PCRLJ 2023 Judgments

2023 P Cr. L J 757

[Federal Shariat Court]

Before Khadim Hussain M. Shaikh, J

FAHEEM---Petitioner

Versus

The STATE---Respondent

Criminal Revision No. 03-K of 2022, decided on 3rd February, 2023.

(a) Prohibition (Enforcement of Hadd) Ordinance (IV of 1979)---

----S. 4---Criminal Procedure Code (V of 1898), Ss. 342 & 439---Recovery of liquor---Appreciation of evidence---Recovery, proof of---Incriminating article not put to accused---Accused was convicted for carrying 30 liters of raw wine---Trial Court convicted the accused and his sentence of imprisonment of one year was reduced to six months by Lower Appellate Court---Validity---Chemical examiner's report was unworthy of trust and reliance as the safe custody, safe transmission and handing over the sealed parcel, containing sample of alleged wine, was not proved on record---In statement of accused recorded under S. 342, Cr.P.C., incriminating material i.e. report of chemical examiner was not put to him to extract his explanation---Incriminating material and circumstances from which inferences adverse to the accused sought to be drawn, were to be put to accused when he was questioned under S. 342, Cr.P.C., else the same could not be considered as a piece of evidence against accused---Mere fact that police witnesses had no enmity to falsely implicate accused by itself, was not a strong circumstance to hold that whatever had been alleged by prosecution witnesses should be implicitly relied upon without asking for supporting evidence---Material discrepancies, contradictions and admissions adverse to prosecution case rendered it doubtful---Federal Shariat Court set aside judgments passed by Trial Court and Lower Appellate Court as the same were suffering from mis-reading and non-reading of evidence and accused was acquitted of the charge---Revision was allowed, in circumstances.

The State v. Bashir and others PLD 1997 SC 408; Din Muhammad v. The Crown 1969 SCMR 777 and Muhammad Mumtaz v. The State 1997 SCMR 1011 ref.

(b) Criminal trial---

----Benefit of doubt---Applicability---Single circumstance creating reasonable doubt in the prudent mind about guilt of accused, benefit thereof is to be extended to the accused not as a matter of grace or concession, but as matter of right.

Ghulam Qadir and 2 others v. The State 2008 SCMR 1221 and Muhammad Mansha and Muhammad Akram v. The State 2009 SCMR 230 rel.

Habibullah Chaniho for Petitioner.

Zahoor Shah, Additional Prosecutor General, Sindh for the State.

2023 P Cr. L J 1811

[Gilgit-Baltistan Chief Court]

Before Ali Baig, C.J. and Johar Ali, J

ABDUL NASIR---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 106 of 2023, decided on 14th June, 2023.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 161--- Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 21-H---Penal Code (XLV of 1860), Ss. 302 & 34---Act of terrorism, qatl-i-amd, common intention---Bail, refusal of---Confessional statement---Scope---Plea of the petitioner/accused was that a prosecution witness, on whose statement recorded under S. 161 of Criminal Procedure Code, 1898, he was implicated, had resiled from his statement and had submitted his affidavit to said effect---Validity---Record revealed that although the petitioner/accused was not directly nominated in the FIR but later on the local police had arrested him as suspect of murder of the deceased---During course of investigation , the petitioner/accused confessed his guilt stating that he had committed murder of deceased in presence of a witness; accordingly police arrested said witness and recorded his (witness') statement under S. 161 of the Criminal Procedure Code, 1898, wherein he had categorically implicated/ involved the petitioner in the present case; thereafter, police had discharged the said witness under S. 169 of the Criminal Procedure Code, 1898---Although the petitioner/accused had obtained an affidavit from the prosecution witness after dismissal of his bail by the Anti-Terrorism Court, whereby he resiled from his previous statement recorded under S. 161 of the Criminal Procedure Code, 1898 by the police as eye-witness---However, at bail stage, evidence of witness recorded by the police could not be kept out of consideration on the basis of affidavit filed by the said witness, hence the evidentiary value of the affidavit-in-question would be considered/evaluated at the time of trial of the petitioner/accused by the Trial Court as deeper appreciation of evidence was not permissible at bail stage---At bail stage, Court was supposed to do tentative assessment of material available on record which was to be different from final appraisement and evaluation of evidence which would be recorded by the Trial Court---Tentative assessment of material, collected by the prosecution during investigation, revealed that petitioner's confessional statement under S. 21-H of the Anti-Terrorism, 1997, had been recorded by the Officer of the rank of Superintendent Police, wherein he had admitted, in presence of the witness, that he had committed murder of the deceased; and police had prepared site plan of recovery of weapon of offence on the pointation of the petitioner/accused in presence of independent marginal witness as allegedly the crime weapon was thrown into river/Nallah by him after committing murder of the deceased---Chief Court observed that the petitioner/accused was, prima facie, connected with the commission of offence of murder of the deceased---Bail was declined to the petitioner/accused, in circumstances.

PLD 1997 SC 347 and 2006 SCMR 1265 ref.

Burhan Wali for Petitioner.

Malik Sherbaz, Dy. Advocate General for the State.

Mudassir Hassan for the Complainant.

2023 P Cr. L J 38

[Islamabad]

Before Mohsin Akhtar Kayani, J

MUHAMMAD RAFIQUE and another---Petitioners

Versus

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

Writ Petitions Nos. 1184 and 1778 of 2021, decided on 28th January, 2022.

(a) Interpretation of statutes---

----Special and general law---Scope---Special provision overrides general provision and special enactment prevails over general enactment---Special law dealing with specific matter provides special procedure, therefore, special procedure in such matter has to be followed as the same has not been provided under general law---Recourse to general law is permissible when special law is silent on particular point, except where provision of general law is inconsistent with provision of special law---Special law is to be applied to a particular case on the basis of special jurisdiction envisaged in that particular law and provisions of general law stand displaced.

Neimat Ali Goraya v. Jaffar Abbas 1996 SCMR 826; Messrs Noorani Traders, Karachi v. Pakistan Civil Aviation Authority PLD 2002 Kar. 83; Ismaeel v. The State 2010 SCMR 27; The State v. Fazeelat Bibi PLD 2010 Lah. 498; National Bank of Pakistan v. Emirates Bank International Ltd. 1993 CLC 2009 and Saeed Ullah Paracha v. Habib Bank Ltd. 2014 CLD 582 rel.

(b) Anti-Money Laundering Act (VII of 2010)---

----S. 4---Money laundering---Object, purpose and scope---Special need has been catered through Anti-Money Laundering Act, 2010 where subsequent conversion of crime proceeds has been given different meaning by the Legislature---All courts have to apply legislative intent in its natural way while considering legislative purpose as to why particular enactment was enacted by the Legislature---Legislature considered existing crimes and to correct some defects in existing laws, as in majority of cases proceeds of crime are converted / transferred in different formations in and outside the country or converted into the use which cannot be restored to its original state, in that particular situation---General law was silent, therefore, Anti-Money Laundering Act, 2010 has filled in the gap in specialized need concept where legislature has promulgated new law to handle the situation.

(c) Interpretation of statutes---

----Words, meaning of---Principle---When language is unambiguous and statute's meaning is clear, as a result statute must be accorded and clear meaning should be considered without any deviation and no departure is to be applied in any manner.

(d) Anti-Money Laundering Act (VII of 2010)---

----Ss. 4 & 9---Penal Code (XLV of 1860), Ss. 420, 464, 468, 471 & 473---Prevention of Corruption Act (II of 1947), S. 5(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of second FIR---Money laundering, cheating, forgery, using forged documents and misconduct---Petitioner/accused was aggrieved of registration of second FIR under S. 4 of Anti-Money Laundering Act, 2010, on same facts---Petitioner/accused sought quashing of second FIR---Validity---Investigating officer in special crime was equipped with authority to attach any property on the basis of report in his possession received from concerned prosecuting agency or with prior permission of Court, if he reasonably believed that property involved in money laundering for a period not exceeding 180 days from the date of order---Even investigation mechanism was separately settled in S. 9 of Anti-Money Laundering Act, 2010---Only those cases could be quashed, from which no offence was made out from bare reading of FIR or where there was no legal authority for registration of a criminal case or where registration of FIR was based upon mala fide and considered to be abuse of process of law and/or where no other alternate remedy was provided to deal with the situation raised in any criminal case---All such principles were not applicable in cases pertaining to Anti-Money Laundering Act, 2010, as money laundering was a distinct offence---Such cases required thorough probe and investigation qua predicate offences or property or proceeds of crime or property obtained by accused persons for which they had to discharge burden under Anti-Money Laundering Act, 2010---High Court declined to quash second FIR as ground raised by petitioner for quashing of second FIR was not legally justiciable nor very registration of subsequent FIR under Anti-Money Laundering Act, 2010 was contrary to principles laid down by Supreme Court--- Constitutional petition was dismissed in circumstances.

Federation of Pakistan v. Haji Muhammad Sadiq PLD 2007 SC 133; Mst. Sughran Bibi v. The State PLD 2018 SC 595; Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz PLD 2011 SC 260; Munir Hussain Bhatti v. Federation of Pakistan PLD 2011 SC 407; PTA v. PTCL 2016 SCMR 69; Mehreen Zainbun Nisa v. Land Commissioner PLD 1975 SC 397; Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423; Elahi Cotton Ltd. v. Federation of Pakistan PLD 1997 SC 582; Federation of Pakistan v. Haji Muhammad Sadiq PLD 2007 SC 133; Syed Aizad Hussain v. Motor Registration Authority PLD 2010 SC 983; Tariq Nawaz v. Government of Pakistan 2000 SCMR 1956; Smt. Soodamani Dorai v. The Joint Director of Enforcement (W.Ps. Nos.8383 and 8384 of 2013); Upendra Rai v. Central Bureau of Investigation (W. P. (CRL.) 1923/2020); P. Chidambaram v. Directorate of Enforcement (2019) 9 SCC 24; Muhammad Abbasi v. SHO Bhara Kahu PLD 2010 SC 969; Col. Shah Sadiq v. Muhammad Ashiq 2006 SCMR 276; Rana Shahid Ahmad Khan v. Tanveer Ahmed 2011 SCMR 1937; D.G. FIA v. Kamran Iqbal 2016 SCMR 447; Miraj Khan v. Gul Ahmed 2000 SCMR 122; A. Habib Ahmad v. M.K.G. Scott Christian PLD 1992 SC 353; Muhammad Mansha v. SHO P.S. City, Chiniot, District Jhang PLD 2006 SC 598 and Dr. Ghulam Mustafa v. The State 2008 SCMR 76 ref.

Ms. Aaliya Zareen Abbasi and Tariq Bilal for Petitioners in their respective petitions.

Barrister Muhammad Mumtaz Ali, A.A.G. for Respondents.

Faisal Bin Khurshid for IESCO.

Qaiser Masood, Additional Director (Law), FIA HQ.

Malik Sajid Mehmood, Assistant Director, FIA/ACC, Islamabad.

2023 P Cr. L J 83

[Islamabad]

Before Aamer Farooq, J

The STATE through Advocate-General, ICT---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and 2 others---Respondents

Writ Petition No. 2995 of 2022, decided on 16th August, 2022.

Criminal Procedure Code (V of 1898)---

----Ss. 163 & 167(3)---High Court (Lahore) Rules and Orders, Vol-III, Part-B, Rr. 8 & 9---Constitution of Pakistan, Art. 199---Constitutional petition---Remand of accused---Principle---Supervision of Sessions Judge---Scope---Authorities were aggrieved of refusal to grant physical custody of accused to investigating officer, who was sent to judicial lockup---Validity---Remanding an accused to police custody was to be exercised with great caution as it tantamount to depriving a citizen of his liberty---Acquisition or allegation made against accused needed to be investigated in a thorough and proper manner---Where custody of accused was essential for moving forward with investigation, he could be remanded to police custody for a minimum prescribed time, keeping in view the request made by police and in regards to material available and also by going through Police Diaries as to the investigation so far, conducted by police---Order for remanding an accused to police custody needed to be intimated to Sessions Court having supervisory jurisdiction---High Court set aside the order passed by Magistrate and remanded the matter to Sessions Court---Constitutional petition was allowed accordingly.

Bahadur and another v. The State and another PLD 1985 SC 62; Riaz ul Haq and another v. Muhammad Naveed and another 2005 YLR 805; Abdul Waheed v. Additional Sessions Judge and others 2017 MLD 1319; Riasat alias Sazti v. The State and others 2018 MLD 1942; Muhammad Rafi v. The State and 2 others 1969 PCr.LJ 873; Muhammad Siddiq v. Province of Sindh through Home Secretary, Karachi and 2 others PLD 1992 Kar. 358; Misbah ul Hassan v. The State and 3 others 2005 PCr.LJ 1709; Mian Ghulam Ijaz and others v. The State and others PLD 2018 Lah; 151; Safdar v. Zafar and others 2002 SCMR 63; Ghulam Sarwar and another v. The State 1984 PCr.LJ 2588 and Rashid v. The State and 2 others PLD 1970 Lah. 389 ref.

Jahangir Khan Jadoon, Advocate-General, ICT, Raja Rizwan Abbasi, Special Public Prosecutor and Talat, S.I. for Petitioner.

2023 P Cr. L J 114

[Islamabad]

Before Babar Sattar, J

ISMAIL IJAZ---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 955-B of 2021, decided on 28th September, 2021.

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

----S. 497---Prevention of Electronic Crimes Act (XL of 2016), Ss. 9, 10 & 11--- Glorification of an offence---Cyber terrorism---Hate speech---Bail, grant of---Re-tweeting the message---Scope---Accused sought post-arrest bail in an FIR lodged under Ss. 9, 10 & 11 of Prevention of Electronic Crimes Act, 2016---Sections 9, 10 & 11 of Prevention of Electronic Crimes Act, 2016, prescribed fine as an alternate punishment---Trial Court was to determine, in the first instance, whether or not the accused was guilty of the offence he was charged with---Accused was found guilty after being tried, it was then for the Trial Court to determine at the sentencing stage whether in view of the facts and circumstances of the case, the accused was liable to be sent to jail or punished through imposition of fine---State had failed to point out the existence of any material which reflected that the accused was involved in glorification of proscribed organization or that he was involved in advancing the objectives of the organization---Offending tweets which formed the basis of the FIR were actually re-tweets by the accused, it could not be concluded without further inquiry that the accused possessed the necessary intent (i.e. mens rea) to glorify a proscribed organization or advance the objectives of a proscribed organization--- Accused was admitted to bail, in circumstances.

Muhammad Hayat Khan v. The State and another 2019 PCr.LJ 472; Mustafa Ali v. The State 2014 PCr.LJ 1464; Asad Ullah v. The State 2012 YLR 2270; Haji Zahoor Ahmed v. The State 2013 YLR 2644; Haji Faqir Khan v. The State and another 2017 PCr.LJ 1017; Muhammad Tariq Ajmal v. The State 2021 PCr.LJ 40 and Professor Akhtar Khan v. The State 2021 PCr.LJ 506 ref.

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

----S. 497---Bail---Scope---Offences in relation to which fine has been prescribed as an alternative punishment, the lesser punishment is to be considered for grant of bail.

Mustafa Ali v. The State 2014 PCr.LJ 1464 ref.

Muhammad Hayat Khan v. The State and another 2019 PCr.LJ 472 and Ameer Ullah v. The State 2012 PCr.LJ 1858 rel.

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

----S. 497--- Constitution of Pakistan, Art. 9---Bail---Security of person---Sentence of fine---Scope---Where discretion is vested in the Trial Court for purposes of sentencing and the statute providing fine as an alternative to imprisonment as a punishment for the offence in question, any time that such accused spends behind bars would be in breach of his right to liberty guaranteed under Art. 9 of the Constitution---Accused is hauled up in prison pending trial, at which stage the presumption of innocence attaches to him, even if he is subsequently found guilty and punished by the Trial Court with fine, the State and criminal justice system would have no means to recompense for the loss of liberty inflicted upon him.

Muhammad Hayat Khan v. The State and another 2019 PCr.LJ 472; Mustafa Ali v. The State 2014 PCr.LJ 1464; Haji Zahoor Ahmed v. The State 2013 YLR 2644; Haji Faqir Khan v. The State and another 2017 PCr.LJ 1017; Muhammad Tariq Ajmal v. The State 2021 PCr.LJ 40; Professor Akhtar Khan v. The State 2021 PCr.LJ 506; Ameer Ullah v. The State 2012 PCr.LJ 1858 and Muhammad Mustaqeem v. The State 2004 YLR 68 ref.

(d) Prevention of Electronic Crimes Act (XL of 2016)---

----Ss. 9, 10 & 11---Criminal Procedure Code (V of 1898), S. 497---Glorification of an offence---Cyber terrorism---Hate speech---Bail---Scope---Legislature intended that the offences defined under Ss. 9, 10 & 11 of Prevention of Electronic Crimes Act, 2016, are of such heinous nature that citizens accused of committing them are to be deprived of their liberty pending trial, it would not have provided fine as an alternative punishment to jail term, given that where fine is provided as an alternative punishment to imprisonment, courts consider the lesser sentence for purposes of grant of bail and determination of whether or not the offence falls within the prohibitory clause.

(e) Prevention of Electronic Crimes Act (XL of 2016)---

----Ss. 9, 10 & 11---Criminal Procedure Code (V of 1898), S. 497---Glorification of an offence---Cyber terrorism---Hate speech---Bail---Scope---Sections 9, 10 & 11 of Prevention of Electronic Crimes Act, 2016 cannot be regarded as falling within the prohibitory clause of S. 497, Cr.P.C.

(f) Constitution of Pakistan---

----Arts. 9, 10-A & 14---Criminal Procedure Code (V of 1898), S. 497---Security of person---Right to fair trial---Inviolability of dignity of man---Bail---Scope---Accused is to be deemed innocent until proven guilty---Right to liberty and dignity is also protected under Arts. 9 & 14 of the Constitution as is the right to fair trial under Art. 10-A---In the event that after a fair trial the accused is found to be innocent, there is no mechanism to offer restitution for his loss of liberty pending trial.

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

Aamir Abbas Malik for Petitioner.

2023 P Cr. L J 149

[Islamabad]

Before Tariq Mehmood Jahangiri, J

MUHAMMAD MUSAWAR ABBASI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 787-BC of 2022, decided on 20th June, 2022.

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

----S. 406---Criminal breach of trust---Essential ingredients---Scope---Essential ingredients for the offence of criminal breach of trust are (a) entrustment; (b) dishonest misappropriation or conversion to his own use by the person in whom the confidence is reposed; (c) dishonest use or disposal of property in violation of any direction of law; and (d) dishonest use or disposal of property in violation of any legal contract.

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

----S. 406---Specific Relief Act (I of 1877), S. 12---Criminal breach of trust---Agreement to sell, violation of---Scope---Breach of any term of agreement to sell does not fall foul of S. 406, P.P.C., as the agreement to sell is created under Contract Act, 1872, where one party signifies his willingness to do or not to do anything against a consideration and if the same is accepted by the other party it becomes a promise whereas the said promise if enforceable by law creates the term "contract"---Hence, it is manifestly clear that any agreement requires an offer/proposal, acceptance, promise, consideration and enforceability then the same creates the reciprocal obligations agreed between the parties---Agreement (between the parties) to perform the obligation whereas payment of money does not fall within the preview of "entrustment" of property in terms of S. 406, P.P.C., even otherwise, there is no misappropriation if the seller after receiving the sale consideration or part of sale consideration refuses to transfer the property or fails to abide the terms of agreement as the said failure or breach of terms cannot be equated with dishonest use, disposal of the property, violation of any legal contract, however, any breach of such agreement has a remedy under Specific Relief Act, 1877, where one can seek specific performance of a contract if the same is enforceable by law and the court of law has to see which party is responsible for refusal or failure to abide by the terms of the contract---Specific Relief Act, 1877 provides a mechanism which covers all those contracts between the parties which have been executed in terms of Contract Act, 1872 and their remedies are only provided in Specific Relief Act, 1877, where the ingredients of criminal breach of trust have no space as the concept of mens rea can only be assessed by the criminal court whereas the agreement does not fulfill the requirements of criminal breach of trust.

Muhammad Nawaz v. Station House Officer, Police Station, Sabzi Mandi, Islamabad and others 2017 PCr.LJ 133; State of Gujarat v. Jaswantlal Nathalal AIR 1968 SC 700; Punjab National Bank and others v. Surendra Prasad Sinha 1994 PSC (Crl) 768; Shaukat Ali Sagar v. Station House Officer, Police Station Batala Colony, Faisalabad and 5 others 2006 PCr.LJ 1900; Ghulam Ali v. Javid and another 1989 PCr.LJ 507; Nga Po Seik v. Emperor 1917 Indian Cases 824 and Kornai Lal Dutta v. The State AIR 1951 Cal 206 ref.

Shahid Imran v. The State and others 2011 SCMR 1164 rel.

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

----S. 497(5)---Bail, cancellation of---Scope---Ordinarily the Superior Courts are reluctant to interfere into the order extending concession of bail; rather they have shown reluctance to intervene in such like matters---Rationale behind is that once concession of bail is granted by a Court of competent jurisdiction then very strong and exceptional grounds would be required to hamper with the concession extended to an accused who is otherwise clothed with free life, as a consequence of concession and if any (contrary) view is taken by the Court it would be synonymous to curtailing the liberty of said accused prior to completion of trial, which otherwise is a precious right guaranteed under the Constitution.

Sharif Khan v. The State and another 2021 SCMR 87 ref.

Sami Ullah and another v. Laiq Zada and another 2020 SCMR 1115 rel.

2023 P Cr. L J 203

[Islamabad]

Before Arbab Muhammad Tahir and Babar Sattar, JJ

ARSHAD MEHMOOD and others---Petitioners

Versus

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

Writ Petitions Nos. 3719, 3738 of 2019 and 60 of 2020, decided on 19th April, 2022.

(a) Jurisdiction---

----Objection---Principle---Question of jurisdiction is not technical one but goes to the heart of the authority that a court or tribunal exercises in seeking to enforce law of land---Any objection to jurisdiction of any tribunal conducting judicial proceedings has to be decided at the earliest to lay such objection to rest.

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

----S. 23---Jurisdiction---Determination---Trigger for purposes of determining question of jurisdiction is after Anti-Terrorism Court takes cognizance of the offence---No outer limit for making such determination---Such question can be determined even at the time of rendering final judgment if Anti-Terrorism Court were to conclude at such time that accused was not liable for offence of terrorism under S. 7 of Anti-Terrorism Act, 1997, or for any other scheduled offence---Upon forming such opinion, Anti-Terrorism Court needs to still transfer the case to a court of competent jurisdiction to pass judgment in relation to offences which do not constitute an offence of terrorism or a scheduled offence under Anti-Terrorism Act, 1997.

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

----Ss. 6, 7 & 23---Penal Code (XLV of 1860), Ss. 302, 324, 337-F(iii) & 148---Act of terrorism--- Factor of fear--- Scope--- On the allegations of Qatl-i-amd, attempt to Qatl-i-amd, Ghayr-Jaifah Mutalahimah and rioting armed with deadly weapons, trial was pending before Anti-Terrorism Court---Petitioner/accused sought transfer of case to Court of ordinary jurisdiction---Validity---Cultivation of fear as deterrence was the effect of action of claiming a human life---What distinguished imposition of sanction by State and imposition of sanction by a private party was intent behind such act---Cultivation of fear in and of itself could not be the determinant of whether an action had qualified as terrorism---Order passed by Anti-Terrorism Court refusing to transfer case to Court of ordinary jurisdiction was perverse in terms of its reasoning and conclusions drawn in view of evidence led by two prosecution witnesses with regard to the effect of actions attributed to the accused---Order in question was rendered by misapplying section 6 of Anti-Terrorism Act, 1997---No offence in terms of Ss. 6 & 7 of Anti-Terrorism Act 1997, was made out against petitioner---High Court set-aside order in question passed by Anti-Terrorism Court and under S. 23 of Anti-Terrorism Act, 1997 transferred trial to Sessions Court---Constitutional petition was allowed, in circumstances.

Malik Tariq Ayub v. The State 2018 PCr.LJ 1719; Ghulam Hussain v. State PLD 2020 SC 61; Muhammad Jibran Nasir v. State PLD 2018 SC 351; Criminal Revision No. 19 of 2021 Nadeem Younas v. The State and others; Malik Tariq Ayub v. The State 2018 PCr.LJ 1719; Tariq Khan v. The State 2022 PCr.LJ 558; Muhammad Akram v. State 2022 SCMR 18; Allah Ditta v. The State 1994 SCMR 717; Muhammad Iqbal v. The State 1992 MLD 287; Ghulam Shabbir v. Punjab Special Courts (Suppression of Terrorist Activities) No.5 (1992 PCr.LJ 1932) and Mst. Sughran Bibi v. The State PLD 2018 SC 595 rel.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Jurisdiction which High Court exercises under Art. 199 of the Constitution is limited to correcting any illegality or perversity in the judgment that is assailed before High Court.

(e) Administration of justice---

----Judge, duty of---Judges while adjudicating cases lay down what the law is and not what it ought to be.

(f) Interpretation of statutes---

----Courts, duty of---Courts interpret what the law is and do not declare what the law shall be---While according meaning to words used in a statute, Court undertakes an interpretive exercise and what Court is essentially stating is meaning that is attributable to words used in the statute from the time when such statute was promulgated.

(g) Jurisprudence---

----Punishment and crime---Social impact---Scope---Certainty of punishment and not severity of punishment that deters crime---Expeditious disposal of cases by ordinary courts cultivates public faith in rule of law.

Azam Nazir Tarar, Abdul Wahid Qureshi and Ansar Mehmood for Petitioners (in Writ Petition No. 3719 of 2019).

Muhammad Zafar Khokhar for Petitioners (in Writ Petition No. 3738 of 2019).

Qaiser Imam Chaudhry and Shujaullah Gondal for Petitioners (in Writ Petition No. 60 of 2020).

Zohaib Hassan Gondal, State Counsel.

Faisal Siddiqui for Respondent No. 2.

2023 P Cr. L J 276

[Islamabad]

Before Arbab Muhammad Tahir, J

MUHAMMAD IBRAR KHAN---Appellant

Versus

Mian MUHAMMAD RAMZAN and another---Respondents

Criminal Appeal No. 67 of 2020, decided on 5th August, 2022.

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

----S. 154---First Information Report (FIR)---Object---First Information Report is meant for laying information regarding commission of a cognizable offence and in no way can be termed and taken into consideration as a conclusive piece of evidence.

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

----S. 406--- Criminal Procedure Code (V of 1898), Ss. 249-A & 417(2)---Criminal breach of trust---Appeal against acquittal---Reliance on FIR only---Effect---Complainant was aggrieved of order passed by Trial Court under S. 249-A, Cr.P.C., acquitting accused of the charge---Validity---While dealing with application under S. 249-A, Cr.P.C., it was mandatory for Trial Court to take into consideration material collected during the course of investigation which was lacking---Exclusive reliance upon contents of FIR in exclusion of other prosecution evidence was unjust, erroneous and arbitrary---Reasons made basis to acquit accused even at initial stage by invoking provision of S. 249-A, Cr.P.C. was to base on reasons---Such reasons were to flow from analysis of prosecution evidence besides the law on the subject--- Respondent was accused of offence 'criminal breach of trust'---Co-accused was at large who had also been declared a Proclaimed Offender---Prosecution, in order to substantiate the allegations, relied upon statements of about ten witnesses besides stamp paper taken in possession during the course of investigation and also got the same verified by the concerned stamp paper, whose testimony in terms of statement under S. 161, Cr.P.C. was also relied upon---High Court set aside order of acquittal and remanded matter to Trial Court for decision afresh on application under S. 249-A, Cr.P.C.---Appeal was allowed accordingly.

2008 YLR 2169 and 2020 PCr.LJ 830 ref.

The State through Advocate-General, Sindh High Court of Karachi v. Raja Abdul Rehman 2005 SCMR 1544 and Muhammad Muslim and another v. Muhammad Iqbal and 2 others PLJ 2004 SC 2 rel.

Raja Ahmed Abdul Rafay for Appellant.

Shahbaz Shah, State Counsel with Nasir Manzoor, SI.

Rao Abdur Raheem for Respondent No. 1.

2023 P Cr. L J 305

[Islamabad]

Before Aamer Farooq, J

JUNAID QAMAR---Petitioner

Versus

SESSIONS JUDGE, WEST ISLAMABAD and 2 others---Respondents

Writ Petition No. 2666 of 2022, decided on 15th July, 2022.

Criminal Procedure Code (V of 1898)---

----Ss. 60, 61 & 167---Arrest---Transitory remand---Petitioner was aggrieved of his arrest by police in place "ICT" on the basis of FIR registered at place "M" and grant of transitory remand---Validity---In order to safeguard interest of a person so arrested, police officer under S. 60, Cr.P.C. without unnecessary delay was to present a person arrested before Magistrate having jurisdiction in the case or before office incharge of a police station---No person under S. 61, Cr.P.C. could be detained by police officer who was arrested without warrant for a period longer, under all circumstance of the case was reasonable and in absence of the order of Magistrate under S. 167, Cr.P.C. for more than twenty four hours exclusive of the time necessary for the journey from place of arrest to Court of Magistrate---Competent Magistrate in the case or incharge of police station was of place "M", arresting officer of Police Station at place "M" presented petitioner before Magistrate within whose jurisdiction petitioner was arrested on 5.7.2022 with the plea that transitory remand was granted which accordingly was done vide order dated 06-07-2022---Petitioner was presented within 24-hours and there was no violation of laws---Order granting transitory remand also met the requirement of relevant laws---High Court declined to interfere as petitioner failed to point out any illegality or transgression in jurisdiction of Magistrate---Constitutional petition was dismissed, in circumstances.

Govind Prasad v. The State of West Bengal 1997 Cri.LJ 1249; Sachindra Mahawar and others v. State of M.P and others 2000 Cri.LJ 637 and Navinchandra N. Majithia v. State of Maharashtra and others AIR 2000 SC 2966 rel.

2023 P Cr. L J 337

[Islamabad]

Before Aamer Farooq and Saman Rafat Imtiaz, JJ

MUHAMMAD BILAL SHEIKH---Applicant

Versus

ACCOUNTABILITY COURT NO. I, ISLAMABAD and 5 others---Respondents

C.M. No. 1535 of 2022 in W.P. No. 77 of 2020, decided on 25th July, 2022.

National Accountability Ordinance (XVIII of 1999)---

----S. 23 [as omitted by National Accountability (Amendment) Act (XI of 2022)]--- Constitution of Pakistan, Art. 199--- Constitutional petition---Omitting of provision---Effect---Past and closed transaction, principle of--- Applicability--- Petitioner/accused was facing trial in National Accountability Ordinance, 1999--- Issue raised in the application was with regard to effect of omitting S. 23 from National Accountability Ordinance, 1999---Validity---Provision of S. 23 was omitted from National Accountability Ordinance, 1999 and natural consequence was that all actions taken thereupon would extinguish---Such omission was to operate from 1999 and would not prejudice past and closed transactions---Application filed by petitioner/accused had become infructuous, as no clarification was required---Application was disposed of accordingly.

Abdul Mannan v. Haji Karam Ilahi 1981 SCMR 257; Sardar Sher Bahadar Khan v. Election Commission of Pakistan PLD 2018 SC 97 and Commissioner Inland Revenue v. Messrs Olympia Chemicals Ltd. 2021 PTD 1512 rel.

Saad Ullah Tahir and Aziz Ur Rehman Farooqi for Applicant.

Irshad Ahmad for Respondent No. 7.

2023 P Cr. L J 350

[Islamabad]

Before Aamer Farooq, CJ

MUHAMMAD AZAM KHAN SWATI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 1644-B of 2022, decided on 2nd January, 2023.

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

----S. 497---Prevention of Electronic Crimes Act (XL of 2016), S. 20---Penal Code (XLV of 1860), Ss. 131, 500, 501, 505 & 109---Offences against dignity of a natural person---Abetting mutiny, or attempting to seduce a soldier, sailor or airman from his duty, defamation, printing or engraving matter known to be defamatory, statement conducing to public mischief, abetment---Bail, grant of---Scope---Accused sought bail after arrest in an FIR which was lodged on the allegation of making objectionable tweets on social media; the effect of which was abetting and inciting mutiny and derogatory remarks about serving army personnel---None of the offences fell in the prohibitory clause of S. 497, Cr.P.C.---Maximum punishment provided for the offence with which the accused was implicated was upto 10 years---For the purpose of bail lesser sentence was taken into consideration, hence the punishment provided for the S. 131, P.P.C. did not fall within the prohibitory clause of S. 497, Cr.P.C.---Grant of bail was a rule where the case did not fall within the prohibitory clause---Trial Court had observed that the accused had repeated the offence, however, this was only a second instance, hence the case did not fall within the exception of principles laid down in the case reported as 'Tariq Bashir v. The State' [PLD 1995 SC 34]---Moreover, in case the accused repeated the offence the respondents had the remedy to seek cancellation of bail---Examination of record showed that the procedure provided in the Federal Investigation Agency's Standing Order No. 5 of 2020 was not followed---Such lapse in investigation had made the case against the accused one of further inquiry---Investigation had been completed and the continued incarceration of accused would not serve any purpose--- Accused was enlarged on bail, in circumstances.

Kh. Soleman Rafiq v. The State PLD 2020 SC 456 ref.

(b) Bias in a Judge---

----Judge of a Superior Court is a keeper of his own conscience and it is for him to decide whether to hear or not to hear a matter before him.

Asif Ali Zardari v. The State PLD 2001 SC 568 rel.

(c) Bias in a Judge---

----Transfer of case on the ground of bias---Scope---Marked distinction existed in the approach on the question of bias between a case of a Judge of a Subordinate Court and a case pertaining to a Judge of a Superior Court inasmuch as in the former case the Superior Courts does grant transfer applications on the ground of Judge having personal, pecuniary or proprietary interest in the subject matter whereas in the latter case the Superior Court does not grant transfer application on the above ground for want of power.

Ms. Benazir Bhutto v The President of Pakistan 1992

SCMR 140 rel.

(d) Bias in a Judge---

----Transfer of case on the ground of bias---Scope---Application for transfer does not lie at all against a Judge of the High Court.

Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wali Khan and others PLD 1976 SC 57 ref.

M. H. Khondkar v. The State PLD 1966 SC 140 rel.

(e) Bias in a Judge---

2023 P Cr. L J 421

[Islamabad]

Before Sardar Ejaz Ishaq Khan, J

Mst. VEERA---Petitioner

Versus

JONATHAN and 2 others---Respondents

Criminal Miscellaneous No. 855-BC/2022, decided on 27th October, 2022.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 493-A & 375---Bail, cancellation of---Cohabitation caused by a man deceitfully inducing a belief of lawful marriage---Rape---Scope---Complainant sought cancellation of bail granted to accused in an FIR wherein it was alleged that she was deceitfully cohabited by the accused by inducing a belief of lawful marriage---Complainant and accused knew each other for many years as choir singers and as members of the Youth Leadership Program in the Church---Complainant had attended and witnessed several marriage ceremonies at the Church, and that's why she mentioned in her FIR that pastoral prayer and blessing was necessary to solemnize the marriage---By the very contents of the FIR, it appeared, prima facie, that she turned a blind eye to her own knowledge of the pre-requisites of a valid marriage and, therefore, her stance in the FIR that she was deceived on the basis of the Nikahnama alone was open to doubt and entailed further inquiry---Benefit of doubt even at bail stage had to go to the accused---So far as allegation of rape under S. 375(iv), P.P.C. was concerned, the complainant had nowhere alleged that she believed the accused to be another person to whom she believed herself to be married, for that was an essential ingredient of the referred charge---Petition was dismissed, in circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

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

----S. 493-A---Cohabitation caused by a man deceitfully inducing a belief of lawful marriage---Scope---Offence under S. 493-A, P.P.C. is of deceitfully causing a woman to believe that she was lawfully married to the accused, and for her to cohabit with him in that belief---Mens rea is deceit---Deceit entails dishonest trickery by one to make another believe that something is other than what it actually is---Penal Code made 'deceit' the mens rea for the much severer punishment under S. 493-A for a reason---Code did use its ordinary synonyms such as dishonesty---While 'dishonestly' and 'fraudulently' are defined terms in Chapter II of the P.P.C., did not define 'deceitfully'---Although the Explanation to S. 415, P.P.C., reads that a 'dishonest concealment of facts is a deception', the description of deception as dishonest concealment of facts is confined to S. 415 by using the words 'within the meaning of this section'---Criminal court ought not slip into the easy trap of equating deceit with its ordinary synonyms---Rationale is obvious; dishonesty or fraudulent conduct deals with and is limited to the accused's conduct, but deceit takes into account the representee's conduct too---Representee cannot be said to be deceived where, regardless of the dishonest and fraudulent conduct of the representor, the representee has the knowledge of the truth or the circumstances showing that he knowingly turned a blind eye to the truth---Matter here was liability and not of the tort of deceit where imputed knowledge of the truth may not afford a defence---But for criminal liability, where the burden is beyond reasonable doubt, the prosecution has to show that the representee was neither aware nor harboured any suspicion that could with ordinary diligence lead him to discover the truth---So while one may have acted fraudulently or dishonestly, he cannot be said to have deceived another where that other person either had the knowledge of the actual state of affairs or harboured a suspicion that would in the ordinary course lead that person to inquire further before letting oneself to believe in the representation made to him---Where the representee 'plays along', knowing that the representation is not genuine, the one playing along cannot, for the purposes of criminal liability of the representor, be said to have deceived.

2023 P Cr. L J 549

[Islamabad]

Before Arbab Muhammad Tahir, J

ABBAS KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 1392-B of 2022, decided on 16th November, 2022.

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

2023 P Cr. L J 596

[Islamabad]

Before Sardar Ejaz Ishaq Khan, J

INTIZAR HUSSAIN and another---Petitioners

Versus

AMJAD HUSSAIN and another---Respondents

2023 P Cr. L J 640

[Islamabad]

Before Tariq Mehmood Jahangiri, J

KHURRAM IMTIAZ---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, ISLAMABAD and 3 others---Respondents

Writ Petition No. 2098 of 2021, decided on 7th December, 2022.

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

----Ss. 22-A & 22-B---Powers of Ex-officio Justice of Peace---Filing successive petitions with false affidavits---Private respondents got lodged an FIR against the petitioner and his father under S. 489-F, P.P.C.---Petitioner, as a counterblast, filed an application for registration of FIR against respondents---Ex-officio Justice of Peace dismissed the application filed by petitioner---Petitioner filed second petition before Ex-officio Justice of Peace for recording his defense version with the certificate that it was the first petition on the subject matter---Second petition was dismissed for non-appearance on behalf of petitioner---Third petition for registration of FIR on the basis of same allegation was filed by the petitioner along with affidavit that this was the first petition on the subject matter---Third petition was dismissed as withdrawn---When the ulterior motives of the petitioner were not achieved from the District Courts at 'I', he filed an application under Ss. 22-A & 22-B, Cr.P.C. in the another district with the certificate that it was the first petition on the subject---Ultimately this time an FIR was registered against the respondents under Ss. 406 & 506, P.P.C.---Petitioner filed yet another application before Ex-officio Justice of Peace in the latter district and consequently, an FIR under S. 406, P.P.C. and Ss. 3 & 4 of the Punjab Prohibition of Private Money Lending Act, 2007 was registered against the respondent---Petitioner, during the course of arguments, did not inform the High Court about the fact of filing of petitions and registration of criminal cases in the latter district--- Petitioner had committed cheating, fraud, misrepresentation and concealment of facts with the Courts of law with mala fide intention and ulterior motives in order to get favourable decisions---Writ petition was dismissed with special cost and a direction to the Sessions Judge, Islamabad for initiating criminal proceedings against the petitioner for executing false affidavits.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Discretionary jurisdiction---Scope---For discretionary and equitable relief, it is a pre-condition that the parties should approach the Courts with clean hands, in order to get the relief.

Shafqatullah and others v. District and Sessions Judge, Nowshera, N.W.F.P and 4 others 2001 SCMR 274 and Manzoor Hussain and 3 others v. Muhammad Siddique 2000 CLC 623 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Writ of certiorari---Scope---Writ of certiorari is only available to quash a decision for an error of law---It is also be issued for correcting errors of jurisdiction when an inferior Court or a tribunal acts without jurisdiction or in excess of its jurisdiction, or fails to exercise its jurisdiction or where the Court or a tribunal acts illegally in exercise of its undoubted jurisdiction and it decides a matter in violation of the principle of natural justice---High Court while issuing a writ of certiorari acts in exercise of supervisory and not appellate jurisdiction---High Court in exercise of its writ jurisdiction will not review the findings of facts reached by the inferior Court or a tribunal.

2023 P Cr. L J 810

[Islamabad]

Before Aamer Farooq, J

MUHAMMAD SHAHBAZ SHABEER---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and 5 others---Respondents

Writ Petition No. 3035 of 2022, decided on 22nd August, 2022.

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

----S. 156--- Constitution of Pakistan, Art. 199--- Constitutional jurisdiction of High Court---Criminal investigation---Interference---Scope---High Court cannot hear and adjudicate petition under Art. 199 of the Constitution like an appeal and replace its findings with that of the Court of first instance or the Court hearing the revision petition---All High Court has to do is to determine whether there is any error of law or of jurisdiction---No interference in investigation can be made by any Court except in certain circumstances.

Ghulam Sarwar Zardari v. Piyar Ali alias Piyaro and another 2010 SCMR 624; Hayatullah Khan and another v. Muhammad Khan and others 2011 SCMR 1354 and Muhammad Hanif v. The State 2019 SCMR 2029 rel.

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

----S. 167---Penal Code (XLV of 1860), Ss. 124-A, 131, 153, 153-A, 505, 506 & 109---Physical remand---Extension---Accused was arrested for committing offences of sedition, provocation of riots, public mischief and criminal intimidation, against members of armed forces---Physical custody of accused extended to investigating officer by Trial Court was maintained by Lower Appellate Court in exercise of revisional jurisdiction---Validity---Lower Appellate Court had jurisdiction to hear revision petition against order under S. 167, Cr.P.C.---Remand was not to be allowed in a mechanical way nor refused on the basis of conjectures or surmises without application of mind---Such order was to be passed on the basis of material available on record including police diaries---Examination of police diaries led Lower Appellate Court to the conclusion that further 48 hours of remand in police custody was required---Investigating Officer also made reference to reasons for which physical custody was required which was to recover cellular phone from where the statement was allegedly read out by the accused---High Court declined to interfere in the order assailed, as the same did not suffer from any error of law---Constitutional petition was dismissed accordingly.

General (R) Pervez Musharaf v. Federation of Pakistan and others PLD 2020 Lah. 285; Jawan Saal v. DPO and others 2011 YLR 2821; Ali Raza and another v. Federation of Pakistan and another PLD 2017 Isl. 64; Salman Taseer v. Judge, Special Court 1993 SCMR 71; Ghulam Raza Soomro v. The State 2000 SCMR 1645; Mumtaz Hussain v. Deputy Inspector General and others PLD 2002 Lah. 78; Mian Touseef v. District Police Officer and others 2017 PCr.LJ 1140 and Ghulam Sarwar and another v. The State 1984 PCr.LJ 2588 ref.

(c) Constitution of Pakistan---

----Art. 14(2)--- Inviolability of dignity of man--- Torture during investigation---Scope---Torture in any form to extract evidence is prohibited.

Khadim Hussain v. Secretary Ministry of Human Rights Islamabad and others PLD 2020 Isl. 268; Ayyaz Ahmed v. Saqib Nazir Superintendent Central Jail PLD 2017 Lah. 342; Asif Kamal v. The Judge Accountability Court Multan and others 2020 PCr.LJ 1; Muhammad Hussain v. The Illaqa Magistrate Ist Class Lahore and 4 others 1995 PCr.LJ 97 and Nadeem v. Sanaullah Sangi and others 2004 PCr.LJ 1775 rel.

Barrister Suleman Safdar, Muhammad Shoaib Shaheen, Faisal Fareed Chaudhary, Fahad Arslan Chaudhary, Malik Naseem Abbas Nasir, Malik Fiaz Ahmed Kandwal, Mirza Asif Abbas, Ch. Khalid Yousaf, Ali Ijaz Buttar, Intizar Hussain Panjotha, Naeem Haider Panjotha, Ch. Istiaq A. Khan, Ashiq Hussain Tarar, Ch. Tanveer Ahmed, Mubashar Najeeb, Dr. Zubair Sarfraz, M. Saeed Khan Sadozai, Mirza Aslam Baig, Sardar Masroof Abid, Attiq ur Rehman Siddiqi, Faisal Nawaz Jadoon, Tanveer Hussain, Kalsoom Khaliq, Ayesha Tabassum and Shaheena Shahabud Din for Petitioner.

2023 P Cr. L J 1022

[Islamabad]

Before Miangul Hassan Aurangzeb and Arbab Muhammad Tahir, JJ

MUHAMMAD SHAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 124 of 2021, decided on 8th March, 2023.

Criminal Procedure Code (V of 1898)---

----Ss. 366 & 367---Control of Narcotic Substances Act (XXV of 1997), Ss. 47 & 48--- Appeal against the order---Mode of delivering judgment---Language of judgment---Contents of judgment---Petitioner was convicted under S. 9(c) of the Control of Narcotic Substances Act, 1997, for trafficking heroin as well as opium and sentenced by the Trial Court---Application of the Code of Criminal Procedure Code, 1898, was mandatory for trials and appeals before the Special Court/Trial Court which envisaged mode of delivering the judgment, language of judgment and contents of judgment---Impugned judgment was not legally sustainable, as the failure of the Trial Court to specify the points for determination as required by the Code of Criminal Procedure Code, 1898, was an omission and absence of decision on the said points and want of reasons in the judgment amounted to an illegality which prejudiced the case of the appellant---Consequently, the impugned judgment was set aside---Case was remanded for re-writing of the judgment afresh after hearing the parties in accordance with law on the subject---Appeal was allowed accordingly.

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; 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; Muzaffar Ali and 5 others v. The Collector Land Acquisition, Mirpur and 16 others 2020 YLR 451 and Farrukh Sayyar and 2 others v. Chairman, NAB, Islamabad and others 2004 SCMR 1 rel.

Muhammad Ilyas Khan for Appellant.

Malik Aneeq Ali Khitana, State Counsel with Riaz Hussain, S.I. Police Station Lohi Bher, Islamabad for the State.

2023 P Cr. L J 1092

[Islamabad]

Before Babar Sattar, J

JAVAD KHAN---Petitioner

Versus

The STATE and others---Respondents

Writ Petition No. 4047 of 2022, decided on 17th February, 2023.

(a) Prevention of Electronic Crimes Act (XL of 2016)---

----Ss. 29 & 44---Penal Code (XLV of 1860), Ss. 419 & 420---Two sets of offences, cognizance of---Principle---Federal Investigating Agency is the designated agency under S. 29 of Prevention of Electronic Crimes Act, 2016 and is not vested with jurisdiction to investigate allegations that attract offences under P.P.C., merely because they relate to the actions that attract an offence under Prevention of Electronic Crimes Act, 2016---In such case, proviso of S. 30 of Prevention of Electronic Crimes Act, 2016, provides for creation of a JIT to facilitate related investigations and at the culmination of such investigation it is for FIA to file a challan before Special Court designated under S. 44 of Prevention of Electronic Crimes Act, 2016 and for the police authorities to undertake criminal proceedings and file a challan before a Trial Court competent to take cognizance of an offence under P.P.C.

(b) Prevention of Electronic Crimes Act (XL of 2016)---

----Ss. 13, 14, 29 & 30---Penal Code (XLV of 1860), Ss. 419 & 420---Constitution of Pakistan, Art. 199---Constitutional petition---Cyber-crime and cheating---Non-cognizable offences, investigation of---Two sets of offences---Petitioner sought quashing of FIR with the plea that offence under S. 14 of Prevention of Electronic Crimes Act, 2016, was not a cognizable offence and could not be registered without seeking prior permission form a Court and those under P.P.C. could not be investigated by FIA---Validity---Charge against petitioner was that he was liable for an offence under S. 14 of Prevention of Electronic Crimes Act, 2016---In view of S. 43 of Prevention of Electronic Crimes Act, 2016, the offence was non-cognizable and consequently FIA could not have taken cognizance of it without seeking prior permission from a Court of competent jurisdiction---This was not done by authorities and cognizance of offence under S. 14 of Prevention of Electronic Crimes Act, 2016 and steps taken subsequent to such cognizance by FIA were devoid of legal authority---Federal Investigating Agency, as investigation agency designated under S. 29 of Prevention of Electronic Crimes Act, 2016, was devoid of authority to investigate offences under P.P.C. through joinder of such offences with offences under Prevention of Electronic Crimes Act, 2016---Federal Investigating Agency could not have therefore registered a complaint under Ss. 419 & 420, P.P.C. and investigate the same---High Court declared that FIA was devoid of legal authority to registered FIR, which was liable to be quashed---Federal Investigating Agency could seek appropriate permission from Court of competent jurisdiction to take cognizance of alleged offence committed by petitioner under S. 14 of Prevention of Electronic Crimes Act, 2016---Actions attributed to petitioner constituted offences under P.P.C. also, therefore, complainant was within his right to file a complaint with police authorities so that FIR could be registered in exercise of authority under Cr.P.C.---Constitutional petition was allowed accordingly.

Sheraz Khan v. The State and others 2022 PCr.LJ 203 and Director General, FIA v. Kamran Iqbal 2016 SCMR 447 ref.

Sher Afzal Khan Marwat for Petitioner.

Muhammad Usman Warraich, Assistant Attorney General for Respondent.

Fazal Mehmood, S.I, FIA.

2023 P Cr. L J 1256

[Islamabad]

Before Aamer Farooq, C.J.

AMMAD YOUSAF---Petitioner

Versus

GHULAM MURTAZA CHANDIO and another---Respondents

Criminal Revision No. 7 of 2023, decided on 14th February, 2023.

Criminal Procedure Code (V of 1898)---

----Ss. 173, 265 & 265-K--- Framing of charge--- Discharge of accused---Principles---Application of the petitioner was to the effect that no case against him was made out, therefore, charge could not be framed against him---Validity---Court was not to delve into the veracity of the documents or the statements made by the witnesses; even admissibility of the documents or otherwise was also not the domain of the Court at such stage, as it would be holding a trial within trial---Sole purpose of S. 265-D, Cr.P.C was that the report under S. I73, Cr.P.C., and the statements and documents submitted provided prima facie basis to proceed with the trial; if prima facie case was made out, Trial Court was to continue with framing of charge and commencement of trial---Section 265-K, Cr.P.C., provides jurisdiction to Trial Court to discharge/acquit the accused, if it considers that there is no probability of the accused being convicted of the offence---Impugned order did not suffer from error of law or of jurisdiction calling for interference by High Court---Petition was dismissed.

Aftab Ahmed Khan Sherpao, Ex-Chief Minister, NWFP, Peshawar v. Chief Ehtisab Commissioner, Chief Ehtisab Commissioner Secretariat, Islamabad PLD 2005 SC 408; Noor Muhammad v. The State and others PLD 2007 SC 9; Rehan Dad v. Syed Mazher Hussain Shah and others 2015 SCMR 56 and Gopalsinh Bhimsinh Rathod v. State of Gujarat (Criminal Revision Application No. 92 of 2003) (MANU/GJ/0239/2003) rel.

Qaiser Imam Chaudhry, Shuja Ullah Gondal and Ehtisham Aslam Khan for Petitioner.

2023 P Cr. L J 1310

[Islamabad]

Before Mohsin Akhtar Kayani, J

MUHAMMAD SHAHZAD KHALIQ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 151 of 2020, decided on 14th January, 2022.

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

----Ss. 292-A, 292-C, 337-B & 506(ii)---Sexual exploitation of minors, making porn videos of minors---Appreciation of evidence---Recovery of mobile phone, SIMs and pistol from the possession of the accused---Reliance---Accused was charged that he along with his co-accused made a nude video clip of the son of complainant and thereafter forced him to commit immorality, else they would spread his video clip---Investigating Officer recovered mobile phone with two SIMs---Complainant was cross-examined at length, who remained consistent on all material points qua the recovery of pistol, mobile phone and two SIMs---Investigating Officer also arrested co-accused and got recovered his mobile phone, which was also used for making the alleged nude films and pictures of several minors, though it was not the case of prosecution that on a particular date or time the alleged made films were made, but the recovered mobile phone was transmitted to Forensic Expert of FIA after getting permission from concerned police official for forensic analysis---As a result whereof, the Forensic Expert Report as well as USB had been brought on record by the prosecution---Extraction summary of mobile phone revealed that 22800 images and 839 videos were recovered---However, the detailed summary appended with present case confirmed making of porn videos of a hundreds of minors, who had been seduced and sexually exploited, allegedly raped by the accused, who was also present in majority of the videos and photo images with minor girls and boys---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of reasonable doubt---Appeal against conviction was dismissed accordingly.

