the graveyard---Statements of eye-witnesses were silent rather they deposed that the accused escaped to barracks---Contents of such disclosure were not corroborating the other pieces of evidence rather contrary to the same, hence the disclosure of the accused as well as the recovery of crime weapon also not strengthened the case of prosecution---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Medical evidence---Scope---Accused was charged for committing murder of the brother of complainant by firing---Medical evidence in the case had been furnished by Medical Officer, who had confirmed the unnatural death of deceased---Medical evidence was only used for confirmation of ocular evidence regarding seat of injury, time of occurrence and weapon of offence used, etc. but medical evidence itself did not constitute any corroboration qua the identity of accused person to prove their culpability---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt--- Appeal against conviction was allowed, in circumstances.

Muhammad Sharif and another v. The State 1997 SCMR 866 rel.

(f) Criminal trial---

----Benefit of doubt---Principle---If any single and slightest doubt is created, benefit of the same must go to the accused and will be sufficient to disbelieve the prosecution story and acquit the accused.

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Syed Rafiullah for Appellants.

Habibullah Gul, Additional P.G. for the State.

Syed Ayaz Zahoor for the Complainant.

2022 P Cr. L J 1260

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

AHMED SHAH and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 161, Criminal Revision No. 16 and Criminal Acquittal Appeal No. 187 of 2019, decided on 4th March, 2020.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Acquittal of co-accused---Maxim: falsus in uno falsus in omnibus---Applicability---Chance witnesses---Two accused persons faced trial for committing qatl-i-amd of deceased---Two prosecution witness were chance witnesses and their presence at the relevant time was not free from doubt as places of their residences were far away from the place of occurrence---Such witnesses were to justify their presence at the place of occurrence at the relevant time but they failed to do so---Testimony of such witnesses was untruthful and the same was liable to be excluded from consideration---For disbelieving statements of witnesses, it was not necessary that there should be numerous infirmities and contradictions---If there was one which had impeached credibility of witness, the entire statement of such witness had become doubtful---Conviction on capital punishment could not be sustained without unimpeachable, trustworthy and reliable evidence---Prosecution was to prove the criminal liability by strong and consistent evidence---Trial Court disbelieved statements of prosecution witnesses regarding co-accused, therefore, principle of falsus in uno falsus in omnibus was applicable to discard prosecution witnesses to the extent of accused---High Court set aside conviction and sentence awarded to accused by Trial Court and he was acquitted of the charge---Appeal was allowed in circumstances.

Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652; Mst. Sughra Begum v. Qaiser Pervez 2015 SCMR 1142; Atta Muhammad v. The State 1995 SCMR 599; Nazir Ahmed v. The State 2018 SCMR 787; Abdul Sattar v. The State 2008 PCr.LJ 869; Muhammad Farooq v. The State 2006 SCMR 1707; Muhammad Asif v. The State 2017 SCMR 486 and PLD 2019 SC 527 rel.

(b) Criminal trial---

----Witness---Injured witness---Scope---Testimony of injured witness is to be tested on the principle of appreciation of other prosecution witnesses---Injury mean that the witness was present at the place of occurrence but merely the injury on the person does not stamp him a truthful witness.

Amin Ali v. The State 2011 SCMR 323 rel.

(c) Criminal trial---

----Aggressor party---Determination---Mere number of injuries sustained by complainant party not sufficient to hold that accused was aggressor---Possibility of self-defence could not be ruled out. Bashir Ahmed v. The State 2019 SCMR 1417 rel.

(d) Criminal trial---

----Site plan---Scope---Site plan is not substantive piece of evidence but being first reflector of spot as pointed out by eye-witnesses, furnishes view of occurrence to scrutinize evidence tendered at Trial Court by prosecution witnesses.

Abdul Sattar v. The State 2008 PCr.LJ 869 rel.

Ghulam Mustafa Butt and Muhammad Shabbir for Appellants.

Abdul Latif Kakar, Additional Prosecutor General for the State.

Wajahat Khan Ghaznavi and Akbar Dad Babar State Sounsel.

Abdul Wali Khan Nasar and Habibullah Nasar for the Complainant.

Date of hearing: 25th February, 2020.

Through this judgment we intend to dispose of Criminal Appeal No. 161 of 2019, Criminal Revision Petition No. 16 of 2019 and Criminal Acquittal Appeal No. 187 of 2019, as the same are out come of one and same incident and same have been directed against the judgment dated 7th May, 2019 (impugned judgment), passed by learned Sessions Judge (Ad hoc)/MCTC, District Quetta (trial court).

1. Succinet facts of the case are that on 11th January, 2014, FIR No. 12 of 2014, under sections 302, 324, Qisas and Diyat Ordinance read with section 34, P.P.C. was registered with Police Station Satellite Town, Quetta, on the report of complainant Abdul Sadiq alleging therein that on 11th January, 2014 at about 4:15 p.m., the complainant was in Bazar when Jehanzaib and Shamsullah informed him on phone that his brothers Abdul Malik, Abdul Khaliq and maternal uncle Haji Abdul Hanan were on their way to home situated at Alizai Town, the accused Ahmed Shah Afghani having Kalashnikov, Azizullah Shah alias Tor Jan Langra having pistol and his son Zulmai having Kalashnikov and another unknown armed accused, made indiscriminate firing upon them, due to which they received severe injuries and they are taking them to hospital for treatment. It was alleged by the complainant that on such information he rushed to hospital where his brothers Abdul Malik Assistant Director University of Balochistan was lying in pool of blood having bullet entry wound on his right shoulder and exit on is left armpit, while his other brother Abdul Khaliq was having bullet injury at his lumber region and his uncle Abdul Hanan received bullet injury on left side of his hip. With these averments FIR was chalked.

2. After registration of FIR, the investigation of the case was conducted, whereafter, challan of the case to the extent of arrested accused Ahmed Shah and Gulab Shah was submitted before the court of Additional Sessions Judge-III, Quetta and finally transferred to the files of Sessions Judge (Ad hoc)/MCTC, Quetta.

3. After codal formalities charge was framed to which the accused denied. At the trial the prosecution produced as many as nine (09) witnesses. After close of prosecution side the accused were examined under section 342, Cr.P.C., in which they once again denied the allegation and claimed to be innocent. The accused Ahmed Shah did not record his statement on oath under section 340(2), Cr.P.C., however, produced two defence witnesses. Whereas the accused Gulab Shah recorded his statement on oath under section 340(2), Cr.P.C., but did not produce any witness in his defence.