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

----Ss. 292-A, 292-C, 337-B & 506(ii)---Sexual exploitation of minors, making porn videos of minors---Appreciation of evidence---Accused was charged that he along with his co-accused made a nude video clip of the son of complainant and thereafter forced him to commit immorality, else they would spread the video clip---Testimony of complainant's son and other victims revealed that they were sexually abused, their videos were recorded, whereafter they were blackmailed by accused and co-accused---All the extracted artifacts summary had been provided in the court of law containing the images of accused with several minor children---Such aspect clearly established that the sexual exploitation was not limited to the extent of victims who appeared before the Court, rather hundreds of children had been victimized at the hands of accused, who had not only recorded the obscene videos or images, rather allegedly committed rape/sodomy with those minors, though the charges of rape had not been proved against the accused as he had been acquitted in terms of S. 377, P.P.C., but that did not absolve the accused from the heinousness of the crime of sexually seducing them and exploiting them through their videos and blackmailing them for his unnatural lust---There was no need for summoning of all those victims in such type of crimes where technical evidence of preparing of obscene photographs/videos was available from any information technology system or through any electronic means in any manner and had been confirmed from the Forensic Expert through technical reports---Appeal against conviction was dismissed accordingly.

Ch. Haseeb Muhammad for Appellant.

Barrister Muhammad Mumtaz Ali, A.A.G.

Ms. Khadija Ali, State Counsel.

Umer Ali Satti for the Complainant.

Tariq Pervez, Additional Director, FIA, Masood Ali, Dy. Director, FIA, Arbab Arshad Saeed, A.D., FIA and Muhammad Saqib/ASI for Respondent.

2023 PCr. L J 1536

[Islamabad]

Before Mohsin Akhtar Kayani and Arbab Muhammad Tahir, JJ

ADAM AMIN CHAUDHRY and another---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU (NAB) ISLAMABAD through Chairman and 29 others---Respondents

Writ Petition No. 3787 of 2022, decided on 19th January, 2023.

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

----Ss. 5(o), 5(s), 9(a)(ix) & 16(e), proviso [as inserted by National Accountability (Amendment) Act (XI of 2022)]---Cheating members of public at large---National Accountability Bureau---Jurisdiction---Supplementary Reference---Scope---Matters involving value of less than five hundred million Rupees and where victims of offence under S. 9(a)(ix) of National Accountability Ordinance, 1999, are less than one hundred persons, the jurisdiction of Bureau has been ousted---Bar has been imposed on filing of supplementary reference, except where investigation reveals new facts and that too with the permission of Accountability Court.

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

----S. 16(e), proviso [as inserted by National Accountability (Amendment) Act (XI of 2022)]---Expression "new facts"---Connotation---Transfer of References---Supplementary Reference, filing of---Principle---Expression "new facts" means the "facts" that have not been previously submitted in the proceedings---In matters where during investigation new facts have emerged, the Bureau is at liberty to seek permission of Accountability Court for filing supplementary reference(s) in accordance with the spirit of proviso to S. 16(e) of National Accountability Ordinance, 1999 (since amended)---In such an eventuality, Accountability Court concerned has to decide, in accordance with law, whether to grant permission for filing of supplementary reference or not.

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

----S. 4(3) [as inserted by National Accountability (Amendment) Act (XI of 2022)]---Expressions "transferred" and "competent Court"---Fate of References pending trial---Scope---Expression "transferred" used in S. 4(3) of National Accountability Ordinance, 1999 (as amended), is in relation to "a competent court" and not the Bureau---Amendments have ousted jurisdiction of Accountability Courts in some cases while other Courts can still take cognizance of the matter---If Accountability Court lacks jurisdiction, even then proceedings have to be transferred to a competent court under the respective laws---This is the explicit mandate of law.

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

----Ss. 4(3) [as inserted by National Accountability (Amendment) Act (XI of 2022)] & 12---Criminal Procedure Code (V of 1898), S. 369---Return of Reference---De-freezing of properties---Review of order---Scope---Petitioners were facing trial before Accountability Court and their properties were frozen under S. 12 of National Accountability Ordinance, 1999---Accountability Court in view of S. 4(3) of National Accountability Ordinance, 1999 [since amended] returned the Reference to NAB---Petitioners sought de-freezing of their properties as provisions of National Accountability Ordinance 1999, were no longer applicable---Validity---Order whereby Reference was returned did not indicate the competent forum to proceed with the matter---Order of returning the Reference to Bureau was in violation of S. 4(3) of National Accountability Ordinance, 1999 (since amended)---Accused persons and victims were left unattended and without remedies---It was duty of Bureau and Accountability Court to have worked out and determine the forum competent to adjudicate Reference and then to order transfer of the Reference for further proceedings---Order whereby Reference was returned by Accountability Court to the Bureau did not contain conclusive determination of guilt or innocence of accused and was not a "judgment", therefore, bar contained under S. 369, Cr.P.C. was not attracted---In absence of any explicit prohibition on review or recall of an interim order, which was passed in violation of explicit provision of law, such interim order could be reviewed and recalled by concerned Court to secure the ends of justice---Provision of S. 4(3) of National Accountability Ordinance, 1999 [since amended] mandated transfer of pending matters and did not envisage return of References to the Bureau---Transfer of pending matters under S. 4(3) of National Accountability Ordinance, 1999 [since amended] from Accountability Court did not amount to acquittal or discharge---High Court directed National Accountability Bureau to render every possible assistance to Accountability Court in complying with S. 4(3) of National Accountability Ordinance, 1999 [since amended], to Courts competent to proceed with the matter---High Court declined to interfere in freezing order passed by Accountability Court---Constitutional petition was dismissed, in circumstances.

Muhammad Akram v. Mst. Zainab Bibi 2007 SCMR 1086 and Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 rel.

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

----S. 369---Term "judgment"---Connotation---Term "judgment" is the conclusive determination of guilt or innocence of an accused in a criminal case by a Trial Court.

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

----S. 4(3) [as inserted by National Accountability (Amendment) Act (XI of 2022)]--- Interim orders--- Altering/amendment--- Principle---Any order passed by Accountability Court in a matter pending before it, can only be altered/amended by a competent court which subsequently takes cognizance of the matter.

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

----Ss. 4(3) & 17 [as inserted by National Accountability (Amendment) Act (XI of 2022)]---Transfer of proceedings---Scope---Matters can only be transferred from Accountability Courts to other competent Courts.

Sardar Abdul Raziq Khan for Petitioners.

Jehanzaib Khan Bharwana, Additional Prosecutor General Accountability, Sardar Muzaffar Abbasi, Deputy Prosecutor General Accountability and Muhammad Rafey Maqsood, Special Public Prosecutor, NAB.

Adnan Khan Tahir for other Respondents.

Barrister Munawar Iqbal Duggal, Additional Attorney General, Naseem Saqlain, Assistant Attorney General and Usman Ghuman, Assistant Attorney General.

Hassan Raza Khan, DIG/Acting IG, ICT Police, Basharat Shahzad, Additional Director General, NAB, Masood Naseem, Additional Director (Law), FIA, Waqas Rasool, Dy. Director (Law), FIA, Syed Tahir Abbas Kazmi, Law Officer, ICT Police and Qazi Atif Naseer, AD/I.O., NAB.

2023 P Cr. L J 1650

[Islamabad]

Before Mohsin Akhtar Kayani, J

AMIR SAJJAD and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 107, 240 and Criminal Revision No. 72 of 2019, decided on 17th November, 2020.

Penal Code (XLV of 1860)---

----Ss. 316 & 344--- Qatl shibh-i-amd, wrongful confinement---Appreciation of evidence---Custodial torture---Accused persons were police officials and deceased died in their custody during investigation of a criminal offence---Trial Court convicted both the accused persons---Validity---Qatl shibh-i-amd was applicable in those cases where death was caused but injuries did not result into death in ordinary course of nature---Torture on the body of deceased was apparent which was in line with medical evidence---Custody of deceased was taken by accused persons from territorial jurisdiction of other police station without warrants of arrest---Accused persons failed to provide due medical care and attention to deceased---Accused persons as police officials were custodian of life and property of citizens but were negligent in their duties and involved in criminal activities---Trial Court rightly convicted accused persons for Qatl shibh-i-amd of deceased and charge under S. 344, P.P.C., was also rightly imposed for wrongful confinement of deceased---Accused persons as officials of police department were under heavy onus to prove that they were performing official duties in accordance with law but they failed to justify any such action rather were found guilty of criminal misconduct though no such charge was framed---High Court declined to interfere in conviction and sentence awarded to accused persons by Trial Court---Appeal was dismissed, in circumstances.

Ghulam Nabi v. The State 2020 YLR 985; Hidayat Ullah v. The State 2020 PCr.LJ Note 53; Hafiz Amjad Saeed v. The State 2018 YLR 2181; Nisar Ahmad v. The State 2016 PCr.LJ 1928; Jumman v. The State 2014 PCr.LJ 165; Ahmad Sher v. The State 2007 PCr.LJ 440; Muhammad Nawaz v. The State 2003 MLD 1409; Asma Bibi v. The State 2000 YLR 2909; Jalal-ud-Din v. The State 1996 MLD 204; Saddam Hussain v. The State PLD 2020 SC 310 and Ghulam Sarwar Zardari v. Piyar Ali alias Piyaro 2010 SCMR 624 rel.

Syed Kamran Hussain, proxy counsel for Appellant No. 1.

Shaukat Mehmood Malik and Raja Aamir Shahzad for Appellant No. 2.

Hasnain Haider Thaheem, State Counsel.

Saif ul Islam Sindhu for the Complainant.

S. Ishaq, Inspector for the State.

2023 P Cr. L J 1712

[Islamabad]

Before Miangul Hassan Aurangzeb and Arbab Muhammad Tahir, JJ

GUL TAJ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 1 of 2022, decided on 8th September, 2022.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 340(2)---Recovery of narcotic substance---Appreciation of evidence---Specific plea---Proof---Heroin weighing 2500 grams was recovered from accused---Trial Court convicted the accused and sentenced him to imprisonment for seven years---Plea raised by accused was that investigating officer was biased against him which resulted in registration of present case---Validity---Right from the recovery till deposit in NIH Laboratory Islamabad, chain of safe transmission of narcotic samples and custody was established without any doubt---Contraband was recovered on 4.7.2020 and within two days deposited in NIH Laboratory on 6.7.2020 and during intervening period it remained in safe custody---In order to substantiate alleged biasness of investigating officer, not a single question was put to any of the prosecution witnesses that accused apprehended from the place as pleaded or was kept in illegal confinement along with two others---In absence of statement of accused in terms of S. 340(2), Cr.P.C. and any defense evidence, plea taken by accused was nothing but a bald statement---Prosecution successfully proved its case beyond any shadow of doubt, in circumstances---High Court declined to interfere in conviction and sentence awarded by Trial Court to accused as recovery of huge quantity of narcotics; happening of occurrence; separating samples from each packets in prescribed manner; sending the same to NIH Laboratory without any break in chain; and reports of NIH Laboratory confirmed nature of contraband as heroin--- Appeal was dismissed, in circumstances.

2018 SCMR 2039; 2015 SCMR 291; 2019 SCMR 326; 2021 SCMR 451; 1989 PCr.LJ 601; 2009 PCr.LJ 1334; 2021 PCr.LJ 1294; 2021 PCr.LJ 811 and 2021 YLR 662 ref.

State through Advocate General Sindh v. Bashir and others PLD 1997 SC 408; Zafar v. The State 2008 SCMR 1254; Muhammad Rasool v. The State 2022 SCMR 1145 and Faisal Shahzad v. The State 2022 SCMR 905 rel.

Muhammad Ilyas Khan for Appellant.

Jamil Fayyaz, State Counsel with Muhammad Nawaz, S.I, Police Station Tarnol, Islamabad for the State.

2023 P Cr. L J 1763

[Islamabad]

Before Aamer Farooq, C.J. and Sardar Ejaz Ishaq Khan, J

AKHUANZADA SHAHID ALI QURESHI---Petitioner

Versus

JUDGE SPECIAL COURT (OFFENCES IN BANKS), ISLAMABAD and others---Respondents

Writ Petition No. 1642 of 2023, decided on 5th July, 2023.

Criminal Procedure Code (V of 1898)---

----Ss. 51, 343 & 523---Federal Investigating Agency Act, 1974 (VIII of 1975), S. 5(5)---Penal Code (XLV of 1860), Ss. 409, 420 & 489-F---Return of property---De-freezing of accounts---Criminal breach of trust and cheating and dishonoring of cheque were the allegations against petitioner/accused---Grievance of petitioner/accused was that Trial Court declined to return his mobile phone and did not unfreeze his Bank accounts---Validity---Phone was not case property and was seized on search of petitioner/accused on his arrest---Such article constituted property taken under S. 51, Cr.P.C., for the purposes of S. 523, Cr.P.C.---Investigating officer was bound under S. 523, Cr.P.C., to report seizure of mobile phone forthwith to Magistrate, who was to then pass order respecting custody and production of the phone---Inordinate retention of phone was tantamount to influencing accused to induce him to disclose conversations in his knowledge---As the Federal Investigating Agency had not gathered any conversation or message from devices other than the accused's phone purported to have originated or terminated from or at the accused's phone to corroborate Federal Investigating Agency's assertion, stance of Federal Investigating Agency was merely a fishing trip, made all the more lucrative given that phone in question was an expensive phone---Accounts did not contain more than a few hundred thousand Rupees, whereas alleged crime was in the sum of approximately Rs.250 million---High Court directed Federal Investigating Agency to return mobile phone of petitioner/accused and to unfreeze his Bank accounts---Order passed by Trial Court was set aside---Constitutional petition was allowed accordingly.

Alpha Insurance Company Limited v. United Insurance Company of Pakistan Limited 1996 SCMR 1668 rel.

Ghulam Farooq Awan for Petitioner.

Raja Rizwan Abbasi for Respondent No. 2.

2023 P Cr. L J 25

[Sindh (Hyderabad Bench)]

Before Irshad Ali Shah, J

SUDHEER through Senior Superintendent, Central Prison, Hyderabad---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-233 of 2017, decided on 2nd February, 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 two days in lodging the FIR---Effect---Allegedly accused with and co-accused, in furtherance of their common intention committed murder of the deceased and then misappropriated his wrist watch and mobile phone---Record showed that the FIR of the incident had been lodged with a delay of about two days---No plausible explanation to such delay had been offered by the complainant, therefore, such delay could not be lost sight off, which reflected consultation and deliberation---Appeal against conviction was allowed, in circumstances.

Mehmood Ahmed and others v. The State and another 1995 SCMR 127 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---Benefit of doubt---Delay of about four days in recording the statement of witnesses---Effect---Allegedly accused with co-accused, in furtherance of their common intention, committed murder of the deceased and then misappropriated his wrist watch and mobile phone---Statements of witnesses was recorded under S. 161, Cr.P.C., by the police with delay of four days after FIR---Such delay having not been explained plausibly could not be ignored, which had made credibility of the witnesses doubtful---Appeal against conviction was allowed, in circumstances.

Abdul Khaliq v. The State 1996 SCMR 1553 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Allegedly, accused with co-accused, in furtherance of their common intention, committed murder of the deceased and then misappropriated his wrist watch and mobile phone---Investigating Officer stated that the complainant and his witnesses by making further statements declared co-accused persons to be innocent---Said fact would go to suggest that the complainant and his witnesses were actually not certain about the real culprits of the incident while reporting the incident to police in first instance---Witness was examined by the prosecution to prove the grudge between the accused and the deceased and as per his statement under S. 161, Cr.P.C., which was recorded by the police after the delay of four days---No explanation to such delay was offered by the prosecution therefore, no reliance could be placed upon evidence of said witness having been introduced later on---Record transpired that on the basis of same evidence co-accused had been acquitted while the accused had been convicted which appeared to be surprising---Prosecution, in circumstances, had not been able to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Sardar Bibi and others v. Munir Ahmed and others 2017 SCMR 344 and Muhammad Mansha v. The State 2018 SCMR 772 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of incriminating material---Scope---Allegedly, accused with co-accused, in furtherance of their common intention committed murder of the deceased and then misappropriated his wrist watch and mobile phone---Investigating Officer stated that wrist watch, mobile phone and two currency notes of Rs. 500/-belonging to the deceased were secured from the accused---Said recovery was made on 3rd day of the arrest of the accused---Recovery made with delay could hardly strengthen the case of prosecution---Investigating Officer, however was belied in his version so far preparation of mashirnamas of recovery---Prosecution witness/mashir by admitting to suggestion that all the mashirnamas were prepared by the munshis and not by the Investigating Officer---Prosecution had not been able to examine munshi being author of any of such mashirnama---Performance of the Investigating Officer in the case was only to the extent of table investigation---Even otherwise, no question had been put to the accused during course of his examination under S. 342, Cr.P.C., to have his explanation on alleged recovery and reports of Chemical Examiner and Finger Print Expert---Recovery and expert reports, therefore, could not be legally used against the accused--- Appeal against conviction was allowed, in circumstances.

Sher Muhammad v. The State 1999 SCMR 697 rel.

Syed Zeeshan Hyder Shah for Appellant.

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

2023 P Cr. L J 73

[Sindh (Larkana Bench)]

Before Zulfiqar Ali Sangi, J

ABDUL MANAN---Applicant

Versus

The STATE---Respondent

Ist Criminal Bail Application No. S-485 of 2020, decided on 11th January, 2021.

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

----S. 497---Penal Code (XLV of 1860), Ss. 354, 509, 506-B, 337-A(i) & 337-B---Assault or criminal force to woman with intent to outrage her modesty, causing sexual harassment, criminal intimidation, shajjah-i-khafifah, jurh---Bail, refusal of---Accused was charged for removing the "Hijab" of daughter of the complainant with bad intention and putting his hands on her body and sexually harassing her by biting her cheek---First Information Report was registered promptly on the same day---Victim girl was examined by the Medical Officer on the same day which itself suggested that there was no chance to concoct false story or to consult someone else for falsely implicating the accused-petitioner---Accused-petitioner was nominated in the FIR with specific role of putting hands on the body of the girl aged about 16/17 years and put force on her for sexual abuse so also bit her on right cheek in the street while she was returning from tuition centre---Allegations made in the FIR were supported by the witnesses and the victim in their statements under S. 161, Cr.P.C., recorded during the investigation---Victim girl was examined by the Medical officer who found the human bite mark on her right cheek and kind of weapon was also mentioned in the certificate as human teeth while duration of injury observed as fresh---No suggestion on behalf of the accused-petitioner was available that he was involved on the basis of some enmity or ill-will with the complainant party---Though in the FIR S. 377-B, P.P.C., was not added but from the contents of FIR the same was applicable--- Investigation Officer, after conducting the investigation, had added the S. 377-B, P.P.C., in the charge-sheet prepared under S. 173, Cr.P.C.---Accused-petitioner had indeed committed a most heinous offence and there could be no redemption or compensation for the victim because she would have to live with the worst scars that one could imagine---Sufficient grounds were available to believe that the accused-petitioner was connected with the commission of offence which fell within the ambit of prohibitory clause of S. 497, Cr.P.C., disentitling the accused-petitioner from the concession of bail---Bail application was dismissed accordingly.

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

----Ss. 497 & 498---Bail---Principle---Bail plea is to be decided on the basis of material available on record tentatively and the deeper appreciation of evidence is not permissible under the law.

Habibullah G. Ghouri for Applicant.

Abdul Ghaffar Shaikh and Barrister Akhtar Hussain for the Complainant.

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

2023 P Cr. L J 111

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Amjad Ali Sahito, JJ

STATE/ANTI-NARCOTICS FORCE through Assistant Director and another---Applicants

Versus

IMDAD ALI and others---Respondents

Criminal Revisions Applications Nos. D-19 and D-29 of 2022, decided on 21st September, 2022.

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

----S. 540---Power to summon material witness or examine person present---Scope---Accused filed an application for obtaining CDR (Call Data Record) of complainant's phone from relevant franchise, which was dismissed by the Trial Court---Accused had put questions to the complainant suggesting his presence at district 'K' and not at the spot in district 'H' at the time of incident---Accused had already submitted a copy of CDR of complainant's cell phone in his statement under S. 342, Cr.P.C. but since it was only a photostat copy, he was seeking indulgence of the Court for its verification to have been generated by the relevant franchise---Verification by the relevant franchise of the phone company was not likely to cause any prejudice to the prosecution in that after a document was brought on record it became duty of the Court to consider it and give its opinion in accordance with law which position in the present case could only be achieved after the verification or otherwise of the document---Trial Court was directed to summon some official from the relevant franchise of mobile company---Revision application was disposed of accordingly.

Mian Khalid Perviz v. The State 2021 SCMR 522 ref.

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

----S. 540--- Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Power to summon material witness or examine person present---Scope---Narcotics allegedly recovered from the accused was re-weighed on direction of the High Court---Some discrepancy in its weight was found---Prosecution, in order to address the same, filed an application under S. 540, Cr.P.C. for summoning the Chemical Examiner who had tested the substance and given opinion about it---Prosecution's application was allowed, however, before the Chemical Examiner could be examined, he expired, which necessitated filing of a fresh application for summoning the incumbent Chemical Examiner for such purpose, which application was dismissed through impugned order---Only objection voiced by the accused was that the Chemical Examiner could not be summoned as a prosecution witness but as a court witness---High Court observed that in the background of peculiar circumstances of the case, it was not relevant whether the Chemical Examiner was examined as the prosecution witness or the court witness, what was important, was his opinion regarding discrepancy in the weight of narcotics---Trial Court was directed to summon the Chemical Examiner---Revision application was disposed of accordingly.

Shahnawaz Brohi, Special Prosecutor ANF.

Riazat Ali Sahar for Accused.

2023 P Cr. L J 121

[Sindh (Sukkur Bench)]

Before Fahim Ahmed Siddiqui, J

FAIZ MOHAMMED alias FAIZ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-135 and Criminal Jail Appeal No. S-101 of 2019, decided on 21st December, 2020.

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

----Ss. 365-B, 376 & 343---Criminal Procedure Code (V of 1898), S. 342---Kidnapping, abducting or inducing woman to compel for marriage, rape, wrongful confinement for three or more days---Appreciation of evidence--- Benefit of doubt---Examination of accused---Scope---Accused was charged that he along with the co-accused forcibly dragged the daughter of complainant in the car and under the show of weapons took her to an unknown place and detained her in a room, and all the accused forcibly committed rape with her---In his statement recorded under S. 342, Cr.P.C., the accused had defended himself by stating that the prosecutrix had entered into marital bond with one "M" on her own free-will and accord---Accused, in that respect, had placed copies of certain documents like affidavit of free-will duly signed and having thumb impression of prosecutrix which was sworn before a Justice of Peace, an application filed by the said "M" of the nature of habeas corpus, and statement of the prosecutrix recorded before that court in the aforementioned application---In the application of habeas corpus, the claimant as husband of the prosecutrix levelled allegations that his wife (prosecutrix) was taken away by some unknown persons after beating him while he was kept hostage from five days and released---In the said application, it was alleged that those unknown persons while releasing him had threatened him for not to pursue his wife and they informed him that his wife had been handed over to her father---Not only the proper address of "M" was available in the application of habeas corpus but a copy of CNIC was also annexed with the said application---Such non-associating of the said "M" in the investigation, itself opened the venue of doubt regarding the prosecution case---Circumstances established that the prosecution could not establish the case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Siddique v. The State 2019 SCMR 1048; Muhammad Javed v. The State 2019 SCMR 1920; Ejaz ul Haq v. The State and others 2013 YLR 2563; Muhammad Younas v. The State and others 2015 YLR 2369; Rizwan alias Abu Bakar v. The State 2010 PCr.LJ 1296; Soomer and others v. The State 2018 PCr.LJ 629; Inayatullah v. The State 2002 PCr.LJ 34; Waqar Ahmed v. Shoukat Ali and others 2006 SCMR 1139; Karamat Ali v. The State 2016 PCr.LJ Note 16; Shakeel and 5 others v. The State PLD 2010 SC 47; Khurram Shahzad v. The State PLD 2012 FSC 1; Haji Ahmed v. The State 1975 SCMR 69; Hamid Khan v. The State 1981 SCMR 448 and Mukhtar Ali v. The State 1984 PCr.LJ 1438 ref.

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

----Ss. 365-B, 376 & 343---Kidnapping, abducting or inducing woman to compel for marriage, rape, wrongful confinement for three or more days---Appreciation of evidence---Benefit of doubt---Accused was charged that he along with the co-accused forcibly dragged the daughter of complainant in the car and under the show of weapons took her to an unknown place and detained her in a room and all the accused forcibly committed rape with her---Record showed that the complainant and alleged prosecutrix had taken a stance before the Trial Court that "M" was one of the accused who had committed rape with the prosecutrix---When the police after the investigation had not forwarded the said person as accused, the complainant party did not assert before the trial court for joining the said "M" as an accused in the trial---Said aspect of the case also created doubt regarding the prosecution's story and had given way to the defence theory of false involvement and the narratives of the defence regarding the free-will marriage of "M" and prosecutrix---Allegedly, the complainant party had not tried to falsify the alleged marriage of prosecutrix with "M" by filing a suit for jactitation of marriage---Complainant though claimed the marriage false, but the said registered marriage certificate (Nikhanama) was still intact, which was also sufficient to throw the clouds of doubt upon the prosecution's story regarding the involvement of the accused in the alleged offence---Sufficient material was available on record which created doubt regarding the prosecution case---Complainant party alleged that the accused was a teacher but it had come on the record that he was not teaching the prosecutrix as admitted by the complainant in his statement that the accused was not an employee of a government school---Question arose as to how the prosecutrix came to know about the name of the accused with his profession, the same remained undeciphered during the trial---Circumstances established that the prosecution could not establish the case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 365-B, 376 & 343---Kidnapping, abducting or inducing woman to compel for marriage, rape, wrongful confinement for three or more days---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Scope---Accused was charged that he along with co-accused forcibly dragged the daughter of complainant in the car and under the show of weapons took her to an unknown place and detained her in a room, and all the accused forcibly committed rape with her---There were three different statements of victim on the record---Foremost statement of the victim was recorded before High Court in the habeas corpus petition filed by "M" claiming to be her husband---Second statement of victim was recorded by police during investigation under S. 161, Cr.P.C., while the third statement was recorded during the trial when she was also subjected to cross-examination---Victim in her statement before High Court in habeas corpus petition, had levelled allegation that the accused persons used to say that they would sell her in Punjab but such fact was not mentioned by her in her subsequent statements---Complainant had mentioned in the FIR as well as in the statement of prosecutrix under S. 161, Cr.P.C., that the accused persons were armed with pistols but nothing of the sort was stated before High Court in habeas corpus petition nor the same was uttered by her before the Trial Court---Complainant and Investigating Officer were not in agreement regarding the date, time, and mode of inspection of the place of incident, even they were not in agreement regarding the surroundings of the place of the incident from where the victim was allegedly kidnapped---Brother of the victim/ witness had stated that his father went to lodge FIR on the next day of the order of High Court but the fact was that the FIR was lodged after six days of the date they stated---Circumstances established that the prosecution could not establish the case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 365-B, 376, 343---Kidnapping, abducting or inducing woman to compel for marriage, rape, wrongful confinement for three or more days---Appreciation of evidence---Benefit of doubt---Discrepancies in the evidence of witnesses---Scope---Accused was charged that he along with the co-accused forcibly dragged the daughter of complainant in the car and under the show of weapons took her to an unknown place and detained her in a room, and all the accused forcibly committed rape with her---Record showed that there were several shortcomings in the prosecution case, which were also required to be elaborated---Allegedly, the victim was taken from the highway in the broad daylight but none from the surroundings was examined or produced before the Trial Court as a witness of the incident---Victim was alleged to have been abducted while she was returning from school but the last worn clothes of the victim were not uniform of the school but at that time she was wearing domestic clothes---Although, the Investigator had collected those clothes but the same were not sent to the Chemical Analyzer for ascertaining traces of human semen and no reason for the same was given during the trial---Accused was a young man and a plea of impotency was not taken by him but for such type of offences, he must be medically examined to establish his ability to perform sexual intercourse---Prosecution had alleged in the FIR that the accused persons were armed with lethal weapons but no such thing was recovered from the accused while he remained in police custody for a considerable period---Allegedly, the victim was ravished by the accused and his teammates at an unknown place but during the investigation, the Investigator, despite custody remand of the accused, could not be able to get lead from the accused up to that place, which was allegedly used by them for detaining and ravishing the victim---Investigator was unable to get information about the other unknown culprits from the accused---Circumstances established that the prosecution could not establish the case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

Sohail Ahmed Khoso for Appellant.

Manzoor Hussain N. Larik for the Complainant.

Aftab Ahmed Shar, Additional Prosecutor General for the State.

2023 P Cr. L J 161

[Sindh]

Before Amjad Ali Sahito, J

ZAFAR and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No. 1020 of 2020, decided on 4th August, 2020.

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

----S. 498---Penal Code (XLV of 1860), Ss. 430, 353 & 504---Sindh Irrigation Act (VII of 1879), Ss. 61 & 62---Mischief by injury to works of irrigation or by wrongfully diverting water, assault or criminal force to deter public servant from discharge of his duty, intentional insult with intent to provoke breach of peace, mischief by injury to works of irrigation or by wrongfully diverting water, damaging canal, endangering stability of canal---Pre-arrest bail, refusal of---Record showed that the names of the accused-petitioners transpired in the FIR with specific role of damaging government water course and also breaking the water supply---Further, the present accused-petitioners caused destruction of watercourse and changed the dimension of the supply of water for agricultural purpose with intention to cause loss to the public exchequer---Complainant when enquired from the accused-petitioners why they were breaking the water course constructed by the government to which the accused persons abused him by pulling from his neck, they asked complainant that they would commit theft of water and complainant could do whatever he wanted---Prosecution witnesses in their statements fully supported the version of the complainant---Prima facie, sufficient material was available on the record to connect the accused-petitioners with the commission of offence---Accused-petitioners had failed to point out any ill-will on the part of prosecution for false implication of the accused-petitioners in the case---Accused-petitioners had failed to make out a case for grant of pre-arrest bail, therefore, ad-interim pre-arrest bail granted to the accused-petitioners was recalled.

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

----S. 498---Pre-arrest bail---Principle---Concession of pre-arrest bail could not be allowed to an accused person, unless the court was satisfied with the seriousness of the accused person's assertion regarding his intended arrest being actuated by mala fide on the part of the complainant party or the local police.

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

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

----S. 497(2)---Bail---Observations made in bail order were tentative in nature and same would not influence the trial court while deciding the case of the accused on merits.

Aizaz Hussain Shah for Applicants.

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

2023 P Cr. L J 186

[Sindh]

Before Mohammed Karim Khan Agha and Irshad Ali Shah, JJ

JAHANZEB KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 368 and Confirmation Case No. 14 of 2019, decided on 14th September, 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---Sentence, reduction in---Delay of four hours in lodging FIR---Scope---Accused was charged that he along with co-accused made firing upon the complainant party, due to which cousin of the complainant died while complainant sustained injuries---Record showed that the FIR was lodged with promptitude within four hours of the incident---During that period the complainant who was injured had been taken to the hospital along with the deceased where his S. 154, Cr.P.C. Statement was recorded at the hospital on the arrival of the police and thereafter his FIR was lodged---Thus, there was no unexplained delay in the lodging of the FIR which would give the opportunity to the complainant or the police to cook up a false case against the accused for which the prosecution gained no advantage---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Prosecution had not been able to prove through evidence the motive for the accused murdering the deceased or attempting to murder complainant---Whether it was the pistol shot of accused which caused the fatal wound on the deceased which caused his death was not clear--- Death penalty was reduced to life imprisonment, in circumstances---Appeal was dismissed with modification in sentence.

Muhammad Nadeem alias Deemi v. The State 2011 SCMR 872 rel.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention--- Appreciation of evidence---Sentence, reduction in---Accused was charged that he along with co-accused made firing upon the complainant party, due to which, cousin of the complainant died while complainant sustained injuries---Complainant of the case was also injured at the scene at the time when the deceased was murdered---Complainant knew the accused, it was a day light incident and he was not far away when the accused shoot the deceased so there was no case of mistaken identity and no need to hold an identification parade even after a period of two years especially as he named the accused with specific role in the promptly lodged FIR---Fact remained that the complainant could see the incident clearly was corroborated by the evidence of the other eye-witness who also saw the accused shooting the deceased and the complainant---Since, it was a day light incident and the complainant and other eye-witnesses knew the accused they would have had no difficulty in identifying him especially as the attack went on for a few moments and they were close to the accused at the time of the shooting---Death penalty was reduced to life imprisonment, in circumstances.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention--- Appreciation of evidence---Sentence, reduction in---Related and interested eye-witness---Scope---Accused was charged that he along with co-accused made firing upon the complainant party, due to one person died while complainant sustained injuries---Admittedly, the eye-witness was related to the deceased who was his cousin, however, evidence of related witnesses could not be discarded unless there was some ill will or enmity between the eye-witnesses and the accused, which had not been proven in the case by any reliable evidence---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Prosecution had not been able to prove through evidence the motive for the accused murdering the deceased or attempting to murder the complainant---Whether it was the pistol shot of accused which caused the fatal wound on the deceased which caused his death was not clear---Death sentence of the accused was reduced to one of life imprisonment, in circumstances---Appeal was dismissed with modification in sentence.

Imran Ashraf and 7 others v. The State 2001 SCMR 424; Abdul Rehman and others v. The State 1983 SCMR 958; Mst. Sabeeha v. Ibrar and others 2012 SCMR 74; Mir Muhammad alias Miro v. The State 2009 SCMR 1188; Ghulam Mohy-ud-din alias Haji Babu and others v. The State 2014 SCMR 1034; Malik Amir Muhammad Khan through L.Rs. and others v. Muzaffar Jan alias Muzaffar Khanum and others 2008 SCMR 705; Muhammad Waris v. The State 2008 SCMR 784; Takdir Samsuddin Sheikh v. State of Gujarat and another 2012 SCMR 1869; Zakir Khan and others v. The State 1995 SCMR 1793; Haji Khan and 2 others v. The State and others and 1991 PCr.LJ 2110; Khizar Hayat v. The State 2011 SCMR 429; Muhammad Ehsan v. The State 2006 SCMR 1857; Khadim Hussain v. The State 2010 SCMR 1090; Muhammad Mansha v. The State 2001 SCMR 199 and Sikandar Ali Lashari and another v. The State SBLR 2020 Sindh 981 ref.

Ashfaq Ahmed v. The State 2007 SCMR 641; Ijaz Ahmed v. The State 2009 SCMR 99 and Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152 rel.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention--- Appreciation of evidence---Sentence, reduction in---Ocular account supported by medical evidence---Accused was charged that he along with co-accused made firing upon the complainant party, due to one person died while complainant sustained injuries---Evidence of three eye-witnesses was corroborated by a Police Officer/witness who was informed that two of his relatives had sustained fire arm injuries by the accused and as such he rushed to hospital where he had seen complainant being treated in emergency and had seen the dead body of the deceased which was handed over to him---Other independent witness also corroborated the said evidence---Official witness stated that he saw the gunshot wounds on the deceased body which tied in with the eye-witness evidence---Said witness was also mashir to the S. 174, Cr.P.C report and stated that some of the gunshot wounds were caused by bullets whilst others were caused by pellets which tied in with the memo of examination of dead body of which he was mashir---Said witness also recorded his statement under S. 161, Cr.P.C on the same day which left no room for concoction and also corroborated the fact that the accused according to the eye-witnesses fired on the deceased with a pistol as opposed to a repeater---Medical evidence and post mortem report of Medical Officer fully supported the eye-witness/prosecution evidence as he confirmed that the deceased inquest report was carried out by other Medical Officer which he received from him in the hospital prior to carrying out the post-mortem of the deceased---Medical Officer had not only stated in his evidence that he was called to the hospital on account of gunshot wounds to the deceased and injured but had also exhibited such entry in respect of the same---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Prosecution had not been able to prove through evidence the motive for the accused murdering the deceased or attempting to murder complainant---Whether it was the pistol shot of accused which caused the fatal wound on the deceased which caused his death was not clear---Death sentence of the accused was reduced to one of life imprisonment---Appeal was dismissed with modification in sentence.

(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---Sentence, reduction in---Recovery of crime weapon, crime empty and blood stained earth---Scope---Accused was charged that he along with co-accused made firing upon the complainant party, due to one person died while complainant sustained injuries---Record showed that on his arrest approximately two years later a pistol was recovered from the accused which matched with pistol empties which were recovered at the scene of the crime---Blood stained earth recovered at the wardat and clothes recovered from the deceased were sent for chemical examination which report found the blood recovered at the scene and on the clothes to be human blood---Police witnesses had no enmity or ill will towards the accused and had no reason to falsely implicate him in the case by making up his arrest or foisting the pistol on him---Evidence of the police witnesses, in such circumstances, could be fully relied upon---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Prosecution had not been able to prove through evidence the motive for the accused murdering the deceased or attempting to murder complainant---Whether it was the pistol shot of accused which caused the fatal wound on the deceased which caused his death was not clear---Death sentence of the accused was reduced to one of life imprisonment---Appeal was dismissed with said modification in sentence.

Muhammad Nadeem alias Deemi v. The State 2011 SCMR 872 and Mustaq Ahmed v. The State 2020 SCMR 474 rel.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Contradictions in the statements of witnesses---Scope---Accused was charged that he along with co-accused made firing upon the complainant party, due to one person died while complainant sustained injuries---All the witnesses were consistent in their evidence---Even if there were some contradictions in their evidence which were minor in nature 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 any shadow of doubt---Prosecution had not been able to prove through evidence the motive for the accused murdering the deceased or attempting to murder complainant---Whether it was the pistol shot of accused which caused the fatal wound on the deceased which caused his death was not clear---Death sentence of the accused was reduced to one of life imprisonment---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.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Absconsion of accused---Scope---Accused was charged that he along with co-accused made firing upon the complainant party, due to one person died while complainant sustained injuries---Accused remained an absconder for over two years---Accused did not surrender himself for trial and was arrested in another criminal case before being linked to that case which was not the conduct of an innocent man---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, the prosecution had not been able to prove through evidence the motive for the accused murdering the deceased or attempting to murder complainant---Whether it was the pistol shot of accused which caused the fatal wound on the deceased which caused his death was not clear---Death sentence of the accused was reduced to one of life imprisonment---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Quantum of sentence---Scope---Accused was charged that he along with co-accused made firing upon the complainant party, due to one person died while complainant sustained injuries---Prosecution had not been able to prove through evidence the motive for the accused for murdering the deceased or attempting to murder complainant---Whether it was the pistol shot of accused which caused the fatal wound on the deceased which caused his death was not clear---Death sentence of the accused was reduced to one of life imprisonment---Appeal was dismissed with said modification in sentence.

Mehmood A. Qureshi, Irfan Ahmed Memon and Jamshed Iqbal for Appellant.

Zafar Ahmed Khan, Additional Prosecutor General for the State.

Ahmed Ali Dewan and Shuhabuddin Channa for the Complainant.

2023 P Cr. L J 247

[Sindh]

Before Naimatullah Phulpoto and Abdul Mobeen Lakho, JJ

ALI JAN---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 775 and Confirmation Cast No. 24 of 2019, decided on 5th March, 2021.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Accused was charged for committing murder of the son of complainant---Prosecution heavily relied upon the evidence of two witnesses---Both the prosecution witnesses had no enmity or motive with the accused to falsely implicate him in the case---Both the witnesses were examined by the prosecution as eye-witness of the incident---Said witnesses had fully supported the case of the prosecution---Eyewitness categorically stated that within his sight the accused had committed the murder of the deceased---First Information Report of the incident was lodged within three hours and delay in lodging of the FIR had plausibly been explained---Presence of eyewitnesses was not questionable and was not challenged as both the witnesses were natural witnesses---Medical Officer had also deposed that deceased sustained three injuries at his vital parts by means of sharp edged weapon---According to Medical Officer, time between death and post-mortem was about 03 to 04 hours---Said fact also clearly supported the ocular account---Accused was arrested and led the police party during interrogation and produced dagger---Recovery was effected and sealed in presence of the mashirs---Weapon was dispatched to the Chemical Examiner after four days of the recovery---Report of the Chemical Examiner was positive---Appeal against conviction was dismissed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Accused was charged for committing murder of the son of complainant---Ocular account was supported by medical evidence---Scope---Scrutiny of account furnished by eye-witnesses, showed that they were trustworthy and their statements had rightly been relied upon by the Trial Court---Said witnesses had highlighted each and every aspect of the incident and stood firm to the test of cross-examination and nothing advantageous could be elicited rendering any help to the case of accused---Neither any glaring contradictions in their statements nor any dishonest exaggeration, omission or concealment was found---Ocular account was in line with the medical evidence as the injuries attributed to the accused was caused by sharp edged weapon as reflected in the post-mortem examination of deceased---Occurrence had taken place in day light and FIR in respect of the offence had been lodged on the same date wherein accused had been mentioned as accused---Incident was cold blooded premeditated murder of young person; in such like criminal cases, the whole fate depended on the authenticity of the ocular account and in the present case, both the eye-witnesses had given a straightforward account of the occurrence, which took place---Such close relatives i.e. grandfather and cousin of the deceased were not expected to let the real culprit of their near and dear to go scot-free and would falsely implicate the present accused---During their statements before the Trial Court, both the eye-witnesses remained firm on their statements and they successfully faced cross-examination by the defence---Evidence of eye-witnesses thus were sufficiently reliable and could not be discredited in any manner as they remained straightforward, trustworthy, cogent and confidence inspiring having no malice against the accused---Appeal against conviction was dismissed, in circumstances.

(c) Criminal trial---

----Witness---Corroboration---Principle---Corroboration is a rule of caution and not a rule of law---If the eyewitness account is found reliable and trustworthy then there is hardly any need to look for any corroboration.

Muhammad Waris v. The State 2008 SCMR 784 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Related and interested witnesses---Reliance---Scope---Accused was charged for committing murder of the son of complainant---Close relationship of the witnesses with the deceased had no bearing to discard their testimony, if they were not inimical or interested to falsely implicate the accused, who was also closely related to them---Appeal against conviction was dismissed, in circumstances.

Sheeraz Tufail v. The State 2007 SCMR 518 and Khair Muhammad and another v. State 2007 SCMR 158 rel.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Weapon of offence was recovered on the pointation of accused---Accused was charged for committing murder of the son of complainant---Weapon of offence was recovered on the pointation of the accused---Accused had led the police party for recovery of Chhuri/dagger buried into a garbage dump---Place from where the Chhuri/dagger was recovered was in the exclusive knowledge of the accused---Said Chhuri/dagger was recovered in presence of mashirs---Sealed parcel containing the churri/dagger was sent to Chemical Examiner, its report was positive---Prosecution thus had succeeded to prove safe custody of crime weapon before Trial Court---Appeal against conviction was dismissed, in circumstances.

(f) 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 the son of complainant---Motive as set up in the FIR regarding murder of the deceased was a quarrel which took place between the deceased and accused over selling of charas by the accused in front of the house of deceased---Prosecution evidence transpired that motive asserted by the prosecution in the FIR had been established at trial by eye-witnesses---Complainant died before his evidence---Accused had committed cold blooded murder of a young man by causing multiple blows on vital parts of his body, thus, accused deserved no sympathy in the matter of sentence---Appeal was dismissed, in circumstances.

Saifullah for Appellant.

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

Dilawar Hussain for the Complainant.

2023 P Cr. L J 282

[Sindh]

Before Zafar Ahmed Rajput, J

MAIRAJUDDIN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 1989 of 2021, decided on 29th March, 2022.

Criminal Procedure Code (V of 1898)---

----S. 497--- Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Export of narcotics---Bail, grant of---Scope---Prosecution case was that 240 kilograms of tablets namely Zanax, Valium (Diazepam), Penix, Alprazolam were attempted to be shipped abroad through a container by declaring the goods as titles---Alleged medicines were manufactured by pharmaceutical companies under a licence---Such was yet to be determined at trial as to whether the alleged medicated and therapeutic tablets fell within the definition of narcotic drug or psychotropic substance cognizable under the Control of Narcotic Substances Act, 1997, or it was case of violation of Export Policy, Imports and Exports (Control) Act, 1950 or Customs Act, 1969---Guilt of the accused persons required further inquiry---Accused persons were admitted to post-arrest bail, in circumstances.

Messrs Boots Company Pakistan Limited v. Central Board of Revenue and 3 others 1994 CLC 1144; Muhammad Naeem and another v. The State and others PLD 2019 SC 669; The State/A.N.F. v. Aleem Haider 2015 SCMR 133; Gul Anwar v. The State 2012 MLD 1521; Muhammad Shafique v. The State 1999 PCr.LJ 830; Jamil A. Durrani v. The State PLD 2003 Kar. 393; Saeed Ahmed v. The State 1996 SCMR 1132; Maulana Abdul Aziz v. The State 2009 SCMR 1210; The State through Deputy Director Anti-Narcotic Force, Karachi v. Syed Abdul Qayyum 2001 SCMR 14; Sakina Bibi v. The State 2008 SCMR 1111 and Criminal Bail Applications Nos. 545 and 837 of 2014 ref.

Umar Farooq for Applicant.

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

2023 P Cr. L J 300

[Sindh]

Before Muhammad Iqbal Kalhoro and Abdul Mobeen Lakho, JJ

I.G. GENERAL TRADING (LLC) and another---Petitioners

Versus

PROVINCE OF SINDH through Secretary, Government of Sindh, Land Utilization Department, Board of Revenue, Sindh and 5 others---Respondents

C.P. No. D-5359 of 2019, decided on 7th February, 2022.

National Accountability Ordinance (XVIII of 1999)---

----S. 23---Restriction on change of status of property---Object, purpose and scope---Petitioner companies sought permission to raise construction over land which was subject matter of trial before Accountability Court---Validity---Provision of S. 23 of National Accountability Ordinance, 1999 was an interlocutory measure to prevent persons accused of such offences to frustrate objects of law by creating third party interest in respect of illegally acquired property, thereby creating hurdles in the object of law i.e. to eradicate corruption and corrupt practices and hold accountable all those persons accused of such practices and matters ancillary thereto---Purpose behind such power was to preserve property acquired by accused through corruption and corrupt practices so that ultimately if guilt would be proved the same could be taken back from him in accordance with law---Provision of S. 23 of National Accountability Ordinance, 1999 was also preventive in nature and had prescribed penalties for accused person who attempted to alienate or transfer by any means property after Chairman NAB had initiated investigation, inquiry or proceedings were commenced against him in an Accountability Court---Such were in the nature of protective measures with a view to ensure that final decision was not rendered redundant---Wisdom behind S. 23 of National Accountability Ordinance, 1999 was to preserve the property as it was---Petitioners could not be allowed to alter status prevalent over subject land by making construction which could result into multiple litigations and would change complexion and ground reality of subject land and it was not the scheme of law---High Court in exercise of Constitutional jurisdiction declined to interfere in the matter to be decided by Accountability Court as reference had already been filed in Court--- Constitutional petition was dismissed in circumstances.

Farooq H. Naek along with Qaim Ali Shah for Petitioners.

Shahbaz Sahotra, Special Prosecutor for NAB.

2023 P Cr. L J 323

[Sindh (Sukkur Bench)]

Before Aftab Ahmed Gorar, J

ABDUL KHALIQUE---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-648 of 2020, decided on 30th November, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 114, 147, 148 & 149---Qatl-i-amd, abettor present when offence committed, rioting, armed with deadly weapon, common object--- Bail, grant of--- Role of instigation---Scope---Three co-accused persons were alleged to have committed the murder of deceased by causing pistol fire shot, causing hatchet and spade injuries on his face---Role of instigation and mere presence, being empty handed, is attributed to the accused and he is not alleged to have caused any injury either to the deceased or the complainant party---At the most his case fell under the scope of vicarious liability, which was to be determined by the Trial Court after recording evidence---Case against accused called for further enquiry in terms of subsection (2) of S. 497, Cr.P.C.---Bail application was allowed, in circumstances.

Tariq Zia v. The State 2003 SCMR 958 rel.

Syed Murad Ali Shah for Applicant/accused.

Javed Miandad Chandio for the Complainant.

2023 P Cr. L J 331

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar and Zulfiqar Ali Sangi, JJ

ABDUL MAJEED---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-31 of 2020, decided on 12th February, 2021.

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

----S. 9(c)---Possession of 4000 grams of opium---Appreciation of evidence---Benefit of doubt---Prosecution case was that 4000 grams of opium was recovered from the possession of accused---Record showed that not a single word was found in the evidence of prosecution witnesses as to when and through whom the sample for chemical examination and report was sent, however, Investigating Officer in his examination-in-chief only deposed that he sent the property for chemical examination---Chemical Examiner's Report spoke that parcel was received at laboratory with memorandum from SHO through Head Constable---Prosecution had not examined the said important witness/Head Constable who brought the sample at laboratory which cut the chain of evidence to prove the case against the accused---Prosecution had not proved the safe transmission of the property to the Chemical Examiner, which created serious doubt in its case---Circumstances established that the prosecution had failed to prove its case beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances.

Mst. Razia Sultana v. The State and another 2019 SCMR 1300; Kamran Shah and others v. The State and others 2019 SCMR 1217; Liaquat Ali and another v. The State 2018 PCr.LJ 257 and Mushtaq Ahmed v. The State and another 2020 SCMR 474 rel.

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 ref.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4(2)---Possession of 4000 grams opium---Appreciation of evidence---Benefit of doubt---Delay of nine days in sending the sample for analysis---Safe custody---Scope---Prosecution case was that 4000 grams of opium was recovered from the possession of accused---Recovery was allegedly effected and the sample was sent with the delay of about 09 days which was in violation of R. 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001---Such exercise was required to be completed within 72 hours of the recovery and for that purpose even there was no plausible explanation brought on record by the prosecution as to why such inordinate delay was caused in the completion of that exercise by the Investigating Officer---Said fact was fatal to the prosecution case---Prosecution had also not established the safe custody of the remaining recovered property---Prosecution had not produced the entry in respect of keeping the remaining property in the malkhana nor produced malkhana incharge in witness box to prove safe custody of the same, which was produced before the Trial Court and same had created very serious doubt in the case of prosecution---Circumstances established that the prosecution had failed to prove its case beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Aslam v. The State 2011 SCMR 820; Shamsullah v. The State 2013 MLD 1527 and Javed and 2 others v. The State 2020 YLR 311 rel.

(c) Criminal trial---

----Benefit of doubt---Principle---Prosecution had to prove its case beyond a reasonable doubt---If a single circumstance which created reasonable doubt in the mind of a prudent man came in the evidence of the prosecution, its benefit must go to accused not as a matter of grace or concession but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Asif Ali Abdul Razzak Soomro for Appellant.

Aitbar Ali Bullo, Deputy Prosecutor General for the State.

2023 P Cr. L J 355

[Sindh (Larkana Bench)]

Before Zulfiqar Ali Sangi, J

GHULAM ABBAS MAGSI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-30 of 2014, decided on 19th February, 2021.

(a) Administration of justice---

----Criminal case was to be decided on totality of impressions gathered from the circumstances of the case and not on the narrow ground of cross-examination or otherwise of a witness on a particular fact stated by him.

State v. Rab Nawaz and another PLD 1974 SC 87 rel.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Related and interested witnesses---Scope---Prosecution case was that the accused along with co-accused assaulted on complainant party, due to which, five persons were killed and five persons were injured---Contention was that the witnesses produced by the prosecution were relative and interested, therefore, their evidence could not be relied upon---Such contention had no force as although the witnesses were relative to the complainant but they had no enmity with the accused to involve them in heinous offence where five innocent persons lost their lives---Evidence produced by the prosecution was reliable, trustworthy and confidence inspiring which was supported by the medical evidence---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt--- Appeal against conviction was dismissed accordingly.

Noor Muhammad v. The State 2010 SCMR 97; Ishtiaq Masih v. The State 2010 SCMR 1039; Muhammad Javed v. The State 2016 SCMR 2021; Muhammad Ameer v. Riyat Khan 2016 SCMR 1233; Abdul Jabbar and another v. The State 2019 SCMR 129; Munir Ahmed and another v. The State and others 2019 SCMR 79; Muhammad Arif v. The State 2019 SCMR 631 and Imtiaz alias Taj v. The State and others 2018 SCMR 344 ref.

Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152 rel.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Non-recovery of crime weapon---Scope---Prosecution case was that the accused along with co-accused assaulted on complainant party, due to which, five persons were killed and five persons were injured---Contention was that crime weapon used by the accused at the time of offence was not recovered, therefore, the accused could not be connected with the alleged murders of the deceased---Such contention had no force in view of the fact that all the prosecution witnesses supported the case of prosecution including the injured witnesses by deposing that the accused along with other co-accused directly fired from the repeater which hit the deceased---Four other persons were also killed by the other accused persons and the witnesses also received firearm injuries---Direct evidence of witnesses was further corroborated by medical evidence---Same was further corroborated by the recovery of the empties of .12 bore cartridges from the place of vardat---If charge was proved by other direct, natural and confidence inspiring evidence, then non-recovery of crime weapon was not fatal to the prosecution case---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt--- Appeal against conviction was dismissed accordingly.

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

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

2023 P Cr. L J 395

[Sindh (Hyderabad Bench)]

Before Irshad Ali Shah, J

ABDUL WAHID---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-184 of 2006, decided on 9th November, 2020.

Penal Code (XLV of 1860)---

2023 P Cr. L J 414

[Sindh (Larkana Bench)]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

MASHOOQUE---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-39 and Criminal Reference No. D-6 of 2017, decided on 9th February, 2021.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 504---Constitution of Pakistan, Art. 10-A---Qatl-i-amd, intentional insult with intent to invoke breach of the peace---Appreciation of evidence---Right to fair trial---Accused was charged for committing murder of the brother of the complainant by firing on the allegation of "Karap"---Record showed that counsel for the accused was not present at the time of framing of charge and recording examination-in-chief of the prosecution witnesses---During the framing of the charge and examination in chief of any prosecution witness, it was mandatory that accused was to be represented by legal counsel in a capital case so that his/her rights could be protected---Said fact was moreso in respect of the charge which formed the very foundation of the case against the accused to which he had to defend---Due to absence of counsel inadmissible documents could be admitted into evidence, the witnesses could be tutored and many other prejudicial things to the accused could come on the record---Said facts having not been objected to/challenged by the accused which might not have formed a part of the record if his counsel had been present and might have weakened the prosecution case against him especially in cases such as the present one when the two concerned witnesses were crucial witnesses being eye-witnesses against the accused whose evidence mainly led to his conviction---Absence of counsel for accused during their evidence in chief where they fully implicated the accused in the murder caused great prejudice to the accused---Absence of counsel for the accused when the charge was framed against him and or during the evidence in-chief of a prosecution witness in a capital case, would lead to the case being remanded to the Trial Court---While setting aside convictions and sentences awarded to the accused through impugned judgment---Case was remanded to the Trial Court to conduct a de novo trial.

2023 P Cr. L J 441

[Sindh (Larkana Bench)]

Before Zulfiqar Ali Sangi, J

HYDER ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-16 of 2014, decided on 28th February, 2021.

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

----Ss. 302(b) & 210---Qatl-i-amd, causing disappearance of evidence of offence, or giving false information to screen offender---Appreciation of evidence---Benefit of doubt---Accused was charged for committing murder of his wife---Admittedly, there was no eye-witness of the incident and the FIR was registered by police on spy information---Complainant on receipt of information went to the place of incident which was stated to be the house of accused, but complainant did not enter the house to verify the information received by him nor he inquired from the adjacent houses---Conduct of the complainant, who was a Police Officer, seemed to be doubtful in the given circumstances---Empties and the blood from the house where incident stated to have taken place were not recovered---Even it was not established from the evidence of the witnesses that where and in what manner the incident took place---No independent witnesses were examined including the close relatives of the deceased, who knew that the deceased died and was buried in the graveyard and they also knew that where the graveyard was located---Said fact created very serious doubt in the prosecution case---Complainant also admitted during cross-examination that the relatives of the deceased also came at the time of exhumation of the dead body but he failed to record their statements---Circumstances established that the prosecution had failed to connect the neck of the accused with the crime in any manner whatsoever---Appeal against conviction was allowed, in circumstances.

(b) Criminal trial---

----Medical evidence--- Post-mortem--- Purpose of post-mortem examination was to ascertain the cause of death, number and locale of injuries, kind of weapon used in the crime and duration between injuries and death as well as death and post-mortem, however, medical evidence by itself did not raise finger towards any specific culprit.

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

----Ss. 302(b) & 210---Qatl-i-amd, causing disappearance of evidence of offence, or giving false information to screen offender---Appreciation of evidence---Benefit of doubt---Extra-judicial confession made before the police---Admissibility---Accused was charged for committing murder of his wife---Record showed that the accused made confession before the complainant and the witnesses (all police officials) after his arrest that he committed the murder of deceased---Said confession was inadmissible in evidence under Articles 38 and 39 of the Qanun-e-Shahadat, 1984---No corroboration to the said confession was available---Place of murder was not established---Empties were not recovered---Blood of deceased was also not recovered---No eye-witness of the incident was found---No independent person was examined---Motive too was not proved---Circumstances established that the prosecution had failed to connect the neck of the accused with the crime in any manner whatsoever---Appeal against conviction was allowed, in circumstances.

Sajjan Solangi v. The State 2019 SCMR 872 rel.

(d) Criminal trial---

----Circumstantial evidence---Scope---Prosecution to provide all links in chain an unbroken one, where one end of the same touched the dead body and the other the neck of the accused.

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

2023 P Cr. L J 462

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto, J

AMEER BUX---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-271 of 2019, decided on 2nd April, 2021.

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

----S. 23(1)(a)--- Possession of illegal weapon--- Appreciation of evidence---Benefit of doubt---Prosecution case was that 12-bore pistol and two cartridges were recovered from the possession of the accused---Record reflected that police made no efforts to associate any private person to witness the recovery proceedings---Though the availability of private persons during morning hours around the place of recovery could not be ruled out---Provisions of S. 103, Cr.P.C., were not attracted to the case of personal search but in the present case, omission to take independent mashirs could not be brushed aside lightly---Preparation of maşhirnama was not a formality but it's object was to prevent unfair dealings---Record showed that according to prosecution witnesses in the mashirnama it was mentioned that the pistol without number and two (02) cartridges were recovered from the possession of accused for which he had no licence---Description of the pistol and company of the cartridges had not been mentioned in the mashirnama---Property was also not marked by the Investigation Officer---Report of the Ballistic Expert reflected that the Expert had received five (05) cartridges along with pistol when only two (02) cartridges were secured from the possession of accused, according to the case of prosecution---As to how said three (03) more cartridges were sent to the Ballistic Expert had not been explained---Prosecution had no explanation for such ambiguity---Case property was sent to the Ballistic Expert through Police Constable but he had not been examined---Incharge of Malkhana was also not produced before the Trial Court to prove the safe custody and safe transmission of the weapon to the expert, which was the requirement of law---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

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

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

----S. 23(1)(a)--- Possession of illegal weapon--- Appreciation of evidence---Police witnesses---Scope---Evidence of the Police Officials could not be discarded simply because they belonged to police force---Where the fate of the accused persons hinged upon the testimony of Police Officials alone, it was necessary to find out if there was any possibility of securing independent persons at the relevant time---In the present case, availability of the private witnesses could have been easily arranged, but it was avoided by police---Accused in his statement recorded under S. 342, Cr.P.C., had claimed false implication in the case---Evidence of the Police Officials without independent corroboration would be unsafe for maintaining the conviction, in circumstances.

Saifullah v. The State 1992 MLD 984 rel.

2023 P Cr. L J 481

[Sindh (Larkana Bench)]

Before Mohammed Karim Khan Agha and Zulfiqar Ali Sangi, JJ

ASMATULLAH PATHAN---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-62 of 2019, decided on 17th February, 2021.

(a) 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 narcotic from police to Chemical Examiner---Scope---Prosecution case was that twenty kilograms of charas was recovered from the secret cavities of the vehicle driven by the accused---Recovery was made and sealed on the spot and then taken back by the police to the Police Station where it remained for two days before being taken for chemical examination in sealed condition---During that two days period there was no evidence as to where the narcotic was kept and whether kept in safe custody or not---Neither was the in-charge of the malkhana examined nor was an entry exhibited to prove that the narcotic had been kept safely in the malkhana during that two days' period or any other witness to prove the safe custody of the narcotic in that respect---When the narcotic was taken to the Chemical Examiner the chemical report stated that it was delivered by a witness, however the receipt from the Chemical Examiner revealed that it was delivered by another person which again created doubts about that aspect of safe custody i.e. from the Police Station to the Chemical Examiner---Circumstances proved that the prosecution had not been able to prove safe custody of the narcotic from the time of its recovery to the time it was sent for chemical examination, meaning that opportunity for such narcotic to be interfered with and/or tampered with could not be ruled out---Chemical report could not be safely relied upon to convict the accused, in circumstances---Only half of the available narcotic was sent for chemical testing with no explanation why the remainder was not sent---Mentioning on the chemical report of the protocols used for testing also seemed to be very cursory---Circumstances established that the prosecution had not proved its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

Kamran Shah v. The State 2019 SCMR 1217; Qaiser Javed Khan v. The State through Prosecutor General Punjab PLD 2020 SC 57; Ikramullah v. The State 2015 SCMR 1002; Ameer Zeb v. The State PLD 2012 SC 380; The State through Regional Director ANF v. Imam Bakhsh 2018 SCMR 2039; Khair-ul-Bashar v. The State 2019 SCMR 930; Khuda Bakhsh v. The State 2015 SCMR 735 and Mst. Haseena Baloch v. The State 2018 YLR 32 ref.

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

2023 P Cr. L J 503

[Sindh (Larkana Bench)]

Before Mohammed Karim Khan Agha and Zulfiqar Ali Sangi, JJ

AHSAN MAHAR and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. D-48, Criminal Acquittal Appeal No. D-16 and Criminal Revision Application No. D-43 of 2009, decided on 20th January, 2021.

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

----Ss. 302(b), 337-H(2), 504, 114, 148 & 149---Qatl-i-amd, rash and negligent act, intentional insult with intent to provoke breach of peace, abettor present when offence was committed, rioting armed with deadly weapon, unlawful assembly--- Appreciation of evidence--- First Information Report was lodged with promptitude---Scope---Accused was charged that he and co-accused with common intention, by forming unlawful assembly, duly armed with weapon killed the uncle of the complainant by making firing---Record showed that the FIR in respect of the incident was filed within one hour of the incident---Such prompt filing of the FIR ruled out the possibility of concocting a false case against the accused with the police or any other third party---Even otherwise the complainant had no enmity with the accused and had no reason to falsely implicate him in the case---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b), 337-H(2), 504, 114, 148 & 149---Qatl-i-amd, rash and negligent act, intentional insult with intent to provoke breach of peace, abettor present when offence was committed, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Statements of eye-witnesses---Scope---Accused was charged that he and co-accused with common intention, by forming unlawful assembly, duly armed with weapon killed the uncle of the complainant by making firing---Record showed that it was a day light incident being 7.30 p.m. in the month of May and the eye-witness/complainant knew the accused having seen him at close range and as such there was no need for an identification parade---Complainant stated that the motive behind the attack on his uncle was of children's affair as children belonging to each party had a fighting that day---Evidence of complainant was corroborative of his FIR, which was lodged one hour after the incident and thus, there was no time for him to cook up a false story---No enmity existed between the accused and his party and thus there was no reason to falsely implicate the accused---Accused was also named in the FIR with the specific role of shooting the deceased at his right hand and stomach with a rifle---Eye-witness was a natural witness and not a chance witness---Complainant lodged the FIR with promptitude and named the other eye-witnesses in the FIR, who also gave evidence as prosecution witnesses against the accused with specific roles---Eye-witness had no enmity with the accused and had no reason to falsely implicate him---Evidence of eye-witness was not dented despite lengthy cross-examination---Other eye-witness corroborated the eye-witness in all material respects---Said eye-witness was named in the FIR, which was lodged within one hour of the incident which dislodged any inference that he was not reliable because he gave his statement under S. 161, Cr.P.C after two days, which in any event was not an exorbitant delay based on the particular facts and circumstances of the case where the deceased had to be taken to hospital and then buried---Said eye-witness was also seen by the Investigating Officer within two hours of the incident at the wardat when he came to inspect the wardat, so his presence at the scene could not be doubted---Another eye-witness corroborated eye-witnesses in all material respects except he did not discuss the motive---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

Muhammad Ehsan v. The State 2006 SCMR 1857 rel.

(c) Criminal trial---

----Witness---Related witness---Reliance---Scope---Evidence of related witnesses could not be discarded unless there was some ill will or enmity between the eye-witnesses and the accused.

Ijaz Ahmed v. The State 2009 SCMR 99 rel.

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

----Ss. 302(b), 337-H(2), 504, 114, 148 & 149---Qatl-i-amd, rash and negligent act, intentional insult with intent to provoke breach of peace, abettor present when offence was committed, rioting armed with deadly weapon, unlawful assembly--- Appreciation of evidence---Medical evidence corroborated the ocular account---Scope---Accused were charged that he and co-accused with common intention, by forming unlawful assembly, duly armed with weapon killed the uncle of the complainant by firing---Evidence of Medical Officer fully corroborated the ocular evidence of the eye-witnesses and other witnesses in that the deceased received two bullet wounds with one being to the right hand and one to his abdomen, which firearm injuries led to his death---No blackening around any of the wounds was found which supported the eye-witness evidence that the deceased was not shot from close range but from over 3 feet away---Circumstances established that the prosecution had proved its case against the accused beyond reasonable doubt---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b), 337-H(2), 504, 114, 148 & 149---Qatl-i-amd, rash and negligent act, intentional insult with intent to provoke breach of peace, abettor present when offence was committed, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recovery of weapon and crime empties---Scope---Accused were charged that he and co-accused with common intention, by forming unlawful assembly, duly armed with weapon killed the uncle of the complainant by making firing---Record showed that one day after the incident the accused and two other co-accused were arrested by police on spy information by a bridge where a 7 MM rifle was recovered from the accused along with five 7 MM bullets---Co-accused was arrested unarmed which was the same as his position (unarmed) at the time of the incident as noted in the FIR---Said fact further supported the fact that the arrest took place at the time and place so given in evidence and that the rifle was not foisted on the accused as if that was a false arrest and recovery the police would most probably also have foisted a weapon on co-accused---Two empties of 7 MM were recovered from the wardat and same matched the rifle recovered from the accused by way of a positive Forensic Science Laboratory Report---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b), 337-H(2), 504, 114, 148 & 149---Qatl-i-amd, rash and negligent act, intentional insult with intent to provoke breach of peace, abettor present when offence was committed, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Minor contradictions in the statements of witnesses---Scope---Accused were charged that he and co-accused with common intention, by forming unlawful assembly, duly armed with weapon killed the uncle of the complainant by making firing---All the witnesses were consistent in their evidence---Even if there were some contradictions in their evidence those were considered as 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 reasonable doubt--- Appeal against conviction was dismissed accordingly.

Zakir Khan v. State 1995 SCMR 1793 rel.

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

----S. 417---Appeal against acquittal---Interference---Scope---Judgment of acquittal was not to be interjected unless findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous.

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

(h) Appeal against acquittal---

----Double presumption of innocence--- Interference--- Scope of interference in appeal against acquittal was narrow and limited because in an acquittal the presumption of the innocence was significantly added to the cardinal rule of criminal jurisprudence as the accused shall be presumed to be innocent until proved guilty.

Athar Abbas Solangi for Appellant (in Criminal Appeal No. D-48 of 2009).

Asif Ali Abdul Razak Soomro for the Complainant (in Criminal Appeal No. D-48, Criminal Acquittal Appeal No. D-16 and Criminal Revision Application No. D-43 of 2009).

Saleem Raza Jakhar for Respondent (in Criminal Acquittal Appeal No. D-16 of 2009).

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

Date of hearing: 14th January, 2021.

By this common judgment, we intend to dispose of these three inter connected matters which arise out of the same judgment out of which appellant Ahsan Mahar by filing Cr. Appeal No.D-48 of 2009 has assailed impugned judgment dated 08.7.2009 passed by learned 1st Additional Sessions Judge, Shikarpur in Sessions Case No.375 of 2006 re: State v. Ahsan and others arising out of Crime No.18 of 2006 of Police Station Chak registered for offence under sections 302, 337-H(2), 504, 114, 148, 149, P.P.C. whereby the appellant Ahsan Mahar has been convicted and sentenced to suffer R.I for life and pay fine of Rs.50,000/ =, in case of default in payment thereof, he shall suffer further S.I for six months, however, benefit of section 382-B, Cr.P.C. was also extended to the appellant, while appellant/complainant Mushtaque Ali by filing Criminal Acquittal Appeal No.D-16 of 2009 has assailed same impugned judgment to the extent of acquittal of respondent/accused Allah Bux and he/ complainant by filing Criminal Revision Application No.D-43 of 2009 has sought enhancement of sentence awarded to appellant/accused Ahsan Mahar under same impugned judgment from life imprisonment to death.

1. The prosecution case as unfolded in the FIR is that:

"Complaint is that in the evening time over fight of kids there had become exchange of harsh word between us and Punhal Mahar and others, thereafter at 7-30 p.m, I, my uncle Haji Sodhal son of Allah Dino Mahar aged about 58/60 years, my brother Shaukat Ali and cousin Munawar Ali son of Wali Muhammad Mahar were going together to our home through common street and crossed the houses of accused Punhal Mahar and others, accused namely Ahsan armed with rifle, 2. Master Punhal empty handed, 3. Muhammad Hussain 4. Allah Bux, 5. Muhammad Saleh all of three armed with guns all sons of Dhani Bux Mahar resident of village Mirani taluka Lakhi came out from their house by challenging and assaulted upon us and accused Punhal instigated other accused persons for killing Haji Sodhal, on his instigation accused Ahsan Mahar directly fired from his rifle at my uncle Haji Sodhal with intention to kill, who fell down on the ground, then accused armed with rifle and guns fired from respective weapon over us in order to harass us, we sat down due to fear. Thereafter accused by abusing us and raising slogans went to their house. Thereafter we saw my uncle Haji Sodhal had received fire arm hits on his right arm and abdomen, was bleeding and expired. I left above witnesses over dead body of my uncle Haji Sodhal now am here and lodging FIR that above named accused persons with common intention, by forming unlawful assembly, duly armed with weapons over matter of dispute of children on behest of accused Punhal accused Ahsan Mahar has fired from his rifle directly at my uncle Sodhal and killed him. I am complainant may justice be done."

1. During the course of investigation, accused Ahsan, Punhal and Allah Bux were arrested and sent up to stand trial under charge sheet in which rest of accused Muhammed Hussain and Muhammad Saleh were shown absconders. Formal charge was framed against the accused to which they pleaded not guilty and claimed trial.

2. At the trial, prosecution examined 10 PWs and exhibited numerous documents and other items in order to prove its case. During trial accused Muhammad Punhal expired hence proceedings against him were abated. However, the statements of accused Ahsan and Allah Bux were recorded under section 342, Cr.P.C. in which they claimed their innocence, however, they did not give evidence under oath or call any DW in support of their defence case.

3. On conclusion of the trial, the learned trial court after hearing learned counsel for the parties and appraisal of evidence brought on record, convicted and sentenced the appellant/accused Ahsan Mahar under impugned judgment dated 08.7.2009, while accused Allah Bux was acquitted, giving rise to filing of these appeals against conviction, acquittal and enhancement of appellant Ahsan Mahar's sentence from life to death.

4. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the judgment dated 08.7.2009 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

5. Learned counsel for the appellant has contended that none of the PW eye-witnesses was present at the scene of the incident and that they have fabricated the case against the appellant; that their story is not believable as with so much firing at them all of them managed to escape without receiving any injury; that the appellant and the other co-accused all lived far part and as such they could not have been at the same place at the time of the incident; that the medical evidence contradicts the oral evidence; that there are major contradictions in the evidence of the prosecution witnesses; that the eye-witnesses gave their section 161, Cr.P.C. statements after a substantial period of delay and as such they could not be relied upon; that the rifle was foisted on the appellant by the police; that according to the tapedar who prepared the sketch of the wardat PW 9 Agha Zulfiqar Ali in his evidence he had stated that Punhal made straight fire on the deceased which completely contradicted the eye-witnesses evidence and for any of the above reasons the appellant should be acquitted of the charge by extending him the benefit of the doubt. With regard to the enhancement of his sentence from life to death in the event that this court maintained his conviction he submitted that such enhancement was not justified as the motive had not been fully proven by the prosecution and the crime was not one of particular brutality.

6. Learned counsel for respondent Allah Bux submitted that the grounds for over turning an appeal against acquittal were very narrow which carried a double presumption of innocence and that the only evidence against the respondent was that he was present and had made aerial firing and as such under these circumstances his acquittal should be upheld.

7. On the other hand learned Addl. Prosecutor General and the complainant have fully supported the impugned judgment and contended that the eye-witnesses are all reliable, trustworthy and confidence inspiring and fully implicate the appellant in the murder, that the medical evidence supports the ocular evidence; that the murder weapon was recovered from the appellant; that there were positive FSL and chemical reports and as such the prosecution has proved its case beyond a reasonable doubt against the appellant and the appeal should be dismissed and the conviction and sentences maintained. Learned counsel for the complainant however further submitted that it was a fit case for enhancement of sentence from life imprisonment to the death sentence as it had been proven that the appellant had made direct firing on the deceased and the prosecution had proved the motive for the murder namely the fighting between the parties children and since the death sentence was the rule in such cases he prayed for enhancement of the sentence from life imprisonment to the death sentence. In the appeal against acquittal of Allah Bux the appellant contended that there was more that enough evidence on record to convict him of the offence so charged and as such the respondent Allah Bux should be convicted of murder of the deceased and sentenced accordingly.

8. We have heard the arguments of the learned counsel for the parties, gone through the entire evidence which has been read out by the appellant, the impugned judgment with their able assistance and have considered the relevant law.

9. Based on our reassessment of the evidence of the PW's, especially the eye-witnesses, police PW's, MLO and post mortem report, recovery of rifle from the appellant and empties at the scene and blood stained earth at the scene which lead to a positive FSL and chemical reports we find that the prosecution has proved beyond a reasonable doubt that Haji Sodhal (the deceased) was shot and murdered by firearm at about 7.30 p.m. on 30.05.06 at common street near the house of the accused situated in village Mirani, Taluka Lakhi.

10. The only question left before us therefore is who shot the deceased which lead to his death by firearm injury.

11. After our reassessment of the evidence we find that the prosecution has proved beyond a reasonable doubt the charges against the appellant for which he was convicted for the following reasons;

(a) The FIR in respect of the incident was filed within one hour of the incident and such prompt filing of the FIR rules out the possibility of the complainant concocting a false case against the appellant with the police or any other third party. Even otherwise the complainant had no enmity with the appellant and had no reason to falsely implicate him in a case.

(b) In our view the foundation of the prosecution's case rests on the evidence of the eye-witnesses to the murder whose evidence we shall consider in detail below;

(i) Eye-witness PW 1 Mushtaque Ali. He is the complainant in the case and the nephew of the deceased. According to him the incident took place on 30.05.2006 at about 7.30 p.m. when he, his brother Shaukat, cousin Munawar Ali and his uncle Sodhal (the deceased), were coming from the bus stand towards their village when 5 persons all armed except Punhal instigated the others (all of whom were brothers) to kill the deceased where upon he saw the appellant shoot the deceased with his rifle in his right hand and stomach who after being shot fell to the ground. The other accused fired at them but they hide on the ground and then ran away and on their return found the dead body of the deceased. It was a day light incident being 7.30 p.m. in the month of May and the eye-witness knew the accused who he saw at close range and as such there was no need for an identification parade as the accused was known to him. In his evidence he states that the motive behind the attack on his uncle was on account of children's affairs as children belonging to each party had been fighting that day. His evidence is corroborative of his FIR which was lodged one hour after the incident and thus there was no time for him to cook up a false story. There was no enmity between the accused and his party and thus no reason to falsely implicate the accused. The appellant is also named in the FIR with the specific role of shooting the deceased in his right hand and in his stomach with a rifle.

Admittedly the eye-witness was related to the deceased however it is well settled by now that evidence of related witnesses cannot be discarded unless there is some ill will or enmity between the eye-witnesses and the accused which there was not in this case. In this respect reliance is placed on Ijaz Ahmed v. The State (2009 SCMR 99).

The eye-witness was a natural witness and not a chance witness. He lodged his FIR with promptitude and named the other eye-witnesses in the FIR who also gave evidence as PW's along with the accused with specific roles. He had no enmity with the appellant and had no reason to falsely implicate him. His evidence was not dented despite lengthy cross-examination. At no time during cross-examination was it suggested that he was not present at the scene and in his section 342, Cr.P.C. statement there is only a bare denial. With regard to the eye-witness not being shot this is explained by the fact that he took cover, that the deceased was 8 to 10 paces behind him and was therefore isolated from the group and was the focus of fire and that co-accused Punhal only instigated the other co-accused to shoot at the deceased. Most of the fire at the eye-witnesses was also aerial in nature in order to harass them. He and the other eye-witnesses were able to hide in his house which was close by or a close by pond as shown by the tapedar's sketch. The 5 co-accused were all at the same place at the same time because as per the tapedar's report/sketch they were all living in houses within 20 feet of each other behind the compound and therefore had come out together to avenge the injury to Punhal's daughter. In effect the co-accused were living together. As to the tapedar's statement that Panhal shot the deceased he was not an eye-witness and his evidence is hearsay which is inadmissible. As such based on the above discussion we believe the evidence of this eye-witness especially in terms of his correct identification of the appellant and the appellant's role in the crime. We find his evidence to be reliable, trust worthy and confidence inspiring and we can convict on his evidence alone. In this respect reliance is placed on Muhammad Ehsan v. The State (2006 SCMR 1857).

(ii) Eye-witness PW 2 Shaukat Ali corroborates eye-witness PW 1 Mushtaque Ali in all material respects. He is named in the FIR which was lodged within one hour of the incident which dislodges any inference that he is not reliable because he gave his section 161, Cr.P.C. statement after two days which in any event is not an exorbitant delay based on the particular facts and circumstances of the case where the deceased had to be taken to hospital and then buried. He was also seen by the IO within two hours of the incident at the wardat when the IO came to inspect the wardat so his presence at the scene cannot be doubted and ties in with the complainant's evidence that the other two eye-witnesses were left to stand over the dead body. He again discloses the motive of the killing namely a quarrel had broken out in respect of the affairs of the children between Punhal and them. The same considerations apply to him as to eye-witness PW 1 Mushtaque Ali as discussed above.

(iii) Eye-witness PW 5 Munawar Ali corroborates eye-witness PW 1 Mushtaque Alt - and eye-witness PW 2 Shaukat Ali in all material respects except he does not discuss the motive. Like PW 2 Shaukat Ali he is named in the FIR which was lodged one hour after the incident, gave his section 161, Cr.P.C. statement within 2 days of the incident, was present at the wardat when the police inspected the dead body an hour after the incident and as such the same considerations apply to him as the other two eye-witnesses mentioned above.

Thus, based on our believing the evidence of the 3 eye-witnesses what other supportive/corroborative material is their against the appellant?

(c) PW 4 Ghulam Mustafa who was the son of the deceased was not an eye-witness but found his father's dead body at the scene. His evidence is more believable in our view as he did not pretend to be an eye-witness when he was not which would have been tempting for him keeping in view that the deceased was his father. He corroborates the complainant returning with the police who inspected the dead body of the deceased who recovered empties and secured blood from the scene of the incident and corroborates that his father had received fire arm injuries on his right arm and abdomen which was also inspected by the police. He was a mashir and his name is noted in the mashirnama's of the inspection of the wardat when the dead body was present, empties and blood stained earth recovered. He was not dented in cross-examination and had no enmity with the accused which would lead to him falsely implicating him. We believe his evidence which is also corroborated by the inquest report which slows wounds on the right arm and abdomen which he states he saw in his evidence. His evidence is further corroborated by PW 8 Muhammed Yousaf who was the IO of the case who in his evidence states that he came to the wardat with the complainant and inspected the dead body, noted the injuries, collected blood stained earth, collected empties and prepared the relevant mashirnama's of which PW 4 Ghulam Mustafa was one of the mashir's.

(d) PW 8 Muhammed Yousaf who was the IO was an independent police officer and it was not suggested that he had any enmity or particular friendship or relationship with any of the parties and thus we have no reason to doubt his evidence which is fully corroborative of that of the complainant and PW 4 Ghulam Mustafa regarding his inspection of the dead body and wardat. He also was not damaged despite a lengthy cross-examination.

(e) PW 6 Abdul Razzak who registered the FIR corroborates that the complainant informed him about the motive for the attack. Namely, a dispute between the children which is also recorded in his FIR. He corroborates the statement of the complainant coming to the police station to register the FIR alone.

(f) In our view the medical evidence of PW 3 Dr. Jamil Ahmed fully corroborates the ocular evidence of the eye-witness PW's and other PW's in that the deceased received two bullet wounds with one being to the right hand and one being to his abdomen which firearm injuries lead to his death. There was no blackening around any of the wounds which supports the eye-witness evidence that the deceased was not shot from close range but from over 3 feet away.

(g) That one day after the incident the appellant and two other co-accused were arrested by PW.7 PC Masaud Ahmed and PW.10 SHO Saeed Ahmed on spy information by a bridge where a 7 MM rifle was recovered from the appellant along with 5 7 MM bullets. The fact that co-accused Punhal was arrested unarmed which was the same as his position (unarmed) at the time of the incident as noted in the FIR in our view further supports the fact that the arrest took place at the time and place so given in evidence and that the rifle was not foisted on the appellant as if this was a false arrest and recovery the police would most probably also have foisted a weapon on co-accused Punhal.

(h) Two empties of 7 MM were recovered from the wardat and these matched the rifle recovered from the appellant by way of a positive FSL report.

(i) That there was a positive chemical report in respect of human blood found at the scene.

(j) That all the PW's are consistent in their evidence and even if there are some contradictions in their evidence we consider these contradictions as minor in nature and not material and certainly not of such materiality so as to effect the prosecution case and the conviction of the appellant. In this respect reliance is placed on Zakir Khan v. State (1995 SCMR 1793). The evidence of the PW's provides a believable corroborated unbroken chain of events from the shooting of the deceased, to the registration of the FIR, the inspection of the dead body at the wardat, the post mortem report to the arrest of the appellant with the murder weapon (rifle) supported by positive FSL report and chemical reports. The evidence of no PW was dented on cross-examination let alone damaged.

(k) That it does not appeal to reason, logic or commonsense that close relatives of the deceased would let the real murderer of their uncle go scot free by substituting him with an innocent person.

2023 P Cr. L J 522

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Rashida Asad, JJ

DANISH and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. D-82, D-87, Confirmation Case No. 11 and Criminal Appeal No. S-116 of 2019, decided on 23rd September, 2021.

Penal Code (XLV of 1860)---

----Ss. 354, 376(2), 337-J, 342 & 506(2)---Prevention of Electronic Crimes Ordinance (LXXII of 2007), S. 13(2)---Juvenile Justice System Ordinance (XXII of 2000), S. 5---Assault or criminal force to woman with intent to outrage her modesty, Rape, Causing hurt by means of a poison, Wrongful confinement, Criminal intimidation and Cyber stalking---Appreciation of evidence---Juvenile, trial of---Trial Court framed two separate charges one against adult accused persons and the other against juvenile accused persons---Three female accused persons were acquitted by Trial Court, whereas remaining were convicted and sentenced to imprisonment---Validity---Trial Court committed multiple illegalities while conducting the trial before it---Such illegalities were not curable and had caused serious prejudice to accused persons---High Court with the consent of both the parties set aside judgment against accused persons and matter was remanded to Trial Court for retrial of the case---High Court directed the Trial Court to frame charge afresh and to record evidence of all prosecution witness in both cases---High Court further directed that statements under S. 342, Cr.P.C. of accused persons would be recorded afresh while putting all pieces of evidence brought on record against them by providing a fair opportunity to them to respond the same and also to lead defence evidence if any---Appeal was allowed accordingly.

S.A.K Rehmani v. The State 2005 SCMR 364; Azad Khan and another v. The State 2004 YLR 1076 and Jan Muhammad v. The State Criminal Appeal No.77 of 2020 ref.

2023 P Cr. L J 553

[Sindh (Sukkur Bench)]

Before Fahim Ahmed Siddiqui and Khadim Hussain Tunio, JJ

SAJJAD ALI and others---Petitioners

Versus

ABDUL RAUF and others---Respondents

C.Ps. Nos. D-596, D-135 and Criminal Bail A. No. 35 of 2020, decided on 28th October, 2020.

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

----S. 302---Anti-Terrorism Act (XXVII of 1997), S. 6---Qatl-i-amd---"Terrorism"---Personal enmity---Scope---Allegation against accused persons was that they entered on the land of complainant party, asked them as to why they had failed to pay the extortion money and ultimately caused hatchet and dagger blows to one of the complainant party, which resulted in his death---Occurrence neither reflected any act of terrorism nor was it a sectarian matter, instead the murder in question was committed owing to previous enmity between the parties---Where a murder was committed solely on the pretext of personal enmity, such a murder had no nexus with the provisions of S. 6 of Anti-Terrorism Act, 1997 and was not triable under the same---Allegations of aerial firing did not appear to be a case of terrorism as again the motive of the case was personal vendetta---Intention of the accused did not depict or manifest any act of terrorism as contemplated by the provisions of Anti-Terrorism Act, 1997---Case was triable under the court of ordinary jurisdiction as the prosecution had failed to establish that the accused persons intended to create terror through their actions--- Constitutional petition was allowed and the case was entrusted to Sessions Judge---Constitutional petition was allowed.

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

----S. 6---"Terrorism"---Motive---Scope---Motive and object behind the commission of a crime can be taken as a distinguishing factor in order to determine whether an offence falls within the jurisdiction of a terrorism court or a court of ordinary jurisdiction.

2023 P Cr. L J 583

[Sindh]

Before Aftab Ahmed Gorar, J

FAREED AHMED and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No. 1445 of 2022, decided on 29th August, 2022.

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

----S. 497--- Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Transportation of narcotics---Bail, refusal of---Scope---Prosecution case was that 2.500 kgs of methamphetamine was recovered from a secret cavity designed for concealment from the down side of a bus---Accused persons were munshi/cleaner of the bus---Accused persons must have had knowledge of secret cavities of the bus and the articles lying therein, thus their involvement in trafficking the narcotics could not be ruled out---Red-handed arrest of the accused persons with a considerable quantity of lethal contraband, confirmed by a positive report of Forensic Laboratory, prima facie connected the accused persons with the alleged crime---No enmity, ill-will or grudge had been alleged against the prosecution witnesses; on the contrary, sufficient material had been brought by the prosecution on record---Bail application was dismissed.

Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845; Mst. Nadia v. The State 2012 PCr.LJ 599; Amanat Ali and 2 others v. The State 2008 SCMR 991; Qaisarullah and others v. The State 2009 SCMR 579; Haji Nawaz v. The State 2020 SCMR 687; Hussain Shah and others v. The State PLD 2020 SC 132; Naveed v. The State SBLR 2019 Sindh 1180; Adnan Prince v. The State and another PLD 2017 SC 147; Kamran Shah and others v. The State and others 2019 SCMR 1217; Mst. Razia Sultana v. The State and another 2019 SCMR 1300; Faizan Ali v. The State 2019 SCMR 1649; Abid Mehmood and others v. The State 2017 SCMR 728; Muhammad Tanveer v. The State and another PLD 2017 SC 733; Muhammad Saeed Mehdi v. The State and 2 others 2022 SCMR 282; Muhammad Ijaz v. The State 2022 SCMR 1271; The State v. Javed Khan 2010 SCMR 1989; Saleh Muhammad v. The State PLD 1986 SC 211 and The State v. Zubair and 4 others PLD 1986 SC 163 distinguished.

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

----S. 6---Prohibition of possession of narcotic drugs---Scope---Word "possession" has been used in the Control of Narcotic Substances Act, 1997 in wider sense so as to include transport, dispatch and delivery.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 51 & 9---Possession of narcotics---No bail to be granted in respect of certain offences---Scope---Larger interest of the public and State demands that in case of recovery of contraband stuff, the discretion under S. 497 Cr.P.C. should not be exercised liberally---Control of Narcotic Substances Act, 1997 consolidates and amends the law relating to narcotic drugs and psychotropic substances---Act controls and prohibits the possession, processing and trafficking of these substances---Act lays progressive punishments for narcotic offences and provides for the constitution of Special Courts having exclusive jurisdiction to try narcotic offences---Section 51 of Control of Narcotic Substances Act, 1997 provides that bail shall not be granted to an accused person charged with an offence under the Act or under any other law relating to narcotics where the offence is punishable with death---When the quantity of narcotics exceeds one kilogram, the case falls in Clause (c) of S. 9 of the Control of Narcotic Substances Act, 1997, for which death penalty or imprisonment for life has been provided---Discretion under S. 497, Cr.P.C. can also not be exercised with regard to offences punishable with death or imprisonment for life unless the Court at the very outset is satisfied that such a charge appears to be false or groundless.

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

----S. 497---Bail---Tentative assessment---Scope---Court, for deciding the bail application, has to tentatively assess the record and deeper appreciation of evidence is not required and it will not be fair to go into discussion about the merits of the case.

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

2023 P Cr. L J 611

[Sindh (Larkana Bench)]

Before Zulfiqar Ali Sangi, J

ABDUL WAHEED---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-02 of 2014, decided on 8th February, 2021.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay of about five and an half hours in lodging the FIR---Effect---Accused was charged that he and co-accused committed murder of the cousin of the complainant by firing---Motive behind the occurrence was that accused and deceased had exchanged harsh words with each other on domestic affairs and due to that accused had committed murder of deceased---Record showed that the incident took place at 2.00 a.m. at night time and the FIR was registered on the same day at 07.30 a.m.---Delay if any had been explained by the complainant as at the first instance he arranged for the vehicle and took the dead body to the hospital, leaving the other witnesses---Complainant, thereafter went to police station where FIR was registered---Delay if any was not fatal to the prosecution case, in circumstances---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular account corroborated by medical evidence---Effect---Accused was charged that he and co-accused committed murder of the cousin of the complainant by firing---Ocular account of the incident had been furnished by three eye-witnesses---Complainant being eye-witness deposed that the accused fired upon the deceased from his gun which hit him on his belly who after receiving the firearm injury fell down and expired at the spot---Complainant was cross-examined by the defence at some length but nothing favourable to the accused came on record---Other two eye-witnesses fully supported the version deposed by the complainant in all respects including the identity of the accused at the time of incident, role assigned against the accused, recovery of blood stained earth and the empty of cartridge from the place of incident by the Investigation Officer---Both the eye-witnesses were cross examined at length but their evidence was not shattered by the defence during their cross examination---Evidence of all the said three eye-witnesses was further corroborated by the Medico-Legal Officer, who conducted post-mortem of the dead body of the deceased---Medico-Legal Officer further deposed that after the post-mortem he was of the opinion that death of deceased occurred due to haemorrhage and shock, one injury was sufficient to cause death in ordinary course of life---Eye-witnesses had sufficiently explained the date, time and place of occurrence which was the house of the complainant as well as each and every event of the occurrence---Both the parties were known to each other and were residing in the same vicinity as was evident from their evidence, so there was no chance of mistaken identity of the accused---Record showed that all the eye-witnesses were residing in the same house therefore they were natural witnesses and detailed the incident in a confidence-inspiring manner---No reason had been brought on record by the accused to justify his false implication in the case at the hands of the complainant party---Circumstances established that the prosecution proved its case against the accused beyond a reasonable doubt by producing independent, trustworthy, reliable and confidence-inspiring evidence---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence, crime empties and blood stained earth---Effect---Accused was charged that he and co-accused committed murder of the cousin of the complainant by firing---Mashir was examined by the prosecution in support of the recoveries who deposed that in his presence Investigation Officer inspected the dead body of the deceased and prepared mashirnamas including the danistnama---Recovery of blood stained earth and the empty cartridge was effected from the place of vardat in his presence---Said witness further deposed that on 22-09-2010 Investigating Officer arrested the accused and prepared such mashirnama, who on 26.9.2010 produced the SBBL gun from palal of open plot, which was also sealed by Investigating Officer at spot and prepared mashirnama---Accused disclosed to the Investigating Officer that he used the same gun for committing the murder of deceased---Said witness was cross examined but could not find any substance favourable to the accused---Investigating Officer deposed that he sent the empty cartridge recovered from the place of incident and the gun produced by the accused for Forensic Science Laboratory and received positive report---Blood-stained earth and the clothes of deceased were sent for chemical examination and also received report in positive---Investigating Officer was cross examined at length but nothing favourable to accused was pointed out by the defence---No enmity or ill-will suggested against that witness who was important and independent witness of the prosecution---Circumstances established that the prosecution proved its case against the accused beyond a reasonable doubt by producing independent, trustworthy, reliable and confidence-inspiring evidence in the shape of oral evidence as well as medical evidence coupled with other corroborating evidence so also the recovery of crime weapon and the empty of 12 bore cartridge from the scene of offence with positive Forensic Science Laboratory Report---Appeal against conviction was dismissed accordingly.

Zulfiqar Ahmed and another v. State 2011 SCMR 492 rel.

2023 P Cr. L J 648

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Kausar Sultana Hussain, JJ

MUNAWAR ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-71 and Confirmation Case No. 15 of 2017, decided on 6th April, 2021.

Penal Code (XLV of 1860)---

----Ss. 302(b), 114 & 34---Criminal Procedure Code (V of 1898), S. 231---Qatl-i-amd, abettor present when offence committed, common intention---Appreciation of evidence---Accused was charged that he along with co-accused committed murder of the brother of the complainant---Record reflected that after amendment of the charge evidence of four witnesses already recorded after framing of the first charge was adopted not only by the prosecution but the defence as well---Such adoption of evidence was against the spirit of S. 231, Cr.P.C., which prescribed that if the charge was altered, added or amended, then the witnesses already examined were to be re-called and re-examined/cross-examined on the point of alteration, addition or amendment so made in the charge---In the first charge there was mention of only one deceased but in the amended charge, another deceased was also added---Adoption of evidence was contrary to the law---Procedure adopted by the Trial Court being incurable had not only occasioned in failure of justice, as was defined under subsection (b) of S. 537, Cr.P.C. but had prejudiced the accused in his defence seriously, which was against the mandate contained by Art. 10-A of the Constitution, which guaranteed chance of fair trial and due process to every citizen/accused for determination of his civil/criminal rights and obligations---In view of said legal position, Trial Court had committed illegality while adopting the same evidence which was recorded after framing of the first charge, therefore, conviction and sentence recorded against accused by Trial Court vide impugned judgment was not sustainable in the law therefore, same was set-aside---Case of the accused was remanded to Trial Court for recording the evidence of four witnesses afresh (examination-in-chief, cross-examination and re-examination).

2023 P Cr. L J 671

[Sindh (Larkana Bench)]

Before Naimatullah Phulpoto and Zulfiqar Ali Sangi, JJ

GHULAM ALI alias LAMI and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. D-36 and Criminal Confirmation Case No. D-10 of 2019, decided on 23rd December, 2020.

2023 P Cr. L J 683

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Zulfiqar Ahmed Khan, JJ

BASIT ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-117 of 2021, decided on 27th May, 2022.

2023 P Cr. L J 697

[Sindh]

Before Safdar Saleem Shahid, J

HUMAYUN MIRZA---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION SHAHPUR SADAR, TEHSIL SHAHPUR, DISTRICT SARGODHA and others---Respondents

Writ Petition No. 41397 of 2020, decided on 23rd February, 2022.

2023 P Cr. L J 702

[Sindh]

Before Amjad Ali Sahito, J

AHMED---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 164 of 2018, decided on 1st October, 2020.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Sentence, reduction in---Accused was charged for committing murder of the son of complainant by utilizing stone---Ocular account of the incident had been furnished by sole eye-witness/brother of the deceased---Said witness stated that after committing the murder, the accused went away by jumping over the wall of shrine---Said witness admitted in cross-examination that the boundary wall of the shrine was at about 30/35 foot and again said it was about 20/25 foot---Said witness further admitted that he had seen the accused person from his back while running away after committing themurder---Stone was weighing about 8 to 10 kilos---Ocular evidence found support from the Medical evidence---Claim of the eye-witness that deceased died on the spot, whereas the opinion of the Medical Officer was that the duration between the injury and death was about one and half hour---Nothing had been brought on record by the prosecution to prove that the incident of the altercation between accused and the deceased was ever taken place or reported with the police---Accused had not repeated the stone blows upon the deceased, therefore, it was observed that accused had no intention to kill the deceased as defined in para (b) of S. 302, P.P.C.---Case of accused, in circumstances would come within clause (c) of S. 302, P.P.C.---Appeal was dismissed to the extent of conviction of the accused for an offence under S. 302(b), P.P.C. but his sentence to imprisonment for life was converted into an offence under S. 302(c), P.P.C.--- Consequently, sentence was reduced from life imprisonment to imprisonment for twenty two years.

Muhammad Ibrahim v. Ahmed Ali and others 2010 SCMR 637; Muhammad Arif v. The State 2019 SCMR 631; Imtiaz alias Taj v. The State and others 2018 SCMR 344 and Muhammad Hussain v. The State 2011 SCMR 1127 ref.

Amjad Shah v. The State PLD 2017 SC 152; Zeeshan alias Shani v. The State PLD 2017 SC 165 and Azmat Ullah v. The State 2014 SCMR 1178 rel.

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

----S. 302(b)--- Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd---Appreciation of evidence---Withholding material witness---Effect---Accused was charged for committing murder of the son of complainant by utilizing stone---Record showed that the complainant of the case was not an eye-witness of the incident---Complainant was informed about the incident by a witness but the prosecution had failed to examine that witness---Because of Art. 129 of Qanun-e-Shahadat, 1984 presumption would be that if said witness produced he would have gone against the prosecution---Appeal was dismissed by reducing the sentence from life imprisonment to imprisonment for twenty two years, in circumstances.

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

2023 P Cr. L J 717

[Sindh (Larkana Bench)]

Before Mohammed Karim Khan Agha and Zulfiqar Ali Sangi, JJ

SANAULLAH and others---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeals Nos. D-32, D-33, Criminal Appeal No. D-37 and Confirmation Reference No. D-7 of 2016, decided on 2nd February, 2021.

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

----S. 222---Framing of charge---Object, purpose and scope---Purpose of charge is to inform the accused of the case against him in the manner provided in the sections relating to charge so that the accused know precisely what they are being accused of offence and what time and place said offence occurred, so before the trial they are able to properly and adequately prepare a defence against the charge.

S.A.K Rehmani v. State 2005 SCMR 364; Dur Muhammed v. State 1994 MLD 1493; Jaseem and 2 others v. The State 2008 YLR 717; Dilsher v. The State PLD 2012 Sindh 307 and Muhammad Hayat v. Sabir Sultan, Additional Sessions Judge and others 2004 PCr.LJ 397 rel.

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

----Ss. 302(b), 311, 201 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, disappearance of evidence, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Accused was charged for committing murder of two daughters of complainant due to domestic affairs and concealing their dead bodies---Record showed that admittedly there was no eye-witness to the murders---Admittedly, there was no last seen evidence---No recovery was made from accused in terms of any rope used to strangle the deceased---Motive of karo kari was not proved by any evidence at trial---Trial Court relied upon evidence of a jirga which settled the issue and was published in the newspapers---No evidence was produced at trial that any such jirga took place---No member of the jirga or anyone present at the jirga was produced as a witness---No newspaper clipping in that respect was exhibited and no TV footage to that effect was ever exhibited---Trial Court instead of relying on any evidence adduced at trial blindly believed the hearsay evidence of the Investigating Officer without any corroboration, who simply stated in his evidence that he came to know that the deceased were murdered on the allegation of karp, thus, the prosecution was not able through evidence to prove the very foundation of its case, namely the motive for killing the deceased on account of karo kari and accused had no motive to commit the murders---No evidence was available as to where the deceased were murdered as alleged in the charge---No evidence as to the date and time when the deceased were murdered as per charge---Circumstances established that the prosecution had failed to prove beyond a reasonable doubt that accused committed the murders of the deceased---Appeal against conviction was allowed, in circumstances.

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

----Art. 38--- Admission of accused before police--- Scope--- Any admission made by the accused before the police is inadmissible in evidence.

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

----Ss. 302(b), 311, 201 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, disappearance of evidence, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Circumstantial evidence---Scope---Accused was charged for committing murder of two daughters of complainant due to domestic affairs and concealing their dead bodies---Record showed that the only piece of admissible evidence against accused in the case was that he led the police to the grave from where the bodies of the deceased were exhumed, however, accused denied said fact at trial and was supported by the evidence of Head Constable who was one of the mashirs of the pointation of the grave by accused, who was declared hostile by the prosecution---Such evidence of Head Constable created doubt as to whether accused in fact led them to the graves of the deceased---Even otherwise, there was insufficient evidence to prove beyond a reasonable doubt based on the law of circumstantial evidence that accused murdered the deceased---Circumstances established that the prosecution had failed to prove beyond a reasonable doubt that accused committed the murder of the deceased---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 311, 201, 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, disappearance of evidence, unlawful assembly, act of terrorism--- Appreciation of evidence--- Benefit of doubt--- Act of terrorism---Scope---Accused was charged for committing murder of two daughters of complainant due to domestic affairs and concealing their dead bodies---Prosecution case was that the deceased were killed and buried secretly away from the public view and without any public knowledge---In such situation, how the Anti-Terrorism Act, 1997 was applicable as there was no design, object or intent to terrorize or make the public insecure---Appeal against conviction was allowed, in circumstances.

(f) Criminal trial---

----Benefit of doubt---Principle---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.

Athar Abbas Solangi for Appellants (in Criminal Jail Appeal No. D-32 of 2016).

Asif Ali Abdul Razak Soomro for Appellant (in Criminal Jail Appeal No. D-33 of 2016).

Inayatullah G. Morio for Appellant (in Criminal Jail Appeal No. D-37 of 2016).

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

2023 P Cr. L J 764

[Sindh (Sukkur Bench)]

Before Aftab Ahmed Gorar and Fahim Ahmed Siddiqui, JJ

FAIZ MUHAMMAD PITAFI and another---Applicants

Versus

The STATE---Respondent

Criminal Revision Application No. D-16 of 2020, decided on 4th March, 2021.

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

----Ss. 23 & 6---"Terrorism"---Power to transfer cases to regular courts---Communal violence---Scope---Accused persons assailed the rejection of their plea for transfer of case to Sessions Court---Complainant had categorically stated in the body of FIR that incident had taken place due to enmity between two communities in which one person had already lost his life---Deceased was a renowned advocate of the locality and his murder might have created a sense of insecurity amongst the legal fraternity but neither murder of the deceased was caused due to his activities as an advocate nor it was done within or around the courthouse, wherein the deceased was practicing as an advocate---Only a small group from each community was involved in enmity as such it was a reason to declare the matter as a personal vendetta---Lest there was a mass scale conflict between two communities, it would not amount to personal rivalry and in such a situation it might be declared an act of terrorism---Since the incident in the case was motivated on account of a pre-existing enmity; therefore, the same was to be tried as a regular sessions case instead of an anti-terrorism case---Impugned order was set aside.

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

----S. 23---Power to transfer cases to regular courts---Scope---High Court observed that it was least necessary to record evidence before passing an order about the jurisdiction of the Trial Court, it was against the scheme of law---Case had to be decided at the very initial stage on the basis of available material whether offence pertained to the ambit of terrorism or not---If the court was satisfied that the offence needed to be tried by the regular criminal court, such order should be passed immediately and if court decides otherwise, then the matter was to be tried by an Anti-Terrorism Court and after trial, the final verdict is to be pronounced by the same Court.

Ali Gohar and others v. Pervaiz Ahmed and others PLD 2020 SC 427 rel.

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

----S. 6---"Terrorism"---Scope---Act of terrorism not only depends upon the gruesome, brutality, violence and ruthlessness but it is the design and purpose, which attracts the definition of "terrorism" as mentioned in clauses (b) and (c) of S. 6(1) of Anti-Terrorism Act, 1997.

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

Nusrat Ali Shar Baloch for Applicants.

Deedar Ali M. Chohan and Deen Muhammad Chang for Respondent/Complainant.