4. After completion of trial the learned trial court heard arguments and thereafter, vide impugned judgment dated 7th May, 2019, acquitted accused Gulab Shah of the charge, whereas accused Ahmed Shah was convicted under section 302(b), P.P.C. and sentenced to suffer life imprisonment on two counts for committing intentional murder of Abdul Malik and Abdul Khaliq. The accused Ahmed Shah was also directed to pay compensation of Rs.10,00,000/- (Rs.500.000/- each) under section 544-A, Cr.P.C. to the legal heirs of both the deceased. The accused Ahmed Shah was further convicted under section 337-F(iii), Q&D Ordinance and sentenced to suffer one year rigorous imprisonment and to pay Daman of Rs.500,000/- to injured Abdul Hanan and in case of default the accused shall remain in custody till realization of amount of Daman. Benefit of section 382-B, Cr.P.C. was also extended to the accused. All the sentences were ordered to be run concurrently. Hence the accused Ahmed Shah has filed appeal against his conviction, while the complainant filed criminal revision petition for enhancement of the sentence and criminal acquittal appeal against acquittal of accused Gulab Shah.

5. Learned counsel for the appellant in Criminal Appeal No. 161 of 2019 contended that the prosecution has failed to collect incriminating evidence against the appellant Ahmed Shah. The witnesses are per se related to each other having landed dispute with the appellant. The prosecution did not record statement of any independent witness. As per law the statement of interested witnesses required strong corroboration. The ocular witnesses could not justify their presence at the place of occurrence at the relevant time. All the witnesses contradicted each other on material aspect even made dishonest improvements in their depositions.

6. The learned Additional Prosecutor General as well as counsel for the complainant have supported the judgment of the trial court and stated that the statements of the witnesses were corroborated by recovery of crime weapon, MLCs. Despite lengthy cross-examination the defence has failed to shake the statements of prosecution witnesses. The trial court has properly appreciated the evidence. In the end prayed for enhancement of the sentence.

7. The learned counsel for the appellant in Criminal Acquittal Appeal No. 187 of 2019 contended that the trial court without any justification discarded the statements of prosecution witnesses in regard of acquitted accused. The prosecution witnesses fully implicated the acquitted accused in commission of the crime.

8. The learned Additional Prosecutor General supported the judgment of the trial court in respect of acquittal of the accused/ respondent Gulab Shah.

9. We have heard the learned counsel for the appellant, complainant as well as APG and State Counsel at length and perused the record. In pursuance of written application Ex: P/1-A FIR was registered. The prosecution in order to substantiate its case produced nine witnesses. Besides the injured witness the prosecution recorded statements of two ocular witnesses. The prosecution case rests on ocular account, recovery of crime weapon Kalashnikov from the appellant Ahmed Shah, recovery of pistol on pointation of acquitted accused Gulab Shah, casing of Kalashnikov, positive report of Fire Arms Expert in respect of Kalashnikov and pistol, positive report of blood stained earth and clothes and medico legal certificates.

10. Admittedly the complainant (PW-1) is not ocular witness. He was informed by PW-2 Shamsullah and PW-3 Jehanzaib immediately after the occurrence. Both the deceased Abdul Malik and Abdul Khaliq are brothers of the complainant. Ex: P/1-A reveals that the occurrence took place at 4:15 p.m., while the matter was reported at 7:20 p.m. The complainant stated that at the time of information he was at Bazar. The complainant stated that the persons who informed him were not his relatives. Whereas the witness deposed that both the witnesses (PW-2 and PW-3) informed him on telephone and denied relationship with them. The witness admitted that his another brother is employee in Police Department as Sub-Inspector. PW-1 denied any landed dispute between him and accused Ahmed Shah. The Witness was ignorant about the distance of main gate of Saddar Town from eastern bypass. The witness replied to a question and admitted that in Ex: P/1-A the name of acquitted accused Gulab Shah is not mentioned.

11. PW-2 stated in his statement that he along with Jehanzaib (PW-3) were present at eastern bypass near Alizai Town. The accused armed with sophisticated weapons fired on Abdul Malik, Abdul Khaliq and Abdul Hanan, due to which they fell down. They took them to hospital. The witness stated that the occurrence had taken place in front of Saddar Town. The witness shown ignorance in reply of suggestion that the occurrence took place near the house of Azizullah. Further, stated that he informed the complainant within an hour. The witness replied to a suggestion that he has no knowledge that accused Ahmed Shah had sustained 23 bullet injuries in the incident. They reached at hospital at Maghrib time. He recorded his statement after Maghrib i.e. 6:30 p.m. The witness deposed that police recorded his statement at hospital and at that time no other person was present. Thereafter, he went to home. The witness stated that his statement was not recorded at the place of occurrence. The witness admitted that Abdul Razzaq is his brother. He met Jehanzaib (PW-3) after recording statement. The witness further stated that he reached Thana after Esha prayer. PW-3 Jehanzaib denied that the occurrence took plate at Saddar Town. The witness deposed that he did not phone anyone. The witness stated that he and PW-2 did not meet regularly. The witness deposed that he recorded his statement at hospital after half hour reaching at hospital. He did not visit the place of occurrence again.

12. PW-4 injured Abdul Hanan stated that he did not know Abdul Razzaq. While replying to a question the witness stated that Shamsullah is brother of Abdul Razzaq. The witness denied the suggestion that there is pipe and cement factory inside Saddar Town. The witness deposed that on the day of occurrence he, Abdul Khaliq, Sadiq and Malik were accompanying each other. While PW-1 complainant stated that at the time of occurrence he was at Bazar.

13. From the statement of ocular account it appears that the witnesses were chance witnesses. Neither they were resident of the area, nor have any business near the place of occurrence. The-above referred witnesses could not assign any reason for coming to the place of occurrence at the relevant time. In such circumstances PW-2 and PW-3 were chance witnesses and their presence at the relevant time is not free from doubt. The place of residence of said witnesses were far-away from the place of occurrence. Even the witnesses were to justify their presence at the place of occurrence at the relevant time, but they failed to do so. Such circumstances rendered the testimony of witnesses untruthful and were liable to be excluded from consideration. Reliance is placed on the case of Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 and Mst. Sughra Begum v. Qaiser Pervez 2015 SCMR 1142.

14. Now adverting to the statement of injured witness PW-4 Abdul Hanan. It appears from the record that the witness is not telling the whole truth. PW-9 stated that he recorded the statement of injured on 19th January, 2014, meaning thereby that the statement of the witness was recorded under section 161, Cr.P.C. after eight (08) days delay without plausible explanation. The witness stated that he do not know Abdul Razzaq. On the contrary while replying to a query stated that PW­-2 and Abdul Razzaq are brothers. On one hand the witness stated that he along with Abdul Malik and Abdul Khaliq were going and the accused fired upon them, whereas in the same breath the witness stated that at the time of occurrence Sadiq (complainant) was with them. The facts narrated by the witness were not to be implicitly accepted merely because he was injured witness. The testimony of injured witness is to be tested on the principle for appreciation of other prosecution witnesses. Injury means that certainly the witness was present at the place of occurrence, but merely the injury on the person would not stamp him a truthful witness as held in case of Amin Ali v. The State 2011 SCMR 323.