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

2023 P Cr. L J 795

[Sindh]

Before Muhammad Junaid Ghaffar and Agha Faisal, JJ

Shaikh SHAHID UMAR---Appellant

Versus

The STATE---Respondent

Criminal Accountability Appeals Nos. 6 and 16 of 2012, decided on 27th September, 2022.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(ix)(x)(xi)---Penal Code (XLV of 1860), Ss. 405, 409 & 415---Criminal breach of trust and cheating---Appreciation of evidence---Civil dispute--- Determination--- Contractual liabilities--- Forum---Accused assailed his conviction and sentence on the plea that dispute was of civil nature pertaining to non-fulfilment of contractual obligations---Validity---Sufficient evidence or material was not available on record so as to establish that offence of criminal breach of trust as contemplated in S. 409, P.P.C. was committed by accused---When primary offence of criminal breach of trust under S. 405, P.P.C. was not made out, charge for the offences under S. 9(a)(x) & (xi) of National Accountability Ordinance, 1999, could not sustain---Prosecution alleged that offence committed by accused was act of cheating, as defined in S. 415, P.P.C. and in such case provisions of S. 9(a)(x) or (xi) of National Accountability Ordinance, 1999 could not be attracted---Cheating and criminal breach of trust were two distinct offences and both could not allege simultaneously---Commitment could not be honoured by accused due to increase in prices of basic raw materials, then in such circumstances there was no dishonest intention on the part of accused, so as to treat his act as criminal---Such was a civil dispute based upon alleged breach of agreement for which remedies were somewhere else other than in criminal Courts---High Court set aside conviction and sentence awarded to the accused as Trial Court failed to appreciate evidence which was not convincing and accused was acquitted of the charge---Appeal was allowed, in circumstances.

Zahid Ali Noor v. NAB and others 2017 PCr.LJ 147; Abdul Aziz Memon and others v. The State and others PLD 2013 SC 594; Rafiq Haji Usman v. Chairman, NAB and another 2015 SCMR 1575; Pir Mazharul Haq and others v. The State through Chief Ehtesab Commissioner, Islamabad PLD 2005 SC 63; Nabadwip Chandra Podder and another v. S.D. Ahmed, Official Receiver Official Liquidator, DASS Bank Ltd. PLD 1969 Daaca 629; Abbas Haider Naqvi v. Federation of Pakistan PLD 2022 SC 562; Dr. Waqar Hameed v. The State 2020 SCMR 321 and Hashmatullah v. The State 2019 SCMR 1730 ref.

Aamir Mansoob Qureshi for Appellant (in Criminal Accountability Appeal No. 6 and for Respondent No. 1 in Criminal Accountability Appeal No. 16 of 2012).

R.D. Kalhoro, Special Prosecutor NAB for the State/NAB (in Criminal Accountability Appeal No. 6 and for Appellant in Criminal Accountability Appeal No. 16 of 2012).

2023 P Cr. L J 823

[Sindh]

Before Aftab Ahmed Gorar, J

SAEED GUL and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No. 1155 of 2022, decided on 18th August, 2022.

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

----Ss. 498 & 161---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Pre-arrest bail, grant of--- Implication through supplementary statement---Scope---Accused sought pre-arrest bail in an FIR lodged under S. 302, P.P.C.---Names of accused persons were not appearing in the FIR---No marks of identification or descriptions of unknown accused was mentioned in the FIR---Names of accused for the first time were introduced by the complainant in his further statement recorded under S. 161, Cr.P.C., which was recorded belatedly i.e. after ten days wherein too no active role was assigned to the accused persons---Case of accused persons appeared to be one of further inquiry---Application was allowed, in circumstances.

Muhammad Rafique and others v. The State and others 2010 SCMR 385 and Sohno Bullo v. The State 2012 PCr.LJ 986 rel.

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

----S. 497---Constitution of Pakistan, Art. 4---Bail---Object---Scope---Object of bail is to secure appearance of the accused person at his trial by reasonable amount of bail---Object of bail is neither punitive nor preventive and 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 duly found guilty---Purpose of putting the un-convicted persons in custody is nothing but to secure their attendance at the trial---Even otherwise, life and liberty of a citizen is very precious and guaranteed by Art. 4 of the Constitution of Pakistan.

PLD 1989 SC 585 ref.

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

----S. 497---Bail---Tentative assessment---Scope---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 he is not guilty of such offence, then the Court must release him on bail.

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

Liaquat Ali Awan for Applicants along with Applicants.

Umar Farooq for the Complainant.

Hussain Bux Baloch, Additional Prosecutor General, Sindh.

2023 P Cr. L J 843

[Sindh (Sukkur Bench)]

Before Khadim Hussain Tunio and Irshad Ali Shah, JJ

MUHAMMAD ALI JAVED---Appellant

Versus

The STATE---Respondent

Special Criminal Jail Appeal No. D-148 of 2019, decided on 18th May, 2021.

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

----S. 9(c)---Transportation of narcotics---Appreciation of evidence---Scope---Accused was alleged to have been apprehended while transporting 360 kilograms of charas---Prosecution witnesses had deposed in correlation with each other in terms of seizure and forensic analysis of the contraband---Charas was secured from the secret cavity of the truck trailer and the recovered case property was separately sealed from 18 kilograms representative sample which was promptly sent to the Chemical Examiner for analysis, who had not found any tampering with the sealed parcel of the narcotic substance---Report of Chemical Examiner was also in positive---Prosecution had proven the guilt of the accused beyond any shadow of doubt---Appeal against conviction was dismissed.

Mst. Razia Sultana v. The State and another 2019 SCMR 1300; The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039; Mst. Sakina Ramzan v. The State 2021 SCMR 451; Zubair Khan v. The State 2021 SCMR 492; Kashif Amir v. The State PLD 2010 SC 1052; Asif v. The State PLD 2013 Sindh 586; Nawab Ali v. The State 2014 PCr.LJ 885; Abdul Rehman alias Juman v. The State 2018 PCr.LJ 1015; Muhammad Saleh and another v. The State 2019 PCr.LJ Note 146; Asmat Ali v. The State 2020 SCMR 1000 and Shabbir Hussain v. The State 2021 SCMR 198 ref.

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

----S. 9---Possession of narcotics---Appreciation of evidence---Scope---Technicalities of procedural nature or otherwise can be overlooked, if the case stands proved then the approach of the Court becomes dynamic and pragmatic in approaching true facts of the case and drawing correct and rational inferences and conclusions while deciding narcotics cases---Minor discrepancies in the evidence of raiding party do not shake its trustworthiness.

State/ANF v. Muhammad Arshad 2017 SCMR 283 and Shazia Bibi v. The State 2020 SCMR 460 ref.

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

----S. 9---Possession of narcotics---Production of sample-bearer---Scope---Sample-bearer is only needed to be examined in case of delay in the dispatch of the sample.

Zahid and Riaz Ali v. The State 2020 SCMR 590 and Matiullah v. The State 2020 SCMR 1222 rel.

(d) Criminal trial---

----Witness---Interesting witness---Scope---No universal rule exists to the effect that evidence of an interested witness per se must invariably be corroborated by independent evidence---If that were the case, then why would the courts at all take into account the testimony of interested witness?

Hussain Shah and others v. The State PLD 2020 SC 132 rel.

Nisar Ahmed Bhanbhro for Appellant.

Shafi Muhammad Mahar, Deputy Prosecutor General for the State.

2023 P Cr. L J 874

[Sindh (Larkana Bench)]

Before Zulfiqar Ali Sangi, J

SADAR alias SADARUDDIN and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-26 of 2019, decided on 27th November, 2020.

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

----Ss. 302(b), 337-H, 114 & 149---Qatl-i-amd, hurt by rash or negligent act, abettor present when offence is committed, common object---Appreciation of evidence---Scope---Accused persons were alleged to have murdered the uncle of complainant---Prosecution witnesses had implicated the accused persons in the commission of offence and had remained firm during cross-examination---Although witnesses were relatives of the complainant but they had no enmity with the accused persons---Evidence produced by prosecution was reliable, trustworthy and confidence inspiring, which was duly supported by medical evidence---Defence witnesses had given contradictory statements and had admitted that they had not joined the investigation---Trial court had already taken a lenient view while awarding sentences---Appeal against conviction was dismissed, in circumstances.

Munir Ahmed v. The State 2019 SCMR 79; Muhammad Shah v. The State 2010 SCMR 1009; Ishtiaq Mashi v. The State 2010 SCMR 1039 and Dadullah v. State 2015 SCMR 856 ref.

Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152 and Muhammad Riaz and another v. The State and another 2007 SCMR 1413 rel.

(b) Criminal trial---

----Benefit of doubt---Scope---In an accusatorial system, there is a presumption of innocence in favour of the accused that the offence has not been committed by him and the presumption continues to be operative until the prosecution is able to prove its case through reliable, trustworthy and confidence inspiring evidence beyond a reasonable doubt---Life and liberty of an individual would be in jeopardy if the rule was otherwise---Said principle is sometimes expressed by saying that to be on the safer side, the acquittal of ten guilty persons is to be preferred over the conviction of a single innocent person---High standard of proof is, therefore, required to establish the culpability of an accused person---Proof beyond reasonable doubt does not, however, imply that the prosecution must eliminate even fanciful doubts regarding the criminality of the accused person.

(c) Criminal trial---

----Principles---Criminal case is to be decided on the totality of impressions gathered from the circumstances of the case and not on the narrow ground of cross-examination or on a particular fact stated by a witness.

State v. Rab Nawaz and another PLD 1974 SC 87 ref.

(d) Criminal trial---

----Where prosecution established its case beyond a reasonable doubt, then some minor contradictions, which are always available in every case as no one can give evidence like a photograph, could be ignored.

Zakir Khan v. The State 1995 SCMR 1793 rel.

Habibullah G. Ghouri for Applicants.

Abdul Hameed Mangi for the Complainant.

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

2023 P Cr. L J 908

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Rashida Asad, JJ

KHAMISO---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-43 and Confirmation Case No. 13 of 2017, decided on 7th October, 2020.

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

----Ss. 302(b) & 504---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, intentional insult with intent to provoke breach of peace---Appreciation of evidence---Examination of accused---Scope---Accused was charged for committing murder of the deceased by inflicting hatchet blow---Record showed that in the statement of accused recorded under S. 342, Cr.P.C, all the incriminating pieces of evidence were not put to the accused for his explanation---Allegedly, accused had made confession during interrogation before the Judicial Magistrate but question regarding such piece of evidence was not put to him---Question regarding motive was also not put to the accused---Questions/incriminating pieces of evidence regarding blood stained clothes and reports of the Chemical Examiners were also not put to the accused---Trial court was responsible to ensure that truth was discovered---Procedure adopted by the trial court was reflective of miscarriage of justice---Offence was punishable for death or imprisonment for life and accused had been awarded death penalty without providing him opportunity with regard to material questions to be put to him in statement of accused under S. 342, Cr.P.C---Impugned judgment, in circumstances, was set-aside and matter was remanded to the Trial Court for its decision afresh with the direction that the accused be re-examined under S. 342, Cr.P.C. and he be confronted with all the incriminating circumstances/evidence available on record.

Naveed Asif v. The State PLD 1988 SC 99; Maj. (Retd.) Tariq Mehmood and others v. The State and others 2002 SCMR 1493; Nadeem Ahmed Khan and others v. The State 2007 PCr.LJ 233; Abdul Jabbar v. The State 2011 YLR 2169; Mst. Nusrat Mai (Tahira Sultana) and another v. The State 1997 MLD 2869; Muhammad Zia v. The State 2007 PCr.LJ 359; Ashiq Ali v. The State 2005 PCr.LJ 48; Muhammad Ayub v. The State 2006 PCr.LJ 257 and Gul Jehan v. The State 1998 MLD 288 ref.

Muhammad Nawaz and others v. The State and others 2016 SCMR 267 rel.

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

----S. 342---Examination of accused---Scope---Each and every material piece of evidence being relied upon by the prosecution against an accused person must be put to him at the time of recording of his statement under S. 342, Cr.P.C., so as to provide him an opportunity to explain his position in that regard---Denial of such opportunity to the accused person would defeat the ends of justice---Failure to comply with the mandatory requirement vitiated the trial.

Zaheeruddin S. Leghari for Appellant.

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

Nemo for the Complainant.

2023 P Cr. L J 958

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto, J

GULLAB alias ARO---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-277 of 2019, decided on 5th October, 2020.

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

----S. 23(1)(a)--- Possession of illegal weapon--- Appreciation of evidence---Benefit of doubt---Prosecution case was that a .30-bore revolver with three live bullets was recovered from the possession of accused, he failed to produce its licence---Accused was arrested from the busy road but complainant failed to associate private persons for making them as mashirs in the case---Complainant was examined and in his cross-examination he had admitted that the words N-35 and .32 bore were written on the revolver but mashirnama of arrest and recovery was silent with regard to such description of revolver---In the mashirnama of arrest and recovery, nowhere it was mentioned that the number of revolver was rubbed but the Ballistic Expert in his report had clearly mentioned that the number of revolver was rubbed---During investigation, the Investigating Officer failed to interrogate/investigate as to why the accused was going armed with revolver at the odd hours of the night.

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

----S. 23(1)(a)---Possession of illegal weapon---Appreciation of evidence---Safe custody and transmission of weapon from the police to the Ballistic Expert not established----Scope---Prosecution case was that a .30-bore revolver with three live bullets was recovered from the possession of accused, he failed to produce its licence---According to complainant, after arrest and recovery, he brought the accused to the Police Station and kept the revolver in the Malkhana of Police Station but such entry of the Malkhana had not been produced before the trial court---Incharge Malkhana was also not examined before the trial court---Weapon was sent to the Ballistic Expert through Police Constable but said Police Constable had also not been examined by the prosecution---Safe custody and safe transmission of the weapon to the Ballistic Expert had not been established, in circumstances.

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

----S. 23(1)(a)---Possession of illegal weapon---Appreciation of evidence---Delay of nine days in sending the weapon to the Ballistic Expert---Scope---Prosecution case was that a .30-bore revolver with three live bullets was recovered from the possession of accused, he failed to produce its licence---There was nine days delay in sending weapon to the Ballistic Expert---Prosecution had failed to explain such delay---Positive report of the Ballistic Expert would not improve the case of prosecution, in circumstances.

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

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

----S. 23(1)(a)--- Possession of illegal weapon--- Appreciation of evidence---Police witnesses---Scope---Prosecution case was that a .30-bore revolver with three live bullets was recovered from the possession of accused, he failed to produce its licence---Accused had claimed false implication in the case---Evidence of the Police Officials without independent corroboration was unsafe to be relied upon---Police caught hold the accused and he did not open any fire upon Police or in air and easily surrendered before Police---Evidence of Police Officials could not be discarded simply because they belonged to Police force, however, the fate of the accused person hinged upon the testimony of Police Officials alone, it was necessary to find out if there was any possibility of securing independent persons at that time---Prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

Saifullah v. The State 1992 MLD 984 rel.

(e) Criminal trial---

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

Muhammad Mansha v. The State 2018 SCMR 772 rel.

Aziz Ahmed Leghari for Appellant.

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

2023 P Cr. L J 1007

[Sindh (Larkana Bench)]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

ROSHAN ALI and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. D-1, D-4 and Criminal Acquittal Appeal

No. D-17 of 2019, decided on 26th January, 2021.

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

----S. 9(c)--- Possession of narcotics--- Appreciation of evidence---Prosecution case was that seventy five kilograms of charas was recovered from the vehicle of the accused persons---Record showed that the FIR was registered with promptitude giving no time for concoction and the statements of the Police witnesses under S. 161, Cr.P.C. were recorded promptly which were not significantly improved upon by any witness at the time of evidence---Arrest and recovery was made on the spot and the accused were 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---No major contradictions in the evidence of the witnesses was found---Most significantly the narcotic was recovered from the car which was being driven by accused, where the narcotics were on the back seat between two co-accused ladies and as such there was no doubt that all the accused had actual knowledge of the narcotic which was being transported---Car was recovered along with the narcotic---Facts of the case showed that it would be extremely difficult to foist such a large amount of charas---Circumstances established that the prosecution had proved its case beyond reasonable doubt---Appeals against conviction were dismissed, in circumstances---Co-accused/respondent was acquitted on the basis of her young age and immaturity having no choice but to get in the car and her lack of blood relationship with the other accused---Such findings were found to be utterly perverse, arbitrary and completely contrary to the evidence on record---Acquitted accused was 20 years of age at the time of the offence therefore, was certainly old and mature enough to be responsible for her actions---No evidence was on record to show that acquitted accused was forced to accompany the accused in the car and that simply because she was not a blood relative to the other accused did not exonerate her---By the same token/reasoning accused who was not related by blood to co-accused persons should also have been acquitted by the Trial Court---Acquitted accused was a neighbour of the accused and thus had a nexus and a reason to be in the car with them---Appeal against the acquittal of accused was allowed, in circumstance.

Ameer Hamza alias Hamza v. The State 2015 PCr.LJ 1402; Ikramullah and others v. The State 2015 SCMR 1002; Abdul Ghani and others v. The State 2019 SCMR 608; Zahoor Ahmad and another v. The State 1997 SCMR 543; Riaz Mian v. The State 2014 SCMR 1165; Mula Jan v. The State 2014 SCMR 862; Noorul Haq v. The State 1992 SCMR 1451; Hussain Shah and others v. The State PLD 2020 SC 132; Tariq Parvez v. The State 1995 SCMR 1345; Rashid Ahmad v. The State 2001 SCMR 41; WAPDA v. Khanmullah and others 2000 SCMR 879; Abdul Khaliq Shah v. The State SBLR 2019 Sindh 197; Shahzada v. The State 2010 SCMR 841 and Shazia Bibi v. State 2020 SCMR 460 ref.

Mustaq Ahmed v. The State 2020 SCMR 474; Nadir Khan v. State 1998 SCMR 1899; Hussain Shah and others v. The State PLD 2020 SC 132; Mehboob-ur-Rehman v. State 2010 MLD 481 and The State v. Abdali Shah 2009 SCMR 291 rel.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Police Officials as witnesses---Reliance---Scope---Prosecution case was that seventy five kilograms of charas was recovered from the vehicle of the accused persons---Evidence of a police witness was as reliable as any other witness provided that no enmity existed between him and the accused---General unsubstantiated enmity had been alleged against the police, which was not worthy of any reliance---Despite lengthy cross-examination none of the witnesses's evidence was shaken---Evidence of the police witnesses reliable, being trustworthy and confidence inspiring was believable, which was corroborative in all material respects---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused persons---Appeals against conviction were dismissed, in circumstances.

(c) Criminal trial---

----Witness---Minor contradictions in statements of witnesses---Scope---Minor contradictions which do not affect the materiality of the evidence can be ignored.

Zakir Khan v. State 1995 SCMR 1793 rel.

(d) Criminal trial---

----Investigating Officer---Complainant being Investigating Officer---Scope---No restriction on the complainant to be the Investigating Officer provided that no animosity or enmity is alleged against him by the accused

Zafar v. State 2008 SCMR 1254 rel.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Delay in sending samples for chemical analysis---Scope---Prosecution case was that seventy five kilograms of charas was recovered from the vehicle of the accused persons---Record showed that there was no delay in sending the samples for report of chemical analysis which turned out to be positive with all required protocols being followed---Recovered narcotic was kept in safe custody from the time of its recovery to the time when samples were taken for chemical analysis---No suggestion of tampering with the same had even been made---Narcotic was sealed on the spot, remained sealed in the malkhana for which a malkhana entry had been produced before being transported to the chemical examiner by Head Constable under seal and who was examined as to safe custody and the narcotic reached the Chemical Examiner in a sealed condition as per the chemical report---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused persons---Appeals against conviction were dismissed, in circumstances.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotics---Appreciation of evidence---Non-association of private witnesses---Scope---Prosecution case was that seventy five kilograms of charas was recovered from the vehicle of the accused persons---Although no independent mashir was associated with the arrest and recovery of the accused, however it had come in evidence that no private person was available to become an independent mashir at the time of arrest and recovery---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 of that Act---Circumstances established that the prosecution had proved its case beyond reasonable doubt against the accused persons---Appeals against conviction were dismissed, in circumstances.

Muhammad Hanif v. The State 2003 SCMR 1237 rel.

Habibullah G. Ghouri for Appellants (in Criminal Appeal No. D-1 of 2019).

Athar Abbas Solangi for Appellant (in Criminal Appeal No. D-4 of 2019).

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

Habibullah G. Ghouri for Respondent (in Criminal Acquittal Appeal No. 17 of 2019).

2023 P Cr. L J 1071

[Sindh]

Before Mohammad Karim Khan Agha and Abdul Mobeen Lakho, JJ

FAZAL MEHMOOD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 763 and Confirmation Case No. 40 of 2019, decided on 5th April, 2021.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---First Information Report lodged with promptitude---Scope---Accused was charged that he along with his co-accused committed murder of the cousin of complainant---Motive behind the occurrence was that the deceased had been teasing the accused for the last two or three days and wanted to commit sodomy with him---Record showed that witness/teacher of the madrasah, where occurrence took place, went to the Police Station about an hour after the incident and reported the same to the police who came immediately with him to the place of wardat which was corroborated by duty Officer of the Police Station at that time and accompanied him to the scene of the wardat---Formal FIR was lodged by the complainant about three hours after that and as such the FIR was lodged with promptitude---Thus, it left no time for the complainant to cook up a false story in collusion with the police to falsely implicate the accused---Even otherwise there was no enmity between the complainant and the accused and as such he had no reason to falsely implicate the accused in the case---Accused was named in the FIR for murdering the deceased with a stone according to the FIR because the deceased had annoyed the accused which was the alleged motive---Circumstances established that the prosecution had proved its case against the accused beyond any reasonable shadow of doubt---Motive was not proved, thus death penalty was reduced to imprisonment for life---Appeal against conviction was dismissed with said modification in sentence

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of CCTV footage---Reliance---Scope---Accused was charged that he along with co-accused committed murder of the cousin of complainant---USB which contained the CCTV footage was not disputed by either party at trial with any vigour and there was no allegations of its being tampered with---Such safeguards could be safely watered down based on the particular facts and circumstances of the case---Keeper of the document/witness in his evidence gave evidence that he saw the incident from the CCTV footage which he down loaded onto a USB---Safe custody of the USB was established and no one questioned the genuineness of the USB at trial---Evidence of the witness, who saw the actions of the accused, as shown in the USB a few days after it was recorded and kept in safety before handing over to the police was found to be reliable, trust worthy and confidence inspiring---Evidence of said witness was believable regarding what he saw on the USB, which went unchallenged---Furthermore, said witness had no enmity with the accused to lead him to falsely implicate the accused in the case---Said witness was not a chance witness, his evidence remained un-dented during a lengthy cross-examination---Admittedly, said witness was related to the deceased, however it had not come in evidence that said witness had any ill will or enmity towards the accused as such his evidence could be relied upon---Said witness knew the accused as a fellow student and as such there was no case of mistaken identity---CCTV/USB footage showing the accused moving around the Madrassa with a heavy object in his hand---Circumstances established that the prosecution had proved its case against the accused beyond any reasonable shadow of doubt---However, the motive was not proved, thus death penalty was reduced to imprisonment for life---Appeal against conviction was dismissed with said modification in sentence.

Ishtiaq Ahmed Mirza v. Federation of Pakistan PLD 2019 SC 675; Yasir Ayyaz v. The State PLD 2019 Lah. 366; Muhammad Nadeem v. The State 2020 YLR 1299; Fayyaz Ahmad v. The State 2017 SCMR 2026; Muhammad Abid v. The State PLD 2018 SC 813; Taj Mohammad v. The State 2020 PCr.LJ 1693; Abdul Sattar v. The State PLD 1976 SC 404; Muhammad Ramzan v. The State PLD 1957(W.P.) Lahore 956; Muhammad Yaqoob v. The State 2020 SCMR 853 and Akhtar v. The State 2020 SCMR 2020 ref.

Zulfiqar Ahmed and another v. State 2011 SCMR 492 and Allah Ditta v. State PLD 2002 SC 52 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Circumstantial evidence---Last seen evidence---Scope---Accused was charged that he along with his co-accused committed murder of the cousin of complainant---Last seen evidence was furnished by a witness, who was named in the FIR---Said witness was not related to the deceased or the accused---Said witness was not a chance witness and he had no reason to falsely implicate the accused---Evidence of said witness was straight forward and he was not dented during cross-examination---Evidence of said witness was found to be trustworthy, reliable and confidence inspiring, hence believable and thus, relied upon---Said witness stated that the accused was present in the Madrassa at the time of the incident, as corroborated by the CCTV evidence---Accused, the deceased and other witnesses were present in the room/place of occurrence at about 11.00 p.m.---When the witness of last seen evidence got up to go to the wash room he had seen the accused sitting on the stairs looking puzzled at 12.30 a.m.(night)---Said witness had seen the accused already on his bed when he returned to his bed which would be at around 1.00 a.m. (night)---At about 2.30 a.m. said witness and some of the other student woke up when they heard a sound as if something had fallen and they found the deceased lying on the mattress with blood oozing from his head---At about 2.30 a.m. when the witness and others woke up and found the body of the deceased, the accused was gone---Cement block was found adjacent to the mattress of the deceased which had not been there before---Significantly, the timings given by the witness tied in roughly with the timings mentioned by complainant in his evidence whilst watching the CCTV footage---Thus, keeping in view the fact that it had already come in evidence that the beds of the accused and the deceased were next to each other in the same room---Moreover, it would appear that the last seen evidence test had been met---Namely, at about 1.00 a.m., the accused was seen sleeping beside the deceased and within one and a half hours the accused was gone and the deceased was dead in the bed next to the accused where a cement block was found which the accused had already been found carrying in the CCTV/USB footage back towards his room where the deceased was sleeping next to him---Circumstances established that the prosecution had proved its case against the accused beyond any reasonable shadow of doubt---Motive was not proved, thus death penalty was reduced to imprisonment for life---Appeal against conviction was dismissed with said modification in sentence.

Fayyaz Ahmed v. State 2017 SCMR 2026; Muhammed Abid v. State PLD 2018 SC 813 and Azeem Khan v. Mujahid Khan 2016 SCMR 274 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Disclosure of the accused---Scope---Accused was charged that he along with his co-accused committed murder of the cousin of complainant---Accused after his arrest took the police to the place where he had collected the cement block which he used to kill the deceased on his own pointation, which was a place which only accused could have known about---Circumstances established that the prosecution had proved its case against the accused beyond any reasonable shadow of doubt---Motive was not proved, thus death penalty was reduced to imprisonment for life---Appeal against conviction was dismissed with said modification in sentence.

(e) 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---Statement of witnesses were recorded with promptitude---Scope---Accused was charged that he along with co-accused committed murder of the cousin of complainant---All the witnesses gave their S. 161, Cr.P.C. statements to the police with 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---Circumstances established that the prosecution had proved its case against the accused beyond any reasonable shadow of doubt---Motive was not proved, thus death penalty was reduced to imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Scope---Accused was charged that he along with co-accused committed murder of the cousin of complainant---Prosecution had not asserted and had not been able to prove the motive for murdering the deceased---Apart from some unsubstantiated allegations of the deceased teasing the accused and wanted to commit sodomy with the accused---In such type of cases, usually the death penalty was reduced to life imprisonment---Moreover, in a case like the present one where circumstantial and last seen evidence largely form the basis of conviction, must viewed with great caution---Thus, sentence of death imposed on the accused was reduced to one of life imprisonment---Appeal against conviction was dismissed with said modification in sentence.

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

Muhammad Ashraf Kazi and Irshad Ahmed Jatoi for Appellant.

Mohammad Iqbal Awan, Deputy Prosecutor General for the State.

Shaikh Jawaid Mir for the Complainant.

2023 P Cr. L J 1110

[Sindh]

Before Muhammad Iqbal Kalhoro and Fahim Ahmed Siddiqui, JJ

ASIM MURTAZA KHAN---Petitioner

Versus

The STATE through Chairman, NAB, Islamabad---Respondent

Constitutional Petition No.D-3045 of 2021, decided on 26th July, 2021.

National Accountability Ordinance (XVIII of 1999)---

----S. 19---Criminal Procedure Code (V of 1898), S. 94---Qanun-e-Shahadat (10 of 1984), Art. 91---Constitution of Pakistan, Art. 199---Constitutional petition---Documents, production of---Permission to produce documents---Scope---Petitioner was accused facing trial, who during recording of evidence raised the objection that documents without authorization from Board of Directors could not be produced---Validity---Trial Court as well as investigator, under the provisions of S. 94, Cr.P.C. was authorized to collect required documents---For collection of documents investigating officer did not require any authorization even from a Court, if collection and seizure were needed from a company other than a banking company---Complainant company was not a banking company and for production of such documents, Trial Court had to issue a summons while an investigating officer was to give a written order for production of requisite document---In case of a criminal inquiry or investigation there was no need for investigators to seek any authorization for production and seizure of record and the person who was in possession of such record had no other option but to comply with such summons of Trial Court or order of the investigator---Trial Court rightly rejected application/ objection raised by petitioner regarding production of documents pertaining to complainant company through order in question or even at the time of recording of evidence of prosecution witness---High Court maintained the order passed by trial Court---Constitutional petition was dismissed, in circumstances.

2017 CLC 1221; PLD 2017 SC 265; 2018 SCMR 2092; 1997 MLD 806; AIR 1936 Lah. 183; 2018 SCMR 2092; 2003 MLD 676; 2021 MLD 408 and 2018 PCr.LJ 310 rel.

Muhammad Ashraf Kazi for Petitioner.

Faisal Siddiqui for Intervener.

Riaz Alam, Special Prosecutor NAB.

2023 P Cr. L J 1146

[Sindh (Larkana Bench)]

Before Zulfiqar Ali Sangi, J

BARKAT ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-07 of 2019, decided on 10th February, 2023.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay of two days in lodging FIR---Effect---Accused were charged that they in furtherance of their common intention committed murder of the son of the complainant---Record revealed that FIR of the incident had been lodged with delay of two days after the incident for which no plausible explanation had been furnished---Such delay could not be overlooked, which obviously reflected consultation and deliberation---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.

Riaz Ahmed v. The State 2010 SCMR 846; Abdul Jabbar v. The State 2019 SCMR 129 and Jamal Khan v. The State 2020 PCr.LJ 1589 ref.

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

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Further statement of the witnesses---Scope---Accused were charged that they in furtherance of their common intention committed murder of the son of the complainant---Record showed that the Investigation Officer during course of investigation recorded further statements of the complainant and his witnesses wherein they disclosed that they on query came to know that about 7/8 months prior to the incident, complainant's son was locked in marital tie due to which accused was annoyed and now he came to know that his son had been done to death by accused over the said issue---Further statement of the complainant, if any, even otherwise could not be equated with FIR---If further statements of the complainant and his witnesses were believed to be true then why they remained mum and did not nominate the present accused with his name and parentage in the FIR promptly despite the fact that the present accused was earlier known to them---Said fact was done with inordinate delay of twelve days after the incident, as such, much reliance could not be placed upon further statements of the complainant and his 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.

Khalid Javed and another v. The State 2003 SCMR 1419 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay of ten days in recording supplementary statements of witnesses---Scope---Accused were charged that they in furtherance of their common intention committed murder of the son of the complainant---Supplementary statements of the complainant and that of his witnesses were recorded ten days after the FIR, which had no legal value and were inadmissible in evidence---Thus, the same could not be used to contradict the contents of the FIR---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Syed Saeed Muhammad Shah v. The State 1993 SCMR 550; Amir Zaman v. Mehboob and others 1998 SCMR 685; Zulfiqar Hussain v. The State 2011 SCMR 379; Abid Ali v. The State 2011 SCMR 161; Tahir Abbas v. The State 2003 SCMR 426 and Muhammad Mansha v. The State 2018 SCMR 772 rel.

(d) 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---Effect---Eye-witness given up and not examined---Accused were charged that they in furtherance of their common intention committed murder of the son of the complainant---Record reflected that the prosecution examined complainant and a witness being the eye-witnesses; while another eye-witness, who happened to be brother of the complainant and also uncle of the deceased was given up by the prosecution for no obvious reasons---Inference which could be drawn of his non-examination was that he might not have supported the case of prosecution as per Art. 129(g) of Qanun-e-Shahadat, 1984---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

(e) Criminal trial---

----Sole evidence of material witness---Scope---No doubt, the sole evidence of a material witness i.e. an eye-witness was always sufficient to establish guilt of the accused if the same was confidence-inspiring and trustworthy and supported by other independent source of evidence because the law considered quality of evidence and not its quantity to prove the charge---Accused could be convicted if the Court found the direct oral evidence of one eye-witness to be reliable, trustworthy and confidence-inspiring.

Muhammad Ehsan v. The State 2006 SCMR 1857; Niaz-Ud-Din v. The State 2011 SCMR 725 and Allah Bakhsh v. Shammi and others PLD 1980 SC 225 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Omissions and inconsistencies between the evidence of the witnesses---Effect---Accused were charged that they in furtherance of their common intention committed murder of the son of the complainant---Record showed that the complainant in his examination-in-chief deposed that while they were returning from a town and going towards another place, the motorcycle of deceased was going in front of them about 50 feet away and when they reached near a tree at link road leading from town to village two motorcycles came behind them, and they had seen and identified accused sitting on a motorcycle whereas other accused persons were unknown---Such version of complainant was belied by his own eye-witness who deposed that four unidentified accused came on motorcycle and one of them fired at deceased---Over and above that, the complainant had also failed to bring on record the mode of information or produced any person through whom he received information about murder of his son at the hands of the present accused---Moreover, no independent piece of evidence had been collected by the Investigation Officer during course of investigation which might justify connectivity of the present accused with commission of the alleged offence---Omissions and inconsistencies between the evidence of the prosecution witnesses, if judged in the light of unexplained and un-plausible delay in lodging of the FIR and that of recording further statements of the complainant and his witnesses, had rendered the entire claim of the complainant 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.

(g) Criminal trial---

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

Ayub Masih v. State PLD 2002 SC 1048; Naveed Asghar and 2 others v. The State PLD 2021 SC 600 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

Athar Abbas Solangi for Appellant.

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

2023 P Cr. L J 1194

[Sindh (Sukkur Bench)]

Before Aftab Ahmed Gorar, J

WAZEER---Appellant

Versus

GHULAM QADIR alias GHULAM MUHAMMAD and 4 others---Respondents

Criminal Acquittal Appeal No. S-30 of 2018, decided on 14th December, 2020.

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

----Ss. 337-F(i), 337-F(iii) & 34---Ghayr-jaifah-mudihah, ghayr-jaifah-mutalahimah, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Delay of about twenty one days in lodging the FIR---Effect---Accused were charged for inflicting lathi and butt blows to complainant---Motive behind the incident was stated to be that earlier, father of complainant had got registered FIR under S. 393, P.P.C., against the accused persons, whereupon, they were annoyed---Admittedly, FIR was belated by 21-days, for which no plausible explanation had been furnished by the complainant, as such element of consultation and deliberation could not be ruled out---Appeal against acquittal was dismissed, in circumstances.

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

----Ss. 337-F(i), 337-F(iii) & 34---Ghayr-jaifah-mudihah, ghayr-jaifah-mutalahimah, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Accused were charged for inflicting lathi and butt blows to complainant---Record showed that none of the accused caused any harm and/or extended threat to the eye-witness though they were at the mercy of accused who were armed with pistol and having lathies in their hands, but accused were alleged to have caused injuries to the complainant only, which created reasonable doubt regarding veracity of the eye-witnesses---Eye-witness being independent witness so also being best piece of evidence to corroborate the version of the complainant/injured witness, was not examined by the prosecution, as such it had rightly been observed by Trial Court that failure to examine said independent eye-witness gave inference that he was not supporting the prosecution case---Perusal of evidence of complainant and eye-witnesses reflected that they had made improvements in their statements deliberately and with mala fide intentions, as such their testimony could not be relied upon safely---Infirmities in the prosecution case were so glaring contradictions in the evidence of complainant and witnesses on material points including admission of injured in hospital and reaching of injured to hospital, which had been rightly discussed and considered by the Trial Court while acquitting the accused being fatal to the prosecution---Reasonable doubt had been created by the accused in prudent mind and its benefit had rightly been extended to them by the Trial Court---Appeal against acquittal was dismissed, in circumstances.

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

----S. 417---Appeal against acquittal---Presumption of innocence---Scope---Scope of acquittal appeal is considerably narrow and limited---Approach for dealing with the appeal against conviction would be different and distinguishable from the appeal against acquittal because presumption of double innocence of accused is attached to the order of acquittal.

Zaheer Din v. The State 1993 SCMR 1628 and Zulfiqar Ali v. Imtiaz and others 2019 SCMR 1315 rel.

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

----S. 417---Appeal against acquittal---Scope---Acquittal once granted could not be recalled merely on the possibility of a contra view, unless, impugned view was found on fringes of impossibility resulting into miscarriage of justice, freedom could not be recalled.

Ajeebullah Junejo for Appellant.

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

2023 P Cr. L J 1227

[Sindh (Sukkur Bench)]

Before Khadim Hussain Tunio, J

SARDAR BUX---Applicant

Versus

The STATE---Respondent

Criminal Bail Applications Nos. S-452, S-453, S-454, S-458, S-459 and S-461 of 2020, decided on 14th September, 2020.

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

----S. 497---Penal Code (XLV of 1860), Ss. 161 & 34---Prevention of Corruption Act (II of 1947), S. 5---Sindh Enquiries and Anti-Corruption Rules, 1993, R. 11---Public servant taking gratification other than legal remuneration in respect of an official act---Corruption---Registration of cases---Bail, refusal of---Scope---Prosecution case was that the accused persons were transporting wheat from Sindh province to Punjab province after receiving illegal gratification despite the fact that the government had issued a ban on the transport of wheat from Sindh to Punjab---All the accused persons were attributed a role and a set amount received by them as bribe was also available on record---Sufficient evidence was available on record to connect them with the alleged offence---Prosecution witnesses in their S. 161, Cr.P.C. statements had fully implicated the accused persons with the commission of alleged offence---Contention of accused was that no permission was obtained to register the case and that the Magistrate had not accompanied the raiding party, High Court observed that in view of R. 11(2) of Sindh Enquiries and Anti-corruption Establishment Rules, 1993, a permission to register case against a public servant was not required if he was caught red-handed in the commission of the offence---Magistrate was although unavailable during the proceedings, however, he was replaced by Deputy Director Anti-Corruption Establishment being a gazetted officer of the establishment--- Bail applications were dismissed, in circumstances.

(b) Criminal trial---

----Witness---Police officials are as good witnesses as any other and unless mala fide on the part of the arresting party is brought forward, such an argument would remain invalid.

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

----S. 497---Bail---Scope---Grant of bail in cases that do not fall within the prohibitory clause is not a universally acceptable rule.

Jaffar Ali Shah, Shabir Ali Bozdar, Mehfooz Ahmed Awan and Aijaz Ahmed Naich for Applicants.

Zulfiqar Ali Jatoi, A.P.G. for the State.

2023 P Cr. L J 1260

[Sindh (Sukkur Bench)]

Before Faheem Ahmed Siddiqui, J

ABDUL QADIR---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-533 of 2020, decided on 16th November, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 161 & 420---Prevention of Corruption Act (II of 1947), S. 5---Public servant taking gratification other than legal remuneration in respect of an official act---Cheating and dishonestly inducing delivery of property---Criminal misconduct---Bail, grant of---Allegation against accused was that he had persuaded the complainant for arranging service of his son in Education Department being a teacher in government school---Upon such persuasion, the complainant handed over certain amount as bribe and it was settled that the remaining amount would be arranged after getting the order of appointment---For the purpose of the arrest of accused, a trap was devised as such two memos were made; one for handing over of tainted money and the other for recovery and arrest of the accused---Memo of arrest and recovery did not bear the number of tainted money---Accused had nothing to do with the process of hiring and appointment of any employee in Education Department---Conversation between accused and complainant was neither heard by the raiding Magistrate nor by witnesses---Accused had alleged that the recovered amount was in connection of a deal between the accused and complainant for the sale of a motorcycle---Witness before whom the accused had allegedly demanded bribe had not supported the version of complainant---Accused was entitled to the concession of bail as such he was admitted to post-arrest bail.

Nisar Ahmed Bhanbhro for Applicant.

2023 P Cr. L J 1297

[Sindh]

Before Mohammad Karim Khan Agha and Irshad Ali Shah, JJ

MUHAMMAD NADEEM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 338 and Confirmation Case No. 13 of 2019, decided on 28th September, 2021.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay of six hours in lodging the FIR---Scope---Accused was charged that he along with co-accused committed murder of the brother of complainant during robbery---Record showed that the FIR was lodged with promptitude being six hours after the robbery and shooting of the deceased which led to his death---Complainant had explained in his evidence about the said delay that immediately after the incident the deceased was taken to hospital for treatment which then referred him to other hospital due to his serious injuries where he died en route---Body after initially being taken home was then returned to hospital for legal formalities where after the complainant lodged the FIR---Said fact gave the complainant no time to cook up a false case against the accused with the police especially as the complainant had no reason to implicate the accused in a false case---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt--- Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular account supported by medical evidence---Scope---Accused was charged that he along with co-accused committed murder of the brother of complainant during robbery---Ocular account of the incident had been furnished by the complainant being eye-witness---Although, the complainant did not know the accused it was day light incident at 10.00 a.m. in the morning and he was only ten paces from the accused at the time of robbery and shooting and as the incident lasted a few moments he would have got a good look at the accused whom he recognized in the police lock up only eight hours after the incident---Reliance, under circumstances, could be placed on the correct identification of the accused by the complainant especially as he had no reason to falsely implicate him in the case---Complainant lodged the FIR and recorded his S. 161, Cr.P.C. eye-witness statement on the same day which left no room for concoction---Evidence of complainant reflected that of his FIR and statement under S. 161, Cr.P.C., there had been no significant improvements in the same during his evidence so as to render his evidence unreliable---Evidence of complainant was not dented despite lengthy cross-examination---Complainant gave his evidence in a natural and straightforward manner---Medical evidence and reports fully supported the eye-witness/prosecution evidence---Medical evidence confirmed that the deceased was brought to the hospital suffering from one gunshot wound to the abdomen and he died on account of the gunshot wound as evidenced by his post mortem and death certificate---Blackening surrounding the wound was available which supported the prosecution case that the deceased put up resistance to the robbery and was thus shot at close range during the struggle---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt--- Appeal against conviction was dismissed accordingly.

Muhammad Imran v. The State 2020 SCMR 854; Abdul Jabbar alias Jabbari v. The State 2017 SCMR 1155; The State/ANF v. Muhammad Arshad 2017 SCMR 283; Muhammad Ilyas and others v. The State 2011 SCMR 460; Ghazanfar Ali alias Pappu and another v. The State 2012 SCMR 215; Asim and another v. The State PLD 2004 Quetta 123; Muhammad Afzal and another v. The State 1982 SCMR 129; Kanwar Anwaar Ali, Special Judicial Magistrate: in the matter of Criminal Miscellaneous Application No.183 of 2019 in Criminal Appeal No.259 of 2018 PLD 2019 SC 488 and Jehangir Khan v. The State 1986 SCMR 156 ref.

Mian Sohail Ahmed and others v. The State and others 2019 SCMR 956; Ghazanfar Ali v. State 2012 SCMR 215; Muhammad Ehsan v. The State 2006 SCMR 1857 and Farooq Khan v. The State 2008 SCMR 917 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Related eye-witness---Scope---Accused was charged that he along with co-accused committed murder of the brother of complainant during robbery---Although, the eye-witness was closely related to the deceased, however, his evidence could not be discarded on that basis alone unless some enmity, ill will or reason to falsely implicate the accused had come on record and nothing of the kind had come on record in the case---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

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

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence, crime empty and CNIC of deceased---Scope---Accused was charged that he along with co-accused committed murder of the brother of complainant during robbery---Although the accused was not arrested on the spot, he was arrested a few hours later in a separate robbery case and at the time of his arrest a pistol was recovered from him by the police---Empties recovered at the wardat which were sent for Forensic Science Laboratory matched with the recovered pistol from the accused and led to a positive Forensic Science Laboratory Report---On the arrest of accused in the other case of robbery a few hours later, the CNIC of the deceased was recovered from the possession of the accused---Said fact was also mentioned in the FIR---Police witnesses had no proven enmity or ill will towards the accused and no reason to falsely implicate him in the case for making up his arrest or foisting the pistol on him---Evidence of the police witnesses could be fully relied upon in circumstances---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Mustaq Ahmed v. The State 2020 SCMR 474 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Contradictions in the statements of witnesses---Effect---Accused was charged that he along with co-accused committed murder of the brother of complainant during robbery---All the witnesses were consistent in their evidence---Some contradictions in their evidence, 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---Evidence of the witnesses provided a believable corroborated unbroken chain of events from the robbery and shooting of the deceased by the accused to the deceased being taken to hospital, to recovery of the empties and blood at the scene of the death of the deceased on account of the gunshot wound, to the medical evidence and medical reports, to the arrest of the accused from whom a pistol was recovered along with the CNIC belonging to the robbed deceased, which led to a positive Forensic Science Laboratory Report in respect of the recovered empty, to the correct identification of the accused by the eye-witnesses eight hours after the robbery and shooting---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

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

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Substitution of accused---Scope---Accused was charged that he along with co-accused committed murder of the brother of complainant during robbery---Such did not appeal to reason, logic or commonsense that a brother who was an eye-witness to the murder of his own blood brother would let the real murderer of his blood brother go scot free by substituting him with an innocent person (the accused)---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Allah Ditta v. State PLD 2002 SC 52 rel.

Ali Abbas Khan for Appellant.

Nazar Iqbal for the Complainant.

Muhammad Iqbal Awan, Additional Prosecutor General for the State.

2023 P Cr. L J 1338

[Sindh (Sukkur Bench)]

Before Fahim Ahmed Siddiqui, J

MUHAMMAD HASHIM ISLAMI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-58 of 2020, decided on 15th March, 2021.

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

----Ss. 3, 4, 5, 6 & 7---Illegal dispossession---Appreciation of evidence---Benefit of doubt---Accused were charged for occupying the agricultural land of complainant illegally on the point of weapons and issuing murderous threats---Allegedly, the nominated accused persons while armed with deadly weapons illegally occupied the land of complainant and issued threats of murder while two accused built their house/hut within the land---Complaint filed by the respondent/ complainant indicated that earlier a complaint was filed under Illegal Dispossession Act, 2005 but the same was withdrawn as the name of one of the accused was incorrectly mentioned, as such after correction, the fresh complaint was filed---Complainant did not file the memo of the previous complaint nor the order of the previous complaint---Even it was not disclosed whether, at the time of withdrawing the previous complaint, the Trial Court had taken cognizance or not and permission was sought for filing a fresh complaint after the withdrawal of the earlier one---Although a person so dispossessed did not need to claim title over the property, however, he had to establish that he had possession of the property but that point was not properly addressed during the trial---Circumstances established that the case of illegal dispossession by the accused persons had not been proved beyond a reasonable doubt through some credible evidence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 3, 4, 5, 6 & 7---Illegal dispossession---Appreciation of evidence--- Benefit of doubt---Related and interested witnesses---Scope---Accused were charged for occupying the agricultural land of complainant illegally on the point of weapons and issuing murderous threats---Record showed that one of the prosecution witnesses was relative of complainant and the other was his employee and might be advisedly he had not produced any other independent witness of the locality during trial---Memo of the complaint showed the land of complainant was situated in a rural area---None of the persons from the adjoining village were asked to appear in the Trial Court as a witness of the alleged incident---Claim of the applicant was that he had sold out a portion of his said land to someone but he was not produced as a witness of the alleged incident of illegal dispossession---Complainant, in cross-examination had admitted that the nominated accused were physically disabled persons---Complainant also claimed in his complaint that the accused persons were armed with weapons but such weapons had not been disclosed or described in the memo of complaint---Even at the time of recording his deposition, the complainant remained tight-lips regarding the nature of those deadly weapons---Circumstances established that the case of illegal dispossession by the accused persons had not been proved beyond a reasonable doubt through some credible evidence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 3, 4, 5, 6 & 7--- Illegal dispossession--- Appreciation of evidence---Benefit of doubt---Contradictions in the statement of witnesses--- Scope--- Accused were charged for occupying the agricultural land of complainant illegally on the point of weapons and issuing murderous threats---Record showed that complainant mentioned in his complaint that the accused had built their house in the land after putting a hedge of thorny bushes---When the complainant entered into the witness-box, he stated that another person was the accused who had built his house on his land---Complainant in his examination-in-chief stated that the accused persons had cut down acacia trees available in the land but the memo of complaint was silent regarding any such allegation---Prosecution witness in his deposition claimed that his land was adjacent to the land of the complainant but he had not produced any proof of his ownership, which created doubt regarding such claim specially when it had come on the record that he was not residing in a nearby village but his village was situated about 15 kilometres away---Complainant in the memo of complaint while describing his land had not shown that the said witness's land was adjacent to his land---Prosecution witness had admitted in cross-examination that he was cousin of the complainant and he admitted that in the alleged incident of dispossession none from the complainant side including himself received injuries while at the time of the incident the accused persons were armed with batons and hatchets---Prosecution witness, who was an employee of complainant could not be termed as an independent witness---Such contradictions and convincing material had persuaded the Trial Court to disbelieve the complainant's case regarding dispossession up to the extent of the other accused---Trial Court conceived that only the accused was responsible for the alleged offence---Reason for that persuasion was the statement of the accused under S. 342, Cr.P.C., in which he claimed that he had purchased the land from the complainant and had possession of the same on account of the alleged sale agreement in which allegedly the complainant entered with him---Circumstances established that the case of illegal dispossession by the accused persons had not been proved beyond a reasonable doubt through some credible evidence---Appeal against conviction was allowed, in circumstances.

(d) Criminal trial---

----Duty of prosecution---Scope---Prosecution had to establish its case and no adverse findings could be drawn in favour of the prosecution solely on the basis of the statement of the accused.

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

----Ss. 3, 4 & 9---Appreciation of evidence---Illegal dispossession---Criteria---If possession was not established to be taken by the accused person by using force or deceiving the complainant then a case of illegal dispossession was surely not made out.

Haji Shamsuddin Rajper for Appellant.

Safdar Ali Jogi for the Complainant.

Syed Sardar Ali Shah, D.P.G. for the State.

2023 P Cr. L J 1356

[Sindh]

Before Mohammad Karim Khan Agha and Abdul Mobeen Lakho, JJ

Syed MUHAMMAD ADNAN---Appellant

Versus

The STATE---Respondent

Criminal Accountability Appeal No. 15 of 2017 and C.P. No. D-5728 of 2019, decided on 30th April, 2021.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(vi)---Criminal Procedure Code (V of 1898), S. 340(2)---Misuse of authority---Appreciation of evidence---Defence evidence, failure to produce---Sentence, quantum of---Accused was alleged to have misused his authority in cancellation of plots of society and then allotting those in favour of men of his choice---Trial Court convicted the accused and sentenced him to imprisonment for ten years and fine of Rs.15 million---Validity---Prosecution witnesses were independent and private persons who specifically implicated accused in commission of offence---Accused failed in giving evidence on oath under S. 340(2), Cr.P.C. in disproof of prosecution allegation, and did not state a single word as to why prosecution witnesses deposed against him---Plea of false implication in case by accused was not sufficient to put any dent in prosecution case---Prosecution witnesses were consistent in their evidence and were not shattered in cross-examination---Trial Court rightly appreciated evidence on record and conviction was recorded against accused acting upon material available with Trial Court by holding that prosecution succeeded to establish its case against accused beyond a reasonable doubt---High Court reduced sentence of ten years imprisonment awarded to accused to one already served which as per Jail Roll was 8-½ years, as the sentence was excessive keeping in view the amount of loss caused to the society and national exchequer---High Court also reduced fine to Rs. 10 million and in the event of failure to pay fine accused was to suffer sentence of one year more---Appeal was dismissed accordingly.

The State v. Idrees Ghauri and others 2008 SCMR 1118; The State v. Anwar Saifullah Khan PLD 2016 SC 276; Pir Mazharul Haq and others v. The State PLD 2005 SC 63; Muzzafar Ali Abbasi and another v. The State 2020 PCr.LJ 1403; Mansoor ul Haque v. Government of Pakistan PLD 2008 SC 166; Naimatullah Shah v. Farmanullah and another 1980 SCMR 953; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274; Wahid Bakhsh Baloch v. The State 2014 SCMR 985; Irfan and another v. Muhammad Yousaf and another 2016 SCMR 1190 and Muneer Ahmad Shaeikh and another v. DG NAB Karachi and another 2019 SCMR 1738 distinguished.

Shaukat Hayat for Appellant/Petitioner.