"It is correct that the two eye-witnesses are injured and the injuries on their persons do indicate that they were not self-suffered. But that by itself would not show that they had, in view of the aforenoted circumstances, told the truth in the Court about the occurrence; particularly, also the role of the deceased and the eye-witnesses. It cannot be ignored that these two witnesses are closely related to the deceased, ----"

1. Admittedly the private witnesses and deceased were closely related. Mere relationship of a witness cannot be a ground to discard his version, but for safe administration of justice care is required and while applying rule of caution independent corroboration to the statement of interested and inimical witnesses is required which is lacking in the instant case. Reliance is placed on Atta Muhammad v. The State 1995 SCMR 599.

2. PW-9 admitted that there is dispute between complainant party and accused and in this regard Arbitration Agreement was signed on stamp paper. The Investigating Officer further stated that he has taken into possession said stamp paper.

3. Be that it may the question is as to which of the party was aggressor, it is to be judged from the attending circumstances and conduct of witnesses. The defence has also produced witnesses. They confirmed injury on the appellant. While the prosecution witnesses and Investigating Officer have suppressed the injuries on the person of appellant. Admittedly the occurrence had taken place in Saddar Town where the house of the appellant and his absconding son is situated meaning thereby that some one attacked the said house resulting into fire arm injuries to persons of both sides. Evidence reveals that the house of the appellant was attacked. The appellant in his statement under section 342, Cr.P.C. admitted that the complainant party fired upon him due to which he sustained injuries, meanwhile his son (absconding accused) fired upon the complainant party. Mere number of injuries sustained by the complainant party could not be sufficient to hold that the accused was aggressor, possibility of self-defence could not be ruled out. Reliance is placed on Bashir Ahmed v. The State 2019 SCMR 1417.

4. The Investigating Officer visited the place of occurrence, prepared site plan Ex: P/9-C. It appears that the incident had taken place inside Saddar Town near the house of Azizullah at point C which had a boundary wall with gates. While the ocular witnesses PW-2 and PW-3 stated that they were present at bypass. It was not possible for PW-2 and PW-3 to see the occurrence at point C while standing on bypass road. PW-9 stated that he prepared the site plan on the pointation of ocular witnesses but they are silent in this regard. The witnesses stated that their statements were recorded at hospital after Maghrib prayer and thereafter they went to their houses. The question is that if the site plan is prepared on the pointation of ocular witnesses why their presence was not shown in Ex: P/9-C. It means that both the witnesses were not present at the spot. The Investigating Officer stated that he recorded the statements of ocular witnesses on the place of occurrence which the witnesses denied and stated that their statements were recorded at hospital. In Ex: P/9-C no house or shop of the witnesses was shown, thus it was not really believable that the eye-witnesses were present at the place of occurrence. Reliance is placed on the case of Nazir Ahmed v. The State 2018 SCMR 787.

5. Admittedly the site plan is not a substantive piece of evidence, but being first reflector of the spot as pointed out by eye-witnesses, furnishes view of occurrence to scrutinize the evidence tendered at the trial court by the prosecution witnesses. Reliance is placed on the case of Abdul Sattar v. The State 2008 PCr.LJ 869.

6. As per prosecution, on information, search of the house of appellant was made and appellant was arrested from inside the bathroom with Kalashnikov in injured condition. The story of prosecution does not appeal to prudent mind. Even otherwise the appellant has been acquitted in the Arms case and no appeal has been filed by the prosecution/State. The allegedly recovered Kalashnikov was sent to Fire Arms Expert with delay of more than three months for which no explanation has been afforded by the prosecution. The prosecution could not take benefit of such belated report of Firearms Expert. Reliance is placed on the case of Muhammad Farooq v. The State 2006 SCMR 1707.

7. Another piece of evidence with prosecution is positive report of the blood stained articles. Mere sending of blood stained clothes, earth to FSL would not serve the purpose of prosecution, nor it provide evidence to inter link different articles unless the bloodstained earth it proved that it was the same group which was available on the clothes of the victim and the blood-stained earth. On failure the opinion of Expert could not be used as corroborative piece of evidence. Reliance is placed on the case of Muhammad Asif v. The State 2017 SCMR 486.

8. It is an admitted principle of criminal administration of justice that for disbelieving the statements of witnesses it is not necessary that there should be numerous infirmities, contradictions. If there is one which impeaches the credibility of the witness, the entire statement of the witness would be doubtful. The conviction in capital punishment cannot be sustained without unimpeachable, trustworthy and reliable evidence. The prosecution should prove the criminal liability by strong and consistent evidence.

9. The record depicts that the trial court has disbelieved the statements of prosecution witnesses qua acquitted accused. The principle of Falsus in uno, falsus in omnibus as discussed by Honorable Supreme Court of Pakistan in PLD 2019 SC 527, applies to the discarded prosecution witnesses to the extent of the appellant.

10. The alleged recovery of pistol on the pointation of acquitted accused Gulab shah and report of FSL about its working condition is not helpful to the prosecution as no empty of pistol was recovered from the place of occurrence.

2022 P Cr. L J 1308

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ

Sheikh ARSALAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 393 of 2019, decided on 13th September, 2021.

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

----Ss. 302(b), 392 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Accused was charged that he along with co-accused snatched mobile phone and also made firing upon the brother of the complainant, due to which he died---Record showed that the Trial Court in the impugned judgment neither framed any point for determination in respect of unnatural death of the deceased nor any finding had been given thereof---Said facts were fatal to the prosecution case--- Appeal was allowed by setting aside convictions and sentences recorded by the Trial Court and the case was remanded to the Trial Court for decision afresh after recording the testimony of witnesses of recovery memo along with case property.

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

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

----Ss. 302(b), 392 & 34---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Statement of accused was recorded under S. 342, Cr.P.C.---Scope---Accused was charged that he along with co-accused snatched mobile phone and also made firing upon the brother of the complainant, due to which he died---Statement of the accused persons in terms of S. 342, Cr.P.C., had not been recorded in accordance with its spirit---Such departure was not permissible---Record transpired that the Trial Court, while convicting the accused, relied upon recovery of the crime weapon, i.e. pistol, and the allegedly snatched Nokia mobile phone of the deceased, but the Trial Court did not put any question in respect of recovery of crime weapon and alleged snatched mobile phone to the accused while recording his statement under S. 342, Cr.P.C.---If any piece of evidence was not put to the accused in his statement recorded under S. 342, Cr.P.C., the same could not be used for his conviction---Appeal was allowed by setting aside convictions and sentences recorded by the Trial Court and the case was remanded to the Trial Court for decision afresh after recording the testimony of witnesses of recovery memo along with case property.

Muhammad Shah v. The State 2010 SCMR 1009 and Qaddan and others v. The State 2017 SCMR 148 rel.

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

----Ss. 302(b), 392 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Recovery of weapon of offence, mobile phone and crime empties---Scope---Accused was charged that he along with co-accused snatched mobile phone and also made firing upon the brother of the complainant, due to which he died---During the investigation the alleged crime weapon, i.e. pistol along with snatched mobile phone, was recovered from the possession of the accused, which was taken into possession through a recovery memo in the presence of the witnesses---Crime empties which were allegedly recovered from the place of occurrence and the crime weapon allegedly recovered from the possession of the accused were also sent to the Firearm Expert---Investigating Officer also obtained a positive report of a Firearm Expert---Marginal witnesses of the recovery memo were cited as prosecution witnesses in the challan filed against the accused---Marginal witnesses was also witness of the recovery memo of a copy of Call Data Record (CDR), who appeared before the court---Said witness only gave a statement to the extent of recovery of CDR, but the public prosecutor did not exhibit the recovery of crime weapon and alleged snatched mobile phone before the Trial Court---Neither the material prosecution witness was summoned or examined in the trial nor the case property---Appeal was allowed by setting aside convictions and sentences recorded by the Trial Court and the case was remanded to the Trial Court for decision afresh after recording the testimony of witnesses of recovery memo along with case property.

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

----S. 540---Summoning of witness---Scope---If evidence of any witness appears to the Court to be essential to the just decision of the case, it was the power of the Court to summon and examine or recall and re-examine any such person. [p. 1316] E

Muhammad Azhar v. Muhammad Iqbal and others PLD 1984 SC 95 rel.

Syed Ayaz Zahoor for Appellant.

Abdul Karim Malghani, State Counsel.

2022 P Cr. L J 1356

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ

MUHAMMAD SALEEM and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 340, 350 and 352 of 2021, decided on 31st December, 2021.

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

----Ss. 302(b), 397 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Delay in recording the statement of eye-witness---Scope---Allegations against the accused were that they all in furtherance of their common intention snatched the amount from the deceased and on his resistance, the absconding accused fired upon the deceased, who later on died---Ocular account of the incident had been furnished by sole eye-witness---Said witness despite witnessing the incident and observing that a person was first shot down by culprits and then was put in vehicle, remained silent for nearly a month without intimating the police authorities or even informing the complainant in time, who, as per his own assertion, was well known to him for the last 2/3 years, his statement under S. 161, Cr.P.C., was recorded about 24 days after the occurrence---Delayed recorded statement under S. 161, Cr.P.C., of said eye-witness had brought to a conclusion that the said delay was just used to devise and create an untruthful account of the occurrence---Said witness also admitted that he visited the police station along with the complainant, whereas the Investigating Officer in his cross-examination stated that he was called by the complainant and informed that one eye-witness intended to record his statement under S. 161, Cr.P.C., which showed that the witness was produced and introduced by the complainant---Initially the FIR was registered against unknown persons, but thereafter, the accused were arrested, but as per prosecution's version the accused were arrested on basis of spy information and through latest technology, however, the case file was silent about any such source of information, nor the prosecution brought anything on record to show the source of arrest of accused, which too had not only created doubt in the prosecution's case but had almost shattered the entire prosecution's case---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

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

----S. 161---Delay in recording statement of witness by the police---Scope---Credibility of a witness is always looked with serious suspicion, if his statement under S. 161, Cr.P.C., was recorded with delay without offering any plausible explanation.

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

----Ss. 302(b), 397 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Test identification parade---Infirmities---Allegations against the accused were that they in furtherance of their common intention snatched the amount from the deceased and on resistance, the absconding accused fired upon the deceased, who was later on died---Identification parade conducted by Judicial Magistrate, carried out through eye-witness---Investigating Officer stated in his examination-in-chief that the identification parade was conducted---Judicial Magistrate, in his cross-examination, admitted that the accused was under investigation, but his identification parade was conducted in the premises of Jail---Accused who was under investigation, how his identification parade was conducted in Jail premises, and what was the reason that persuaded the Investigating Authorities and the Judicial Magistrate to conduct the process of Identification parade of an accused who was under investigation and was under police remand, within jail premises---Eye-witness failed to identify the accused persons during course of identification parade---Eye-witness had alleged that there were two persons in the pickup, then why the identification parade of three persons was conducted through him, thus, it could be presumed that the eye-witness was accommodated and incited in the process of Identification parade---Identification parade of the accused by the said witness was doubtful, which clearly shattered the prosecution's case, when it could not clarify that in the identification proceedings, the other persons, amongst whom the petitioner was queued, were of a similar age, height, physique and complexion---Main object of identification proceedings was to enable a witness to properly identify a person involved in a crime to rule out any possibility of mistaken identity---Neither the Investigating Officer nor the Judicial Magistrate, in whose presence the identification parade was conducted, had taken precautionary measures prior to conducting the identification parade---Proceedings of identification parade did not support the case of the complainant to the extent of commission of the offence of alleged armed robbery followed by murder of the deceased---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

Kanwar Anwar Ali, Special Judicial Magistrate's case PLD 2019 SC 488 rel.

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

----Ss. 302(b), 397 & 34---Qatl-i-amd, dacoity, common intention---Appreciation of evidence---Delay in sending weapon of offence and crime empty for analysis---Scope---Allegations against the accused were that they in furtherance of their common intention snatched the amount from the deceased and on his resistance, the absconding accused fired upon the deceased, who later on died---Record showed that TT pistol was recovered on pointation of accused---Such recovery was immaterial on the point that allegedly the firing was made through same pistol at the time of incident and allegedly an empty of pistol was taken into possession from the place of incident---Witness to the recovery memo of empty shell in cross-examination admitted that the empty shell produced before the court was of .9mm calibre pistol---Record further showed that the crime empty recovered from the spot and the recovered pistol were sent to Forensic Science Laboratory after 72 days of the occurrence and 40 days of the alleged recovery on the alleged pointation of the accused---Prosecution had not explained with reasons that why the crime weapon and empties were not sent to Forensic Science Laboratory in time---Such lethargic attitude of the Investigating Officer had vitiated the authenticity of Forensic Science Laboratory Report---Sending crime empties along with alleged recovered pistol had created a serious doubt---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

Jehangir v. Nazar Farid and another 2002 SCMR 1986 and Ali Sher v. The State 2008 SCMR 707 rel.