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

2023 P Cr. L J 1385

[Sindh (Sukkur Bench)]

Before Amjad Ali Bohio, J

NASEEM---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-274 of 2023, decided on 12th June, 2023.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 395---Dacoity---Bail, grant of---Malice of Police---Benefit of doubt---Further inquiry---Allegation against the petitioner and three other co-accused persons was that they, being armed with pistols, committed theft of three (03) coils from a transformer valuing Rs. 30,000/= and electric wires valuing Rs. 10,000/= from the Government tubewell---Initially, the FIR was registered under S. 382 of the Penal Code, 1860, however, later S. 395 was added during the submission of Challan---Contention of the petitioner/accused was that he was falsely involved in the case because his brother had moved application against the Police Officials---Validity---Record revealed that though the complainant made allegation specifically in the FIR against the accused persons, however, during the investigation the Investigating Officer (I.O.) did not collect any evidence to substantiate the accused's involvement in the offence under S. 395 of the Penal Code, 1860, therefore, the addition of said section solely based on the opinion of the Deputy Public Prosecutor (D.P.P) was a matter that required further inquiry---Accused had alleged the malice against the Police and concerns about the Police implicating his family in false cases were expressed in the application moved by his brother just three days before the accused's involvement in the present case as they had refused to pay the monthly bribes to the Police---Said allegations raised sufficient doubts regarding accused's commission of the offence---Prosecution had to prove its case beyond reasonable doubt and even at bail stage, the benefit of doubt could be extended to the accused--- Bail was allowed to the petitioner, in circumstances.

Fahad Hussain v. The State 2023 SCMR 364 ref.

Manzoor Hussain N. Larik for Applicant.

2023 P Cr. L J 1404

[Sindh]

Before Naimatullah Phulpoto and Abdul Mobeen Lakho, JJ

MUHAMMAD YASEEN alias MAMA GADDI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 452 and Confirmation Case No. 16 of 2019, decided on 11th March, 2021.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Post-mortem was not conducted---Effect---Accused was charged for making firing upon the complainant and his friend, when friend of complainant made joke with him, both received injuries on their abdomen, due to which complainant became injured but his friend died---Post-mortem examination of deceased was not conducted but the defence did not challenge the factum of unnatural death of deceased---Medical Officer was cross-examined but nothing favourable to accused came on record---No doubt post-mortem examination of the deceased was not conducted,but deceased was medically examined by Medical Officer, when he was in injured condition---Medical Officer stated that deceased received one fire arm injury at his right thigh---All material particulars had been mentioned in the medical certificate produced before Trial Court, therefore, failure to conduct post-mortem of deceased, in such circumstances would not demolish the prosecution case---Deceased died unnatural death due to fire arm injury and injured had also sustained fire arm injury as described by the Medical Officer---Finding of Trial Court in that regards required no interference by the High Court---Circumstances established that the prosecution had proved its case against the accused---Appeal against conviction was dismissed---Sentence was reduced to imprisonment for life due to mitigating circumstances.

Abdur Rehman v. The State 1998 SCMR 1778 rel.

(b) 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 making firing upon the complainant and his friend, when friend of complainant made joke with him, both received injuries on their abdomen, due to which complainant became injured but his friend died---Record showed that the injured narrated the whole story of the occurrence---Injured witness was cross-examined at length but nothing favourable to the accused came on record---Mother of the deceased was also examined, she stated that as soon as she came to know about the incident, she reported matter to the police and FIR was lodged against accused---Investigating Officer had carried out investigation and finally submitted challan against accused under S. 512, Cr.P.C.---Ocular evidence of injured was fully corroborated by the medical evidence---Defence criticized ocular evidence on the ground that it was interested because injured was friend of deceased---No doubt, ocular evidence of interested witness could not be accepted without corroboration, but in the present case evidence of injured witness had been corroborated by the medical evidence---Evidence of solitary injured eye-witness was quite reliable and confidence inspiring as he had no motive/enmity to falsely implicate the accused in the case---Presence of injured was established as he had received firearm injury---Evidence of injured witness was reliable and trustworthy---Circumstances established that the prosecution had proved its case against the accused---Appeal against conviction was dismissed, however, sentence of accused was reduced to imprisonment for life due to mitigating circumstances.

Muhammad Ehsan v. The State 2006 SCMR 1857 rel.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Absconsion of accused---Scope---Accused was charged for making firing upon the complainant and his friend, when friend of complainant made joke with him, both received injuries on their abdomen, due to which complainant became injured but his friend died---Record showed that accused disappeared from the scene for about two years---Such circumstance could not be viewed with favour---Long standing absconsion had not been explained by accused in his statement under S. 342, Cr.P.C., which showed his culpability---Circumstances established that the prosecution had proved its case against the accused---Appeal against conviction was dismissed but sentence of accused was reduced to imprisonment for life due to mitigating circumstances.

Islam Sharif v. The State 2020 SCMR 690 rel.

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

----Ss. 302(b) & 324--- Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence--- Sentence, reduction in--- Mitigating circumstances---Scope---Accused was charged for making firing upon the complainant and his friend, when friend of complainant made joke with him, both received injuries on their abdomen, due to which complainant became injured but his friend died---Investigating Officer failed to interrogate/collect some independent material during investigation regarding mode and manner of incident---Trial Court had also failed to record any finding as to how the incident had occurred---Prosecution had proved its case against the accused beyond reasonable doubt but failed to prove that it was a case of pre-plan and pre-meditation---Record showed that it was sudden incident which happened at the spur of the moment when joke was cracked by deceased---Murder of deceased was neither pre-planned nor pre-mediated---Deceased received only a single fire shot and fire was not repeated---High Court observed that single mitigating circumstance, available in the case, would be sufficient to put on guard the Judge not to award the penalty of death but life imprisonment---Circumstances established that the prosecution had proved its case against the accused---Appeal against conviction was dismissed but sentence of the accused was reduced to imprisonment for life due to mitigating circumstances.

Bukht Munir v. The State and another 2020 SCMR 588 ref.

Bakht Munir v. The State and another 2020 SCMR 588 rel.

Iftikhar Ahmed Shah for Appellant.

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

2023 P Cr. L J 1423

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Muhammad Saleem Jessar, JJ

SALAHUDDIN and 3 others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. D-26, D-28, D-29 and D-30 of 2022, decided on 12th December, 2022.

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

----Ss. 324, 353, 224, 225 & 35---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, resistance or obstruction by a person to his lawful apprehension, police encounter, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Accused were charged for making firing upon a police party when they were taking proclaimed offender; the police retaliated and during the encounter a Police Constable sustained firearm injury---Record showed that complainant had described the entire incident but had not specifically implicated accused for causing injury to Police Constable nor the same fact was mentioned in the FIR---Other witness had also not given name of accused and had stated that from firing of the accused, Police Constable had sustained an injury above left eye---Apparently during the trial, other prosecution witnesses had made improvements in their evidence, in so far as role of accused was concerned---It was alleged by the prosecution that accused was armed with a pistol on the day of incident and from him a .30-bore pistol was recovered, which admittedly discharged the bullet and not the pellets---However, C.T scan report of the injured indicated that the victim was not hit by a bullet but by pellets, which was a sufficient circumstance to doubt the role alleged against accused---Said witness in his evidence had further revealed that the arrested accused was handed over to the victim and all the Police personnel also made aerial firing---However, it was not the prosecution case that absconder accused was handed over to Police Constable after arrest and in the face of direct firing from the accused, the police had resorted to aerial firing---Said witness had also contradicted SHO over preparation of memo by stating that it was prepared by said Inspector in his and a Police Constable's presence, whereas SHO had said that it was written by a Police Constable---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any reasonable shadow of doubt--- Appeal against conviction was allowed, in circumstances.

Soaz Ali and 3 others v. The State 2001 YLR 1453 ref.

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

----Ss. 324, 353, 224, 225 & 35---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, resistance or obstruction by a person to his lawful apprehension, police encounter, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Co-accused acquitted on same set of evidence---Effect---Accused were charged for making firing upon the police party when they were taking proclaimed offender; the police retaliated and during the encounter a Police Constable sustained firearm injury---Record showed that the same evidence qua acquitted accused had not been believed by the Trial Court but had been relied upon against present accused persons---There was no perceivable difference in the role ascribed to the acquitted accused and the role alleged against the present accused persons---Only distinction, however, was recovery of firearm weapons from the present accused persons---But, the Forensic Science Laboratory Reports showed that the weapons recovered from the present accused persons did not match with the empties recovered from the spot---From the spot different empties of different bore were recovered but according to the Expert none of them had been opined to have been fired from the weapons recovered from the present accused persons---So when said fact is kept in mind, it would appear that there was no difference at all between the case of acquitted accused and the case of present accused persons---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any reasonable shadow of doubt---Appeal against conviction was allowed, in circumstances.

(c) Criminal trial---

----Rule of consistency---Principle---When benefit of doubt is extended to one set of accused with identical role, the same cannot be withheld from other set of accused having been assigned a similar/identical role by the prosecution in the case.

Manzoor Ahmed Panhwar for Appellants.

Nazar Muhammad Memon, Additional P.G. Sindh for the State.

2023 P Cr. L J 1461

[Sindh (Larkana Bench)]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

ALI SHER LEGHARI and another---Applicants

Versus

The STATE---Respondent

2nd Criminal Bail Application No. D-24 of 2020, decided on 16th February, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), 302, 324, 404, 436, 427, 353, 395, 396, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, dishonestly receiving stolen property, mischief by fire or explosive substance with intent to destroy house, mischief causing damage to the amount of fifty rupees, assault or criminal force to deter public servant from discharge of his public duty, dacoity, dacoity with murder, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Bail, grant of---Ground of statutory delay---Long incarceration---Scope---Allegation against the accused was that they attacked on police party, put the police official into the mobile and set the mobile on fire, took the weapons of police, motorcycle and wireless, police also made firing in retaliation, due to which five police officials died and many were injured---Record showed that High Court originally rejected the applicants' bail on merits, however the Supreme Court over 9 years ago directed the trial to be completed within 6 months---Record transpired that there still remained fifteen witnesses to be examined and as could be seen from the FIR there were many absconding accused who could be arrested and the trial would restart again from scratch as had happened twice in the past---Both the applicants had only been given a general role in the FIR as opposed to a specific role in killing any of the police men and that no witness so far had deposed to that effect against either of them---Petitioners/accused had been in jail for eleven and over nine years respectively and no delay had been caused on their part or the part of their counsel in concluding the trial as conceded by the State counsel---Fact remained that the trial was unlikely to conclude in the foreseeable future---Based on Art. 10-A of the Constitution, the delay in conclusion the trial had reached shocking levels---No one could be incarcerated indefinitely pending the conclusion of trial and bail could not be refused as a punishment---Bail application was allowed, in circumstances.

Shabeer v. The State 2012 SCMR 354; Taj Muhammad and another v. The State 2011 PCr.LJ 1910 and Tallat Ishaq v. National Accountability Bureau through Chairman and others PLD 2019 SC 112 ref.

Ziagham Ashraf v. State 2016 SCMR 18 rel.

Habibullah G. Ghouri for Applicants.

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

2023 P Cr. L J 1472

[Sindh]

Before Aftab Ahmed Gorar, J

UMAIR AZAD---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 594 of 2021, decided on 15th September, 2021.

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

----S. 498---Penal Code (XLV of 1860), S. 381---Theft by clerk or servant of property in possession of master---Pre-arrest bail, refusal of---Scope---Accused was alleged to have stolen the gold bangles from the hands of deceased lady in the hospital and during investigation on the basis of CCTV (Closed-circuit television) footage, the accused was found involved in the commission of alleged crime---Accused was named in the FIR with specific role; there was no mala fide on the part of the complainant to falsely implicate the accused---Accused had misused concession of pre-arrest bail, earlier granted, by the Trial Court as he had not joined the investigation---Sufficient material was available on record to connect the accused with the alleged crime and being prima facie linked with the commission of the offence he was held disentitled to the concession of bail---Interim pre-arrest bail granted to the accused was re-called and he was taken in custody.

Saindad and others v. The State SBLR 2021 Sindh 1379 ref.

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

----S. 381---Theft by clerk or servant of property in possession of master---Delay in lodging FIR---Scope---Delay in reporting an offence under S. 381, P.P.C., may at times be inevitable as such it always come on surface subsequently---High Court declined to grant pre-arrest bail to the accused on the said ground.

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

----S. 497---Bail---Offence not falling in prohibitory clause of S. 497, Cr.P.C.---Scope---Mere fact that the offence for which the accused is charged does not attract the prohibitory limb of S. 497, Cr.P.C. cannot per se make him entitled to the concession of bail---Grant of bail in such like cases is not a rule of universal application as each case merits decision on the basis of its own facts and circumstances.

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

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

----S. 497---Bail---Tentative assessment---Scope---Court while deciding bail application has to assess the record tentatively and deeper appreciation of evidence is not required.

Saleh Muhammad v. The State PLD 1986 SC 211 and The State v. The Zubair and 4 others PLD 1986 SC 163 ref.

Mushtaq Ahmed Jehangiri for Applicant along with Applicant.

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

Ali Nawaz Khuhawar for the Complainant.

2023 P Cr. L J 1501

[Sindh (Sukkur Bench)]

Before Fahim Ahmed Siddiqui and Khadim Hussain Tunio, JJ

MUHAMMAD AYUB---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-253 of 2019, decided on 23rd September, 2020.

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

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotic---Appreciation of evidence---Prosecution case was that 564 kilograms of charas was recovered from the truck driven by the accused---No doubt, the raiding agency had acted upon a spy information but the complainant in his deposition had disclosed that the information was passed on by his high-ups requiring a prompt action for successful arrest and recovery---For the sake of an immediate response, it was quite comprehensible that a private and independent witness could not be arranged by the raiding party---In view of S. 25 of the Control of Narcotic Substances Act, 1997, the stress by the defence for associating private witness was misconceived---Section 103, Cr.P.C. did not over-ride the statutory provisions of S. 25 of the Act---Mere objection that the witnesses of arrest and recovery belonged to raiding party was not sustainable---Circumstances established that the impugned judgment was based upon proper contemplation and deliberation of the evidence recorded during trial---Appeal against conviction was dismissed accordingly.

Zaffar v. The State 2008 SCMR 1254 rel.

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

----Ss. 9(c) & 36---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6---Possession of narcotics---Appreciation of evidence---Report of Government Analysts---Protocols/procedure---Scope---Prosecution case was that 564 kilograms of charas was recovered from the truck driven by the accused---Non-compliance of requisite protocol by the chemical laboratory---Scope---Record showed that the report of Government Chemical Examiner was prepared according to the prescribed Form-II chalked out as per mandate of S. 36 of the Act, and Rr. 5 & 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001---All the required parameters mentioned in the Form-II prescribed under the said referred provisions were fully incorporated in the report of Chemical Examiner---Circumstances established that the impugned judgment was based upon proper contemplation and deliberation of the evidence recorded during trial--- Appeal against conviction was dismissed accordingly.

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

----Ss. 9(c) & 27---Possession of narcotics---Appreciation of evidence---Safe custody---Scope---Prosecution case was that 564 kilograms of charas was recovered from the truck driven by the accused---Record reflected that just after completing the process of arrest and recovery, the raiding party directly approached the nearest ANF Police Station, where sufficient facilities for the safe custody of recovered narcotics were available---Accused was locked up after lodgement of FIR and the recovered narcotics were put in the possession of the incharge for keeping safely in the store room---In such a situation, the requirement of S. 27 of the Act was fulfilled, hence, the chain of safe custody from the point of recovery to the facility of ANF was established, which continued during transmission from the ANF store-room to the Chemico-Laboratory where it was received by the officials of the laboratory---Report of Chemical Analyzer showed that the property was received in sealed condition from the same official of the ANF by whom it was transmitted, meaning thereby that the recovered narcotics remained out of harm way from the point of recovery to the laboratory---Chain of safe custody in circumstances remained intact, as such there appeared to be no room for suspicion regarding the report of Chemical Examiner, which was positive---Circumstances established that the impugned judgment was based upon proper contemplation and deliberation of the evidence recorded during trial---Appeal was dismissed accordingly.

Suhail alias Sohaib Shar v. The State 2019 YLR Note 30; Munir Hussain alias Munawar alias Muno v. The State 2019 YLR 51; Abdul Waqar v. The State 2018 YLR 2358; Sohaib Ali v. The State 2018 MLD 1835; The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 and Khair-ul-Bashar v. The State 2019 SCMR 930 ref.

Zaheeruddin Mujahid for Appellant.

Mohsin Ali Khan, Special Prosecutor ANF for the State.

2023 P Cr. L J 1514

[Sindh]

Before Omar Sial, J

TAJ MOHAMMAD and 23 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 79 of 1999, decided on 5th October, 2022.

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

----Ss. 302, 307, 147, 148, 149, 114 & 109---Qatl-i-amd, cases in which qisas for qatl-i-amd shall not be enforced, rioting, rioting armed with deadly weapons, unlawful assembly, abettor present when offence was committed, abetment---Appreciation of evidence---Benefit of doubt---Accused were charged for committing murder of seven persons and injuring three persons---In the present case, the supposed eye-witnesses would have required super human qualities to precisely identify which 32 persons were present, what weapons were they armed with, who hit who and at what part of the body---It was not believable that each of the witness could get this right in the middle of a full scale brawl between two groups (even the complainant party comprised of a substantial number of people) in which weapons were being used freely---Complainant party had tried to involve as many persons of their rival group in the incident---However impact of such a large scale implication was that the veracity of the entire prosecution case became doubtful, at least to the extent of the present accused---Quarrel, though said to be over succession, appeared to be primarily motivated by the possession of land---Both groups were at fault---Complainant party simply could not allege that there was one sided attack---Witness being injured in the attack was itself an indication of that---Moreover, there was massive discrepancies in the time when the dead bodies were seen by the police---Such discrepancies rang from a couple of hours to at least five or six hours---Testimony of supposed eye-witnesses was found quite doubtful---Circumstances established that the prosecution was unable to prove its case against the accused persons---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 307, 147, 148, 149, 114 & 109---Qatl-i-amd, cases in which qisas for qatl-i-amd shall not be enforced, rioting, rioting armed with deadly weapons, unlawful assembly, abettor present when offence was committed, abetment---Appreciation of evidence---Benefit of doubt---Presence of eye-witnesses at the spot doubtful---Accused were charged for committing murder of seven persons and injuring three persons---According to an injured eye-witness he was working in a tract of land that was two furlongs away from the place of incident and that it took him and the others half an hour to reach the place of incident after they had heard the sound of firing---Said witness also acknowledged at trial that the police had not recorded his statement ever and that he himself had also not gone to the police station to have his statement recorded---Said witness recorded his statement for the first time after ten years of the incident and then identified some of the accused who he had not known before, therefore such statement could not be given credence---In any case, said witness at trial was unable to attribute a specific role to any of the accused except one, who he said had hit him on his shoulder with a hatchet---According to the other injured witness when he reached the place of occurrence, the injured witness and the others were lying in injured condition---Said version was not in consonance with what first injured witness stated who said that they only had seen one injured---Said witness also testified that he did not know as to which accused had caused injuries to which deceased or injured---Another injured witness stated at trial that he could not say as to who caused injuries from the side of the accused to any witnesses---Said witness repeated himself in his cross-examination by saying that he had not seen any of the witnesses or the deceased receiving injuries during the occurrence---In such circumstance how then could he have seen one of the accused hitting one of the injured with a hatchet---Another witness admitted that the statement under S. 161, Cr.P.C., which he had recorded was not taken by the Investigating Officer of the case but that some other Police Officer who he did not know had recorded it---Presence of said witness at the place of occurrence was indeed doubtful in itself---Circumstances established that the prosecution was unable to prove its case against the accused persons---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 307, 147, 148, 149, 114 & 109---Qatl-i-amd, cases in which qisas for qatl-i-amd shall not be enforced, rioting, rioting armed with deadly weapons, unlawful assembly, abettor present when offence was committed, abetment---Appreciation of evidence---Benefit of doubt---Delay of 10/15 days in recording statement of witnesses---Effect---Accused were charged for committing murder of seven persons and injuring three persons---One of the witnesses admitted at trial that his S. 161, Cr.P.C. statement was recorded 10 to 15 days after the occurrence though said witness was supposedly an eye-witness---Not much credence could be given to such a statement which lost its evidentiary value because of the delay in its recording and no reason being attributed to the delay---Circumstances established that the prosecution was unable to prove its case against the accused persons---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 307, 147, 148, 149, 114 & 109---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, cases in which qisas for qatl-i-amd shall not be enforced, rioting, rioting armed with deadly weapons, unlawful assembly, abettor present when offence was committed, abetment---Appreciation of evidence--- Benefit of doubt--- Test identification parade---Infirmities---Accused were charged for committing murder of seven persons and injuring three persons---Record showed that an identification parade was held on 05.02.1983 for the purpose of the witnesses to identify accused persons---Identification parade was not held in the prescribed manner---Four accused were put up for a joint identification along with only four dummies---Only the complainant identified the four accused, which must not have been difficult as by that time he had many opportunities to see them earlier---On 10.02.1983 another identification parade was held in which four other accused were put up for identification by the complainant---At that time again a joint identification parade was held but the number of dummies had increased to eight---Dummies and the accused were both brought by the Investigating Officer for the parade---Description of the dummies was not noted by the Judicial Magistrate, in fact he also admitted that he had not written the names and particulars of the dummies---Judicial Magistrate could not confirm that the age, height and other particulars of the dummies were written by him---Said witness also admitted that when the complainant had identified the accused, he had not said a word let alone assign a role to them---Absolutely no value could be given to such an identification parade---No other witness, who claimed to be an eye-witness, was brought in to identify the accused they did not know---Memo that the Judicial Magistrate made after the identification parade became further doubtful when contrary to what the Judicial Magistrate stated at trial i.e. the complainant did not say anything while identifying the accused, the memo recorded that the complainant stated that they were present on the scene---Even then, no role apart from presence had been attributed to them---Circumstances established that the prosecution was unable to prove its case against the accused persons---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 307, 147, 148, 149, 114 & 109---Qatl-i-amd, cases in which qisas for qatl-i-amd shall not be enforced, rioting, rioting armed with deadly weapons, unlawful assembly, abettor present when offence was committed, abetment---Appreciation of evidence---Benefit of doubt---Common intention, applicability of---Accused were charged for committing murder of seven persons and injuring three persons---Common intention required a pre-planned meeting of the minds prior to the incident to make vicariously liable a person for the acts of the other---In the current case, no evidence to establish the common intention was led at trial---In any case, the evidence itself made the presence of the accused persons and the eye-witnesses debatable, to say the least---Obviously, the complainant party had tried to loop in as many persons from their rival group as they possibly could---Net result of the maneuvering and manipulation was that the real culprits of the incident and the true facts got completely eclipsed in the process---Circumstances established that the prosecution was unable to prove its case against the accused persons---Appeal against conviction was allowed, in circumstances.

Mehmood A. Qureshi and Ahsan Gul Dahri for Appellants.

Muntazir Mehdi, D.P.G. for the State.

Sajjad Ahmed Chandio for the Complainant.

2023 P Cr. L J 1572

[Sindh (Larkana Bench)]

Before Naimatullah Phulpoto, J

JAN MUHAMMAD alias KHAFAI PAHORE and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-111 of 2018, decided on 12th September, 2022.

Penal Code (XLV of 1860)---

----Ss. 302(b), 337-H(2), 114, 148 & 149---Criminal Procedure Code (V of 1898), S. 367---Qatl-i-amd, rash and negligent act, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Language of judgment---Contents of judgment---Scope---Accused were charged for committing murder of two sons of the complainant by firing---In the present case, Trial Court had held that prosecution had proved its case against the accused persons at the trial, but accused had been convicted under S. 302(b), P.P.C., and sentenced only for committing qatl-i-amd of one deceased and other accused had been convicted under S. 302(b), P.P.C., and sentenced for committing qatl-i-amd of other deceased---No finding as to the sharing of common object by the accused persons along with co-accused in the commission of offence had been recorded by the Trial Court---Though as per prosecution case accused along with co-accused (proclaimed offender) fired upon one deceased resulting in his death and other accused along with co-accused (proclaimed offender) fired at other deceased committing his qatl-i-amd---According to the prosecution evidence also, all the five accused in prosecution of the common object committed qatl-i-amd of both deceased persons, but Trial Court had failed to record separate findings regarding both deceased that each accused acted in prosecution of common object---Once it was established that each accused acted in prosecution of the common object or knew the ultimate object, then it would be immaterial whether each accused played a role or not---Thus, it was clear from the impugned judgment that it was passed by the Trial Court ignoring the principle of the common object regarding both murders---Moreso, it was the duty of the Trial Court to ascertain the aspect of the common intention or common object at the time of conclusion of the trial when charge was specifically framed under S. 302(b) rend with S. 149, P.P.C---Finding of the Trial Court showed that Ss. 148, 149, P.P.C. were also proved, but no finding with regard to the Ss. 148, 149, P.P.C., for double murders was recorded by the Trial Court---Thus, the mandatory provisions of S. 367, Cr.P.C. had not been followed by Trial Court---Case was remanded to the Trial Court for re-writing of the judgment, in circumstances.

Bashir Ahmed and others v. The State and others 2022 SCMR 1187 rel.

Javed Ahmed Soomro for Appellants.

Ali Anwar Kandhro, Additional Prosecutor General for the State.

Abdul Hakeem Brohi for the Complainant.

2023 P Cr. L J 1615

[Sindh (Sukkur Bench)]

Before Zulfiqar Ali Sangi, J

ALI AKBAR and 2 others---Applicants

Versus

The STATE through D.P.G. Sukkur and 3 others---Respondents

Criminal Miscellaneous Application No. S-378 of 2021, decided on 23rd August, 2021.

Criminal Procedure Code (V of 1898)---

----Ss.154, 161, 22-A & 22-B---Powers of Ex-officio Justice of Peace---Registration of second FIR---Scope---First Information Report was lodged by the State through an Assistant Sub-Inspector against the respondent and others in respect of quarrel between transporters, blockade of road, scuffle with the police and causing injuries to each other---Trial was pending adjudication before the concerned court; however, Ex-officio Justice of Peace ordered for registration of second FIR in respect of the same incident---Respondent had approached the Ex-officio Justice of Peace for registration of FIR with the version that the police officials took him in the police station, robbed him, broke his arm and caused kicks and fists blows---Held, that the latter version was available with the respondent at the time when investigation was being conducted in the FIR; however, at that time he had not recorded his version before Investigating Officer---During the investigation conducted after registration of an FIR the Investigating Officer might record any number of versions of the same incident brought to his notice by different persons which versions were to be recorded by him under S. 161, Cr.P.C., in the same case---No separate FIR was to be recorded for any new version of the same incident---Order passed by Ex-officio Justice of Peace was set aside; however, it was left open to the respondent to approach the Investigating Officer for recording of his statement under S. 161, Cr.P.C.

Sughran Bibi's case PLD 2018 SC 595 fol.

Manzoor Hussain Halepoto for Applicants.

Shoukat Ali Makwal for Respondents.

Syed Sardar Ali Shah, D.P.G. for the State.

2023 P Cr. L J 1662

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Zulfiqar Ahmad Khan, JJ

MUKHTIAR ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-22 of 2021, decided on 14th April, 2022.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Non-association of private witnesses---Effect---Prosecution case was that accused was found in possession of 1170 grams of charas---As per FIR the complainant party was on patrolling and during patrolling they had seen the accused standing on the main road having black colour shopper in his hand who was apprehended and recovery of 1170 grams of charas was affected from his possession---Record showed that the accused was arrested from main road which was a populated area and the complainant had sufficient time to call independent persons of the locality to witness the recovery proceedings but it was not done by him for reasons best known to him and only the Police Officials who were subordinates to him were made as mashirs of arrest and recovery proceedings---Judicial approach had to be a conscious in dealing with the cases in which entire testimony hinged upon the evidence of Police Officials alone---Provisions of S. 103, Cr.P.C., were not attracted to the cases of personal search of accused in narcotic cases but where the alleged recovery was made on a road (as had happened in this case) and the people were available there, omission to secure independent mashirs, particularly, in police case could not be brushed aside lightly by the court---No explanation was available on record as to why no any independent person from the vicinity had been joined to witness the recovery proceedings---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----S. 103---Recovery proceedings---Association of private witnesses---Purpose---Prime object of S. 103, Cr.P.C., is to ensure transparency and fairness on the part of police during course of recovery, curb false implication and minimize the scope of foisting of fake recovery upon accused.

(c) Criminal trial---

----Evidence---Police Official as a witnesses---Scope---No doubt police witnesses are as good as other independent witnesses and conviction can be recorded on their evidence, but their testimony should be reliable, dependable, trustworthy and confidence worthy---If such qualities are missing in their evidence, no conviction can be passed on the basis of evidence of police witnesses.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Discrepancies and contradictions in the statement of witnesses---Effect---Prosecution case was that accused was found in possession of 1170 grams of charas---Record showed that number of contradictions between the evidence of prosecution witnesses were noticed which could not be easily brushed aside---Conduct of the police showed that investigation had been carried out in a casual and stereotype manner without making an effort to discover the actual facts/truth---Record transpired that the Malkhana entry did not have the signature of Malkhana Incharge---Moreover, there were also discrepancies and flaws in the evidence of complainant and mashir of arrest and recovery---Complainant in his cross-examination had admitted that recovery memo did not mention sizes and shapes of the chunks of charas allegedly recovered from the accused person---Said witness further admitted that recovery memo did not bear any inscription---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Delay of three days in sending the narcotic for chemical analysis---Effect---Prosecution case was that accused was found in possession of 1170 grams of charas---According to the statement of complainant, he recovered the narcotics from accused on 08.03.2020 and prepared the memo of arrest and recovery and deposited the same in Malkhana---Report of Director Laboratories and Chemical Examiner revealed that the charas was received by hand in the office on 11.03.2020 through Head Constable after the delay of three days but evidence on the record was silent that where the same remained for three days---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Safe custody and safe transmission of narcotics to Forensic Laboratory not established---Effect---Prosecution case was that accused was found in possession of 1170 grams of charas---Evidence regarding safe transmission of alleged recovered narcotic to the laboratory for chemical analysis was missing---If safe custody of narcotics and its transmission through safe hands was not established on the record, same could not be used against the accused---Moreover, it was also an established position that the chain of custody or safe custody and safe transmission of narcotics began with seizure of the narcotic by the Law Enforcement Officer, followed by separation of the representative samples of the seized narcotic, storage of the representative samples with the Law Enforcement Agency and then dispatch thereof to the office of the Chemical Examiner for examination and testing---Such chain of custody must be safe and secure---This was because, the Report of Chemical Examiner enjoyed very critical and pivotal importance under Control of Narcotic Substances Act, 1997 and the chain of custody ensured that correct representative samples reached the office of the Chemical Examiner---Any break or gap in the chain of custody i.e. in the safe custody or safe transmission of the narcotic or its representative samples made the report of the Chemical Examiner not reliable to justify conviction of the accused---Prosecution, therefore, had to establish that the chain of custody remained unbroken, safe, secure and indisputable in order to be able to place reliance on the report of the Chemical Examiner---However, the facts of the present case revealed that the chain of custody had been compromised at more than one occasion, therefore, reliance could not be placed on the report of the Chemical Examiner to support conviction of the accused---All such factors suggested the false implication of accused in the case could not be ruled out---Charas was recovered from possession of accused on 08.03.2020 and was kept in Malkhana but it had not been proved that it was a safe transit case---Thus, prosecution had failed to prove that the charas was in safe custody for the said period---Even positive report of the Chemical Examiner would not prove the case of prosecution---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

Ikramullah and others v. The State 2015 SCMR 1002 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

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

(g) Criminal trial---

----Benefit of doubt---Principle---Not necessary that there should be many circumstances creating doubts---If there is a single circumstance, which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.

Tariq Parvez v. The State 1995 SCMR 1345 rel.

Mrs. Razia Ali Zaman Khan Patoli for Appellant.

Muhammad Ali Noonari, Deputy Prosecutor General, Sindh for the State.

2023 P Cr. L J 1684

[Sindh (Sukkur Bench)]

Before Zafar Ahmed Rajput, J

DILAWAR---Appellant

Versus

The STATE---Respondent

Criminal Bail Application No. S-535 of 2021, decided on 13th September, 2021.

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

----S. 497---Sindh Arms Act (V of 2013), Ss. 23 & 24---Unlicensed possession of arms, possession of arms with intent to use for unlawful purposes---Bail, grant of---Non-association of independent witnesses---Further inquiry---Scope---Accused sought bail after arrest in an FIR lodged under S. 23 of the Sindh Arms Act, 2013, wherein it was alleged that he was apprehended while being in possession of an unlicensed .30 bore pistol with magazine and three live bullets---Accused had been confined in judicial custody since the day of his arrest and the police had submitted the challan against him; hence, he was not required for further investigation---Despite prior information, daylight and roadside occurrence, police had failed to join any private person to witness the search and recovery process---Record was silent as to whether the accused was a habitual or previous convict---All the witnesses were police officials; therefore, there was no apprehension of tampering with the prosecution evidence---Case against accused required further inquiry--- Accused was admitted to bail, in circumstances.

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

----Ss. 2(b), 2(c) & 2(d)---Ammunition---Arms---Firearms---Scope---Pistol does not come within the definition of firearm and ammunition but within the definition of S. 2(c).

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

----S. 497---Bail---Consideration of likely sentence---Scope---Court while hearing bail application does not have to keep in view the maximum sentence provided by statute but the one which is likely to be entailed in the facts and circumstances of the case.

Shabbir Ali Bozdar for Appellant.

Shafi Muhammad Mahar, Deputy Prosecutor General, Sindh for the State.

2023 P Cr. L J 1704

[Sindh]

Before Aftab Ahmed Gorar, J

RIZWAN RIAZ and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No. 510 of 2022, decided on 9th May, 2022.

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

----S. 497---Anti-Money Laundering Act (VII of 2010), Ss. 3 & 4---Money laundering---Bail, refusal of---Cheating the public at large---Scope---Prosecution case was that the accused persons were involved in receiving money from general public in fraudulent manner on the pretext of investing the same in stocks through a brokerage firm, but instead of investing in stocks they invested the money of general public into some unknown business, hence, committed cheating, misrepresentation and criminal breach of trust---Accused persons were specifically nominated in the FIR with specific role; there was nothing on record to show that the complainant and Investigating Officer had any ill-will/mala fide with the accused persons to falsely implicate them in the case---Accused persons were operating foreign bank accounts to cheat the general public and to camouflage the ill-gotten funds under the garb of dummy business---Prosecution had sufficient evidence in the shape of documentary evidence against the accused persons---Accused persons were not entitled to the grant of bail---Application was dismissed, in circumstances.

Muhammad Sarfraz Ansari v. State and others PLD 2021 SC 738 rel.

Asif Ayub's case 2010 SCMR 1735; Khalid Javed Gillani's case PLD 1978 SC 256 and Syed Lakhat-e-Hasnain's case 2010 5CMR 855 ref.

2015 SCMR 1575; 2016 SCMR 447; 2011 SCMR 1614; 2015 5CMR 1575; 2019 5CMR 1730 and PLD 2021 SC 916 distinguished.

(b) Anti-Money Laundering Act (VII of 2010)---

----S. 3---Money laundering---Scope---Money laundering is the process by which large amount of illegally obtained money is given the appearance of having originated from the legitimate source---In simple terms it is the conversion of black money into white money.

(c) Criminal trial---

----Each case has to be decided on its own facts and circumstances and Courts are required to exercise jurisdiction independently.

State v. Haji Kabir Khan PLD 2005 SC 364 and Muhammad Faiz alias Bhoora v. The State and another 2015 SCMR 655 ref.

Mansoor Ali Ghangro and Fazila Ambar Chachar for Applicants.

Samiullah Soomro for the Complainant No. 1.

Akhtar Hussain Shaikh for the Complainant No. 2.

Choudhary Waseem Akhtar, Assistant Attorney General along with SIP Rahat Khan, FIA CCC.

Victim Mst. Huma Azfar is in attendance.

Syed Asad Hussain, Riaz Sabsoi and Irfan Zial for Victims.

2023 P Cr. L J 1752

[Sindh]

Before Mohammad Karim Khan Agha and Abdul Mobeen Lakho, JJ

MUHAMMAD RAHEEL---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 531 and Confirmation Case No. 23 of 2019, decided on 22nd April, 2021.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Delay of five hours and forty minutes in lodging the FIR---Effect---Accused was charged for committing murder of his wife/sister of complainant by inflicting knife blows---Record showed that the incident took place at about 2.00 p.m.---Complainant was informed about the incident whilst he was at work and he reached home at about 4.15 p.m. after the dead body of his sister had been transported from his house to the hospital---Complainant recorded his statement under S. 154, Cr.P.C. at 7.40 p.m., which became the FIR---Due to the trauma and tension which the complainant was under after finding out that his sister who was living with him had been brutally murdered and that his aged blind mother had been pushed to the floor where she became unconscious---Facts remained that the delay in lodging the FIR had been explained and as such the delay in lodging the FIR was not fatal to the prosecution case based on the particular facts and circumstances of the case---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Statement of eye-witness---Scope---Accused was charged for committing murder of his wife/sister of complainant by inflicting knife blows---Record showed that eye-witness was the neighbour of the deceased and had been living 4.5 feet away from her house for the last four years---Said witness knew the accused and the deceased who were husband and wife who according to his evidence regularly argued as corroborated by the complainant---Eye-witness, in his evidence, had stated that on the day of incident he was at home when at about 2.00 p.m. he heard noise of fighting and so he went to the house of the deceased and had seen the accused, who was the husband of the deceased, attacking and assaulting his wife with a churri which severely injured her and seen blood oozing from her, thus, he disclosed the said facts to chowki (Police Station) incharge---Evidence of said witness was fully corroborated by the chowki incharge---Eye-witness was the neighbour of the accused and as such he was a natural and not a chance witness---Eye-witness knew both the deceased and the accused and since it was a daylight incident and he had seen the attack on the deceased by the accused at close range there was no need for any identification parade or any question that he had not correctly identified the accused---Said witness was not related either to the deceased or the accused and he was a completely independent witness---No enmity or ill-will existed between eye-witness and the accused, thus, he had no reason to implicate the accused in a false case---Said witness was not dented during his cross-examination and gave his statement under S. 161, Cr.P.C. within hours of the incident which was not improved upon at the time of his evidence---Evidence of said witness was found to be reliable, trust worthy and confidence inspiring and thus believed the same---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt for the offence for which he had been convicted---Conviction was maintained and appeal was dismissed accordingly.

Asad Rehmat v. State 2019 SCMR 1156; Muhammad Imran v. The State 2021 SCMR 69; Khalid Mehmood v. The State 2017 SCMR 201; Shamshad Ali v. The State 2011 SCMR 1394; Majhi v. The State 1970 SCMR 331 and Muhammad Ilyas and others v. The State 2011 SCMR 460 ref.

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

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Statement of blind witness---Scope---Accused was charged for committing murder of his wife/sister of complainant by inflicting knife blows---Mother of the deceased appeared as a witness---Said witness knew the accused well and was present in the house at the time of the accused entered the house---Said witness might not have been able to see the accused but since the accused was married to her daughter she would have been able to recognize his voice, smell and mannerism quite easily---According to her evidence the accused always fought with the deceased---Witness stated in her evidence that on the day of the incident the accused came into the house and called the name of her daughter after which she told the accused to go away, however the accused pushed her over and on his entering the house she heard hue and cries and she then fell unconscious---Said witness was not a chance witness as she lived in the house where the incident occurred and was not dented during cross-examination---Evidence of said witness was believable especially as the accused admitted in his statement under S. 342, Cr.P.C. that he came to the house and found his wife dead although he did not mention the presence of mother of deceased/witness, thus, it did not appeal to reason, logic or commonsense that the mother of the deceased who was a semi eye-witness would let the murderer of her daughter go scot free by substituting the accused with an innocent person---Circumstances established that the prosecution had proved its case against the accused beyond reasonable doubt---Appeal against conviction was dismissed accordingly.

Allah Ditta v. State PLD 2002 SC 52 rel.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence--- Medical evidence and ocular account---Corroboration---Accused was charged for committing murder of his wife/sister of complainant by inflicting knife blows---Record showed that the medical evidence and post mortem report of Medical Officer, who was the Medico-Legal Officerand carried out the post mortem on the deceased, fully supported the prosecution case and she found the cause of death to be on account of multiple stab wounds---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of churri from the spot---Scope---Accused was charged for committing murder of his wife/sister of complainant by inflicting knife blows---Record showed that the blood-stained churri was recovered next to the dead body at the time of the arrest of accused on the spot and was sealed and sent for chemical examination---Blood stained earth, blood stained clothes of the deceased and blood-stained churri all resulted in a positive chemical report---Circumstances established that the prosecution had proved its case against the accused beyond reasonable doubt--- Appeal against conviction was dismissed accordingly.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence--- Minor contradictions---Scope---Accused was charged for committing murder of his wife/sister of the complainant by inflicting knife blows---Record showed that all the witnesses were consistent in their evidence and even if there were some contradictions in their evidence, they 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 reasonable doubt---Appeal against conviction was dismissed accordingly.

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

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Police witnesses---Scope---Accused was charged for committing murder of his wife/sister of the complainant by inflicting knife blows---Record showed that the Police witnesses had no enmity or ill will towards the accused and had no reason to falsely implicate him in the case, for example by making up his arrest at the washroom (which the accused admitted himself in his statement under S. 342, Cr.P.C or by planting the churri---Evidence of the Police witnesses, in circumstances, could be fully relied upon---Circumstances established that the prosecution had proved its case against the accused beyond reasonable doubt---Appeal against conviction was dismissed accordingly.

Mustaq Ahmed v. The State 2020 SCMR 474 rel.

Iftikhar Ahmed Shah for Appellant.

Mohammad Iqbal Awan, Deputy Prosecutor General for the State.

2023 P Cr. L J 1787

[Sindh]

Before Khadim Hussain M. Shaikh, J

Mst. SUNILA MUSHTAQ---Appellant

Versus

BABAR HUSSAIN and 7 others---Respondents

Criminal Acquittal Appeal No. S-51 of 2020, decided on 23rd September, 2020.

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

----Ss. 506(2) & 509---Domestic Violence (Prevention and Protection) Act (XX of 2013), Ss. 5(f), 5(j) & 5(k)---Criminal intimidation, harassment at work place---Appreciation of evidence---Appeal against acquittal---Prosecution case was that the accused-respondents, close relative of complainant, misbehaved with her and used filthy language and extended threats of dire consequences to her and tried to turn out her from the house along with her children and they were continuously harassing, pressurizing and torturing her by physical violence through different means---Record showed that neither date, time and place of any specific incident was shown by the complainant in her complaint nor had she mentioned name of any person to be the witness of the threats allegedly issued by the accused persons to her---Even date of alleged dispossession of the complainant from the house in question was not shown in the direct complaint---Complainant had stated that her sister-in-law entered in her house along with her articles to which complainant asked her that how she entered in the house without permission---Said sister-in-law of complainant became angry and used filthy language against the complainant and her husband and brother-in-law and sister-in-law---Said sister-in-law of complainant also misbehaved with her---Complainant deposed that accused issued threats to her that she would kill her, however, other witness did not depose a single word regarding issuing of threats of killing to complainant by accused---Said witness deposed that she and her husband were living with complainant jointly and they were evicted from the house---Complainant deposed that witness and her husband were not living with her in the house---Although complainant claimed to have been caused physical violence to her by the accused persons by maltreating her, but she had neither produced any evidence to show that she had received any injury nor did she produced any medical certificate---Said material discrepancies and infirmities in the prosecution case rendered the same doubtful---Circumstances showed that the matter was purely of civil nature but the complainant by filing direct complaint had attempted to convert the civil dispute into a criminal case---Absolutely, there was no evidence worth consideration to establish any accusations against the accused persons---Appeal against acquittal was dismissed, in circumstances.

(b) Appeal against acquittal---

----Double presumption of innocence---Interference---Scope---In case of acquittal the accused was presumed to be innocent and if after trial, accused was acquitted, he earned double presumption of innocence---Acquittal judgment or order normally did not call for any interference unless it was found arbitrary, capricious, fanciful, artificial, shocking and ridiculous---Interference was to be made only when there was none reading and gross misreading of the evidence, resulting the miscarriage of justice and on perusal of the evidence no other decision could be given except that the accused was guilty.

Yar Muhammad and 3 others v. The State 1992 SCMR 96; Muhammad Shafi v. Muhammad Raza and another 2008 SCMR 329; State/Government of Sindh through Advocate General, Sindh, Karachi v. Sobharo 1993 SCMR 585; Muhammad Yaqoob v. Manzoor Hussain and 3 others 2008 SCMR 1549 and State and others v. Abdul Khaliq and others PLD 2011 SC 554 rel.

Mirza Muhammad Salman for Appellant.

Respondents Nos.1, 3, 4, 5 and 6 present in person.

Nemo for Respondent No. 2.

Syed Zahoor Ahmed Shah, Deputy Prosecutor General, Sindh for the State/Respondent No. 8.

2023 P Cr. L J 1816

[Sindh (Hyderabad Bench)]

Before Muhammad Karim Khan Agha and Kausar Sultana Hussain, JJ

Syed ABDUL MANAN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. D-07 and D-08 of 2021, decided on 25th January, 2023.

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

----S. 9(c)---Possession of narcotics-- Appreciation of evidence---Allegation against the appellants (three in number) was that a huge quantity of contraband, packed in 920 packets having been placed in secret cavities of truck, was recovered from them---Documentary evidence, duly exhibited by the prosecution, revealed that all the entries as well as Mashirnama of arrest had established the departure and arrival of Police Party to arrest of accused persons, along with huge quantity of contraband, at the spot on the fateful day---Report of the Chemical Examiner was positive showing recovered contraband as Charas and Opium, which (report) further showed that the same was strictly in accordance with the established principles---Though Muharrar of Malkhana was not produced by the prosecution during the evidence, yet the safe custody of contraband for intervening period was proved by the documentary evidence having been duly exhibited in evidence---Even otherwise, such question (non-production of the Muharrar) was not put on the behalf of the appellants (accused persons) to prosecution's witnesses---Prosecution had successfully proved its case against the appellants---Appeals filed by the accused persons were dismissed, in circumstances.

The State v. Imam Bakhsh 2018 SCMR 2039 and Khair-ul-Bashar v. The State 2019 SCMR 930 ref.

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

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotics---Appreciation of evidence---Huge quantity of contraband, packed in 920 packets having been placed in secret cavities of Truck, was recovered from appellants---Applicability of S. 103 of the Criminal Procedure Code, 1898, regarding association of private person as witness had specifically been excluded by virtue of S. 25 of the Control of Narcotic Substances Act, 1997---Alleged contradictions in the evidence of the prosecution witnesses, relating to raiding party, appeared to be minor in nature, which did not shake their trustworthiness---Prosecution had successfully proved its case against the appellants---Appeals filed by the accused persons were dismissed, in circumstances.

State/ANF v. Muhammad Arshad 2017 SCMR 283 ref.

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

----S. 9(c)--- Possession of narcotics---Appreciation of evidence---Accused persons were arrested at the spot and a huge quantity of contraband weighing 920 Kilograms (Charas and Opium), packed in 920 packets, was recovered from secret cavities of truck, admittedly driven by the one of the appellants while two appellants were sitting besides him, which had duly been proved by the complainant (Investigation Officer) and had been testified by the other witness/ mashir---It was almost impossible to foist such a huge quantity of narcotics, as such it could not be presumed that they were not in knowledge of such huge quantity of narcotics lying in truck---It could not be said also that two co-accused were travelling in truck-in-question as passengers as a truck was not a public transport vehicle---One of the appellants had admitted in his statement recorded under S. 161 of the Criminal Procedure Code, 1898 that he was owner of the truck-in-question---Witnesses (Police Officials) narrated the story in true manner and remained consistent despite lengthy cross-examination and their testimony could not be shattered---No circumstance suggested alleged false implication of appellants with such a huge quantity of contraband---Prosecution had successfully proved its case against the appellants---Appeals filed by the accused persons were dismissed, in circumstances.

Naveed Akhtar v. The State 2022 SCMR 1784 and Liaquat Ali and another v. The State 2022 SCMR 1097 ref.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Mala fide of police not proved---Allegation against the appellants (three in number) was that a huge quantity of contraband weighing 920 Kilograms (Charas and Opium), packed in 920 packets having been placed in secret cavities of truck, was recovered from them---In normal circumstances, there was no bar for a police officer to become complainant of the case and also to investigate it unless prejudice was not pleaded by the accused facing trial or if such police officer was having some grudge or vengeance against the accused---Rancor or hostility of the police officer could be perceived from record based on some confidence inspiring substance---Record showed that the appellants had failed to establish any enmity with complainant (Investigation Officer) for alleged false implication in the present crime with such a huge quantity of contraband---Even otherwise, during trial appellants had not moved any application before the competent forum/Court for change of investigation---Prosecution had successfully proved its case against the appellants---Appeals filed by the accused persons were dismissed, in circumstances.

State through Advocate General, Sindh v. Bashir and others PLD 1997 SC 408 ref.

Altaf Shahid Abro and Bakhtiar A. Panhwar for Appellants.

Shahid A. Shaikh, Additional P.G. Sindh for the State.

2023 P Cr. L J 1

[Lahore]

Before Tariq Saleem Sheikh, J

ALTAF AHMAD MAKHDOOM---Petitioner

Versus

INSPECTOR GENERAL OF POLICE, PUNJAB and 9 others---Respondents

Writ Petition No. 55811 of 2021, heard on 31st March, 2022.

(a) Police Order (22 of 2002)---

----Art. 18-A--- Transfer of investigation--- Reasons for decision---Scope---Where Review Board had recommended for transfer of investigation on the grounds that: (a) cogent reasons had been given by the applicant for change of investigation; (b) prima facie, previous investigations had been conducted unilaterally without ascertaining the facts and circumstances of the case; and (c) there was circumstantial and material evidence available on record which needed further probe to dig out the real facts, High Court observed that the Review Board's recommendations were vague and it had not made any effort to substantiate them---Inspector General of Police was obligated to examine the case himself when the Review Board's recommendations were placed before him but he had rubber-stamped them---Impugned order does not reflect any application of mind, as such, the same was set aside.

(b) Police Order (22 of 2002)---

----Art. 18-A--- Transfer of investigation--- Scope--- Article 18-A expressly requires the Heads of the District Police and the Regional Police Officers to record reasons when the recommendations of the DSB and the RSB, as the case may be, are placed before them---Said statutory duty would not be discharged by simply reproducing those recommendations---Order must demonstrate due application of mind by them otherwise it would be regarded arbitrary and struck down.

Emperor v. Sibnath Banerji and others AIR 1945 PC 156 and Barium Chemicals Ltd. and another v. Sh. A. J. Rana and others AIR 1972 SC 591 ref.

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

----S. 4(1)(l)---Investigation---Scope---Criminal investigation is a lawful search for people and things useful in reconstructing the circumstances of an illegal act or omission and the mental state accompanying it---Investigation is probing from the known to the unknown, backward in time, and its goal is to determine truth as far as it can be discovered in any post-factum inquiry.

Criminal Investigation : Basic Perspectives by Paul B. Weston rel.

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

----S. 4(1)(l)---Investigation---Scope---Section 4(1)(l), Cr.P.C., terms those proceedings as "investigation" which are conducted for collection of evidence by a police officer or any person authorized by a magistrate (who is not a magistrate himself)---Duty of the police is limited to collection of evidence---Power to determine whether an accused is guilty vests with the courts.

(e) Constitution of Pakistan---

----Art. 10-A---Criminal Procedure Code (V of 1898), S. 4(1)(l)---Right to fair trial---Investigation---Scope---Fair investigation is concomitant to the right to fair trial guaranteed under Art. 10-A of the Constitution.

Babubhai v. State of Gujarat and others (2010) 12 SCC 254 and Vinay Tyagi v. Irshad Ali alias Deepak and others (2013) 5 SCC 762 ref.

(f) Constitution of Pakistan---

----Arts. 9 & 10-A---Criminal Procedure Code (V of 1898), S. 4(1)(l)---Security of person---Right to fair trial---Fair investigation---Scope---Fair investigation is also a part of right to life and personal liberty---Investigation must be fair, transparent and judicious as it is the minimum requirement of rule of law.

Babubhai v. State of Gujrat and others (2010) 12 SCC 254 rel.

(g) Constitution of Pakistan---

----Art. 10-A---Criminal Procedure Code (V of 1898), S. 4(1)(l)---Right to fair trial---Investigation---Scope---Expression "fair and proper investigation" connotes two things: firstly, that the investigation should be honest, unbiased and in accordance with law, and secondly, the entire emphasis should be to dig out the truth and bring it before the court of justice.

Vinay Tyagi v. Irshad Ali alias Deepak and others (2013) 5 SCC 762 rel.

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

----S. 173---Report of police officer---Scope---Section 173, Cr.P.C., mandates that every investigation should be completed without unnecessary delay---Section 173 further states that as soon as it is done the officer in-charge of the police station shall forward a report (through the Public Prosecutor) in the prescribed form to the magistrate empowered to take cognizance of the offence---If the investigation is not finalized within 14 days from the date of registration of the FIR, the officer in-charge of the police station shall, within three days thereafter, forward an interim report (through the Public Prosecutor) to the magistrate in the prescribed form stating the result of the investigation made until then---Court should then immediately commence the trial unless there are reasons to postpone it.

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

----S. 173---Constitution of Pakistan, Arts. 4 & 9---Report of police officer---Rights of individuals to be dealt in accordance with law---Security of person---Scope---Provisions of S. 173, Cr.P.C., are mandatory as their non-compliance constitutes violation of Arts. 4 & 9 of the Constitution.

Hakim Mumtaz Ahmed and another v. The State PLD 2002 SC 590 rel.

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

----S. 173--- Report of police officer---Transfer of investigation---Scope---Neither the Code of Criminal Procedure nor the Police Rules, 1934, provide any procedure for transfer of investigation of a criminal case from one police officer to the other.

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

----S. 173--- Report of police officer---Transfer of investigation---Scope---Question as to whether investigation can be changed or, to put it in another way, whether a case can be re-investigated or further investigated after the submission of final report under S. 173, Cr.P.C. (and, more particularly after the accused is/are indicted) is quite contentious---Two seemingly irreconcilable streams of decisions on the point detailed.

Atta Muhammad v. Inspector-General of Police, West Pakistan, Lahore and others PLD 1965 (W.P.) Lahore 734 rel.

Muhammad Akbar v. The State and another 1972 SCMR 335; Aftab Ahmad v. Hassan Arshad and 10 others PLD 1987 SC 13; Muhammad Yousaf v. The State and others 2000 SCMR 453; Hakim Mumtaz Ahmed and another v. The State PLD 2002 SC 590; 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; Riaz Hussain and others v. The State 1986 SCMR 1934; Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31 and Qari Muhammad Rafique v. Additional Inspector-General of Police (Inv.), Punjab and others 2014 SCMR 1499 ref.

(l) Constitution of Pakistan---

----Art. 189---Decisions of Supreme Court binding on other Courts---Scope---Where there is conflict between the judgments of the Supreme Court the one rendered by the Larger Bench prevails.

Muhammad Akbar v. The State 1972 SCMR 335 and Abid Hussain v. The State and others 2022 PCr.LJ 83 ref.

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

----S. 173---Police Order (22 of 2002), Art. 18-A---Report of police officer---Transfer of investigation after framing of charge---Scope---If any embargo is placed on investigation after the framing of charge, it would make Art. 18A of the Police Order 2002 redundant which cannot be permitted.

Aswad Iqbal v. R.P.O. and others PLD 2020 Lah. 434 ref.

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

----S. 173---Police Order (22 of 2002), Art. 18-A---Report of police officer--- Transfer of investigation--- Scope--- Even though re-investigation or further investigation is permissible, subject to Art. 18A of the Police Order, 2002, it does not mean that it can be ordered in routine.

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

----S. 173---Police Order (22 of 2002), Art. 18-A---Report of police officer---Transfer of investigation---Scope---Investigation cannot be transferred after the case has been decided by the Trial Court.

Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373 rel.

(p) Police Order (22 of 2002)---

----Art. 18-A--- Transfer of investigation--- Scope---Re-investigation should be allowed only if some new evidence comes to light or there is some other justification for it---Reinvestigation cannot be undertaken to oblige a particular party or for some other ulterior motive.

Abdul Aziz v. S.P. (C.I.A.), Sargodha and 2 others PLD 1997 Lah. 24 rel.

(q) Police Order (22 of 2002)---

----Art. 18-A---Transfer of investigation---Scope---Order for transfer of investigation can also be passed if the previous investigations have been conducted unilaterally without associating the actual culprit involved and without trying to identify and ascertain the person responsible for committing the crime---Police does not have an unfettered power in this respect and re-investigation or further investigation may only be carried out if some further material relating to the case is required or if the previous investigation is mala fide or in excess of jurisdiction.

Abid Hussain v. The State and others 2022 PCr.LJ 83 rel.

(r) Public functionaries---

----Administrative authorities must exercise their powers in accordance with law---If it comes to discretion, every authority, whether original, appellate or revisional, must exercise it reasonably and fairly---Courts may set aside an action in exercise of the power of judicial review if it is arbitrary, discriminatory, irrational, unreasonable or perverse.

C.K. Thakker, Administrative Law, Second Edition, P. 710 ref.

(s) Words and phrases---

----'Arbitrary'---Connotation.

The term "arbitrary" has no precise definition. The question as to whether an act is arbitrary or otherwise has to be determined with reference to the facts or circumstances of each case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary.

Arbitrariness in the making of an order by an authority may manifest itself in different forms. Non-application of mind is one of them. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained renders the order arbitrary and unsustainable.

Kumari Shrilekha Vidyarthi and others v. State of U.P. and others AIR 1991 SC 537 and East Coast Railway and another v. Mahadev Appa Rao and others AIR 2010 SC 2794 rel.

(t) Public functionaries---

----Reasons for decision---Scope---Powerful reasons exist as to why it is desirable from administrative bodies to give reasons for their decisions---Those include improving the quality of decisions by focusing the mind of the decision-making body and thereby increasing the likelihood that the decision will be lawfully made; promoting public confidence in the decision-making process; providing, or at least facilitating, the opportunity for those affected to consider whether the decision was lawfully reached, thereby facilitating the process of judicial review or the exercise of any right of appeal; and respecting the individual's interest in understanding and perhaps thereby more readily accepting why a decision affecting him has been made.

Mrs. Karen Louise Oakley v. South Cambridgeshire District Council [2017] EWCA Civ 71 fol.

(u) Public functionaries---

----Reasons for decision---Scope---Certain categories are available of cases where the courts have required reasons to be given at common law, although the jurisprudence is relatively under-developed, perhaps because statutory requirements are so common---Apart from cases where fairness requires it, or a particular decision is aberrant, the duty has also been imposed where the failure to give reasons may frustrate a right of appeal, because without reasons a party will not know whether there is an appealable ground or not … and where a party has a legitimate expectation that reasons will be given.

Mrs. Karen Louise Oakley v. South Cambridgeshire District Council [2017] EWCA Civ 71 fol.

Waseem Mumtaz Malik and Mazhar Ali Ghallu for Petitioner.

Mukhtar Ahmad Ranjha, Assistant Advocate General with Nasir Mehmood, DSP (Investigation) for Respondents Nos. 1 - 8.

Muhammad Ramzan Chaudhry and Naveed Ahmad Khawaja for Respondent No. 9.

Ch. Ishtiaq Ahmad Khan for Respondent No. 10.

2023 P Cr. L J 56

[Lahore]

Before Aalia Neelum, J

BABU KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 1974 of 2012, decided on 22nd September, 2021.

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

----S. 182---Criminal Procedure Code (V of 1898), Ss. 195 & 476---False information with intent to cause public servant to use his lawful power to the injury of another person---Prosecution for contempt of lawful authority of public servant---Procedure in case mentioned in S. 195---Scope---Appellant was convicted under S. 182, P.P.C., for filing a false complaint before the High Court---Offence under S. 182, P.P.C. had been mentioned in S. 195(1)(a), Cr.P.C. and in case of commission of an offence under said section a complaint had to be filed by the public servant concerned---No complaint under S. 182, P.P.C., for the trial of the accused for that offence was made by the public servant---District and Sessions Judge had not taken cognizance of the offence in a separate complaint case on receiving an inquiry report and the cognizance had been taken by himself under S. 476, Cr.P.C. instead of making it to the Magistrate---Manner in which the cognizance of the offence had been taken could not be approved---Emphasis, in the impugned order, was laid on the statement of the appellant and it was specifically mentioned that the appellant had conceded to have filed the complaint on the instance of his nephew, whereas as per certified copy of statement of the appellant available on record no such statement was made by the appellant---Appeal was allowed and the impugned order was set aside, in circumstances.

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

----S. 182---False information with intent to cause public servant to use his lawful power to the injury of another person---Scope---Essential ingredients of S. 182, P.P.C., are (a) giving of an information to a public servant; (b) the information must have been known or believed to be false by the giver; and (c) the information must have been given with the intention to cause, or knowing it be likely that it will cause, such public servant; (i) to do or omit anything which he ought not to do or omit to do if the true facts were known to him; or (ii) to use his lawful power to the injury or annoyance of any person.

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

----S. 182---Criminal Procedure Code (V of 1898), S. 195---False information with intent to cause public servant to use his lawful power to the injury of another person---Prosecution for contempt of lawful authority of public servant---Scope---From a close look at the provision prescribed under S. 195(1), Cr.P.C. it would be evident that there is legal bar to any Court taking cognizance of offences punishable under S. 182, P.P.C. except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate---Provisions prescribed under S. 195, Cr.P.C., would show that there was an absolute bar against the Court taking cognizance of the offence mentioned therein except in the manner provided there under---Cognizance of offence under S. 182, P.P.C., can only be taken in written complaint in the manner provided under the provision.

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

----Ss. 476 & 195---Procedure in cases mentioned in S. 195---Scope---Section 476, Cr.P.C., applies only to offences mentioned in S. 195(1)(b) & (c), Cr.P.C. and not to those mentioned in S. 195(1)(a), Cr.P.C.---In other words, if the offence in question does not fall within the purview of S. 195(1)(b) & (c), Cr.P.C., a court has no jurisdiction to make a complaint under S. 476, Cr.P.C.

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

----Ss. 476 & 195---Procedure in cases mentioned in S. 195---Scope---Section 195(1)(a), Cr.P.C., provides that no court shall take cognizance of any offence punishable under Ss. 172 to 188, P.P.C., except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate---Section 476, Cr.P.C., prescribes the procedure to be followed where a Court is moved to lay a complaint, and that applies only to offences mentioned in S. 195(1)(b) & (c), Cr.P.C. and not to those mentioned in S. 195(1)(a), Cr.P.C.

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

----S. 195---Prosecution for contempt of lawful authority of public servant---Prosecution for certain offences against public justice---Prosecution for certain offences relating to documents given in evidence---Scope---Section 195, Cr.P.C., is an exception to the general rule that any person, having knowledge of commission of an offence, makes such a law in motion by a complaint, even though he is not presently interested or affected by the offence; it mandates that no Court has jurisdiction to take cognizance of the offences mentioned therein unless there is a complaint in writing required under that section.

Makhdoom Shah Nawaz for Appellant.

Rana Ahsan Aziz, Deputy Prosecutor General for the State.

Nemo for the Complainant.

2023 P Cr. L J 93

[Lahore]

Before Farooq Haider, J

MUHAMMAD YAR and 4 others---Petitioners

Versus

GHULAM HAIDER and 2 others---Respondents

Criminal Revision No. 1177 of 2015, heard on 12th April, 2022.

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

----Ss. 200 & 202---Private complaint, filing of---Limitation---Delay in filing private complaint---No time period had been provided in the law for filing the complaint and it is common practice that the aggrieved person will first approach the police for redressal of his grievance through registration of the case, if remained dissatisfied, then will file application under S. 22-A(6), Cr.P.C., before Ex-Officio Justice of Peace and sometime could also invoke constitutional jurisdiction for registration of the case and usually complaint was filed as a last resort---Delay by itself in filing the complaint could not be taken as fatal to reject the evidence in support thereof, which might otherwise be entitled to credence---Delay in filing the complaint was examined in the light of peculiar facts and circumstances of each case.

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

----Ss. 200, 202, 204 & 439---Penal Code (XLV of 1860), Ss. 302, 109, 148 & 149---Private complaint---Issuance of process against accused---Summoning of accused by trial Court to face trial---Power of revision of High Court---Scope---Respondent filed private complaint against the petitioners with the allegation of committing murder of his father---Judicial Magistrate conducted inquiry under S. 202, Cr.P.C. and prepared a positive report, thus petitioners were summoned to face the trial---Validity---For issuance of process for the purpose of summoning the accused in the complaint, law only required availability of sufficient ground as provided under S. 204, Cr.P.C. and not the reasonable grounds---If the court was satisfied with the material placed before it in the shape of complaint, documents annexed with complaint and statements of complainant and witnesses, then process could be issued for summoning the accused for facing trial---In the present case, complainant filed the complaint being eye-witness of the occurrence, got recorded his cursory statement before the Trial Court and then said complaint was sent for inquiry under S. 202, Cr.P.C. before Area Magistrate, who conducted inquiry, recorded statements of two other eye-witnesses and then submitted his inquiry report under S. 202, Cr.P.C., while clearly mentioning in the same that in his considered opinion after going through the record, all the oral as well as documentary evidence of the complainant, the offences under Ss. 302, 148 & 149, P.P.C., were made out, in the light of cursory statements of witnesses including the complainant as well as documents produced by the complainant including post-mortem report and inquiry report, sufficient ground was available on record for proceeding, therefore, Trial Court rightly found that case against the accused persons had been prima facie made out and summoned them for facing the trial---No illegality had been found in the impugned order, therefore, need no interference---Revision petition was without merits and was dismissed accordingly.

Sarwar and others v. The State and others 2014 SCMR 1762 rel.

Muhammad Maqsood Buttar for Petitioners.

Ali Hassan, Additional Prosecutor General for the State.

Malik Muhammad Aslam for Respondent No. 1.

2023 P Cr. L J 139

[Lahore (Multan Bench)]

Before Sardar Muhammad Sarfraz Dogar and Tariq Saleem Sheikh, JJ

AHMAD ALI and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 888-M of 2021, decided on 9th June, 2021.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 426---Possession of narcotics---Suspension of sentence---Scope---Accused persons sought suspension of their sentences awarded to them under S. 9(c) of Control of Narcotic Substances Act, 1997 pending their appeal before the Supreme Court---From the perusal of leave granting order by the Supreme Court, prima facie, it appeared that leave was granted to reappraise the evidence on the dimension of safe custody of the recovered substance as well as safe transmission of samples to the office of Chemical Examiner---Improvements and contradictions pointed out in the prosecution case were the facts which were pressed into service by the counsel for the accused persons, which had persuaded the Supreme Court to grant leave---Probability could not be ruled out that the prosecution case might fall through in the long run---Accused persons having been arrested in 2011 were languishing in jail ever since---Continued incarceration for indefinite period of time would not serve any useful purpose for the prosecution's case---Sentence of the accused persons was suspended pending decision of their appeal before the Supreme Court---Petition was allowed.

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

----S. 426--- Suspension of sentence--- Scope---Bare reading of S. 426(2-B), Cr.P.C., manifests that two conditions have been laid down for suspension of sentence i.e. where High Court is satisfied that a convicted person had been granted special leave to appeal by the Supreme Court of Pakistan and the other if High Court thinks fit that sentence or order appealed against be suspended.

Faraz Shaukat v. The State and another PLD 2016 Lah. 408 and Talib Hussain v. The State PLD 2014 Lah. 564 rel.

Mehroz Aziz Khan Niazi for Petitioners.

2023 P Cr. L J 169

[Lahore]

Before Sardar Muhammad Sarfraz Dogar, J

SHOUKAT ALI---Petitioner

Versus

I.G. PRISONS and others---Respondents

Writ Petition No. 39042 of 2019, heard on 8th December, 2022.

(a) Interpretation of statutes---

----Criminal justice system--- Punitive law--- Applicability--- While interpreting punitive law Courts are required to strive in search of an interpretation which prefers liberty of a person instead of curtailing the same and that too unreasonably and unfairly, unless statutory law clearly directs otherwise.

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

----Ss. 35 & 397---Penal Code (XLV of 1860), Ss. 302(b), 324, 427 & 148---Anti-Terrorism Act (XXVII of 1997), S. 7(c)---Constitution of Pakistan, Art. 199---Constitutional petition---Qatl-i-amd, attempt to commit Qatl-i-amd, mischief causing damage, rioting armed with deadly weapons and act of terrorism---Concurrence of sentences---Two separate trials---Principle of hardship---Applicability---Serving of 50 years' sentence---Effect---Petitioner was convicted in two separate trials and was sentenced to imprisonment for life in each case---Sentences in both cases were to run concurrently---Petitioner sought his sentences in both the trials to run concurrently---Validity---Petitioner was admitted in jail on 31-1-2003 and his probable date of release was 20-08-2005---Besides provision of S. 35, Cr.P.C., provision of S. 397, Cr.P.C., altogether provided entirely a different proposition, widening scope of description of Court to direct that sentences of imprisonment or that of life imprisonment, awarded at the same trial, or at two different trials, but successively would run concurrently---Once the Legislation had conferred, such discretion in Court then in hardship cases, Court were required to seriously take into consideration the same to the benefit of accused, so that to minimize and liquidate hardship treatment, accused person was to get and to liquidate the same as far as possible---Petitioner had already undergone 24 years, 01 month and 07 days of his sentence, so awarded and according to calculation chart, provided in the jail report, total period of imprisonment had come to 50 years---Petitioner had made out case of detestable hardship, which in no circumstances would go unnoticed, like in the past---High Court directed that sentences in both the trials were to run concurrently by extending concession to petitioner---Constitutional petition was allowed in circumstances.

Shah Hussain's case PLD 2009 SC 460; Hassan and others' case PLD 2013 SC 793; Mst. Shahista Bibi and another v. Superintendent Central Jail Mach and 2 others PLD 2015 SC 15; Ishfaq Ahmad v. The State 2017 SCMR 307; Shah Hussain v. The State PLD 2009 SC 460; Khan Zaman v. The State 1987 SCMR 1382; Juma Khan v. The State 1986 SCMR 1573; Muhammad Ittafaq v. The State 1986 SCMR 1627 and Rahib Ali v. The State 2018 SCMR 418 rel.

(c) Criminal trial---

----Liberty of a person---Two interpretations---Principle---Interpretation which curtails liberty of a person that should be construed very strictly---If two equal interpretations are possible, the one favorable would be extended to accused and his liberty must be adopted and preferred upon the contrary one.

Mian Khadim Hussain and Anwar ul Haq for Petitioner.

Naveed Ahmed Khawaja and Usman Zafar for Respondents.

Mian Ajmal Adil, A.A.G. with Muhammad Irfan, Assistant Superintendent Jail, Gujrat for the State.

2023 P Cr. L J 222

[Lahore (Multan Bench)]

Before Ali Zia Bajwa, J

MUHAMMAD NASIR---Petitioner

Versus

JUSTICE OF PEACE and others---Respondents

Writ Petition No. 17716 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.---Justice of Peace dismissed the application of the petitioner on the ground that in the Medico-Legal Certificate, the Medical Examiner had mentioned that there was a possibility of fabrication of injury, however, no reason in support of such opinion were furnished by him---Validity---Opinion of a medical examiner was not only relevant but also most pivotal in criminal justice system and at times it played a decisive role coupled with other evidence---Guarantee of fair trial under Art. 10-A of the Constitution was a wishful expectation without a medico legal system comprising of true experts having adequate qualification and skills---Practice which prevailed among the Medical Examiners was to tick on or circle around YES or No without furnishing any cogent reasons for rendering such opinion---Rendering such opinion without offering convincing reasons/justification was not in accordance with the settled norms of justice---No probative and evidentiary value could be attached to an opinion rendered by the Medical Examiner without furnishing cogent reasons in support of his opinion---Medical Examiners were under a bounden duty to furnish reasons in support of their opinion in order to make it having evidentiary sanctity in court of law---Opinion of an expert should be buttressed by the reasons or it would lose its sanctity---Proposed amended specimen of Medico Legal Certificate (MLC) had also been placed on the record with a space for furnishing reasons in support of opinion rendered by the Medical Examiners---Said facts were not only alarming but also resulting in miscarriage of justice in hundreds of cases every day---High Court observed that both Primary and Secondary Health Care and Specialized Healthcare and Medical Education Departments would ensure that Medical Examiners should meet the minimum qualification threshold and no unqualified and inexperienced doctor would be posted to perform such crucial and sensitive job---Minimum qualification threshold should be improved gradually as one-month practical training course seemed inadequate and too short to perform such a sensitive and complex job---Every Medical Examiner should be bound to furnish his reasons in support of his opinion and for that purpose a space should be provided in the Medico Legal Certificate---Petition was disposed of with observations/directions.

Muhammad Sultan's case PLD 2014 SC 696; Sohbat Ali v. Muhammad Aslam PLD 2012 SC(AJ&K) 1; State of Himachal Pradesh v. Jai Lal and others (1999) 7 SCC 280; Wilson v. State, 26 A.2d 770, 181 Md. 1 - Crim Law 478(1) and Davie v Magistrates of Edinburgh [1953 SC 34] rel.

Malik Shafqat Raza Thaheem for Petitioner.

Azhar Saleem Kamlana, Additional Advocate General and Haji Dilbar Khan Mahar, Assistant Advocate General along with Mohsin Ahsan, Senior Law Officer, Nasir Ali Law Officer-1, Primary and Secondary Healthcare Punjab, Lahore, Dr. Shahid Latif, Additional Secretary (Tech) Special Healthcare and Medical Education Department, Dr. Ayesha Parvez, Deputy Secretary (Medical Education) Specialized Healthcare and Medical Education, Dr. Talha Naeem Cheema, HOD, Forensic Medicine, Quaid-e-Azam Medical College, Bahawalpur, Dr. Mushtaq Ahmed, HOD, Forensic Medicine, Nishtar Medical University, Multan, Dr. Jawad Hussain M.O. Mailsi, Vehari, Dr. Najeeb Ali Malik, DMO, Multan, Tanveer Iqbal Tabassum, Secretary Primary and Secondary Healthcare (South Punjab), Nasir Hussain Chatha, Secretary Specialized Healthcare Department (South Punjab), Dr. Awais Gohar, Additional Secretary Technical, Primary and Secondary Healthcare Department and Professor Arif Rasheed, Surgeon Medico Legal, Punjab for the State.

Mian Adeel Nasir Rajar for Respondents Nos. 3 to 7.

2023 P Cr. L J 265

[Lahore]

Before Muhammad Amjad Rafiq, J

MUHAMMAD GHAZANFAR NAVEED---Petitioner

Versus

The STATE and others---Respondents

Writ Petition No. 43081-Q of 2021, decided on 23rd December, 2021.

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

----Ss. 5, Sched. & 20---Jurisdiction of Family Court---Family Court as Magistrate---Terms and conditions of Nikahnama---Scope---As per S. 5 read with S. 20 of the Family Courts Act, 1964, it is only the Family Court that can decide any matter relating to terms and conditions of Nikahnama and fate of a permission letter to contract second marriage touches the condition whether it is genuine or otherwise.

Muzaffar Nawaz v. Ishrat Rasool and others 2022 YLR 1920 ref.

(b) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), S. 561-A---Constitutional jurisdiction---Inherent powers of High Court---Quashing of FIR---Scope---Article 199 of the Constitution guarantees that if no other remedy is available High Court can also undo the wrong in its extra ordinary jurisdiction---High Court is exercising this jurisdiction for quashing of FIR---Though S. 561-A, Cr.P.C., is available to exercise jurisdiction by the High Court in its inherent power to secure the ends of justice and to prevent abuse of process of the court yet such power is sparingly used by the High Court in appropriate case only.

(c) Constitution of Pakistan---

----Art.199---Police Rules, 1934, R. 24.7---Constitutional jurisdiction---Quashing of FIR---Cancellation of cases---Scope---Subordinate criminal courts do not have jurisdiction to dilate upon quashing of FIR; however, under Police Rules, 1934, on the recommendation of police, FIR is usually cancelled.

(d) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), Ss. 561-A, 249-A & 265-K--- Constitutional jurisdiction---Inherent powers of High Court---Power of Court to acquit accused at any stage---Quashing of FIR---Scope---Under Ss. 265-K & 249-A, Cr.P.C., subordinate criminal courts are authorized to acquit the accused at any stage of the case and this power is synonymous to one the High Court exercises under S. 561-A, Cr.P.C., but if they fail to exercise powers the High Court either under Art. 199 of the Constitution of Pakistan or under S. 561-A, Cr.P.C. can either quash the proceedings pending in the court subordinate thereto or quash the FIR.

Bashir Ahmad v. Zafar-ul-Islam and others PLD 2004 SC 298; Miraj Khan v. Gul Ahmad and 3 others 2000 SCMR 122 and Rizwana Bibi v. The State and another 2012 SCMR 94 ref.

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

----S. 154---Information in cognizable cases---Second FIR---Scope---Every version in an FIR put forward by the same complainant or different parties to the proceedings, would be recorded in the same FIR and if the first had stood cancelled, the concerned party may file a private complaint or may file an application for review of cancellation order.

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

(f) Constitution of Pakistan---

----Art. 199--- Criminal Procedure Code (V of 1898), Ss. 249-A & 265-K---Constitutional jurisdiction---Quashing of FIR---Scope---Not necessary that accused always go to the Trial Court at first instance before approaching High Court for the like relief, if the circumstances warrant interference it must be decided by High Court.

Rana Qaisar Ali Khan for Petitioner.

Ch. Manzoor Ahmad Warraich, A.A.G. with Muhammad Hussain, Sub-Inspector for the State.

2023 P Cr. L J 290

[Lahore]

Before Tariq Saleem Sheikh, J

Malik AZMAT ULLAH---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Interior

and 10 others---Respondents

Writ Petition No. 49287 of 2021, heard on 8th October, 2021.

(a) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), Ss. 498 & 561-A---Constitutional petition---Protective bail---Object, purpose and scope---No provision for protective bail exists in Criminal Procedure Code, 1898---High Courts have invoked S. 561-A, Cr.P.C. and Art. 199 of the Constitution to accommodate accused persons to enable them to approach concerned Court for a remedy---High Court does not touch merits of the case while allowing such requests---Protective bail has a limit purpose and is for a fixed---Such bail is not in the nature of anticipatory or pre-arrest bail granted under S. 498, Cr.P.C.---When accused appears before concerned Court, it deals with him independently and protective bail does not entitle him to pre-arrest bail as of right.

Naseer Ahmed and another v. The State 2009 PCr.LJ 1430 rel.

(b) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), Ss. 498 & 561-A---Protective/transitory bail---Petitioner sought protective/transitory bail at the time of his arrival in Pakistan for himself to approach Court of competent jurisdiction to seek pre-arrest bail---Validity---Courts are guardians of fundamental rights of people and Art. 199 of the Constitution empowers High Courts to issue appropriate direction for their enforcement---When petitioner was outside Pakistan and wished to surrender before Courts of the country to face criminal proceeding those were pending against him, High Court had ample powers to protect petitioner from being arrested on his arrival and allowed him transitory bail---Protective bail was justified because without it petitioner could choose not to surrender at all and to remain a fugitive--- Constitutional petition was allowed, in circumstances.

Bremer Vulkan Schiffbau Und Maschinenfabrik v. South India Shipping Corporation Ltd. [1981 AC 909 = 1981 (1) All ER 289]; R v. Secretary of State for the Home Department ex parte Leech, [1994] QB 198; R v. Lord Chancellor ex parte Wiltham [1998] QB 575; Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341; Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahab-ul-Khairi and others PLD 1996 SC 324; Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607; Watan Party and others v. Federation of Pakistan and others PLD 2012 SC 292; Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others PLD 2013 SC 501; Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404; Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863; Justice Qazi Faez Isa and others v. The President of Pakistan and others PLD 2021 SC 1; Siddharam Satlingappa Mhetre v. State of Maharashtra and others AIR 2011 SC 312; Khawaja Salman Rafique and another v. National Accountability Bureau through Chairman and others PLD 2020 SC 456; Pakistan Muslim League (N) through Khawaja Muhammad Asif, MNA and others v. Federation of Pakistan through Secretary Ministry of Interior and others PLD 2007 SC 642; Rustom Cavasjee Cooper v. Union of India AIR 1970 SC 564; Naseer Ahmed and another v. The State 2009 PCr.LJ 1430; Ch. Allah Ditta v. The State 1989 PCr.LJ 2152; Malik Mukhtar Ahmad Awan v. The State 1990 PCr.LJ 617; Sabir Hussain and 3 others v. The State 1999 MLD 2208; Sharjeel Inam v. Federation of Pakistan and others 2017 YLR 2423; Javed Iqbal Mirza v. National Accountability Bureau 2007 PCr.LJ 1230; C.P. No. 1662/L of 2018, Muhammad Rafique Virk v. Secretary Interior, Government of Pakistan, Islamabad and others; Hasan Sohail v. The State 2006 YLR 3116; Muhammad Jamal v. Federation of Pakistan and 2 others 2012 YLR 167; Mrs. Asma Alamgir v. Federation of Pakistan and others 2017 YLR 1626; Shahna Khan v. Aulia Khan and others PLD 1984 SC 157; The State v. Malik Mukhtar Ahmad Awan 1991 SCMR 322 and Mian Muhammad Shahbaz Sharif v. Federation of Pakistan through Secretary Ministry of Interior, Government of Pakistan, Islamabad and others PLD 2004 SC 583 rel.

Afzaal Ahmad Butt for the Petitioner.

Syed Muhammad Haider Kazmi, Assistant Attorney General for Respondents Nos. 1 and 2.

Zafar Hussain Ahmad, Additional Advocate-General for Respondents Nos. 3, 9 and 11.

Nemo for Respondent No. 10.

2023 P Cr. L J 316

[Lahore]

Before Tariq Saleem Sheikh, J

NIRMA SHAHZADI---Petitioner

Versus

The STATE and others---Respondents

Writ Petition No. 57738 of 2021, heard on 29th October, 2021.

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

----S.164(1)---Word "may"---Effect---Word "may" in S.164(1), Cr.P.C. shows that power conferred on Magistrate is discretionary.

Nazir Ahmad v. King Emperor AIR 1936 PC 253; Mst. Kalsoom Bibi v. District and Sessions Judge, Bahawalpur, and another 2009 MLD 421 and Shabina Naz v. Special Judicial Magistrate and another 2011 MLD 722 rel.

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

----S. 365-B--- Criminal Procedure Code (V of 1898), S. 164---Kidnapping, abducting or inducing woman to compel for marriage---Second statement, declining of---Change of version---Scope---Petitioner was allegedly abducted by respondents/accused persons and her statement under S. 164, Cr.P.C. was recorded before Judicial Magistrate---Subsequently petitioner wanted to get her another statement recorded but Judicial Magistrate declined---Validity---Petitioner categorically stated that respondents/accused persons did not violate her chastity who cross-examined her at length as they were present in custody---Petitioner subsequently filed a suit for Jactitation of marriage against one respondent/accused in Family Court and moved application before Magistrate for again recording her statement under S. 164, Cr.P.C.---Petitioner again alleged that respondent/ accused had infact raped her and she deposed to the contrary at the instance of investigating officer who suggested her that she should conceal the fact as nobody would marry her if she disclosed that fact---Even if petitioner was believed, element of coercion or duress was conspicuously missing---Whatever petitioner stated before Judicial Magistrate was of her own volition and was on oath---Petitioner could not be permitted to change her stance and aggravate the offence with which respondents/accused persons were charged---High Court declined to interfere in the order passed by Magistrate as he had rightly held that permission for recording second statement of person could not be recorded mechanically and no exceptional circumstances existed so as to justify it---Petitioner failed to point out any legal infirmity in the order passed by Magistrate---Constitutional petition was dismissed, in circumstances.

Muhammad Sarfraz Khan v. The Crown PLD 1953 Lah. 495; Mst. Mumtaz Akhtar v. Illaqa Magistrate, Chakwal and 2 others 1997 MLD 3021; Mst. Amina Bibi v. Sessions Judge, Layyah, District Layyah and others 1999 PCr.LJ 2044; Muhammad Yousaf v. The State and 12 others 2002 YLR 397; Mst. Mansab Mai v. The State 2005 YLR 1403; Brij Bhushan Singh v. Emperor AIR 1946 PC 38; Abdul Ghani v. The State PLD 1963 (W.P.) Lahore 445 and Abdul Sattar and another v. The State and 3 others 2018 YLR 977 ref.

Fozia Shabbir v. Additional Sessions Judge, Lahore and 8 others PLD 2006 Lah. 304; Fozia Perveen v. Judicial Magistrate Section 30, Khushab, and another 2007 YLR 2919; Manzoor Hussain v. Special Judicial Magistrate and 2 others 2008 YLR 2679 and Majid Khan v. Sessions Judge, Kasur and 5 others 2014 PCr.LJ 903 rel.

Zain Sheikh assisted by Kashif Anwar Sipra and Ch. Waheed Akram Gill for Pettioner.

Muddasar Elahi Warraich, Assistant Advocate General with Ilyas/ASI for the State.

Faisal Ghafoor Khokhar for Respondents Nos. 5 and 6.

2023 P Cr. L J 340

[Lahore]

Before Tariq Saleem Sheikh, J

UMAIR ISHTIAQ---Petitioner

Versus

STATION HOUSE OFFICER and 5 others---Respondents

Writ Petition No. 70628 of 2021, decided on 24th June, 2022.

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

----Ss. 4(l), 155(2), 156(1)(3), 157(1), 174 & 202---Investigation---Principle---First Information Report is not a condition precedent for initiating investigation by police---Even where FIR is recorded, investigating officer may refuse to investigate the case under S. 157, Cr.P.C.---Mere fact that FIR is registered does not obligate investigating officer to arrest accused.

Muhammad Bashir v. Station House Officer Okara Cantt. and others PLD 2007 SC 539; Joginder Kumar v. State of U.P. (1994) 4 SCC 260; M.C. Abraham and another v. State of Maharashtra and others (2003) 2 SCC 649; Mst. Sughran Bibi v. The State PLD 2018 SC 595; Shahzada Qaiser Arfat alias Qaiser v. The State and another PLD 2021 SC 708; Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lah. 470 and Misbah-ud-Din Zaigham and 3 others v. Federal Investigation Agency and another 2021 CLD 906 rel.

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

----S. 22-A---Penal Code (XLV of 1860), Ss. 337-A(i), 337-A(ii), 148 & 149---Constitution of Pakistan, Art. 199---Constitutional petition---Arrest of accused---Ex-officio Justice of Peace, direction of---Cross-version case---Shajjah-i-Khafifah, Shajjah-i-Mudihah and rioting armed with deadly weapons---Present was a cross-version case in which Ex-officio Justice of Peace directed investigating officer to arrest petitioner and others named in cross-version---Validity---Respondent got cross-version registered against petitioner and others in FIR---Investigating officer who initially dealt with the matter was of the opinion that injuries caused wife of respondent were simple and non-cognizable---Investigation was transferred to another police officer, who was investigating the matter---Investigating officer was to defer arrest of any accused if he was not satisfied about his involvement in any offence---Nothing was on record to suggest inaction of police---Respondent did not make out a case for intervention of Ex-officio Justice of Peace, who had only jurisdiction to issue a direction to police officials to look into the matter---High Court declared order passed by Ex-officio Justice of Peace to be without lawful authority and set aside the same, as Ex-officio Justice of Peace passed the order in complete disregard of the law---Constitutional petition was allowed accordingly.

Muhammad Aslam v. Deputy Commissioner, Sialkot and 2 others 2003 PCr.LJ 56; The Bank of Punjab and another v. Haris Steel Industries (Pvt.) Ltd. and others PLD 2010 SC 1109; Emperor v. Khawaja Nazir Ahmad AIR 1945 PC 18 and Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677 ref.

Younas Abbas and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581; Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lah. 470 and Haider Ali and another v. DPO Chakwal and others 2015 SCMR 1724 rel.

Muhammad Junaid Ahmad Kahloon for Petitioner.

Sharafat Khan, Additional Advocate General.

2023 P Cr. L J 372

[Lahore]

Before Tariq Saleem Sheikh, J

MADIHA AMMAD---Petitioner

Versus

The STATE through Prosecutor General Punjab and 9 others---Respondents

Writ Petition No. 21725 of 2021, heard on 15th November, 2022.

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

----S. 4(l)---Investigation---Scope---Investigation is a vital component of criminal justice system and rule of law---Police must unearth the truth, collect all evidence available on indictable conduct and locate persons suspected of a violation.

(b) Words and phrases---

----Verification---Meaning.

P. Ramanatha Aiyar's Advanced Law Lexicon Dictionary (4th Edition, Vol.4); Words and Phrases (Permanent Edition, Volume 44, p.251); Concise Oxford Dictionary and Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lah. 470 rel.

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

----S. 173---Police Rules, 1934, R. 24.7---High Court (Lahore) Rules and Orders, Vol-III, Part-D, Chapter 11---Constitution of Pakistan, Arts. 4 & 10-A---Criminal case, cancellation of---Complainant's right of hearing---Procedural fairness, principle of---Applicability---Petitioner was complainant of case cancelled without providing her an opportunity of hearing---Validity---Complainant of FIR had a right to know progress of case, unless authorities had a legitimate reason to keep information confidential---If authorities had gone for its cancellation, the complainant had right to be informed and heard by Magistrate---Complainant deserved such rights under Arts. 4 & 10 of the Constitution, which included concept of procedural fairness---Whether a cancellation report constituted an adverse order or not was irrelevant---Such was sacred duty of Magistrate to protect people's rights and was to apply his mind to the facts and circumstances of the case while deciding on cancellation report---Magistrate was to be honest, fair and just to both accused and prosecution---Magistrate should have considered the factors: (a) nature of allegations against accused, (b) evidence collected and (c) defense of accused and any evidence presented in support thereof---Magistrate should have thoroughly examined police diaries and had documented his reasoning---Magistrate treated cancellation report casually and non-chalantly---High Court set aside order of cancellation of case as the same was bereft of reasoning and did not reflect due application of mind and remanded the matter to the Magistrate for decision afresh---High Court directed police authorities to decide second change of investigation after obtaining opinion of Regional Standing Board in accordance with law---Constitutional petition was disposed of accordingly.

2023 P Cr. L J 402

[Lahore]

Before Aalia Neelum, J

MUHAMMAD IQBAL and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 234157-J, Criminal Revision No. 231746 and P.S.L.A. No. 231740 of 2018, heard on 10th 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 3.45/4.45 hours in lodging the FIR---Scope---Accused was charged for committing murder of the husband of the complainant by firing---Matrimonial dispute was motive behind the occurrence---Record showed that the occurrence took place at 5.00/6.00 a.m. and matter was reported to the police through written application at 9.45 a.m. whereupon formal FIR was lodged at 10.10 a.m.---Distance between the place of occurrence and police station was six kilometres---From the depositions of complainant, eye-witness and Investigating Officer, it revealed that soon after the incident, the Investigating Officer reached the place of occurrence and the incident was reported by the complainant to him---Prosecution case was that incident took place at 5/6:00 a.m.---If the situation was same, then the time of reporting the incident to police was negated by the documentary evidence i.e. application for registration of case---Said application, revealed that at the bottom of said application "Police Karwai" was written by the Investigating Officer at 09:45 a.m. whereupon FIR was lodged at 10:10 a.m. on the same day---Prosecution could indicate reasons for the delay in reporting the incident to the police---Circumstances established that the prosecution had become unable to prove the case against the accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Inquest report---Scope---Accused was charged for committing murder of the husband of the complainant by firing---Column No.3 of the inquest report showed that the time of receiving information regarding death was mentioned as 08:00 a.m.---Entry of 08:00 a.m. in the column No.3 of inquest report was made later on with blue ball point---Nature of weapon used in the incident was also not mentioned in column No.12 of inquest report and it was mentioned "firearm weapon"---If it was so, then it was the Investigating Officer to explain by plausible evidence on record, as to how the inquest report was undertaken at 08:00 a.m. on a point of time, when the incident was not reported to the police---First circumstance, which raised doubt about the time of occurrence of death as claimed by the prosecution was that in the inquest report, in column No.3 regarding receiving information of death was written as 08:00 a.m. to the Investigating Officer, whereas as per prosecution version, deceased then injured was shifted to RHC soon after the incident and where from he was referred to Hospital and on reaching in emergency ward of Hospital, injured succumbed to the injuries---Thereafter, the incident was reported by the complainant at the place of occurrence at 09:45 a.m.---Entire prosecution case was silent on the point that when deceased then injured breathed his last and when and by whom the dead body of deceased was brought back from Hospital to the place of occurrence, whereas the Investigating Officer deposed that when he reached the place of occurrence after 30/45 minutes of the occurrence, the deceased had passed away---Circumstances established that the prosecution had become unable to prove the case against the accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Post-mortem report---Scope---Accused was charged for committing murder of the husband of the complainant by firing---Senior Medical Officer, who conducted post-mortem examination on the dead body deposed during his court statement that the duration between death and post-mortem was 11/12 hours---Post-mortem report revealed that the dead body was received in the dead house at 06.50 p.m. and complete documents from police were received at 06.55 p.m. and autopsy was conducted upon the dead body of deceased at 07.00 p.m.---Said fact out-rightly suggested that deceased took his last breathe between 7.00/8.00 a.m., whereas the prosecution witnesses i.e. complainant, eye-witness and Investigating Officer deposed that soon after the incident (5.00/6.00 a.m.), Investigating Officer reached the place of occurrence within short span of time within 30/45 minutes---Said circumstances would go to suggest that the FIR was ante-dated---Circumstances established that the prosecution had become unable to prove the case against the accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Time of death of deceased was doubtful---Scope---Accused was charged for committing murder of the husband of the complainant by firing---In terms of inquest report, if police received information about the death of deceased at 08:00 a.m., whereas the complainant, the eye-witness and the Investigating Officer deposed that after the occurrence within span of 30 to 45 minutes, police reached at the place of occurrence, then the time of death of deceased became doubtful---Said fact also threw doubt about the time when actually the incident took place and was reported to the police---Circumstances established that the prosecution had become unable to prove the case against the accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Dishonest improvement made by eye-witness---Scope---Accused was charged for committing murder of the husband of the complainant by firing---Eye-witness had dishonestly improved his statement and defence brought on the record improvements made by him during his examination-in-chief---Said witness during his cross-examination deposed that he mentioned in his statement under S. 161, Cr.P.C., that the fire shot hit the deceased upon his knee of left leg---Confronted with his statement, wherein it was not so recorded---Said witness mentioned in his statement under S. 161, Cr.P.C., that the accused persons fled away from the place of occurrence while extending aerial fire shots---Confronted with his statement, wherein it was not so recorded---Said fact created doubt in the prosecution case as well as on the credibility and truthfulness of the statement of eye-witness---Relying on the evidence of the prosecution witnesses was not safe---Circumstances established that the prosecution had become unable to prove the case against the accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

2023 P Cr. L J 427

[Lahore]

Before Farooq Haider, J

Mrs. SAIRA FATIMA SADOZAI---Petitioner

Versus

D.I.G. INVESTIGATION and others---Respondents

Writ Petition No. 64405 of 2021, decided on 14th December, 2021.

(a) Police Order (22 of 2002)---

----Art. 18-A--- Criminal Procedure Code (V of 1898), Ss. 4(1)(l) & 551---Constitution of Pakistan, Art. 10-A---Investigation---Object---Right to fair trial---Transfer of investigation---Scope---Purpose of "investigation" is to dig out the truth regarding crime/occurrence and put up the same before the Court---Investigating Officer has to collect entire relevant facts of the occurrence irrespective of the fact that such facts favour prosecution or accused; he is under obligation to collect the evidence honestly, justly and fairly for bringing the truth on record not only to build up the case of complainant with evidence enabling the Court to record conviction but also for reaching to a just and fair decision---If investigation is not conducted on merits then ultimately it causes frightful harm to the concept of fair trial guaranteed by Art. 10-A of the Constitution---Criminal Procedure Code has no express provision for making order regarding change or re-investigation is available yet same subject has been dealt in the light of S. 551, Cr.P.C. and under administrative control of police hierarchy---However, in Police Order, 2002, such subject was expressly dealt by Art. 18 and not being dealt under Article 18-A introduced through the Punjab Police Order (Amendment) Act, 2013.

(b) Police Order (22 of 2002)---

----Art. 18-A--- Criminal Procedure Code (V of 1898), Ss. 4(1)(l) & 173---Transfer of investigation---Submission of challan---Scope---If after completion of investigation and sending challan report prepared under S. 173, Cr.P.C., it is felt or highlighted that during already conducted investigation, certain aspects regarding basic/constituting elements of the offence or version of the accused could not be investigated, new facts/better evidence or further information has become available which has direct/essential/vital nexus with alleged crime, proclaimed offender in the case has been arrested and important piece of evidence like recovery of weapon of offence is to be collected and other allied matters to be investigated, defects of vital nature in already conducted investigation has been marked/detected/pointed out, already conducted investigation remained unsatisfactory due to non-availability of required evidence or through induction of false evidence due to corrupt behavior of Investigating Officer (concerned), then, non-conducting of further or fresh/re-investigation would virtually amount to putting a seal on human error and with no opportunity to make amends although it be possible to do so---Police as State agency should be as much interested as any other agency concerned in the administration of justice, to find out the truth regarding crime and lay the whole facts before the Court---Statutory functions of police as investigating agency and Courts are complementary to each other without overlapping---Fact that previous investigation had yielded certain results does not act as a hurdle or a deterrent for the police in reaching the truth if additional facts/circumstances are brought to light help in its discovery---No embargo exists on the transfer of investigation from one police officer to the other and to carry out further or fresh/re-investigation of the case even after submission of challan in the Court.

Muhammad Akbar v. The State and another 1972 SCMR 335; 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; Raja Khurshid Ahmed v. Muhammad Bilal and others 2014 SCMR 474; Atta Muhammad v. Inspector General of Police, West Pakistan, Lahore and others PLD 1965 (W.P.) Lah. 734; Alam Din v. The State PLD 1973 Lah. 304 and Aswad Iqbal v. R.P.O. and others PLD 2020 Lah. 434 ref.

(c) Police Order (22 of 2002)---

----Art. 18-A---Criminal Procedure Code (V of 1898), Ss. 173 & 172---Police Rules, 1934, R. 22.55---Transfer of investigation---Submission of challan---Diary of proceedings in investigation---Files of case diaries---Scope---If after submission of challan in the Court and forwarding police file with the same, further or fresh/re-investigation is going to be ordered and police file is required then providing proper written intimation in this regard to the Trial Court is very much necessary.

(d) Police Order (22 of 2002)---

----Art. 18-A--- Transfer of investigation---Reasons for decision---Scope---Perusal of Art. 18A(1) of Police Order, 2002, reveals that for dealing with application for change of investigation, two steps are necessary for District Police Officer i.e. (i) to get opinion from District Standing Board and (ii) after receipt of opinion from District Standing Board to give reasons in writing---Getting opinion from District Standing Board is inclusive and not conclusive---Opinion of District Standing Board cannot be made as a "sole" basis for change of investigation; District Police Officer is not bound to accept such opinion blindfoldly, rather after receipt of opinion, he has to examine entire facts and then while giving express/valid reasons in writing to pass order regarding change of investigation or otherwise, as the case may be.

(e) Police Order (22 of 2002)---

2023 P Cr. L J 456

[Lahore]

Before Safdar Saleem Shahid, J

Dr. SHAFI-UR-REHMAN AFRIDI---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal Miscellaneous Nos. 77754-B, 78287-B, 77224-B and 77245-B of 2021, decided on 1st February, 2022.

Criminal Procedure Code (V of 1898)---

2023 P Cr. L J 468

[Lahore]

Before Muhammad Tariq Nadeem, J

MUTEEN UR REHMAN and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 67507-B of 2021, decided on 30th November, 2021.

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

----S. 498---Penal Code (XLV of 1860), Ss. 365 & 342---Kidnapping or abducting with intent secretly and wrongfully to confine person---Wrongful confinement---Pre-arrest bail, grant of---Delayed FIR---Scope---Prosecution case was that the victim was abducted on gun point by the accused persons, taken to the shop of an accused, tied with an electric pole and was tortured---First Information Report was lodged with a delay of 07 days---Abductee was not secretly confined, as such, S. 342, P.P.C. would be attracted to the case and not S. 365, P.P.C., however, final determination regarding the applicable provision would be made by the trial court after recording and evaluating the evidence---As far as the allegation of torture and beating was concerned, no Medico-Legal Certificate of the victim was available on record---Criminal as well as civil litigations were pending between the parties, therefore, false involvement of the accused persons at the hands of the complainant party could not be ruled out---Petition for grant of pre-arrest bail was allowed, in circumstances.

Nadeem alias Nanha alias Billa Sher v. The State 2010 SCMR 949; Shahid Abbas v. The State and others 2021 SCMR 2082 and Muhammad Bilal v. The State 2008 MLD 231 ref.

Khair Muhammad and another v. The State through PG Punjab and another 2021 SCMR 130 and Adrees Ahmad and others v. Zafar Ali and another 2010 SCMR 64 rel.

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

----S. 498---Pre-arrest bail---Scope---While granting pre-arrest bail even the merits of the case can be touched upon.

Meeran Bux v. The State and another PLD 1989 SC 347 and Sajid Hussain alias Joji v. The State PLD 2021 SC 898 rel.

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

----S. 498---Pre-arrest bail---Scope---Not possible in each and every case to prove mala fide but the same can be gathered from the facts and circumstances of the case.

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 rel.

2023 P Cr. L J 487

[Lahore]

Before Muhammad Amjad Rafiq, J

AMIR HAYAT---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 51224 of 2017, decided on 6th June, 2022.

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

----S. 5---Penal Code (XLV of 1860), Ss. 403, 405 & 409---Criminal misconduct---Dishonest misappropriation of property---Criminal breach of trust---Criminal breach of trust by public servant, or by banker, merchant or agent---Scope---Words 'fraudulent' and 'entrustment' are missing in the definition of 'dishonest misappropriation of property' provided in S. 403, P.P.C.---Offence under S. 5(1)(c) of Prevention of Corruption Act, 1947, deals with 'any property' while offence under S. 403, P.P.C. is confined to 'moveable property' only---Element of entrustment of property has been procured to convert an offence of 'dishonest misappropriation' to 'criminal breach of trust'---Definition of criminal breach of trust provided in S. 405, P.P.C. is wide enough with extended concept while erasing the word 'moveable property' and adding the word 'entrustment', as compared to S. 403, P.P.C.---Said definition too is at little contrast with clause (c) as it does not find mentioned the word 'fraudulently'---Section 5(1)(c) of Prevention of Corruption Act, 1947, covers the misdemeanours like misappropriation committed either with dishonest intention or intention to defraud---When the evidence discloses element of fraud only, S. 405, P.P.C. shall not be applicable for misappropriation, likewise rest of the sections for penal consequences including S. 409, P.P.C. shall not be attracted, and in that situation offence shall only be dealt with under S. 5(1)(c) of Prevention of Corruption Act, 1947.

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

----Ss. 24 & 25---"Dishonestly"---"Fraudulently"---Scope---Doer of a dishonest act may not have any interest in causing loss to any rightful claimant yet does the act for his own interest either to usurp the property or to alienate it in consideration of bribe given to him and the consequences of his act cause either wrongful loss or wrongful gain to any party in interest---Whereas fraudulent act contains malice, grudge, deception against a particular person with a targeted mind to ruin him or to deprive him from the property and for that end property is obtained from him through deception under grab or with temptation like increased value of the property---Example of above difference could be like that if a property is handed over by a person at his own to any other without any offer from any corner with the request to keep it as trust or use it under a contract between them, if it is misappropriated by the trustee, the matter is of criminal breach of trust but if a person persuades other with alluring offers to hand over the property for an increased benefit, misappropriation of such property shall be labelled as fraudulent which is not the subject matter of criminal breach of trust---Element of fraud is more serious and its proof requires evidence of precise and clear intention which is difficult to collect in ordinary circumstances unless ample material for deduction is brought on record that is the reason even in definition of cheating under S. 415, P.P.C. both the words 'dishonestly' and 'fraudulently' have been used.

(c) Words and phrases---

----"Misappropriate"---Meanings---Dishonestly or unfairly take for one's own use---To take somebody else's money or property for yourself, especially when they have trusted you to take care of it.

Concise Oxford English Dictionary and NEW 9th Edition of Oxford Advanced Learner's Dictionary Internal Student's Edition rel.

(d) Words and phrases---

2023 P Cr. L J 499

[Lahore]

Before Ali Zia Bajwa, J

Rao GHULAM MUSTAFA---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 41311-B of 2022, decided on 14th September, 2022.

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

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque----Bail, grant of---Cheque was issued to the complainant from whom the accused did not receive any amount rather the complainant was a special attorney---Complainant being special attorney alleged that accused owed him a sum of money and paid the cheque in question, which was dishonored on presentation---Executant/principle of power of attorney neither joined the investigation nor her statement under S. 161, Cr.P.C. was available on record---No exact date and time span had been mentioned in FIR during which amount was handed over or transferred through bank transactions---Nowhere in record the purpose of sending money to the accused was reflected---Admittedly, the punishment provided under S. 489-F, P.P.C., was imprisonment for three years or fine or both---Civil litigation under O. XXXVII, Rr. 1, 2, C.P.C., was pending between the parties relating to cheque in question---Involvement of huge amount did not enlarge the punitive scope of S. 489-F, P.P.C., and there was no ground for refusal of bail---Accused was not further required for investigation---Accused was a previous non-convict having no criminal antecedents---Post-arrest bail of accused was allowed in circumstances.