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

----Ss. 302(b), 397 & 34---Qatl-i-amd, dacoity, common intention---Appreciation of evidence---Medical evidence---Scope---Allegations against the accused were that they in furtherance of their common intention snatched the amount from the deceased and on his resistance, the absconding accused fired upon the deceased, who later on died---Medical evidence was not corroborated by any independent evidence, rather the sole alleged eye-witness of the incident also did not state a single word about the injury sustained by the deceased, despite the fact that he claimed to have seen the deceased at the time of receiving firearm injury---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

(f) Criminal trial---

----Benefit of doubt---Principle---Conviction must be based on unimpeachable evidence with certainty of guilt---Any doubt arising out from the prosecution's case, must be resolved in favour of the accused.

Hamadullah Mengal for Appellant (in Criminal Appeal No. 340 of 2021).

Ghulam Farooq Mengal for Appellant (in Criminal Appeal No. 350 of 2021).

Muhammad Khalid Kakar for Appellant (in Criminal Appeal No. 352 of 2021).

Muhammad Yunus Mengal, A.P.G. for the State.

2022 P Cr. L J 1427

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

JUMA KHAN and another---Appellants

Versus

The STATE and others---Respondents

Criminal Jail Appeal No. 16 and Criminal Revision Petition No. 15 of 2018, decided on 26th April, 2021.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Accused was charged for committing murder of his wife/sister of complainant---Ocular account had been furnished by two witnesses---Statements of both the said witnesses were found reliable and trustworthy, because occurrence had taken place in the house of their niece, where they were already present---Both the witnesses rightly mentioned the time, date, the place of occurrence and the manner in which the occurrence had taken place---Besides, the occurrence had taken place during the day light, thus there was no occasion for mistaken identity of the accused being their son-in-law---Both the witnesses correctly identified the accused in the Trial Court---Defence had cross-examined all the witnesses at sufficient length, but had failed to give any slightest dent or damage to their testimonies, rather from the cross-examination the commission of crime had been confirmed and new facts were also emerged---Even otherwise, the accused did not dispute his presence at the relevant time and at the place of occurrence---Circumstances established that the prosecution had succeeded in proving the charge against the accused beyond the shadow of any reasonable doubt---Appeal against conviction was dismissed, in circumstances.

(b) 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 accused, recording of---Scope---Accused was charged for committing murder of his wife/sister of complainant---Record showed that the case of prosecution had been further strengthened from the confession as well as extra judicial confession of the accused---Confessional statement of the accused under S. 164, Cr.P.C., transpired that all the necessary precautions were taken by the Magistrate prior to its recording---Accused was given sufficient time to reconsider his consent for recording his confessional statement---Accused had specifically been asked whether he was pressurized, tortured or compelled for recording such confession, but he replied in negative, whereafter Judicial Magistrate started recording the statement of accused---Confession of the accused disclosed the motive behind the occurrence i.e. illicit relations of his wife with her paramour---According to accused prior to committing the murder of the paramour of his wife/deceased, he was warned to restrain, but he started calling him with bad names---Confession had been made voluntarily without duress or inducement---Confessional statement of the accused was free from all taints, thus the same was admissible under the law---Circumstances established that the prosecution had succeeded in proving the charge against the accused beyond the shadow of any reasonable doubt---Appeal against conviction was dismissed, in circumstances.

State v. Waqar Ahmed 1992 SCMR 950 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence and crime empties on the disclosure of accused---Reliance---Scope---Accused was charged for committing murder of his wife/sister of complainant---Record showed that on the disclosure of accused, crime weapon was recovered in the connected case FIR from his house---Admittedly, not only the motive behind occurrence emerged from the disclosure of appellant, but also followed by the recovery of crime weapon on his pointation in the connected case, whereby the paramour of wife of accused was also murdered by the accused on the same day and he was convicted in the said case and had filed the connected appeal thus the said disclosure was an admissible piece of evidence---Case of prosecution had further been strengthened from the recovery of crime weapon used in the case as well as in the connected case of murder of paramour of his wife---Investigating Officer collected three empties of 9mm bore pistol from the place of occurrence and the recovered pistol along with collected empties were sent to Forensic Science Laboratory for analysis, from where the report was received in affirmative, confirming that the empties were fired from the said recovered pistol---Circumstances established that the prosecution had succeeded in proving the charge against the accused beyond the shadow of any reasonable doubt---Appeal against conviction was dismissed, in circumstances.

Nasreen Akhtar v. The State 2000 SCMR 1634 rel.

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

----S. 164--- Extra-judicial confession--- Scope--- Extra-judicial confession could be made sole basis for conviction of an accused, if the court believed that it was true and voluntary and was not obtained by torture or coercion or inducement.

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

----S. 302(b)---Qatl-i-amd--- Appreciation of evidence--- Motive was proved---Scope---Accused was charged for committing murder of his wife/sister of complainant---Motive behind the occurrence had been established by the prosecution i.e. the illicit relations of deceased with the wife of accused---Record showed that soon after committing the murder of deceased, the accused came inside his house and through the said pistol committed the murder of his wife, hence besides registering the present FIR for committing the murder of his wife, a separate FIR for committing the murder of deceased/paramour of wife of accused was also lodged, hence, accused was tried separately and the said case was also culminated into conviction of accused---Nomination of the accused in the connected case of murder and being found guilty of the charge was enough to interlink both the cases with each other and also establish the motive behind the occurrence---Circumstances established that the prosecution had succeeded in proving the charge against the accused beyond the shadow of any reasonable doubt---Appeal against conviction was dismissed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Circumstantial evidence---Scope---Accused was charged for committing murder of his wife/sister of complainant---Record showed that the conduct of the accused had also strengthened the case of prosecution, who despite murder of his wife kept mum and had not lodged report against any one and even had not held responsible to any third person for such murder---Record established that at the time of the murder accused was present in his house---Besides, accused had also not disputed the unnatural death of the deceased---All the said facts suggested that actually it was the accused who had committed the murder of his wife as well as her alleged paramour, hence, the circumstantial evidence was fully connected with each other with regard to murder of wife of accused---Circumstances established that the prosecution had succeeded in proving the charge against the accused beyond the shadow of any reasonable doubt---Appeal against conviction was dismissed, in circumstances.

Wali Muhammad v. Ellahi Bakhsh 2005 SCMR 1526 and Saeed Ahmed v. The State 2015 SCMR 710 rel.

Ahsan Rafiq Rana for Appellants.

Abdul Mateen, D.P.G. for the State.

Kamran Murtaza and Tahir Ali Baloch for the Complainant.

2022 P Cr. L J 1480

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Abdul Hameed Baloch, JJ

ALI AHMED and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 132 of 2019, decided on 13th July, 2020.

(a) Criminal trial---

----Medical evidence---Scope---Medical evidence did not identify the accused---Medical evidence confirmed injuries on the person of deceased/injured, and locale/seat of injuries and weapon used---Medical evidence was not substantive piece of evidence rather supportive and corroborative evidence---Medical evidence would not connect the accused with the commission of crime.

Sarfraz alias Sappi v. The State 2000 SCMR 1785 rel.

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

----Ss. 302(b), 324, 337-A(i), 337-A(ii), 147 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, shajjah-i-mudihah, rioting, unlawful assembly---Appreciation of evidence---Prosecution case was that the accused persons along with absconding accused assaulted the complainant party with hard object, due to which four persons sustained injuries, while two succumbed to the injuries---Record showed that eye-witnesses straight forwardly stated that all the accused persons being members of unlawful assembly assaulted the complainant party---Said witnesses deposed all the relevant facts---Defence objected that all the witnesses were related to each other and with deceased---Despite availability of independent persons from the locality the prosecution had not recorded their statements---Mere relationship was no ground to discard the statements of natural and truthful witnesses---No bar in the law existed to the effect that the statements of related witnesses would not be considered---Defence had failed to point out any enmity of the witnesses with the accused---Even no such suggestion was put to the witnesses---Presence of ocular witnesses at the place of occurrence was probable---Even some time the related witnesses might be found more reliable---Mere relationship would not let the real culprit to go or substitute an innocent person---Presence of accused was not disputed and there was no suggestion that the injuries were self inflicted and the occurrence had not taken place as suggested by the prosecution---Substitution of culprit was rare phenomenon in such cases---Circumstances established that the prosecution had successfully proved the charges against the accused persons beyond shadow of doubt---Appeal against conviction was dismissed, in circumstances.

State through Advocate General v. Haji Rehman 2018 YLR Note 80; Muhammad Shafi alias Kuddoo v. The State 2019 SCMR 1045; Imran Ashraf v. The State 2001 SCMR 424; Muhammad Yousaf v. Tariq Mahmood PLD 2008 SC(AJ&K) 6; Kazim Hussain alias Qazi v. The State 2008 PCr.LJ 971; Abdul Sattar v. The State 2008 PCr.LJ 869 and Ansar Mahmood v. The State 2011 SCMR 1524 ref.

Allah Ditta v. The State PLD 2002 SC 52 and Sarfraz alias Sappi v. The State 2000 SCMR 1758 rel.

(c) 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 and it would be sufficient for the prosecution to establish that the accused being member of unlawful assembly shared common object.

Ramachandran v. State of Kerala 2012 SCMR 1156 rel.

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

----S. 154---First information report---Delay in lodging the FIR by police---Scope---Mere delay in reporting of crime to police by itself was not fatal to the prosecution case---First Information Report was not a substantive piece of evidence---Any person could report the matter if he got knowledge of commission of offence---Not necessary that only injured or their relative could register the FIR.

Muhammad Anwar v. The State 2018 YLR 259 rel.

(e) Criminal trial---

----Recovery--- Incriminating material--- Scope--- Recovery of incriminating material was not necessary for recording conviction---If ocular account was convincing and worthy of credit and same also found support from medical evidence same was sufficient to record/maintain conviction.

(f) Criminal trial---

----Contradictions in the prosecution case---Scope---Only those contradictions would be considered as fatal to the prosecution case, which materially affect the ocular account.

Manzoor Hussain alias Mama v. The State 2014 PCr.LJ 744 and Dilbar Masih v. The State 2006 SCMR 1801 rel.

Barrister Amir Muhammad Lehri for Appellants.

Muhammad Younas Mengal, Additional Prosecutor General for the State.

Muhammad Ibrahim Lehri for the Complainant.

2022 P Cr. L J 1570

[Balochistan]

Before Abdul Hameed Baloch, J

ABDUL KARIM---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 2 of 2021, decided on 6th May, 2021.

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

----Ss. 324 & 337-F(i)---Attempt to commit qatl-i-amd, ghayr-jaifah-mudihah---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Scope---Accused was charged for injuring the brother of the complainant by firing---Prosecution case hinged upon the statement of injured and Medical Officer, whereas the other witnesses had not seen the accused at the place of occurrence---Injured narrated the story to complainant and eye-witness/his brother, as such complainant and eye-witness were not ocular witnesses---Injured stated that the people gathered at the place of occurrence, shifted him to hospital, whereas brother of injured/witness stated that on hearing firing, he reached the spot, where his brother was lying in injured condition, he shifted him to the hospital---Medical Officer produced Medico-Legal Certificate, which transpired that the injured was brought by Sub-Inspector Police---Complainant did not mention the presence of his brother/witness in the hospital on the date of occurrence---Statements of prosecution witnesses were not above the board, they made contradictory statements---Investigating Officer stated that the police personnel recorded the statement of witnesses including the injured on 21.08.2019, whereas the injured in his deposition stated that the police personnel recorded his statement at Trauma Center after three days of the occurrence, while Medical Officer stated that no Trauma Center existed at the Hospital from the day of incident---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. Liaquat Ali v. State 2021 SCMR 781 rel.

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

----Ss. 324 & 337-F(i)---Attempt to commit qatl-i-amd, ghayr-jaifah-mudihah---Appreciation of evidence---Benefit of doubt---Infirmities and omissions---Scope---Accused was charged for injuring the brother of the complainant by firing---First Information Report transpired that the occurrence took place on 21.08.2018 at 9:15 a.m., whereas the FIR was registered at 10:10 am---Brother of complainant/witness stated that his statement was recorded at 10:00 am on the date of occurrence---Blood stained articles were handed over to the Investigating Officer on 29.08.2018 by the complainant---Question arose as to why the Investigating Officer had not taken into possession the blood-stained articles on the day of occurrence and waited for a week---Such glaring contradiction, infirmities, omissions could not be lightly ignored---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 Jabran v. State 2020 SCMR 1493 rel.

(c) Criminal trial---

----Enmity---Conviction---Scope---If enmity existed between the parties, the rule of caution requires independent corroboration---Conviction on the basis of inimical witnesses was against the principles of natural justice.

Muhammad Irshad v. State 1999 SCMR 1030 rel.

(d) Criminal trial---

----Witness---Statement of injured witness---Scope---Mere injury on a person of witness does not prove that he comes forward with whole truth---Injured means the person was present at the time of occurrence---Only presence on the scene of occurrence does not stamp gospel truth to his testimony.