2023 P Cr. L J 517

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

Malik USAMA BIN TAHIR AWAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 1600-B of 2021, decided on 1st September, 2021.

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

----S. 498--- Penal Code (XLV of 1860), Ss. 279, 337-G, 427, 302 & 34---Rash driving or riding on a public way, hurt by rash or negligent driving, mischief causing damage to the amount of fifty rupees, qatl-i-amd and common intention---Pre-arrest bail, grant of---Dishonest improvements---Scope---Prosecution case was that accused hit the complainant and his friends with his car while they were on motorcycle as a result of which one of the friends of complainant died on the next day---Other friend of complainant got recorded his statement under S. 161, Cr.P.C. wherein he stated that the accused had intentionally the motorcycle thrice at different points, which was done in furtherance of previous enmity---Complainant, injured and the accused hailed from the same vicinity and there could be no impediment in the way of complainant to identify the accused if he was recognized---Accused had remained unidentified, as a result, FIR was lodged against unknown accused alleging that he had caused injuries to the driver and riders of the motorcycle through rash and negligent driving---Improvements in the case of prosecution were for no other purpose except to tighten the screw of the accused---Petition for grant of pre-arrest bail was accepted, in circumstances.

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

----S. 498---Pre-arrest bail---Mala fide of prosecution---Scope---Pre-arrest bail is an extraordinary relief, which is to be extended in rareand exceptional circumstances to the accused but at the same time, one cannot lose sight of the fact that liberty of a person is one of the paramount and inalienable right guaranteed under the Constitution, which cannot be abridged lightly---One of the prime purposes of pre-arrest bail is to prevent the mala fide prosecution of innocent persons---Term "mala fide" is not a uniformly identified term---Being a state of mind, the term "mala fide" cannot always be proved through direct evidence, and it is often to be inferred from the facts and circumstances of the case.

Shahzada Qaiser Arfat alias Qaiser v. The State and another PLD 2021 SC 708 rel.

Khair Muhammad and another v. The State through P.G. Punjab and another 2021 SCMR 130 ref.

2023 P Cr. L J 532

[Lahore (Rawalpindi Bench)]

Before Ch. Abdul Aziz and Raja Shahid Mehmood Abbasi, JJ

MUHAMMAD RAEES---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 495 and Murder Reference No. 44 of 2018, heard on 7th June, 2021.

(a) Criminal trial---

----Each criminal case had its own peculiar facts and circumstances and same hardly coincide with each other on salient features.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Ocular account was not supported by medical evidence---Scope---Accused was charged that he along with co-accused committed murder of the husband of complainant---Motive for the occurrence was stated to be that the co-accused had suspicion that the deceased had illicit relation with his wife and due to that grudge, accused committed the murder---Ocular account had been furnished by complainant and an eye-witness---Statements of said witnesses revealed that though they had reiterated almost the same facts as narrated in FIR, but the mode and manner of incident narrated by them did not appeal to human prudence---Question arose as to how the deceased was able to stand on his feet after sustaining first firearm injury on his head at the hands of co-accused (P.O.) only to wait for the accused to inflict the other firearm injury on his head---Record showed that both the firearm injuries on the head of the deceased were inflicted from a short distance as according to the Medical Officer, blackening/tattooing was present on firearm entry wounds---Keeping in view the force of velocity created by the fire shots from close range, there was no chance for the deceased, in normal course of nature, to remain in standing position after sustaining first fire shot, but the alleged eye-witnesses remained stubborn in their stance that both the firearm injuries were sustained by the deceased while he was in standing position---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)---

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---No justification for the presence of eye-witnesses at the spot---Chance witnesses---Scope---Accused was charged that he along with his co-accused committed murder of the husband of complainant---Incident had taken place in an open area located at a distance of about 25-minutes of travelling from the residences of alleged eye-witnesses but they could not advance any convincing reason for their availability at the spot at the relevant time---Complainant, on the one hand stated that she along with her daughter and husband went to the place of occurrence for grazing cattle and on the other, she stated that they had gone to their fields to harvest peanut crop by engaging a tractor blade---Similarly, eye-witness also claimed to have witnessed the tragedy by chance while stating that he was grazing his cattle there---Both the alleged eye-witnesses were nothing but chance witnesses, which aspect of the case prompted not to place any reliance on them---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.

Nadeem alias Nanha Billa Sher v. The State 2010 SCMR

949 rel.

(d) 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---Benefit of doubt---Withholding best evidence---Effect---Accused was charged that he along with co-accused committed murder of the husband of complainant---Statement of complainant showed that owner of tractor engaged for harvesting peanut crop was present at the spot at the time of occurrence, but he was never cited as an eye-witness of the case---In that way, the prosecution had withheld the best available evidence, which inclined the Court to draw an inference within the meanings of Art. 129(g) of Qanun-e-Shahadat, 1984 that had the said witness been produced before the Trial Court, he would not have supported the story incorporated in crime report, otherwise there was no plausible reason to let off such an important 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.

Riaz Ahmad v. The State 2010 SCMR 846 and Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327 rel.

(e) Criminal trial---

----Medical evidence---Scope---Medical evidence might confirm the other available evidence with regard to the seat and nature of injuries, the kind of weapon used and the time of occurrence but it would not identify the accused.

Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53 and Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 rel.

(f) Criminal trial---

----Absconsion---Scope---Mere absconsion of accused was not a conclusive proof of his guilt and it is only a suspicious circumstance against the accused that he was found guilty of the offence---Suspicions after all were suspicions and the same could not be given the place of proof---Value of absconsion always depended on the facts of each case---Absconsion of the accused might be consistent with his guilt or innocence, which was to be decided keeping in view overall facts of the case.

Muhammad Khan and another v. The State 1999 SCMR

1220 rel.

(g) 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 that he along with co-accused committed murder of the husband of complainant---Motive for the occurrence was stated to be that the co-accused had suspicion that the deceased had illicit relation with his wife and due to that grudge, accused committed the murder---Motive was not directly attributed to the accused and the same was alleged against co-accused (P.O.)---Investigating Officer candidly admitted during his cross-examination that he had not joined any person from the village to verify the motive i.e. suspicion of co-accused (P.O.) regarding illicit relation of his wife with the deceased---Prosecution had not been able to connect the accused with the murder of deceased through the asserted motive---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.

(h) 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 was charged that he along with his co-accused committed murder of the husband of complainant---Pistol .30 bore was allegedly effected from the accused---Report of Forensic Science Laboratory showed that three empties collected by the Investigating Officer during spot inspection were identified as having been fired from the recovered pistol---Accused was arrested in connection with the case on 19.10.2017 and allegedly he got recovered pistol on 25.10.2017, but the Moharrar Malkhana categorically stated that two parcels one of pistol 30 bore and the other of blood stained earth were handed over to him by the Investigating Officer on 02.11.2016, which was the date of incident--- Another aspect which made the recovery of weapon as well as the positive report useless for the prosecution was that according to recovery memo, the pistol was containing identification marks on its left side as "MADE IN PAKISTAN CAL 7.63MM30A" and "VPERPAWOR", but the pistol deposited in the Forensic Science Agency, according to report, was marked as 23003-03934/16---Prosecution side had failed to clarify as to which of the two pistols 30 bore i.e. pistol 30 bore handed over by the Investigating Officer to the Moharrar Malkhana on the day of occurrence and pistol allegedly recovered from the accused had matched with three crime empties---No reliance could be placed on the recovery of pistol .30 bore as well as the positive report, in circumstances---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.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused was charged that he along with co-accused committed murder of the husband of complainant---Co-accused, who was assigned a specific role of inflicting blunt side of hatchet on the head of the deceased, had been acquitted of the charge by extending the benefit of doubt in his favour---Judgment of Trial Court to the extent of acquittal of co-accused had not been brought under attack by the prosecution---Accused was held guilty on the basis of same evidence which had already been disbelieved to the extent of co-accused without appreciating that no independent corroboration was available on record qua the accused so as to distinguish the case of the accused from the acquitted co-accused---Even the recovery of weapon was not connecting the accused with the crime in question, whereas motive even according to the prosecution's own showing was against co-accused(P.O.)---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.

Shahbaz v. The State 2016 SCMR 1763 rel.

(j) Criminal trial---

----Benefit of doubt---Principle---Not many circumstances creating doubt in the prosecution story are required to acquit an accused---One circumstance creating doubt will be enough to extend benefit of the same to the accused.

2023 P Cr. L J 567

[Lahore (Rawalpindi Bench)]

Before Sardar Ahmed Naeem, J

NIAZ KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 356 and Criminal Revision No. 134 of 2021, heard on 1st June, 2022.

Penal Code (XLV of 1860)---

2023 P Cr. L J 600

[Lahore]

Before Muhammad Tariq Nadeem, J

SAJJAD ALI---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, MANDI BAHAUDDIN and 12 others---Respondents

Criminal Revision No. 56556 of 2020, heard on 13th May, 2022.

Criminal Procedure Code (V of 1898)---

2023 P Cr. L J 625

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi and Ch. Abdul Aziz, JJ

AFZAL KHAN and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 774, 744 and Murder Reference No. 51 of 2019, heard on 18th January, 2022.

Penal Code (XLV of 1860)---

2023 P Cr. L J 662

[Lahore]

Before Ali Baqar Najafi and Farooq Haider, JJ

MUHAMMAD RAMZAN---Petitioner

Versus

SPECIAL JUDGE ANTI-TERRORISM COURT-III, LAHORE and 5 others---Respondents

Criminal Revision No. 9175 of 2022, heard on 19th May, 2022.

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

2023 P Cr. L J 678

[Lahore]

Before Farooq Haider, J

ABID FAROOQ---Petitioner

Versus

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

Writ Petition No. 79717 of 2021, heard on 12th January, 2022.

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

----Ss. 498 & 498-A---Pre-arrest bail---Protective ad-interim pre-arrest bail---Scope---Accused sought protective ad-interim pre-arrest bail to enabling him to appear before the court---Accused was neither present in the court nor in the country rather he was statedly abroad---Presence of the accused before the court for pre-arrest bail in the case was a must/mandatory and without his presence, pre-arrest bail could not be granted---Petitioner being not maintainable was dismissed.

Shazaib and others v. The State and others PLD 2021

SC 886 rel.

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

----S. 498---Pre-arrest bail---Ad-interim pre-arrest bail---Confirmed pre-arrest bail---Confirmed pre-arrest bail---Protective ad-interim pre-arrest bail---Transitory ad-interim pre-arrest bail, explained.

Pre-arrest bail is an order to restrain police/investigating agency from arresting the accused in a case. It may be ad-interim pre-arrest bail, confirmed pre-arrest bail or protective/transitory ad-interim pre-arrest bail in a case. When an accused files petition and appears first time in a case for pre-arrest bail before the court having jurisdiction to grant pre-arrest bail and said court while summoning the record of the case restrains police/investigating agency from arresting the accused till date of production of the record, it is termed as "ad-interim pre-arrest bail", then after receipt and examination of record, if the court restrains police/investigating agency from arresting the accused during trial and till decision of that case, it is called as "confirmed pre-arrest bail"; if accused appears before the court for getting order qua restraining police/investigating agency from arresting him in a case till he approaches the court (concerned) having jurisdiction to deal with his petition for pre-arrest bail and court restrains police from arresting the accused in said case for a certain period and till certain date in order to enable said accused to approach the court (concerned) for pre-arrest bail then it is called as "protective or transitory ad-interim pre-arrest bail". All the three categories are different forms of the pre-arrest bail.

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

----Ss. 498 & 498-A---Pre-arrest bail---Presence of accused---Scope---Presence of the accused before the court for pre-arrest bail in the case is a must/mandatory and without his presence, pre-arrest bail cannot be granted.

Shazaib and others v. The State and others PLD 2021

SC 886 rel.

(d) Administration of justice---

----Thing prescribed to be done by a statute in a particular manner should be done in that manner only and in other way it should not be done at all.

2023 P Cr. L J 690

[Lahore (Multan Bench)]

Before Muhammad Waheed Khan, J

JAVED IQBAL---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No. 307 of 2021, heard on 26th January, 2022.

Criminal Procedure Code (V of 1898)---

----S. 265-C---Supply of statements and documents to the accused---Exclusion of evidence, not provided to accused---Scope---Accused moved an application under S. 265-C, Cr.P.C. for obtaining certified copies of hard disks secured by the police during investigation---Trial Court directed the prosecution to provide video film to the accused---Hard disks containing video were de-sealed in open court and were provided to a constable, stated to be an expert of hardware by the prosecution, but the constable showed his inability to make copies of the same, resultantly, the Trial Court excluded the disks from the evidence vide impugned order---Held; it was mandatory to supply copies of the hard disks to the accused under S. 265-C, Cr.P.C.---Modus operandi adopted by the Trial Court, whereby a constable, present in court was asked to prepare copy of the hard disks, was not proper rather unwarranted under the law---Trial Court must have sent the hard disks to an IT Department of the investigation agency for preparation of its copies---Revision petition was allowed and the impugned order was set aside.

2023 P Cr. L J 735

[Lahore]

Before Sardar Muhammad Sarfraz Dogar and Sardar Ahmed Naeem, JJ

ANJUM LATIF---Appellant

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 23157, 24016 and Murder Reference No. 88 of 2019, decided on 9th March, 2022.

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

----Ss. 302, 337-A(i), 337-F(iv), 337-L(2), 148 & 149---Qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-mudihah, hurt, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Related witnesses---Accused was charged that he along with his co-accused while armed with pistols and iron rods caused injuries to three persons, out of which one person died---Statement of a witness related to deceased should be corroborated rather the statement of a worst enemy could be relied upon, if it inspired confidence and intrinsic worth of the statement was not shaken---Mere relationship of the witnesses with the deceased was not a ground for discarding their statements when otherwise such statements were confidence inspiring and found corroboration from the independent witnesses---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of doubt---Accused were acquitted by setting aside conviction and sentences recorded by the Trial Court.

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

----Ss. 302, 337-A(i), 337-F(iv), 337-L(2), 148 & 149---Qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-mudihah, hurt, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of eye-witnesses---Effect---Accused was charged that he along with his co-accused while armed with pistols and iron rods caused injuries to three persons, out of which one person died---Injured witnesses claimed to have been severely beaten by the accused persons but no such torture/beating was borne out from the available record---Injured eye-witnesses were at variance regarding material points---One of the injured witnesses described that accused fired at the deceased hitting on his right temporal region which was contradicted by medical evidence---Moreover, other injured witness admitted that at the time of occurrence, his brother, complainant was not with them---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of doubt---Accused were acquitted by setting aside conviction and sentences recorded by the Trial Court.

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

----Ss. 302, 337-A(i), 337-F(iv), 337-L(2), 148 & 149---Qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-mudihah, hurt, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Delay of twenty five days in recording the statement of witnesses---Effect---Accused was charged that he along with his co-accused while armed with pistols and iron rods caused injuries to three persons, out of which one person died---Record showed that the eye-witnesses were deaf and dumb---Statements of said witnesses were recorded with the help of interpreter, Instructor Deaf and Dumb School with the help of Senior Headmistress of the same school---Said Instructor was also examined during the investigation under S. 161, Cr.P.C., as reflected by record and the statement of the said injured eye-witnesses were also recorded with his help---All three were examined on 9.12.2012---Nothing could be gathered from the available record if both the injured were incapable to make statements till 9.12.2012 and for what reasons their statements under S. 161, Cr.P.C., were recorded after twenty five days of the occurrence---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of doubt---Accused were acquitted by setting aside conviction and sentences recorded by the Trial Court.

Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Muhammad Asif v. The State 2017 SCMR 486 and Rahat Ali v. The State 2010 SCMR 584 rel.

(d) Criminal trial---

----Witness---Statement of deaf and dumb witness, recording of---Pre-requisite---Court has to ascertain whether such a witness possesses the requisite amount of intelligence---Court is required to record its satisfaction to that effect---Court is required to ascertain, if the witness either by writing or sign could make intelligible of what he had to speak---If such witness is able to communicate his statement perfectly by writing, it would be more satisfactory method of taking evidence---When such witness is unable to write, then he can make signs showing what he wants to say---If it is by signs, those signs must be recorded by the Trial Court and not only the interpretations of those signs---Court should be able to know whether the interpretation of the sign is correct or not---Not safe for a Trial Court to embark upon the examination of a deaf and dumb person on its own without help of an expert or a person familiar with his mode of conveying ideas to others in day to day life---Interpreter should not be an interested person, who had participated in the investigation and who is a witness in the same trial---Interpreter should be a person of the same surrounding but should not have any interest in the case and he should be administrated oath.

Muhammad Mansha v. The State 2019 SCMR 64; Meesala Ramakrishan v. State of A. P, 1994(2), R.C.R (Criminal) 675; (1994) 4 (SCC 182) and Ah Soi (1926(27) Crl.LJ 805) rel.

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

----Ss. 302, 337-A(i), 337-F(iv), 337-L(2), 148 & 149---Qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-mudihah, hurt, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Motive not proved---Effect---Accused was charged that he along with his co-accused while armed with pistols and iron rods caused injuries to three persons, out of which one person died---Some altercation, quarrel or dispute with the accused was motive behind the occurrence---Record showed that the reasons for the outbreak of that episode was a quarrel between injured witness and the accused 2/3 days prior to the occurrence---Investigating Officer had not thrashed that aspect of the matter during the investigation---In short, injured witness had not uttered even a single word that he had some altercation, quarrel or dispute with any of the accused at any time prior to that occurrence, thus, the assertions of the complainant regarding motive was based on hearsay---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of doubt---Accused were acquitted by setting aside conviction and sentences recorded by the Trial Court.

(f) Criminal trial---

----Motive---Scope---Prosecution not bound to introduce the motive as some crimes are motiveless and that the motive is hidden deep in the mind of the perpetrator of the crime but once, it is set up and not established, then it adversely affects the case of prosecution.

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

----Ss. 302, 337-A(i), 337-F(iv), 337-L(2), 148 & 149---Qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-mudihah, hurt, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Safe transmission of crime empties to Forensic Laboratory not established---Effect---Accused was charged that he along with his co-accused while armed with pistols and iron rods caused injuries to three persons, out of which one person died---During the investigation, the Investigating Agency secured from the crime scene two crime empties---Report of Forensic Science Agency revealed that parcels containing two 30 bore caliber cartridges were submitted on 30.11.2012 but that fact did not find mention in the statement of recovery witness---Statement of said witness was silent as to where parcel 2 was deposited---Said witness testified regarding receipt of the said parcel from MHC on 29.11.2012 but there was no mention in his statement if it was deposited by him with the office of public analyst on the following day i.e. 30.11.2012 and if that was so, then it could safely be concluded that the prosecution failed to prove the safe transmission of the crime empties secured from the crime scene---Thus, no reliance could be placed on the said report---Report regarding parcel-I was, thus, inconsequential---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of doubt---Accused were acquitted by setting aside conviction and sentences recorded by the Trial Court.

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

----Ss. 302, 337-A(i), 337-F(iv), 337-L(2), 148 & 149---Qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-mudihah, hurt, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Acquittal of co-accused on same set of evidence---Effect---Accused was charged that he along with his co-accused while armed with pistols and iron rods caused injuries to three persons, out of which one person died---Record showed that four co-accused had been acquitted, whereas the present accused persons were held guilty, convicted and sentenced---If the majority of the accused nominated in a case were acquitted on account of false implication by the eye-witnesses, then, allegations qua remaining accused on the basis of same set of evidence could not be sustained without strong/independent corroboration---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of doubt---Accused were acquitted by setting aside conviction and sentences recorded by the Trial Court.

Iftikhar Hussain and another v. State 2004 SCMR 1185; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758 and Akhtar Ali and others v. The State 2008 SCMR 6 rel.

(i) Criminal trial---

----Benefit of doubt---Principle---If there is element of doubt, as to the guilt of accused, it must be resolved in his favour.

Mst. Nazia Anwar v. The State and others 2018 SCMR 911 and Najaf Ali Shah v. The State 2021 SCMR 736 rel.

Shahid Azeem for Appellant.

Ms. Maida Sobia, Deputy Prosecutor General for the State.

Rai Bashir Ahmad for the Complainant.

2023 P Cr. L J 790

[Lahore]

Before Ali Baqar Najafi and Anwaarul Haq Pannun, JJ

MUHAMMAD SARWAR---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and 3 others---Respondents

Writ Petition No. 76920 of 2022, decided on 18th April, 2023.

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

----Ss. 5(g)(o)(s) & 9(a)(ii)(iii)(iv)(xii) [as amended by National Accountability (Amendment) Act (XVI of 2022)]---Criminal Procedure Code (V of 1898), S. 173---Constitution of Pakistan, Arts. 9, 10 & 199---Constitutional petition---Bail, grant of---Forum of trial, absence of---Change in law---Delay in conclusion of trial---Jurisdiction of Accountability Court---Petitioner was accused facing trial under National Accountability Ordinance, 1999 and had been in custody since 21.1.2021---Petitioner sought his release on bail on the plea of change in law and absence of forum of trial---Validity---Petitioner was arrested on 21.1.2021 and during such period of more than two years, out of 68 prosecution witnesses only 9 witnesses could be recorded---Petitioner did not play any significant role in causing delay in conclusion of trial in offence under S. 9(a)(ii)(iii)(iv)(iv) & (xii) read with S. 10 of National Accountability Ordinance, 1999 containing maximum punishment of imprisonment for 14 years and fine---Amendment in S. 5(o) of National Accountability Ordinance, 1999 brought substantial change in allegation of misappropriation and if misusing public money did not exceed Rs. 500 million or number of persons was less than 100, NAB would not have any jurisdiction and therefore Accountability Court created under S. 5(g) of National Accountability Ordinance, 1999 shall take its hands off to further proceed in the reference and return it at once to NAB---Report under S. 173, Cr.P.C. was not sent to any Court of competent jurisdiction to take the cognizance---High Court had jurisdiction under Art. 199 of the Constitution to enforce individual fundamental right under Arts. 9 & 10 of the Constitution to safeguard security of person and safeguard as to arrest and detention---Petitioner was not aware as to under what law he was under detention---Custody of petitioner was being regulated by Accountability Court on regular basis but that too, due to uncertainty/ ambiguity created by the amending law---Detention of petitioner was an unconscionable delay in conclusion of trial---Bail was allowed, in circumstances.

Muhammad Alam Khilji and others v. Judge Accountability Court and others Writ Petition No. 3197 of 2022 ref.

Shahid Shafiq Alam Faridi and another v. Federation of Pakistan and others 2021 SCMR 1210 and Muhammad Subtain Khan v. National Accountability Bureau through Chairman NAB and 3 others PLD 2020 Lah. 191 rel.

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

----Ss. 497 & 498---Bail---Fresh ground---Scope---Amendment in law provides fresh ground for bail.

Nazir Ahmed and another v. The State and others PLD 2014 SC 241 rel.

(c) Interpretation of statutes---

----Court has to interpret the law as it exists today.

(d) Constitution of Pakistan---

----Art. 10--- Security against arrest and detention---Principle---Detention without trials has been regarded as the least possible inhumane tool used to restrict people.

Qazi Misbah-ul-Hassan for Petitioner.

2023 P Cr. L J 805

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram and Muhammad Amjad Rafiq, JJ

TAUHEED ABBAS---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 719 of 2017, decided on 4th October, 2022.

Criminal Procedure Code (V of 1898)---

----S. 342---Power to examine the accused---Scope---Re-recording statement of accused---Appellant (accused) assailed the order of the Trial Court whereby the Trial Court deemed it appropriate to re-record his detailed statement under S. 342-A, Cr.P.C., on the ground that earlier statement was not recorded properly by the Predecessor of the Court---Held, that no express provision was available for recording of statement more than once in second part of the S. 342, Cr.P.C., yet first part authorized to ask as many questions at any time as the court desired and wish of the court was obviously regulated not by whims but by the principle that any piece of evidence appearing against accused needed his reply or clarification before it was used against him, and it was the base line principle of natural justice borrowed from the maxim "Audi Alteram Partem", meaning no one should be condemned unheard---Evidence not put to the accused in his statement under S. 342, Cr.P.C., could not be used against him for recording any observation making part of main platform which was set to erect a guilt-edifice against him---Appellate courts usually remand the case on the deficiency of questions put to accused in his statement under S. 342, Cr.P.C. on the principle that Trial Court before relying upon any evidence should have sought explanation of accused about it, which indirectly is a message that if any evidence was skipped or lost sight of putting to the accused but was essential to be relied upon, the Trial Court before proceeding further must put some additional questions in that respect which was in line with first part of S. 342, Cr.P.C., authorizing the court to ask question at any stage of the proceedings without warning him---Allegation of filling lacuna was usually attributed to the litigating parties on whose applications court sometimes misread the situation but it could not be leveled against the court which always looks for doing complete justice and in that respect was authorized to use its inquisitorial pocket in an adversarial system---Trial Court was authorized to dilate upon all pieces of evidence for a reply of accused to be considered later in order to appreciate the evidence of prosecution, yet recording of statement under S.342, Cr.P.C., afresh in the case was not desirable rather court could put additional questions encompassing the evidence appearing against him and was intended to be used by the court for recording any observation relating to guilt or otherwise of the accused and such arrangement was in consonance with the spirit of first part of S. 342, Cr.P.C---Petition was, therefore, dismissed with the direction that Trial Court shall put additional questions to the accused as per available evidence and shall treat it part of statement earlier recorded under S. 342, Cr.P.C., for realizing any point of determination in the final judgment.

Aminul Hoque v. Crown PLD 1952 Federal Court 63; Muhammad Yakub v. The Crown PLD 1956 Federal Court 143 and Raza and another v. The State and 2 others PLD 2020 SC 523 ref.

Peerzada Niaz Mustafa Qureshi for Appellant.

Malik Muddasir Ali, Deputy Prosecutor General for the State.

2023 P Cr. L J 834

[Lahore (Multan Bench)]

Before Muhammad Amjad Rafiq, J

MUHAMMAD ZAMAN---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and others---Respondents

Writ Petition No. 6132 of 2018, decided on 9th February, 2022.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A, 523 & 550---Superdari of case property---Scope---Seizure of non-customs paid vehicles under Ss. 550/523, Cr.P.C.---Superdari of vehicles, refusal of---Person 'S' applied for supurdari of the vehicle but the Magistrate rejected the applications and Additional Sessions Judge overturned the order of Magistrate giving direction to conduct inquiry under S. 523, Cr.P.C., before taking decision about custody of vehicle and to take action against the petitioner (official of Border Military Police) by lodging a case under Art. 155-C of Police Order, 2002, because he had not reported the matter to Magistrate forthwith as required under S. 523, Cr.P.C.---Validity---In the case, no FIR stood registered for theft or otherwise of vehicle nor it was found in the circumstance that it could have been taken into possession under such S. 550, Cr.P.C. particularly when there was no evidence of tempering of chassis number etc.---Even police had no authority to stop or seize non-custom paid vehicle because Customs Act, 1969, did not authorize police to take such action which authority rested with Customs Officers---If it was mistakenly taken, even then subordinate officer was bound to inform the Officer Incharge of Police Station and not the Magistrate as S. 550, Cr.P.C. provided---Petitioner had thus performed his duty and no breach or violatin could be attributed to him---However, it was the duty of the Officer Incharge of Police Station to inform the Magistrate if he could have found that conditions of said section were met, otherwise he was under duty to inform the Custom Officers for further proceedings, which was in consonance with the Customs Act, 1969---Section 523, Cr.P.C., required that seizure of property would be forthwith reported to a Magistrate which did not mean Area Magistrate in all cases but one who was authorized under the law to deal with property so taken---If the vehicle was seized under Control of Narcotic Substances Act, 1997, only Court concerned would deal with the vehicle and not the Area Magistrate---Similar was the case for all other special laws---Police was bound to hand over such vehicle to Directorate of Intelligence and Investigation of FBR, which was the right course and involvement of Magistrate in such matter was not required under the law who could only tackle the properties mentioned in S. 523, Cr.P.C---Provisions of special law prevailed over general law---Special procedure had been given in the Customs Act, 1969, with respect to seizure of non-custom paid vehicle and dealing with offence therein---Customs Act, 1969, authorized the police to take possession of any vehicle only for the assistance of Customs Officers and not for any other purpose---Thus, police was not authorized to seize non-custom paid vehicle---If the police had taken the vehicle into custody, it did not bind them to inform the Magistrate about seizure when they were already in correspondence with Directorate of Intelligence and Investigation of FBR---Additional Sessions Judge should not have passed order for registration of case because official acts of police taken in good faith were protected under Art. 171 of Police Order, 2002---Constitutional petition was allowed by setting aside impugned order, with the direction that Customs Authorities would have recourse to legal remedy available under the law for custody of vehicle and confiscation thereof.

Adam v. Collector of Customs, Karachi and another PLD 1969 SC 446; State through Director-General, Pakistan Coast Guards, Turbat v. SABRO and another 1992 PCr.LJ 1795; Government of Pakistan through Additional Secretary (Customs), Ministry of Finance, Islamabad and another v. Mahmood Ahmed Qureshi and another 2002 SCMR 1527; The Director Intelligence and Investigation (Custom) FBR, Islamabad and another v. Fazal Ghani and others (Criminal Petition No. 802 of 2015); Bhutto Khan and 4 others v. Director General of Police Khyber Pakhtunkhwa Peshawar and 4 others 2018 PTD 1716; Muhammad Salam v. The State and another 2019 PTD 1595 and Additional Director, Intelligence and Investigation v. Banaras Khan 2013 PTD 1988 rel.

Sardar Tariq Sher Khan for Petitioner.

Maher Muhammad Mumtaz Hussain Mirali, Assistant Advocate General for the State.

2023 P Cr. L J 850

[Lahore (Bahawalpur Bench)]

Before Tariq Saleem Sheikh, J

HASWAR SHAH and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 494 of 2013/BWP, 11 of 2014/BWP and Murder Reference No. 56 of 2013/BWP, decided on 18th April, 2018.

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

----Ss. 302(b) & 376---Qatl-i-amd, rape---Appreciation of evidence---Benefit of doubt---Accused was charged for committing rape with the minor daughter of the complainant and then murdering her by strangulation---Complainant, who was father of the deceased, was admittedly not eye-witness of the occurrence---Complainant stated that his daughter left the house on 30.04.2010 to play in the street and went missing and on the following day her dead body was found lying on a branch of tree in the graveyard---However, complainant suspected that three persons were involved in the offence---On 12.05.2010, complainant made a supplementary statement stating that he had probed into the matter himself and had found that three other persons including one of the earlier suspects had actually committed the murder of his daughter while another person along with his wife carried her body to the graveyard and disposed it of---Then, on 17.05.2010, complainant made another statement in which he exonerated two persons---Apart from the desire of complainant to enrope maximum number of people from the opposite side in the case, it appeared from his deposition recorded during the trial that the said statements were based on the findings of a sniffer dog and a khoji (tracker) that he had privately arranged---Without commenting on the reliability and admissibility of such alleged findings, the prosecution did not rely on them and neither examined the dog trainer nor the tracker at the trial---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 376---Qatl-i-amd, rape---Appreciation of evidence---Benefit of doubt---Last seen evidence---Scope---Accused was charged for committing rape with the minor daughter of the complainant and then murdering her by strangulation---Evidence of the last seen furnished by a witness was the cornerstone of the prosecution case---Said witness deposed that on 30.4.2010 at about 6:00/7:00 p.m. he was returning from the house of his mother-in-law to his own house when he saw three accused persons including a lady in the street---Said witness subsequently learnt that daughter of the complainant was raped and murdered---Perusal of the record showed that said witness joined the investigation and made a statement to that effect on 14.5.2010---Said witness was the maternal cousin of the complainant yet he did not inform him about the rape and murder and kept mum for 14 long days---During his cross-examination the witness attempted to explain that delay by taking the plea that he went to place "L" on 30.4.2010 and came back on 12.5.2010, however said plea did not help him---Said witness admitted that his wife informed him about the incident on 01.5.2010---Keeping in view close relationship of said witness with the complainant, it was unnatural for him not to contact the complainant or the police immediately---More importantly, even if said witness returned on 12.5.2010, there was no explanation why he delayed joining the investigation till 14.5.2010---Thus, the testimony of said witness lacked credibility---In addition to that, the testimony of said witness was in direct conflict with that of other witness who deposed that he had informed him about the murder and rape on the very day of occurrence---Said fact also contradicted claim of witness of last seen evidence that he went to place "L"---Another witness deposed that on the fateful day when he got up for his Fajar prayer he had seen two accused persons including a female passing in front of his house carrying a sack and subsequently discovered that the said sack contained the corpse of deceased and they dropped it in the graveyard---Testimony of said witness too did not inspire confidence---First, statement of said witness was based on conjectures and surmises---Said witness did not witness the accused disposing of the corpse as aforesaid---Secondly, the alleged sack was not recovered during investigation---Thirdly, the dead body of deceased was found lying on a branch of a tree in the graveyard---Said fact did not appeal to a prudent mind that two accused persons would take it out from the sack and then put it there---Fourthly, accused were the parents of other accused persons while female accused was the sister of another accused---However, it rather seemed preposterous that they would allow them to ravish and murder the girl and then take the body themselves to the graveyard to dispose it of---Lastly, the statement under S. 161, Cr.P.C., of a witness was recorded by the Investigation Officer with a delay on 14.5.2010---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 161---Delay in recording the statement of witness---Effect---Where the statement of a witness was recorded with delay without any cogent reason it impinged its credibility.

Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Abdul Khaliq v. The State 1996 SCMR 1553 and Muhammad Khan v. Maula Bakhsh and another 1998 SCMR 570 rel.

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

----Ss. 302(b) & 376---Qatl-i-amd, rape---Appreciation of evidence---Benefit of doubt---Extra-judicial confession---Scope---Accused was charged for committing rape with the minor daughter of the complainant and then murdering her by strangulation---Record showed that two prosecution witnesses deposed that allegedly three accused persons made extra-judicial confession---One of the witnesses of extra-judicial confession deposed that on 13.5.2010 he was present at his Dera with other witness when the said accused approached them and took them aside and separately requested for their help to seek pardon from the complainant---First of all allegedly Mr. "M" admitted that Mr. "H" and Mr. "J" raped deceased girl and then killed her because they feared police would arrest them---Said accused offered to give the hand of his daughter to the son of the complainant---After him Mr. "H" and Mr. "J" individually made alleged confessions about their guilt and added that they had committed the offence on the abetment of Mr. "I"---Other witness deposed on the same line---Said witnesses were the real brothers of complainant---Prosecution had not brought any material on the record to show that Mr. "H", Mr. "J" or Mr. "M" had any reason to make confession before them---More importantly, the witnesses claimed that when the accused came to their Dera they were alone and were not accompanied by any respectable of the locality or a common friend---Keeping in view the gravity of the charge it was not possible for them to approach the said witnesses directly particularly when the occurrence was fresh and tempers were high---In their cross-examination said witnesses stated that 8/9 of their relatives were present outside the Dera---Intriguingly, said persons did not react on seeing them, even their own conduct was unnatural---In such state of affairs, prosecution evidence of extra-judicial confession was not reliable---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

(e) Criminal trial---

----Extra-judicial confession---Scope---Extra-judicial confession must be received with utmost caution for the reason that it could be procured effortlessly and could be easily concocted.

Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231; Sarfraz Khan v. State and 2 others 1996 SCMR 188 and Tahir Javed v. The State 2009 SCMR 166 rel.

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

----Ss. 302(b) & 376---Qatl-i-amd, rape---Appreciation of evidence---Benefit of doubt---Motive not proved---Scope---Accused was charged for committing rape with the minor daughter of the complainant and then murdering her by strangulation---In complaint and FIR the complainant alleged that the motive behind the occurrence was that he had refused to marry his elder daughter to accused who was alleged to have abetted the occurrence---However, witness of extra-judicial confession in his statement before the Trial Court alleged that abettor suspected that the complainant had illicit relations with his wife---Although said witness stated that this was an "additional reason" behind the occurrence, one could not gainsay that the prosecution was wavery about the motive and during the trial it did not produce any independent witness to prove any of those that it suggested---Even Investigating Officer did not collect any evidence in thatregard when he investigated the case---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

(g) Criminal trial---

----Circumstantial evidence---Scope---In case of circumstantial evidence, the prosecution is obliged to show that different pieces of evidence brought on the record are inter-linked so as to make a single chain whose one end touched the dead person and the other clenched the neck of the accused---Evidence must be of a quality to be incompatible with the innocence of the accused---Any missing link in the chain would destroy the entire prosecution case.

Hashim Qasim and another v. The State 2017 SCMR 986 rel.

Syed Aasim Ali Bokhari for Appellants.

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

Tallat Mehmood Kakezai for the Complainant.

2023 P Cr. L J 896

[Lahore]

Before Malik Shahzad Ahmad Khan and Muhammad Tariq Nadeem, JJ

MUHAMMAD NAVEED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 112953 and Murder Reference No. 629 of 2017, decided on 7th October, 2021.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Motive not proved---Accused was charged that he along with an unknown accused committed murder of the wife of the complainant by firing---Motive behind the occurrence was previous enmity---As per whole prosecution case the complainant was himself the prime target of the accused because he had no grudge against complainant's deceased wife---Moreso, when the complainant himself was present at the time and place of occurrence and there was no hurdle to eliminate him then there was no reason to spare him and instead commit the murder of his wife---Furthermore, Investigating Officer had stated in his cross-examination that complainant party did not tender any oral or documentary evidence regarding the motive part of the case---Admittedly the animosity, if any, was between the accused and the complainant and the deceased had nothing to do with the alleged motive introduced in the case---In that way the complainant should be the prime target of the accused---Thus, the prosecution had failed to prove the motive alleged by the complainant and the other witnesses 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.

Tariq Mahmood v. The State and others 2019 SCMR 1170 and Waris Ali and 5 others v. The State 2017 SCMR 1572 rel.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Accused was charged that he along with an unknown accused committed murder of the wife of the complainant by firing---As per prosecution case, the accused had made repeated fire shots at the body of the deceased---Complainant and other eye-witnesses did not receive even a single scratch---Said witnesses stated that the assailant even had not made any attempt to cause any injury to them, despite having an opportunity and they were at his mercy---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.

Najaf Ali Shah v. The State 2021 SCMR 736 rel.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence---Contradictions---Accused was charged that he along with an unknown accused committed murder of the wife of the complainant by firing---Medical evidence ran contrary to the prosecution's case, as according to complainant and mother of deceased, the accused made straight fire shot hitting deceased at her right cheek thereafter, he made repeated fire shots hitting at different parts of her body---Both the said witnesses failed to describe the specific seat of injuries except one injury and according to the medical evidence (post mortem report) the only specific injury described by the eye-witnesses on the right cheek of the deceased (injury No.2) was an exit wound---Moreover, Woman Medical Officer, who conducted autopsy on the dead body of the deceased, during her cross-examination, had stated that direction of injury No. 1 was lower side to upward---Track/direction of injury Nos. 5 & 6 was also from downward to upward---Said glaring contradictions between the ocular version and the medical evidence had sufficiently established that the alleged eye-witnesses were not present at the spot at the relevant time---In such circumstances, the prosecution version with regard to ocular account seemed to be tainted, not confidence inspiring and result of due deliberations as well as consultations, hence the same could not be given any legal credence---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.

Ghulam Abbas and another v. The State and another 2021 SCMR 23 rel.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Material contradictions and inconsistencies in the statements of witnesses---Effect---Accused was charged that he along with an unknown accused committed murder of the wife of the complainant by firing---Ocular account of the incident had been furnished by the complainant and an eye-witness---Complainant was husband of the deceased while eye-witness happened to be her mother-in-law---Though they both claimed to have seen the tragedy with their own eyes but their evidence had material contradictions and inconsistencies---According to complainant, the other witness (since given up) was his friend but according to the version of eye-witness, said witness was her nephew---As per statement of complainant his second wife was also a relative but eye-witness during her statement stated otherwise that she had no relation with second wife of complainant---Another contradictory stance in the statements of both the witnesses of ocular account was that according to complainant the police reached at the place of occurrence at 07:00 p.m. but Head Constable stated the time as 05:30 p.m.---More so, according to complainant, they reached hospital by 12:00 a.m. and remained with the dead body till 5:00 a.m.---On the contrary, Head Constable stated that he reached at THQ, Hospital with dead body at about 07:30 p.m. and reached the police station at about 02:00 a.m.---According to eye-witness, police reached after 45 minutes of the incident, however, according to Head Constable the incident was reported at 05:00 p.m. and the police arrived at 05:30 p.m.---Eye-witness stated that she did not go to the hospital but according to the version of Head Constable she accompanied him to the hospital---Further as per statement of Head Constable they had reached the hospital with the dead body on 25.07.2016 at 07:30 p.m. but according to Woman Medical Officer, the dead body arrived at the hospital at 12:30 a.m. on 26-07-2016 and the police papers followed 15 minutes after---Moreover, said witnesses were interested and related witnesses---Such an attempt on the part of the prosecution had badly shattered its credibility---Said witnesses were not truthful witnesses, therefore, their evidence was discarded---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.

Zaheer Sadiq v. Muhammad Ijaz 2017 SCMR 2007 rel.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence doubtful---Scope---Accused was charged that he along with an unknown accused committed murder of the wife of the complainant by firing---Record showed recovery of .30 bore at the instance of accused but the place of recovery of said pistol at the instance of the accused made the said recovery highly doubtful---According to Head Constable, the place of recovery was surrounded by 25/30 houses---House of alleged recovery was owned by one Mr. "G"---Head Constable stated that no one from the family of said Mr. "G"appeared before them at the time of alleged recovery---Alleged recovery was effected from the room of co-accused since acquitted---Parties were closely related to each other and mother of deceased had admitted during her cross-examination that accused was his nephew, therefore alleged recovery of pistol from the house of one Mr. "G" who was admittedly related to both the parties was not worthy of reliance---Thus, it was not safe to rely on such a weak piece of prosecution evidence, which even otherwise was merely corroborative of direct evidence and was not the evidence of charge, hence, did not offer any help to the prosecution case in the absence of any trustworthy and confidence inspiring eye-witnesses account---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.

Mian Sohail Ahmad and others v. The State and others 2019 SCMR 956 rel.

(f) Criminal trial---

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

Naveed Asghar and 2 others v. The State PLD 2021 SC 600 rel.

Rana Manzar Bashir, Nighat Saeed Mughal and Muhammad Shahzad Khan Kakar for Appellant.

Ch. Muhammad Jawad Zafar, Muhammad Talha Mushtaq and Khawar Shabbir Khan for the Complainant.

Munir Ahmad Sial, Deputy Prosecutor General for the State.

2023 P Cr. L J 917

[Lahore]

Before Muhammad Tariq Nadeem, J

AKBAR alias MOHSIN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 47718 of 2017, heard on 26th May, 2022.

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

----Ss. 302(b), 365 & 201---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine a person, causing disappearance of evidence---Appreciation of evidence---Benefit of doubt---Delay of three days in lodging FIR---Effect---Accused was charged for committing murder of the son of the complainant after kidnapping him---Incident in the present case, according to the prosecution, was alleged to have taken place on 25-07-2016---Police Station was about 05 kilometers away from place of occurrence---Matter was reported by complainant through written application on the basis of which formal FIR was chalked out on 28-07-2016 with the delay of 03 days---Notable that maternal aunt and maternal grandmother of deceased respectively and inmate of the same house were fully aware about his disappearance but they had not bothered to inform the police---No plausible explanation for the said delay in reporting the matter to the police had been brought on the record---Said delay in setting the machinery of law into motion spoke volume 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 accordingly.

Pervaiz Khan and another v. The State 2022 SCMR 393 rel.

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

----Ss. 302(b), 365 & 201---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine a person, causing disappearance of evidence---Appreciation of evidence---Benefit of doubt---Nomination of accused through supplementary statement---Accused was charged for committing murder of the son of the complainant after kidnapping him---Initially, on 28.7.2016, the FIR was got registered by complainant against unknown accused person---Thereafter, on 30.7.2016, she (complainant) got recorded her supplementary statement and nominated the accused with the assertion that on 30-07-2016, her ex-husband met and told her that on the day of occurrence i.e. 25.7.2016 at about 08:20 p.m., he met his son/victim along with accused---Accused allegedly told that he was taking the deceased to his house---Complainant suspected that accused had committed murder of her son and his dead body had been concealed somewhere---On the basis of supplementary statement of the complainant, the accused was arrested---Statement of complainant was totally based upon hearsay evidence and not reliable, as according to the statement of Investigating Officer, on 4.8.2016, he got issued proclamation regarding missing of the victim---Thus, it was strange enough when the complainant had already nominated the accused on 30-07-2016 then there was no occasion to get the proclamation issued---Meaning thereby that the prosecution was not certain about the involvement of the accused in the occurrence till 4.8.2016---However, supplementary statement was made with the purpose to strengthen the case of the prosecution in connivance with the Police Officials or some other ulterior motives to get the suspect convicted by hook or crook---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed accordingly.

Akhtar Ali and others v. The State 2008 SCMR 6 and Kashif Ali v. The Judge Anti-Terrorism Court No.II, Lahore and others PLD 2016 SC 951 rel.

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

----Ss. 302(b), 365 & 201---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine a person, causing disappearance of evidence---Appreciation of evidence---Benefit of doubt---Last seen evidence---Accused was charged for committing murder of the son of the complainant after kidnapping him---Last seen evidence had been furnished by two witnesses---According to the statements of said two witnesses of last seen, on 25.7.2016 at 08:00 p.m., they were present at a Chowk in connection with some domestic affairs---In the meantime, witnesses had seen accused with deceased coming towards them on motorcycle and stopped near them---Deceased talked to his father, who inquired from them where were they going, upon which accused told that he was taking the victim to his own house---Then they separated and went on their way---Thereafter, on 30.7.2016, father of deceased told one of the witnesses of last seen that his son was missing---Both the said witnesses came to the mother of the victim and told her that they had witnessed the victim with the accused on 25.7.2016---Noteworthy, that the said witnesses had failed to justify their presence at Chowk on 25.7.2016, when they allegedly saw deceased in the company of accused---According to the witness, his residence was situated about 70/80 Kilometers away from the place of occurrence---According to the statement of said witness, in connection with marriage proposal of his nephew, they had visited "S" on 25.7.2016---Concerned person, to whom they had to meet, was Mr. "S" but the prosecution had failed to produce the said witness during the course of investigation or before the Trial Court---Similarly, the other witness stated that he had not told to the police in his statement, the purpose for which he came to place "S" on 25.7.2016---Even otherwise conduct of said witness was highly unnatural because being the real father of deceased, why he allowed his minor son in the company of an unknown person---Both the said witnesses were interested witnesses and due to their unnatural conduct they could not be termed as truthful witnesses---Evidence of said witnesses was not worthy of reliance---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed accordingly.

Zaheer Sadiq v. Muhammad Ijaz 2017 SCMR 2007 rel.

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

----Ss. 302(b), 365 & 201---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine a person, causing disappearance of evidence---Appreciation of evidence---Benefit of doubt---Unnatural conduct of complainant---Accused was charged for committing murder of the son of the complainant after kidnapping him---Record showed that as per statement of the witness of circumstantial evidence, it was crystal clear that she had already disclosed to complainant qua her receiving phone call from accused on 11-07-2016 that he had threatened about deceased---When complainant had already been informed then why she had not got registered FIR against the accused and why the names of witnesses of last seen and witnesses of circumstantial evidence were not incorporated in the FIR---Said facts were sufficient to shatter the credibility of 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 accordingly.

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

----Ss. 302(b), 365 & 201---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine a person, causing disappearance of evidence---Appreciation of evidence---Benefit of doubt---Contradictory stance of witnesses---Accused was charged for committing murder of the son of the complainant after kidnapping him---In the present case, the witness who happened to be a maternal grand-mother of deceased and also real mother of complainant, had filed an application under Ss. 22-A & 22-B, Cr.P.C., in the court of Ex-Officio Justice of Peace for the registration of second FIR with the different story that on 25.7.2016 at Maghrib prayer time, accused came at her house and inquired about her grandson/deceased, who was present outside the house in a shop---On calling, deceased hurriedly came home and after preparation went along with the accused---Said witness further asserted that her elder daughter had illicit relations with accused and a police official as well as two other unknown persons and they had kidnapped and murdered her grandson---In the light of the statements of said witness and complainant, it was crystal clear that complainant was already well aware about the facts disclosed by witnesses before the registration of FIR and even names of witnesses of last seen evidence as well as others should have been mentioned in the FIR but the prosecution evidence stated otherwise---In view of said facts, it was the considered view that the prosecution had cooked up a false and fabricated story afterwards---Even otherwise, there was contradictory stance qua the abduction and murder of deceased and the prosecution evidence in that respect was under the clouds of doubt---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed accordingly.

(f) Criminal trial---

----Last seen evidence---Scope---Last seen evidence is always considered to be a weak type of evidence, unless corroborated by some other independent evidence.

Fayyaz Ahmad v. The State 2017 SCMR 2026 and Muhammad Abid v. The State PLD 2018 SC 813 rel.

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

----Ss. 302(b), 365 & 201---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine a person, causing disappearance of evidence---Appreciation of evidence---Benefit of doubt---Judicial confession of the accused---Legal formalities not observed---Effect---Accused was charged for committing murder of the son of the complainant after kidnapping him---Judicial Magistrate had not observed the legal formalities required under the law for recording judicial confession of the accused---Judicial confession attributed to the accused had been retracted by him before the Trial Court---Thus, the said confession could not be relied upon in the absence of any independent corroboration---In the absence of evidentiary certainty, it would be unsafe to maintain the convictions on moral satisfaction that certainly could not be equated with legal proof---All the said state of affairs led to irresistible conclusion to discard the judicial confession---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed accordingly.

Muhammad Ismail v. The State 2017 SCMR 713; Hashim Qasim and another v. The State 2017 SCMR 986; Muhammad Azhar Hussain and another v. The State and another PLD 2019 SC 595 and Sadi Ahmad and another v. The State 2019 SCMR 1220 rel.

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

----Ss. 302(b), 365 & 201---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine a person, causing disappearance of evidence---Appreciation of evidence---Benefit of doubt--- Extra-judicial confession--- Accused was charged for committing murder of the son of the complainant after kidnapping him---Allegedly, extra-judicial confession was made by the accused before the complainant---When the judicial confession of accused was already penned down by Judicial Magistrate then the accused had no need to confess his guilt before anyone, particularly before complainant at a later stage---According to the statement of complainant, Mr. "M" was also present during her first meeting in jail with the accused but during trial said Mr. "M" was examined as a witness on the application of accused and in his statement, he totally negated the stance of complainant by stating that the complainant party earlier had a suspicion that father of deceased was behind his disappearance---After the meeting, they decided to trace out the victim from Madrissas etc. and from his father---Complainant at that time felt satisfied from the accused---Even otherwise, Investigating Officer during his cross-examination stated that complainant, her mother and sister did not nominate any person as an accused in their statements before him---Investigating Officer further stated that the said ladies also did not show any suspicion against any person---No motive was also asserted by the said ladies before the Investigating Officer---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed accordingly.

Imran alias Dully and another v. The State and others 2015 SCMR 155; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274; Mst. Asia Bibi v. The State and others PLD 2019 SC 64; Wajeeh-Ul-Hassan v. The State 2019 SCMR 1994 and Gul Muhammad and another v. The State through Prosecutor-General Balochistan 2021 SCMR 381 rel.

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

----Ss. 302(b), 365 & 201---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine a person, causing disappearance of evidence---Appreciation of evidence---Benefit of doubt---Call Data Record---Accused was charged for committing murder of the son of the complainant after kidnapping him---As far as recovery of CDR was concerned, which simply depicted the number of caller as well of recipient, location, duration of call and not more than that, even there was no evidence that what was the conversation made between the caller and recipient---Said document did not bear attestation of IT Branch of DPO Office---Even according to the prosecution version, the mobile phone of the victim after the occurrence was not responding and allegedly the same was drowned in the canal water along with the dead body---Investigating Officer during his statement stated that he collected no record to confirm who was the owner of the said mobile phone number---Said witness further stated that during his investigation, no written proof was presented to him that the deceased was owner of the said mobile phone number---Even otherwise, according to Investigating Officer, in the statements under S. 161, Cr.P.C., none of the witnesses mentioned that in whose name the said SIM was registered---Investigating Officer did not record the statement of the person, who had printed out the data from the computer of the said mobile phone number---Prosecution had failed to collect the proof of ownership from the concerned company in order to ascertain that on whose name the SIM was registered---No voice record transcript had been brought on the record---Moreover, CDR was not conclusive proof of involvement of accused in the commission of crime---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed accordingly.