Muhammad Wasif Khan's case 2011 PCr.LJ 470 rel.

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

----S. 342---Power of court to examine the accused---Scope---If any incriminating piece of evidence is not put to accused in statement under S. 342, Cr.P.C., the court can not rely upon such testimony---Accused was not to be convicted on the basis of something to which he is not given notice.

Muhammad Shah v. State 2010 SCMR 1009 and Imtiaz alias Taj v. State 2018 SCMR 344 rel.

(f) Criminal trial---

----Abscondance---Scope---Mere abscondence is no conclusive proof of guilt of accused.

(g) Criminal trial---

----Benefit of doubt---Principle---Accused was favourite child of law, where any reasonable doubt arose in the case of prosecution the accused would be entitled for benefit of such doubt as matter of right not grace.

Muhammad Akram v. State 2009 SCMR 230 and Sher Umar Khan v. Khan Pur alias Khaney PLD 2015 Pesh. 143 rel.

Muhammad Khair for Appellant.

Akbar Dad for the State.

2022 P Cr. L J 1623

[Balochistan (Turbat Bench)]

Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ

SULEMAN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. (T) 48 of 2021, decided on 4th December, 2021.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Night time occurrence---Source of light---Scope---Accused were charged for committing murder of the deceased by firing---Motive behind the occurrence was that the deceased entered into the house of his neighbour during night time upon which the mother of one of the accused threatened the deceased for dire consequences, later on occurrence took place---Ocular account of the incident had been furnished by two eye-witnesses---Complainant stated in his statement before the court as well as in his report that due to non-availability of electricity, the deceased and other family members were sleeping in the courtyard of the house---Both the eye-witnesses also stated in their statements that they were sleeping in the courtyard of the house---Occurrence took place at 12 O'clock at night, and by such time, the darkness completely prevailed---Said witnesses neither in the report nor in their court statement uttered a single word about the source of light in which they identified the accused persons---Site plan was also silent about the availability of any source of light at the spot---Investigating Officer did not take any article into possession as to prove that sufficient light was present at the time and place of occurrence for the witnesses to make a positive identity of the assailant---Identification of the assailants at such darkness was impossible what to speak of identifying firing of a particular person hitting the deceased---Said sole ground was sufficient for discarding the testimony of the eye-witnesses that they were not truthful witnesses---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.

Gulfam and another v. The State 2017 SCMR 1189 rel.

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

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S. 161---Qatl-i-amd, common intention---Appreciation of evidence---Delay of two days in recording the statements of witnesses---Scope---Accused were charged for committing murder of the deceased by firing---Occurrence took place at 12 O'clock at night while eye-witnesses claimed to have seen the occurrence, who were closely related to the deceased---Statements under S. 161, Cr.P.C. of the said witnesses were recorded and one of the eye-witnesses stated during cross-examination that her statement was recorded after two days of the incident---Said eye-witness further stated during cross-examination that the Investigating Officer recorded her statement and statement of other eye-witness together---Investigating Officer of the case on the other hand stated during cross-examination that he recorded statements of eye-witnesses under S. 161, Cr.P.C., a day earlier---No plausible explanation whatsoever had come on record as to why the statements of the said witnesses were recorded with a delay of two days---Said fact rendered the case of the prosecution extremely 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.

Muhammad Asif v. The State 2017 SCMR 486; Muhammad Sadiq v. The State PLD 1960 SC 223; Tariq Gul v. Ziarat Gul 1976 SCMR 236; Muhammad Iqbal v. The State 1984 SCMR 930; Haroon alias Harooni v. The State and another 1995 SCMR 1627 and Muhammad Khan v. Maula Bakhshah 1998 SCMR 570 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive not proved---Scope---Accused were charged for committing murder of the deceased by firing---Motive behind the occurrence was that the deceased entered into the house of his neighbour during night time upon which the mother of one of the accused threatened the deceased for dire consequences, later on occurrence took place---Record showed that no evidence had been produced by the prosecution except the report of the complainant that threats were extended by the mother of the accused to the deceased, no other corroborative piece of evidence was available on record---Even otherwise eye-witnesses did not state a single word in that regard---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.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of crime weapon---Reliance---Scope---Accused were charged for committing murder of the deceased by firing---In the present case, the other piece of evidence was the recovery of crime weapon, i.e. 9 mm pistol from the accused and positive report of the Firearms Arms Expert---Perusal of the statements of the recovery witnesses revealed that the Investigating Officer, after registration of the FIR, went to the hospital and place of occurrence, and till 1:35 a.m., he was present at the place of occurrence, and thereafter, he went to the police station---On the other hand, official witness stated that recovery was affected from the accused at 2:30 a.m.---Record showed that the place of occurrence and the place of recovery of the alleged pistol was at a distance of about 135 kilometers---Impossible that one person, i.e. the Investigating Officer, was present at two different places at the same time, which rendered the prosecution case doubtful---Even otherwise, official witness stated in his statement that the accused was alighted from the vehicle, and during his personal search, one 9 mm pistol was recovered from him---Investigating Officer did not state a single word about the vehicle---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 beyond any shadow of doubt---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---Delay of about one month and twenty two days in sending the pistol to Ballistic Expert---Scope---Accused were charged for committing murder of the deceased by firing---Recovered pistol along with empties was sent to the Ballistic Expert after a delay of one month and twenty two days---Such delay was not explained by the prosecution---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---

----Recovery of crime weapon---Scope---Recovery of a crime weapon was a corroboratory piece of evidence---In the absence of direct ocular evidence, mere recovery of a crime weapon could not be based for conviction.

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

Waseem Naseem for Appellant.

Sudheer Ahmed, D.P.G. for the State.

2022 P Cr. L J 1659

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ

AJMAL and 2 others---Petitioners

Versus

ADDITIONAL SESSIONS JUDGE-IV, QUETTA and 4 others---Respondents

Constitutional Petition No. 1591 of 2021, decided on 30th November, 2021.

Criminal Procedure Code (V of 1898)---

----Ss. 169 & 204---Penal Code (XLV of 1860), Ss. 302 & 365---Discharge--- Resummoning of accused---Jurisdiction---Petitioners were arrested for committing Qatl-i-amd and abduction who assailed their arrest warrants issued by Judicial Magistrate in same case in which they had already been discharged---Validity---Discharge order of petitioners was only amenable before Trial Court, which had taken cognizance of the case after submission of Challan---Judicial Magistrate was alien in all respects and did not have any jurisdiction to initially issue warrants of arrest and thereafter grant remand in police custody---Matter was already subjudice before Trial Court and Judicial Magistrate who issued warrants of arrest and thereafter granted remand of petitioners was not empowered to have passed any order in the matter--- High Court set aside warrants of arrest and orders issued by Judicial Magistrate---Constitutional petition was allowed accordingly.

Hayatullah Khan v. Muhammad Khan 2011 SCMR 1354; Yasir Khan v. Imtiaz and others PLD 2013 Pesh. 46 and The State through DPG v. Muhammad Rafique through Naib Tehsildar 2016 PCr.LJ 1711 rel.

Jameel Ahmed v. The Superintendent of Police Range 1999 PCr.LJ 310 and Adeel and another v. The State 2016 YLR 2212 ref.

Habibullah Nasar and Aurangzaib Kakar for Petitioner.

Tahir Ali Baloch for the Complainant.

Abdul Mateen, Deputy Prosecutor General for the State.

2022 P Cr. L J 1710

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ

TAJ-UD-DIN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 37 and 72 of 2021, decided on 30th September, 2021.

Penal Code (XLV of 1860)---

----Ss. 364-A & 377---Qanun-e-Shahadat (10 of 1984), Art. 39---Sodomy---Appreciation of evidence---Medical evidence---Offence---Determination--Confession before police---Accused persons were alleged to have abducted complainant and committed sodomy with him---Trial Court convicted both the accused persons for abducting complainant and sentenced them to imprisonment for life---Validity---Medical evidence was a corroborative piece of evidence coupled with statement of victim---Evasive denial without any allegation of false implication had concluded that offence of sodomy punishable under S. 377, P.P.C. was established---Prosecution's case carried two versions, one introduced by complainant/victim and another brought on record through disclosure of one convict---Confession before police was discarded as the same was not admissible in evidence---Other details or narrations mentioned/made in such disclosure could not be accepted also---Statement/any piece of evidence was to be accepted or rejected in toto and not otherwise---Version introduced by accused persons could not be trusted, as the same was not worthy of credit---Carnal intercourse was committed with complainant and the same was proved on record---High Court altered the charge framed for an offence punishable under S. 364-A, P.P.C. to offence of sodomy captioned as unnatural offence punishable under S. 377, P.P.C.---High Court reduced sentence of imprisonment from life to ten years---Appeal was dismissed, in circumstances.

Naseebullah Tareen for Appellant (in Criminal Appeal No. 37 of 2021).

Ahsan Rafiq Rana for Appellant (in Criminal Appeal No. 72 of 2021).

Abdul Mateen, A.P.G. for the State (in both Appeals).

2022 P Cr. L J 146

[Supreme Court (AJ&K)]

Present: Raja Saeed Akram Khan, C.J. and Raza Ali Khan, J

RASHAM DIN---Petitioner

Versus

The STATE through Advocate-General of Azad Jammu and Kashmir and another---Respondents

Criminal Revision No. 9 of 2021, decided on 16th July, 2021.

(On revision from the judgment of the Shariat Appellate Bench of the High Court dated 16.10.2020 in Criminal Revision Petition No.107-A of 2020)

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 452 & 34---Offences Against Property (Enforcement of Hudood) Act (XII of 1985), S. 20---Qatl-i-amd, house-trespass after preparation for hurt, assault or wrongful restraint---Haraabah liable to tazir---Bail, grant of---Un-natural conduct---Further inquiry---Scope---Accused sought bail in an FIR registered under Ss. 34, 302 & 452, P.P.C. read with S. 20 of Offences Against Property (Enforcement of Hudood) Act, 1985---None was initially nominated in the FIR, moreover, in the statements recorded under S. 161, Cr.P.C., on the very next day of the occurrence, the complainant and others had again showed unawareness regarding the involvement of anyone in the commission of offence---Later on, when the police arrested the accused, complainant and others identified that he was the person who murdered the deceased---Accused was their neighbour, thus his nomination as accused, after lapse of considerable time, during identification parade, made the case one of further inquiry--- Accused was admitted to bail, in circumstances.

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

----S. 497---Bail---Scope---No one can be kept behind the bars for an indefinite period as ultimately if the case is proved against him, then he will be convicted but if he is acquitted of the charge then he cannot be compensated for the agony he suffered during the period spent behind the bars. [p. 149] C

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

----S. 497---Bail---Tentative assessment---Scope---If from the tentative assessment of the material brought on record, it can be ascertained that the accused has committed an offence punishable with death or transportation for life, then, the concession of bail shall not be extended to an accused but if from the entire evidence the Court reaches to conclusion that the occurrence yet requires further inquiry, then the accused shall be released on bail.

Jahangir Khan and another v. Tanveer Hussain Shah and 4 others 2015 SCR 1349 rel.

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

----S. 497---Bail---Further inquiry---Scope---For bringing a case in the ambit of further inquiry, there must be some evidence which may create a reservation in respect of the involvement of accused in the commission of offence.

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

----S. 497--- Bail--- Direction for expeditious disposal---Scope---Prosecution stressed that the trial was in progress, therefore, instead of grant of bail a direction for expeditious disposal of the main case was justified---Held; argument was alien to law as mere on the ground that the trial was in progress or near to completion, the bail could not be withheld if from the tentative assessment of the material available on record the case of further inquiry was made out.

Ch. Shoukat Aziz, Advocate for Petitioner.

Raja Ayaz Ahmed, Additional Advocate-General for Respondents.

2022 P Cr. L J 655

[Supreme Court (AJ&K)]

Present: Kh. Muhammad Nasim, J

NAZIA BIBI and another---Petitioners

Versus

STATE through Advocate General of Azad Jammu and Kashmir and 3 others---Respondents

Civil P.L.A. No. 270 and Civil Miscellaneous No. 231 of 2021, decided on 26th August, 2021.

(On appeal from the judgment of the High Court dated 04.06.2021 in Writ Petition No. 1641 of 2021)

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

----Art. 42---Leave to appeal---Quashing of FIR---Scope---Petitioners sought quashing of FIR registered against them---Case against petitioners was at investigation stage---According to the spirit and scheme of law, it was duty of the investigating agency to conclude the investigation and thereafter draw conclusion whether in the light of evidence a case for commission of the alleged offences was made out or not---If practice of quashing of FIR was allowed, it would amount to interference in the domain of investigating agency which was an abuse of the process of law---First Information Report which was based on mala fide could be quashed---Petition for leave to appeal was dismissed.

Arsalan Raja and 5 others v. The State and 3 others 2020 SCR 336 and Shan Mohammad v. Muhammad Younas and 4 others 2014 SCR 183 rel.

Fayyaz Ahmed Janjua, Advocate for Petitioners.

Ch. Shoukat Aziz, Advocate for Respondents.