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

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

----Ss. 302(b), 365 & 201---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine a person, causing disappearance of evidence---Appreciation of evidence---Benefit of doubt---Recovery of motorcycle on the pointation of accused---Inconsequential---Accused was charged for committing murder of the son of the complainant after kidnapping him---So far as the recovery of motorcycle vide seizure memo was concerned, no registration number, colour, its company name had been described in the FIR, nor in the supplementary statement of the complainant---Even the statements of the prosecution witnesses were silent in that regard---In that way, recovery of motorcycle at the pointation of accused was inconsequential and not helpful 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 accordingly.

Naveed Asghar v. The State and another PLD 2021 SC 600 rel.

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

----Ss. 302(b), 365 & 201---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine a person, causing disappearance of evidence---Appreciation of evidence---Benefit of doubt---Recovery of broken spectacles and wrist watch on the pointation of the accused---Inconsequential---Accused was charged for committing murder of the son of the complainant after kidnapping him---With regard to the recovery of broken spectacles and wrist watch on the pointation of the accused vide seizure memos were concerned, the same did not connect the accused with the commission of offence---Notable, that the witnesses of said recovery memos were Police Officials and no independent witness was examined by the prosecution---Thus, the Investigation Officer while effecting the recovery of said articles at the instance of the accused had committed a violation of S. 103, Cr.P.C., even no identification memo was prepared by the Investigating Officer, which further created doubt with regard to the said recoveries---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed accordingly.

Muhammad Ismail and others v. The State 2017 SCMR 898 and Ghulam Akbar and another v. The State 2008 SCMR 1064 rel.

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

----Ss. 302(b), 365 & 201---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine a person, causing disappearance of evidence---Appreciation of evidence---Benefit of doubt---Motive not proved---Effect---Accused was charged for committing murder of the son of the complainant after kidnapping him---In the present case, only piece of evidence left with the prosecution was the evidence of motive---Although no motive had been described in the FIR as well as in supplementary statement of the complainant but the same was described by father of deceased---Said witness had a suspicion that accused had committed murder of his son and had concealed his dead body somewhere---Later on, he came to know that the accused had illicit relations with complainant and since she had gone to other country, so he committed murder of her son because he wanted to marry complainant---However, it was only an oral assertion of father of deceased and no substantial evidence in shape of documentary evidence had been led by the prosecution to prove the motive part of the occurrence---In that way, the prosecution had miserably failed to prove the motive part of the 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 accordingly.

(m) Criminal trial---

----Motive---Scope---Although, the prosecution is not under obligation to establish a motive in every murder case but if prosecution sets up a motive but fails to prove it, then, it is the prosecution who has to suffer and not the accused.

Muhammad Ilyas and another v. Ameer Ali and another 2020 SCMR 305; Liaqat Ali and another v. The State and others 2021 SCMR 780; Najaf Ali Shah v. The State 2021 SCMR 736 and Khalid Mehmood and others v. The State and others 2021 SCMR 810 rel.

(n) Criminal trial---

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

Naveed Asghar and 2 others v. The State PLD 2021 SC 600 rel.

Mian Iftikhar Ahmad Saqi and Muhammad Shuja ul Hakeem for Appellant.

Sultan Asghar Chattha, D.P.G. for the State.

Nemo for the Complainant.

2023 P Cr. L J 977

[Lahore]

Before Muhammad Tariq Nadeem, J

MUHAMMAD AKRAM alias AKRI and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 47529 of 2017 and 224696 of 2018, heard on 29th March, 2022.

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

----Ss. 302, 412, 460 & 34---Qatl-i-amd, dishonestly receiving stolen property, person jointly concerned in lurking house-trespass or house-breaking by night, common intention---Appreciation of evidence---Benefit of doubt---Delay of seven hours in conducting the post-mortem examination upon the dead body of the deceased---Effect---Accused were charged for committing murder of the father of complainant by firing during dacoity---Incident according to the prosecution, was alleged to have taken place at about 3:00 a.m. (night)---Police station was situated at a distance of about 05 kilometers from the place of occurrence---Matter was reported by complainant through complaint to police on the same night on the basis of which formal FIR was chalked out at 04:00 a.m. within 01 hour---Postmortem examination on the dead body of the deceased was conducted by Medical Officer on the same day at about 10:00 a.m. with the delay of 07 hours after the occurrence---Keeping in view such material discrepancy arising out from the prosecution case, an adverse inference to the prosecution's case could be drawn that the intervening period had been consumed in fabricating a story creating serious doubt regarding the prosecution case---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Adnan and another v. The State and others 2021 SCMR 16 and Pervaiz Khan and another v. The State 2022 SCMR 393 rel.

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

----Ss. 302, 412, 460 & 34---Qatl-i-amd, dishonestly receiving stolen property, person jointly concerned in lurking house-trespass or house-breaking by night, common intention---Appreciation of evidence---Benefit of doubt---Night time occurrence---Source of light not mentioned---Accused were charged for committing murder of the father of complainant by firing during dacoity---Incident occurred at night time---Prosecution had not described any source of light in FIR---Similarly, scaled site plan and un-scaled site plan were silent with respect to the source of light---More so, none amongst the witnesses had described the source of light in their statements nor the Investigating Officer had taken into possession any source of light---Prosecution failed to establish the fact of the availability of a light source and in the absence of their inability to do so, it could not presume the existence of source of light at the place of occurrence---Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

Nazeer Ahmad v. Gehne Khan and others 2011 SCMR 1473; Sardar Bibi and another v. Munir Ahmad and others 2017 SCMR 344; Gulfam and another v. The State 2017 SCMR 1189 and Pervaiz Khan and another v. The State 2022 SCMR 393 rel.

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

----Ss. 302, 412, 460 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, dishonestly receiving stolen property, person jointly concerned in lurking house-trespass or house-breaking by night, common intention---Appreciation of evidence---Benefit of doubt---Test identification parade---Accused was identified in parade but without reference to any role---Accused were charged for committing murder of the father of complainant by firing during dacoity---Accused were not nominated in the FIR---Occurrence in the case took place on 19.1.2014 at about 03:00 a.m. whereas the accused were arrested on 19.4.2014 and were sent to jail for the purpose of identification parade, which was held on 26.4.2014---Only complainant joined the proceeding of that identification parade, where only accused was identified by complainant whereas other accused was not identified by the complainant during the course of identification parade---Although, the complainant identified the accused during the course of identification parade but he did not disclose the role played by the said accused during the occurrence in issue---However, identification of an accused person without reference to the role allegedly played by him during the occurrence was shorn of any evidentiary value---Apart from the above, no proper features of the culprits had been mentioned in the FIR---Even otherwise, prosecution witnesses, even if they were present at the scene of the occurrence, were not in a position to identify the accused persons owing to the darkness of night---Keeping in view the facts and circumstances of the case, an identification parade had no evidentiary value in the eyes of the law and it could not be used against the accused as a corroborative piece of evidence---Witnesses had not described the complete features, physiques, and complexions of any of the unknown accused persons---As such the test identification parade lost its authenticity---Said identification parade was not held in accordance with law as the same was conducted jointly, so it was unreliable---When the accused were already seen by complainant and they had allegedly made extra judicial confession before him on 18.4.2014 then the subsequent proceeding of identification parade had lost its significance---Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt--- Appeal against conviction was allowed, in circumstances.

Muhammad Fayyaz v. The State 2012 SCMR 522; Azhar Mehmood and others v. The State 2017 SCMR 135; Kamal Din alias Kamala v. The State 2018 SCMR 577; Muhammad Afzal alias Abdullah v. The State and others 2009 SCMR 436; Sabir Ali alias Fauji v. The State 2011 SCMR 563; Javed Khan alias Bacha and another v. The State and another 2017 SCMR 524; Mian Sohail Ahmad and others v. The State and others 2019 SCMR 956; Shafqat Mehmood and others v. The State 2011 SCMR 537; Samar Abbas v. The State and others 2017 YLR 48; Niaz alias Niazi alias Jumma v. The State 2017 MLD 1147 and Waheed Khan v. The State and others 2021 YLR Note 133 rel.

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

----Ss. 302, 412, 460 & 34---Qatl-i-amd, dishonestly receiving stolen property, person jointly concerned in lurking house-trespass or house-breaking by night, common intention---Appreciation of evidence---Benefit of doubt---Implication through supplementary statement of complainant---Accused were charged for committing murder of the father of complainant by firing during dacoity---During the test identification parade, one accused and acquitted co-accused were not identified by complainant--- Complainant got recorded his supplementary statement on 8.5.2014 and nominated said accused as well as acquitted co-accused and proclaimed offender---However, in the said supplementary statement no source of information had been described rather complainant had stated that he came to know through reliable sources that accused along with their co-accused had committed the murder of his father---Courts always deprecated such kind of statements, which were made with the purpose to strengthen the case of the prosecution at the behest of the Police Officials or some other ulterior motives to get the suspect convicted by hook or crook---Nomination through supplementary statement had always been deprecated and disliked and had never been appreciated being an afterthought---Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt--- Appeal against conviction was allowed, in circumstances.

Akhtar Ali and others v. The State 2008 SCMR 6; Kashif Ali v. The Judge, Anti-Terrorism, Court No.II, Lahore and others PLD 2016 SC 951; Naveed Asghar and 2 others v. The State PLD 2021 SC 600 and Khalid Mehmood and another v. The State 2021 SCMR 810 rel.

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

----Ss. 302, 412, 460 & 34---Qatl-i-amd, dishonestly receiving stolen property, person jointly concerned in lurking house-trespass or house-breaking by night, common intention---Appreciation of evidence---Benefit of doubt---Presence of eye-witnesses at the spot doubtful---Accused were charged for committing murder of the father of complainant by firing during dacoity---Witnesses of ocular account were not witnesses of inquest report and post mortem pertaining to deceased---Had the said witnesses been present at the scene of the occurrence at the relevant time, they must have been the witnesses of inquest report---Similarly, said witnesses should have escorted the dead body to the hospital being the close relatives and neighbor and their names should have been incorporated in the post mortem report in the column of identification of the dead body---Said fact had constrained the Court to hold that said witnesses were not present at the time and place of occurrence---Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt--- Appeal against conviction was allowed, in circumstances.

Abdul Jabbar alias Jabri v. The State 2017 SCMR 1155; Nadeem alias Kala v. The State and others 2018 SCMR 153 and Liaqat Ali and another v. The State and others 2021 SCMR 780 rel.

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

----Ss. 302, 412, 460 & 34---Qatl-i-amd, dishonestly receiving stolen property, person jointly concerned in lurking house-trespass or house-breaking by night, common intention---Appreciation of evidence---Accused and co-accused having similar roles---Evidence found doubtful to the extent of acquitted co-accused not sustainable for convicting the accused---In the present case, the Trial Court had disbelieved the prosecution evidence qua the co-accused, to whom identical role had been ascribed---Admittedly, once prosecution witnesses were disbelieved with respect to a co-accused then they could not be relied upon with regard to the other co-accused unless they were supported by corroboratory evidence coming from independent source which was unimpeachable in nature but that was not available in the present case---Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

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 and Safdar Abbas and others v. The State and others 2020 SCMR 219 rel.

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

----Ss. 302, 412, 460 & 34---Qatl-i-amd, dishonestly receiving stolen property, person jointly concerned in lurking house-trespass or house-breaking by night, common intention---Appreciation of evidence---Benefit of doubt---Medical evidence contradicting evidence of eye-witnesses---Accused were charged for committing murder of the father of complainant by firing during dacoity---According to the prosecution story, deceased received fire arm injury above his left ear whereas according to the post-mortem report and testimony of Medical Officer, deceased received firearm arm injury on the right side of his head---Injury described in the FIR was an exit wound---Similarly, according to the scaled site plan, deceased sustained firearm shot injury from a distance of one feet whereas Medical Officer had not noted any blackening around the Injury No.1. which was only an entry wound on the body of deceased---In such eventuality, it was crystal clear that eye-witnesses were not present at the place of occurrence---Had witnesses been present at the relevant time they would have described the exact seat of injury---Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

Faiz Meeran v. Muhammad Khan and others 2016 SCMR 1456; Zahir Yousaf and another v. The State and another 2017 SCMR 2002; Abdul Jabbar and another v. The State 2019 SCMR 129 and Mian Sohail Ahmed and others v. The State others 2019 SCMR 956 rel.

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

----Ss. 302, 412, 460 & 34---Criminal Procedure Code (V of 1898), S. 103---Qatl-i-amd, dishonestly receiving stolen property, person jointly concerned in lurking house-trespass or house-breaking by night, common intention---Appreciation of evidence---Benefit of doubt---Non-association of private witnesses at the time of recovery of pistol, currency notes and churri---Effect---Accused were charged for committing murder of the father of complainant by firing during dacoity---Pistol .30 bore was taken into possession on the pointation of the accused---Witnesses of said recovery were Police Officials and no independent witness was examined by the prosecution---Thus, the Investigating Officer while effecting the recovery of the pistol at the instance of the accused had committed a violation of S. 103, Cr.P.C., which created doubt with regard to the recovery of said pistol---Moreover, the report of the Forensic Science Agency was confined to the working condition of the pistol allegedly recovered at the instance of the accused---Thus, the alleged recovery of a weapon of offence at the instance of the accused was not helpful to the prosecution---Prosecution had also emphasized the recovery of Rs.1200 currency notes, which were taken into possession but the said recovery of currency notes was not helpful to the prosecution case because they were not recovered from the possession of the accused rather the same were allegedly produced by his brother at police station to the Investigating Officer---More so, no denomination of the said currency had been mentioned in the FIR as well as in application and, subsequently, after the recovery of alleged currency notes, no identification memo of currency notes was prepared---For that reason, such recovery had no evidentiary worth in the eye of the law---Even otherwise, currency notes were easily available in the market and could easily be planted, thus, the trial court had rightly disbelieved the recovery of currency notes against the accused---As far as recovery of churri at the instance of the other accused was concerned, the same was not helpful to the prosecution because the witnesses of said recovery were Police Officials and no independent witness was examined by the prosecution---Thus, the Investigating Officer while effecting the recovery of the churri at the instance of the accused had committed a violation of S. 103, Cr.P.C.---Moreover, from perusal of FIR, as well as supplementary statement of complainant, statement of other witness recorded under S. 161, Cr.P.C. and statement of lady witness recorded under S. 161, Cr.P.C., it was clear that none of the assailants was shown to have been armed with a churri---In that way, recovery of churri at the instance of accused had become inconsequential, thus the trial court had rightly disbelieved the recovery of churri at the instance of the accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Ismail and others v. The State 2017 SCMR 898; Gulfam and another v. The State 2017 SCMR 1189; Khalid Mehmood and another v. The State and others 2021 SCMR 810 and Muhammad Imran and others v. The State 2021 YLR 95 rel.

(i) Criminal trial---

----Benefit of doubt---Principle---In the event of a doubt, the benefit must be given to the accused not as a matter of grace, but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345; Ayub Masih v. The State PLD 2002 SC 1048 and Najaf Ali Shah v. The State 2021 SCMR 736 rel.

Ali Afzal Sahi (Defence Counsel) for Appellants.

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

Ghulam Awais Ahmad Siddiqui (Vice Counsel) for the Complainant.

2023 P Cr. L J 1030

[Lahore]

Before Sardar Muhammad Sarfraz Dogar, J

UZMA ADIL KHAN and others---Petitioners

Versus

FEDERAL INVESTIGATION AGENCY through Director General, Islamabad

and others---Respondents

Writ Petitions Nos. 72202, 70346, 73456, 73458 of 2021 and 9531 of 2022, decided on 29th December, 2022.

(a) Federal Investigating Agency Act, 1974 (VIII of 1975)---

----S. 5(5)---Restrictions imposed on property rights---Pre-conditions---Powers under S. 5(5) of Federal Investigating Agency Act, 1974 are based on four ingredients: (i) property has some nexus with investigation/alleged offence; (ii) there is likelihood that the property is to be removed, transferred or otherwise disposed of before an order passed by appropriate authority for its seizure is obtained; (iii) by issuing an order in writing directing the owner or any person who is for the time being in possession thereof not to remove, transfer or otherwise dispose of such property in any manner; and (iv) the order has to be subject to any order made by the Court having jurisdiction in the matter---Powers bestowed upon members of FIA under S. 5(5) of Federal Investigating Agency Act, 1974, are not unfettered, rather are subject to certain restrictions and limitations, required to be used sparingly and in cases of exceptional nature.

Najib Rahim v. Federation of Pakistan through Secretary, Ministry of Interior and 3 others PLD 2017 Sindh 53; Muhammad Sohail Shaikh v. The State and 2 others PLD 2021 Lah. 612 and Fazal Mahmood v. Sardar Khan PLD 1996 Kar. 475 rel.

(b) Anti-Money Laundering Act (VII of 2010)---

----Ss. 2 & 3---Money laundering---Pre-condition---Necessary element of offence of money laundering is commission of a predicate offence---Execution of predicate offence gives birth to proceeds of crime, the movement of which attracts criminal conduct of money laundering---Without commission of predicate offence there cannot be an offence of money laundering.

Justice Qazi Faez Isa v. The President of Pakistan PLD 2021 SC 1 rel.

(c) Federal Investigating Agency Act, 1974 (VIII of 1975)---

----S. 5(5)---Anti-Money Laundering Act (VII of 2010), Ss. 3 & 4---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of proceedings---Restrictions imposed on property rights---Petitioners were aggrieved of initiation of inquiry by Federal Investigating Agency and imposing restrictions on their properties and bank accounts---Validity---There was no Suspicious Transaction Report (STR) against petitioners nor Federal Investigating Agency had any report in its possession to reasonably believe that property was involved in Money-Laundering---Investigating officer did not seek permission of Trial Court to attach Bank accounts nor had sent any notice to petitioners---Seizure of property was not made in accordance with the law rather the same was in contravention of the provision of law---Seizure of Bank accounts of the petitioners was nothing but a nullity in the eye of law---High Court set aside seizure letter issued by Federal Investigating Agency as the same suffered from perversity and clear transgression of authority and was nullity in the eye of law---Constitutional petition was allowed, in circumstances.

Maryam Nawaz Sharif v. Chairman, NAB and 2 others PLD 2020 Lah. 205 and Rafi Ullah v. State 2019 PCr.LJ 1608 ref.

(d) Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----Ss. 2(xi), (xv), 23(3)(f), 23(4) & 23(6)---Pakistan Oil (Refining, Blending, Transportation, Storage and Marketing) Rules, 2016, Rr. 34 & 35---License, issuance of---Pre-condition---Oil and Gas Regulatory Authority allows provisional licensee to undertake marketing of petroleum products/refined oil products, when it completes first storage facility and area of marketing is restricted to Province, where it develops that storage/depots and so on till it completes the entire work programme, which entitles the licensee to have a licence for a longer period i.e. maximum 30 years---New licensee does not have to first complete all its entire marketing infrastructure before having license for undertaking marketing of petroleum product, establish retail outlets and filling stations during initial license period, which are a part and parcel of the work programme---Provision of R. 35 of Pakistan Oil (Refining, Blending, Transportation, Storage and Marketing) Rules, 2016, nowhere places any embargo that licensee cannot operate retail outlets or its storages during the initial license term of three years.

Barrister Momin Malik for the Petitioner (in W.P. No. 72202 of 2021).

Barrister Muhammad Umar Riaz, Saqib Haroon Chishti, Barrister Ch. Abubakar, Waqas Umar and Saba Shaheen for Petitioners (in W.P. No. 9531 of 2022).

Arshad Nazir Mirza, Barrister Maryam Salman, Barrister Ms. Amna Iqbal and Shan Saeed Ghumman for Petitioners (in W.P. No. 70346 of 2021).

Rai Sarfraz Ali Khan for Petitioners (in W.Ps. Nos. 73456 and 73458 of 2021).

Barrister Ahmed Pervaiz, Barrister Saffi-ul-Hassan and Barrister Ahtasham Mukhtar on behalf of OGRA.

Asad Ali Bajwa, Deputy Attorney General-I for Pakistan assisted by Mian Shahzad Khadim Manday, Assistant Attorney for Pakistan along with Muhammad Javed Sultan, Assistant Director, FIA for Respondents.

2023 P Cr. L J 1054

[Lahore]

Before Muhammad Ameer Bhatti, C.J. and Tariq Saleem Sheikh, J

MUHAMMAD SHAHZAD and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 54462, 54463, 56789, 54461, Criminal Revision No. 56788 and Murder Reference No. 288 of 2019, heard on 24th May, 2022.

(a) Criminal trial---

----Ocular evidence--- Scope--- Ocular evidence is the most important/significant pillar of prosecution's case which has to be proved without any shadow of doubt because its trustworthiness/ accuracy/purity/credibility and it being confidence inspiring is enough to award conviction.

Muhammad Anwar v. The State 1997 PCr.LJ 321; Imtiaz alias Taji and another v. The State and others 2020 SCMR 287; Muhammad Mansha v. The State 2018 SCMR 772; Muhammad Arshad v. The State 2020 SCMR 2025 and Zahid v. The State 2022 SCMR 50 rel.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 342---Qanun-e-Shahadat (10 of 1984), Art. 129, Illustration (g)---Qatl-i-amd---Appreciation of evidence---Withholding of evidence---Presumption---Motive not proved---Effect---Corroborative evidence, reliance upon---Principle---Statement of accused---Accused persons were convicted by Trial Court for committing Qatl-i-amd---One accused was sentenced to death while remaining were sentenced to imprisonment for life---Validity---Best evidence could come either from injured widow of deceased or from Head of Punchayat but such evidence was withheld---Widow of deceased got herself medically examined, her MLR was exhibited and she got recorded her statement under S. 161, Cr.P.C.---Injured widow was the star/direct witness who was not produced before Trial Court, leading to adverse inference against prosecution---When ocular evidence was unreliable, the strongest corroborative evidence could not cure such deficiency/lacking---When direct evidence was unacceptable, the corroborative evidence would become worthless---Prosecution evidence was not free from doubt therefore, defence version taken by accused in their statements under S. 342, Cr.P.C., was to be believed in total---Alleged recoveries of Churras (daggers) from accused persons were inconsequential---Presence of eye-witnesses was not found free from doubt and was not confidence inspiring---Benefit of doubts would go to accused as a matter of right and not as a grace and in granting such benefit, single circumstance was sufficient---High Court set aside conviction and sentences awarded to accused persons, as prosecution failed to prove its case beyond any shadow of doubt and accused persons were acquitted of the charges--- Appeal against conviction was allowed, in circumstances.

Muhammad Saleem v. Muhammad Azan and another 2011 SCMR 474; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Pathan v. The State 2015 SCMR 315; Noor Muhammad v. The State and another 2010 SCMR 97; Dr. Israr-ul-Haq v. Muhammad Fayyaz and another 2007 SCMR 1427; Yasir v. The State 2010 YLR 2344 and Abdul Jabbar and another v. The State 2019 SCMR 129 rel.

(c) Criminal trial---

----Motive---Effect---If motive is not proved, then ocular evidence is required to be evaluated with great caution.

Noor Muhammad v. The State and another 2010 SCMR 97 rel.

Ms. Nighat Saeed Mughal and Ms. Sughra Gulzar for Appellants.

Ms. Nighat Saeed Mughal for Appellant (in Criminal Appeal No.54463 of 2019).

Syed Karamat Ali Naqvi and Syed Afzal Shah Bukhari for the Complainant.

Ch. Sarfraz Ahmad Khatana, Deputy Prosecutor General along with Muhammad Tahir, SI, Police Station Pattoki for the State.

2023 P Cr. L J 1103

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf and Ch. Abdul Aziz, JJ

ABDUL HAMID---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 684 of 2019, heard on 1st November, 2022.

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

----S. 9(c)---Qanun-e-Shahadat (10 of 1984), Arts. 22 & 129(g)---Transportation of narcotics---Appreciation of evidence---Un-natural conduct---Test identification parade---Withholding best evidence---Scope---Prosecution case was that the accused was driving a vehicle when he was stopped by the police; that shortly thereafter another vehicle was stopped by the police; that the accused claimed that the second vehicle was with him; that search of the second vehicle led to recovery of 12000 grams of heroin and that while the police was busy in searching the second vehicle, the accused along with an unknown driver decamped from the spot in the second vehicle---Swift escape of the accused was not only strange but also improbable as well, when seen in the context that the police despite having vehicle in their possession still made no effort to launch a pursuit---No contraband was recovered from the vehicle seized from the accused---Physical and facial features of the accused were neither mentioned in the crime report nor in the statements of recovery witnesses---Accused was arrested after about 08 months of the incident but no endeavour was made to hold identification test proceedings---Witnesses such as the constable who had brought the complaint to the police station for registration of FIR, the constable who was entrusted with execution of warrant and proclamation, the constable who had driven the seized vehicle to the police station and the Sub-Inspector who had arrested the accused, though essentially required to be examined during trial were not produced before the Trial Court---Multiple doubts had emerged from the prosecution evidence, the benefit of which had to be extended to the accused---Appeal was accepted and the accused was acquitted of the charge, in circumstances.

Minhaj Khan v. The State 2019 SCMR 326 rel.

(b) Criminal trial---

----Absconsion--- Corroboratory evidence--- Scope--- Warrant, proclamation and absconsion of an accused are meant only to provide corroboration to the case of prosecution---Deficiencies arising from the contents of arrest warrant and proclamation as well as failure of prosecution to prove their execution left---Such documents nothing but simple stray piece of papers having no legal consequences.

Muhammad Arif v. The State 2019 SCMR 631 rel.

(c) Criminal trial---

----Benefit of doubt---Scope---Mistake in releasing a criminal is better than punishing an innocent person.

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

Shan Zeb Khan for Appellant.

Sajjad Hussain Bhatti, Deputy Prosecutor General for the State.

2023 P Cr. L J 1137

[Lahore (Multan Bench)]

Before Asjad Javaid Ghural, J

MUHAMMAD ZUBAIR and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 265 and Criminal Revision No. 152 of 2015, decided on 13th December, 2021.

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

----Ss. 302(b), 337-F(i), 337-F(ii), 148 & 149---Qatl-i-amd, ghayr-jaifah-damiyah, ghayr-jaifah-badiah, rioting armed with deadly weapon, unlawful assembly--- Appreciation of evidence--- Ocular account supported by medical evidence---Scope---Accused were charged for committing murder of the brother of the complainant and causing injuries to two other persons---Motive behind the occurrence was stated to be a quarrel between deceased and accused took place a day before the present occurrence---In order to establish the ocular account, the prosecution produced complainant, his brother and injured---All the eye-witnesses including one injured witness, being natural witnesses, were subjected to the ordeal of lengthy cross-examination making consistent statements corroborating each other qua the date, time, place, mode and manner of the occurrence, name of the accused, weapon of offence and the role played by him during the occurrence---Defence could not extract any favourable material from their mouths---Record showed that it was a promptly lodged FIR,which was registered within the shortest possible time nominating the accused and his co-accused with minute detail and the role played by them during the occurrence---Post mortem examination on the dead body of the deceased, which was conducted on the same day within 3/4 hours, showed that the Medical Officer not only observed the existence of the injury attributed to the accused caused by sharp edged weapon but also it was proved fatal to the life of the deceased---Promptness in lodging the crime report as well as sharp proceedings of the post mortem examination on the dead body of the deceased ruled out every hypothesis of consultation, fabrication and deliberation---From the material available on record it evinced that in that incident one innocent person lost his life while two others sustained serious injuries---Circumstances established that prosecution had successfully proved the charge against the accused by producing cogent, reliable and confidence inspiring evidence---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b), 337-F(i), 337-F(ii), 148 & 149---Qatl-i-amd, ghayr-jaifah-damiyah, ghayr-jaifah-badiah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Sudden provocation, lack of---Scope---Accused were charged for committing murder of the brother of the complainant and caused injuries to two other persons---One of the injured while appearing in the dock in the court room fully supported the prosecution version, whereas, the other injured could not record his statement before the trial Court being murdered---Accused party, who allegedly consisted upon a group of five persons including the accused, did not sustain even a single scratch, which fact was sufficient to believe that they planned the occurrence and attacked upon the complainant party when they were not in a position to respond---Had that incident been taken place at spur of moment, naturally the accused party would have also sustained injuries at the hands of the complainant side, which was not a case of defence at any stage---Even the accused in his statement did not disclose what actually happened at the spot and what prompted him to kill the deceased at spur of the moment---No evidence of sudden fight existed---Circumstances established that prosecution had successfully proved the charge against the accused by producing cogent, reliable and confidence inspiring evidence---Appeal against conviction was dismissed accordingly.

Javed Akhtar v. The State PLD 2020 SC 419 rel.

Ch. Umar Hayat for Appellant.

Sardar Mehboob for the Complainant.

Ashfaq Ahmad Malik, Deputy Prosecutor General for the State.

2023 P Cr. L J 1156

[Lahore]

Before Muhammad Amjad Rafiq, J

MUHAMMAD RAMZAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No. 15474 of 2022, heard on 15th April, 2022.

(a) Evidence---

----Relevancy and admissibility---Scope---Though by judicial reasoning relevant evidence is usually admissible but there are certain restrictions on admissibility depending upon exclusionary rules of evidence---Such artificial restrictions on the process of judicial reasoning known as rules of evidence are not uniform in the policy they seek to implement--- Rules of evidence are all attributable to policy considerations and have nothing to do with their value or links in rational chain of reasoning which restrict, rather than promote access to potentially useful information---Unlike relevance, admissibility has nothing to do with probative or logical relationship between evidence tendered and effect to be proved---Admissibility involves exclusively a determination of whether law of evidence permits relevant evidence of a particular kind to be received by the court---Some evidence, such as hearsay, is excluded, even though relevant, because of danger of unreliability inherent in repeated statements and because it cannot be cross-examined effectively---Confession of accused though relevant yet if recorded while in police custody is not admissible because of the reason it can be procured due to threat, duress or coercion thus regarded as unreliable---Some evidence such as evidence of previous bad character of accused in a criminal case is excluded, even though relevant, because of considerations of fairness to the accused and danger of prejudice flowing from judge's becoming aware of his records.

(b) Evidence---

----Classification---Any given item of judicial evidence may attract more than one of the labels by which varieties of evidence have been classified---Principal labels are (i) Testimony, (ii) Hearsay evidence, (iii) Documentary evidence, (iv) Real evidence and (v) Circumstantial evidence---Testimony means direct evidence; hearsay, an indirect evidence; documentary evidence means presentation of facts through documents; real evidence includes material things (like case property)---In addition to material objects, real evidence also includes documents, physical appearance of persons and animals, demeanour of witnesses, intonation of voices on a tape recording, views, inspections out of courts of locus in quo or of some object which it is impossible or highly inconvenient to bring to court, and, possibly, out-of-court demonstrations or re-enactments of acts or events into which Court is inquiring---Circumstantial evidence means evidence of relevant facts like motive, plans and preparatory acts, capacity, opportunity, identity, continuance, failure to give evidence, failure to provide evidence and standards of comparison.

Hayatullah v. The State 2018 SCMR 2092 rel.

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

----S. 376--- Qanun-e-Shahadat (10 of 1984), Arts. 2, 18, 21, 22, 71 & 162---Criminal Procedure Code (V of 1898), Ss. 221, 439 & 540---Rape---Additional evidence---Fact in issue and relevant fact---Criminal charge---Proof---Accused was aggrieved of summoning of two witnesses by Trial Court as additional witnesses---Plea raised by accused was that testimony of both the witnesses was hearsay and not relevant to facts in issue---Validity---Charge in Court has to be proved through evidence as defined in Art. 2(c) of Qanun-e-Shahadat, 1984, which includes "all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry---Article 18 of Qanun-e-Shahadat, 1984, ordains that evidence can only be given of "fact in issue" and "relevant fact" which commands that Qanun-e-Shahadat, 1984 is an exhaustive statute---Evidence can only be given in the manner as permitted by Qanun-e-Shahadat, 1984 and no other hypothesis how strong or relevant can be allowed to be brought on record unless Qanun-e-Shahadat, 1984, permits or accepts it as admissible---What one prosecution witness had observed by her senses could only be deposed by her and none other as required by Art. 71 of Qanun-e-Shahadat, 1984---Other prosecution witness was witness of facts touching preparation of offence as mentioned in Art. 21 of Qanun-e-Shahadat, 1984 and explanatory to fact in issue as per Art. 22 of Qanun-e-Shahadat, 1984, when she had seen accused in naked condition with victim, thus her evidence was also admissible---Permission to bring on record relevant evidence is controlled by exclusionary rules---Court while admitting evidence is to refer gist of evidence or question to be asked, objection if any, reply thereto, and decision thereon before it is made part and parcel of judicial record---Where a judge after attending provisions of Qanun-e-Shahadat, 1984 and precedents on the subject is in doubt as to admissibility of a particular piece of evidence he should declare it in favour of admissibility rather than inadmissibility because its value would later be determined by Court of Appeal as per Art. 162 of Qanun-e-Shahadat, 1984---High Court directed Trial Court to proceed to record evidence of two prosecution witnesses summoned as additional witnesses from the stage it was discontinued---Revision was dismissed accordingly.

The Modern Law of Evidence, third edition (Butterworths) by Adrian Keane; Stephen's Digest of the Law of Evidence; DPP v. Kilbourne (1973); Faqir Muhammad v. The State PLD 1971 Lah. 929; Riasat Ali and another v. The State PLD 1991 SC 397; C.N. Peters v. The State AIR 1959 483; Rizwan Akhtar alias Razi Bawa and another v. The State 2021 YLR 2253; Raja Khurram Ali Khan and 2 others v. Tayyaba Bibi and another PLD 2020 SC 146; Muhammad Aslam Shah v. The State 1993 PCr.LJ 704; Wigmore, A Treatise on the Anglo-American System of Evidence, 3rd edn, 1 para 13; R v. Christie [1914] AC 545 (HL) at pp. 554 and 565; R v. Donat (1985) 82 Cr App Rep 173 (CA), ch. 12; Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others PLD 2021 SC 715; Myers v. DPP [1965] AC 1001 at 1024; Muhammad Munir v. The State 2001 PCr.LJ 1650 and Liaquat Ali Channa v. Additional Sessions Judge, Gambat, District Khairpur and another 2012 PCr.LJ 1979 ref.

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

----Art. 131---Evidence, recording of---Objection to admissibility---Scope---Any objection on admissibility of evidence by any party is to be attended by Court then and there and decided first so as to proceed further in the matter---Such objection should not be reserved for its decision at fag end of trial.

Asim Murtaza Khan v. The State through Chairman NAB, Islamabad 2021 SCMR 1844; Hayatullah v. The State 2018 SCMR 2092; Muhammad Ameen v. The State 2019 PCr.LJ 412; Rani Bibi v. The State 2018 PCr.LJ 310; Naveed-ul-Hassan v. The State 2006 PCr.LJ 1804; Asif Jameel and others v. The State 2003 MLD 676 and Province of Punjab through Collector, District Gujrat and 2 others v. Muhammad Bashir and another 1997 MLD 806 rel.

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

----Art. 131--- Examination-in-chief, recording of--- Techniques---During examination-in-chief, two out of many techniques are most popular which are allowed to be followed by prosecution i.e. (i) signposting, and (ii) piggybacking---Signposting in fact is an indicator to alert witness to a particular part of his testimony e.g. telling the witness that now some questions would be asked about his status/work or questions about his relation with other witnesses and so on---Such bit-by-bit examination helps the witness to recollect facts clearly and it is permissible as per international best practices---Piggybacking is a form of question arranged with the part of answer given by witness while using it as prefix to next question.

Ms. Barrister Khadija Siddiqi and Murad Ali Khan Marwat for Petitioner.

Ms. Noshe Malik, Deputy Prosecutor General for the State.

Syed Farhad Ali Shah and Waqar Ahmad for Respondent No. 3.

2023 P Cr. L J 1185

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf and Anwar Hussain, JJ

MUHAMMAD ALAM KHILJI and others---Petitioners

Versus

JUDGE ACCOUNTABILITY COURT and others---Respondents

Writ Petition No. 3197 of 2022, decided on 17th January, 2022.

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

----Ss. 5(o), 5(s) & 9---Criminal Procedure Code (V of 1898), Ss. 167 & 344---Corruption and corrupt practices---"Offence"---"Public at large"---Jurisdiction of Accountability Court---Scope---Bail, grant of---Petitioners were taken into custody by the National Accountability Bureau on the ground that they had committed an offense as defined in the National Accountability Ordinance, 1999---While facing trial, the petitioners remained in judicial custody---In the meantime, an amendment was introduced in the National Accountability Ordinance, 1999, which removed the petitioners from the jurisdiction of the Accountability Court---Accountability Court refused to exercise jurisdiction in the matter and directed the Bureau to produce the petitioners before the competent forum in time---Validity---Amendment in subsections (o) & (s) of S. 5 of the National Accountability Ordinance, 1999, had removed the petitioners from the category of offenders under the Ordinance, as the alleged plundered amount was less than five hundred million rupees---Custody of the petitioners could be regulated in accordance with the mandate of S. 167 read with S. 344 of the Cr.P.C., but it would serve only a limited purpose of regulating the custody of the accused---It would not address the question of under which offense the accused had been kept in custody for an indefinite and unbridled period---No person could be left without remedy in any circumstance, especially when life and liberty were at stake---Constitutional petitions were allowed, the impugned orders were set aside, and the petitioners were released on bail.

Khan Asfandyar Wali's case PLD 2001 SC 607 rel.

(b) Constitution of Pakistan---

----Arts. 9 & 10---Security of person---Safeguards as to arrest and detention---Scope---Life and liberty are two of the cardinal fundamental rights guaranteed by the Constitution---Article 9 guarantees security of a person and Art. 10 provides safeguards as to arrest and detention.

Sardar Tariq Hussain and Muhammad Zahid Mughal for Petitioners and for Respondents Nos.1 to 4 (in W.P. No. 3199 of 2022).

Khurram Masaud Kiyani for Petitioner (in W.P. No.3352 of 2022).

Muhammad Sajid Khan Tanoli, Deputy Attorney-General for Pakistan.

2023 P Cr. L J 1200

[Lahore]

Before Malik Shahzad Ahmad Khan and Muhammad Amjad Rafiq, JJ

GHULAM YASIN and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 199788, 211790, Criminal Revision No. 211791 and Murder Reference No. 179 of 2018, decided on 16th June, 2022.

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

----Ss. 302(b), 324, 337-F(i), 337-L(2), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mudihah, causing hurt, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Evidence found doubtful to the extent of acquitted co-accused relied for convicting the accused due to the latter's distinct role---Scope---Accused were charged for committing murder of the brother of complainant and causing injuries to father, sister and aunt of the complainant---Defence alleged that the same set of witnesses had already been disbelieved by the trial court to the extent of five co-accused, who too had been nominated in the FIR and specific allegation had been levelled against four of them and by that fact the prosecution case was seriously damaged and accused/appellant was also entitled for such relief---True that five out of six accused stood acquitted but it was equally admitted fact that they were acquitted by the court inter alia on the ground that none of them was carrying firearm and none from them had caused injury to the deceased or to injured---One of the accused was assigned specific role of causing injuries to sister of complainant and similarly other accused were also attributed general role of causing injuries to her, but Medical Officer who had conducted medical examination of said injured lady in clear words stated that possibility of fabrication qua such injuries could not be ruled out and such opinion of the doctor remained unchallenged by the prosecution---As regards injuries allegedly sustained by aunt of complainant, whatever might be the reason, admittedly the said injured was not produced in the witness box---Said were the reasons which weighed with the trial to record acquittal of the remaining accused persons---Thus, stricto sensu it could not be said that prosecution witnesses were disbelieved to the extent of acquitted accused persons---Even otherwise, it was trite law that on the principle of falsus in uno, falsus in omnibus, if the witnesses were disbelieved against one set of accused, their testimony could not be accepted qua other accused, yet under the principle of abundant caution, an accused could be singled out from the others---Case of the present accused was entirely different from the acquitted co-accused, as it was only accused who was carrying firearm weapon with him, he was nominated in the FIR with specific attribution of causing injuries to brother as well as father of complainant, brother of complainant succumbed to such injuries, whereas, father of complainant survived, appeared in the dock as witness and made statement in line with the narration of the FIR---Circumstances established that the prosecution succeeded in proving its case against the accused, however due to mitigating factors, the death sentence was altered to imprisonment for life---Appeal was dismissed with said modification in sentence.

Muhammad Rafique alias Neela and another v. The State 2020 SCMR 664; Muhammad Sharif v. State 2019 SCMR 1368; Saleem Zada v. State 2019 SCMR 1309; Muhammad Bilal v. State 2019 SCMR 1362 and 2020 SCMR 2143 rel.

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

----Ss. 302(b), 324, 337-F(i), 337-L(2), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mudihah, causing hurt, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Injured as a natural witness---Scope---Accused were charged for committing murder of the brother of complainant and causing injuries to father, sister and aunt of the complainant---Injured/father of the complainant was the resident of land adjoining to the place of occurrence, therefore, was a natural witness---Further injured was shifted to the hospital on the same day at 10.15 a.m. where he was medically examined by Medical Officer, as such, his presence at the place of occurrence at the relevant time remained far from any doubt---Apart from the fact of having sustained injuries during the occurrence, injured while appearing in the dock made statement which was consistent on all crucial aspects of the case i.e. the date and the time of occurrence, the mode and the manner in which occurrence ignited and also the role played by the accused during the occurrence---Said witness was subjected to cross-examination at considerable length but nothing damaging to the prosecution or favourable to the defence could be elicited from his mouth---Similar was the position with witness of ocular account who also toed injured witness and his statement also remained un-shattered during cross-examination---In any way, if the statements of witnesses of ocular account were thrown out of consideration, even then sole unimpeachable statement of injured had been found sufficient to believe the prosecution case---Circumstances established that the prosecution succeeded in proving its case against the accused, however due to mitigating factors, the death sentence was altered to imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b), 324, 337-F(i), 337-L(2), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mudihah, causing hurt, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Delay of more than twenty four hours in lodging the FIR not consequential---Scope---Accused were charged for committing murder of the brother of complainant and causing injuries to father, sister and aunt of the complainant---Record showed that occurrence in the case took place on 13.07.2016 at 8.30 a.m. but the FIR was recorded on the next day i.e. 14.07.2016 at 9.15 a.m.---Mere delay in lodging the FIR was never considered sufficient to disbelieve the prosecution case---Delay in lodging of the FIR only put the Court on notice to undertake close scrutiny of evidence available on record to avoid false involvement of the accused---If evidence recorded in Court appeared to be trustworthy and convincing, then delay in lodging of the FIR could be ignored---Four persons of one family were injured; two were medically examined on the same day at 10.15 a.m. by Medical Officer at DHQ, Hospital, upon dockets by the police, which fact was established by MLCs of both the injured persons---One of the injured was in precarious condition; therefore, from DHQ Hospital, he was referred to other hospital---Complainant himself was away from his house due to his occupation in a case pending before the Board of Revenue---Thus, his traveling back to his place of residence and then to hospital as a first priority to see the injured as stable had been found to be quite usual and normal human conduct---In that view of the matter when the injured were medically examined well within reasonable promptitude, considering that complainant party must be in extreme panic and anxiety, the main consideration would have been to save the lives of injured persons---Delay in lodgment of the FIR in the peculiar facts and circumstances of the case was not fatal to the prosecution, especially when nothing had come on the record from the defence that by such delay what benefit the prosecution would have derived---Circumstances established that the prosecution succeeded in proving its case against the accused, however due to mitigating factors, the death sentence was altered to imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b), 324, 337-F(i), 337-L(2), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mudihah, causing hurt, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Medical evidence---Scope---Accused were charged for committing murder of the brother of complainant and causing injuries to father, sister and aunt of the complainant---Record showed that Medical Officer when medically examined brother of complainant on 13.07.2016 found eight firearm entry wounds each measuring 2 cm x 2 cm x DNP on the left side of abdomen near the umbilicus, with blackening and inverted margins---Similarly, when father of complainant was medically examined by the same doctor on the same day, firearm entry wound .8 cm x 8 cm x DNP on outer side of left knee, left leg and 4 cm x 1 cm on outer side of left upper arm were found on his person---Locale of injuries, dimension, kind of weapon used and also their duration were fully in line with the prosecution case---Circumstances established that the prosecution succeeded in proving its case against the accused, however due to mitigating factors, the death sentence was altered to imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b), 324, 337-F(i), 337-L(2), 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mudihah, causing hurt, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Dying declaration---Scope---Accused were charged for committing murder of the brother of complainant and causing injuries to father, sister and aunt of the complainant---Record showed that the occurrence in the case took place on 13.07.2016 and injured brother of complainant died on 29.08.2016 i.e. more than one and half month after sustaining the injuries---Investigating Officer in his statement had clarified that after getting permission from doctor he had recorded the statement of said injured on 22.08.2016---No specified forum was necessary before whom such dying declaration could be made---In that view of the matter, no illegality was committed by the Investigating Officer while recording the statement of injured then died, whose statement otherwise, had been found to be in line with the narration of the FIR---Circumstances established that the prosecution succeeded in proving its case against the accused, however due to mitigating factors, the death sentence was altered to imprisonment for life---Appeal was dismissed with said modification in sentence.

Dilawar Hussain v. The State PLD 2008 SC 123 and Majeed v. The State 2010 SCMR 55 rel.

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

----Ss. 302(b), 324, 337-F(i), 337-L(2), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mudihah, causing hurt, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recovery of crime empties and weapon of offence corroborating ocular account---Accused were charged for committing murder of the brother of complainant and causing injuries to father, sister and aunt of the complainant---In the present case, three crime empties was collected from the spot on 14.07.2016 and the same were received in the office of Forensic Science Agency 19.09.2016---Subsequently, the accused was arrested on 17.10.2016 and on 21.10.2016 during interrogation he led to recovery of repeater along with live cartridge from the room of his house---Said weapon was submitted in the office of Forensic Science Agency on 24.10.2016---Forensic Science Agency Report had been found in the positive, in the sense that weapon was found in mechanical operating condition with safety features functions properly and the empties were identified as having been fired from the said weapon---Thus, recovery evidence lent full support to the ocular account---Circumstances established that the prosecution succeeded in proving its case against the accused, however due to mitigating factors, the death sentence was altered to imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b), 324, 337-F(i), 337-L(2), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mudihah, causing hurt, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Motive proved---Accused were charged for committing murder of the brother of complainant and causing injuries to father, sister and aunt of the complainant---Dispute over a piece of land purchased by the complainant was alleged to be bone of contention and formed motive behind the occurrence---Apart from the consistent statements of witnesses giving background of dispute over a piece of land, it was admitted position that both the parties i.e. the complainant and the accused already carried differences and litigation between them remained pending---Even registration of number of criminal cases against each other, stood projected from the record available on the file---Thus, motive appeared to have been established in the case---Circumstances established that the prosecution succeeded in proving its case against the accused, however due to mitigating factors, the death sentence was altered to imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b), 324, 337-F(i), 337-L(2), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mudihah, causing hurt, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Sentence, reduction in---Death sentence reduced to life imprisonment---Mitigating factors---Co-accused acquitted---Accused were charged for committing murder of the brother of complainant and causing injuries to father, sister and aunt of the complainant---Co-accused who too had been nominated in the FIR stood acquitted and the reasoning behind such acquittal had been found to be convincing---Said factor created mitigation---Thus, while maintaining the conviction under S. 302(b), P.P.C., the sentence of death of accused was altered to imprisonment for life---Appeal was dismissed with said modification in sentence.

Syed Ijaz Qutab for Appellants.

Munir Ahmad Sial, Deputy Prosecutor General for the State.

Mudassir Naveed Chatha and Muhammad Waqas Jutt for the Complainant.

2023 P Cr. L J 1235

[Lahore]

Before Farooq Haider, J

ABU BAKAR---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 34006 and Criminal Revision No. 36234 of 2021, heard on 10th June, 2022.

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

----Ss. 302(b), 324, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Delay of more than six hours in lodging the FIR---Effect---Accused party made firing upon the complainant party, due to which one person died and four were injured---Occurrence took place on 10.03.2017 at 08.20 p.m. and FIR was recorded on the written application of complainant at 02.45 a.m. on 11.03.2017---Injured persons were brought to DHQ Hospital for treatment at different timings between 08.50 p.m. and 09.20 p.m.---Medical Officer who conducted Medico-Legal examination of injured categorically stated on oath in his statement recorded during trial of the case that injured was brought by same Police Constable---Said portions of statement of Medical Officer were not challenged by the State or complainant and he was not re-examined on the subject, meaning thereby that police was in contact with complainant party as a Police Constable of the concerned Police Station brought injured persons in hospital at 08.50 p.m. and 09.00 p.m. respectively---Now question arose that if it was so then why FIR regarding the occurrence was not recorded just after the occurrence or Medico-legal examination of injured persons and why FIR was recorded with delay of more than six hours---No explanation whatsoever for such delay was available on record---Furthermore, dead body of deceased was also taken to said hospital by a Police Constable for post mortem examination---As per postmortem report of deceased, documents for conducting postmortem examination over the dead body of the deceased were received by the Medical Officer from police at 06.00 a.m. on 11.03.2017 and postmortem examination over the dead body of the deceased was conducted at 06.15 a.m. on 11.03.2017---Said state of affairs reflected that FIR was not recorded even at 02.45 am, as claimed by the prosecution, rather only FIR number was obtained---Time was consumed in deliberation, consultation and concocting/fabricating story for the prosecution and thereafter FIR was chalked out with delay---Thus, it had been crystal clear that FIR in the case was recorded with delay after deliberation, consultation, inducement, procurement and concoction, therefore, neither any sanctity nor evidentiary value could be attached to the same and it could not provide any corroboration to the case of prosecution against the accused rather it had lost its efficacy and smashed 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 accordingly.

Haroon Shafique v. The State and others 2018 SCMR 2118; Muhammad Yaseen v. Muhammad Afzal and another 2018 SCMR 1549; Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068; Sufyan Nawaz and another v. The State and others 2020 SCMR 192 and Muhammad Adnan and another v. The State and others 2021 SCMR 16 rel.

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

----Ss. 302(b), 324, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Dishonest improvements by complainant and injured witness---Scope---Accused party made firing upon the complainant party, due to which one person died and four were injured---Ocular account produced in the case by the complainant party comprised of statements of complainant and two injured witnesses---As per application for registration of case and FIR, accused fired with Kalashnikov which hit at left side of flank of deceased of the case---As per postmortem examination report, no firearm injury was found at left flank of deceased---However, complainant through complaint introduced dishonest improvement by changing locale of injury caused by the accused from left side of flank to different parts of body of deceased---Similarly, injured witness while appearing before the court as witness also introduced dishonest improvement---Other injured witness in his statement recorded before the Court also introduced dishonest improvement---So it was crystal clear that complainant as well as eye-witnesses introduced same dishonest improvements in order to bring ocular account in line with medical evidence---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed accordingly.

(c) Criminal trial---

----Dishonest improvement---Scope---If prosecution witness including injured witness introduces dishonest improvement in order to bring ocular account in line with medical evidence, then said witnesses are not reliable and truthful; their testimony is neither confidence inspiring nor believable.

Muhammad Mansha v. The State 2018 SCMR 772; Muhammad Arif v. The State 2019 SCMR 631; Naveed Asghar and 2 others v. The State PLD 2021 SC 600 and Khalid Mehmood and another v. The State and others 2021 SCMR 810 rel.

(d) Criminal trial---

----Witness---Injured witness---Scope---Mere presence of injury on the person of prosecution witness does not stamp him to be a truthful witness.

Amin Ali and another v. The State 2011 SCMR 323 and Ishtiaq Hussain and another v. The State and others 2021 SCMR 159 rel.

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

----Ss. 302(b), 324, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Suppression of facts---Effect---Accused party made firing upon the complainant party, due to which one person died and four were injured---Record showed that one Mr. "I" also received firearm injury during the occurrence and died subsequently but his injury was not explained rather suppressed by the complainant party in the application for registration of FIR as well as in the complaint---However, complainant admitted said fact in his statement recorded before the Court---Both the injured persons also deposed in their statements before the Court about the said factum of injury on the person of Mr. "I" during the occurrence---If injuries received by any person were suppressed or not explained by the prosecution, then the prosecution case lacked proof beyond doubt---In such situation, the ocular account had not been found as reliable, trustworthy and confidence inspiring, hence discarded---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed accordingly.

Bashir Ahmad and another v. The State and others 2019 SCMR 1417; Amjad and another v. The State and another 2020 SCMR 2084 and Muhammad Javed v. The State 2020 SCMR 2116 rel.

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

----Ss. 302(b), 324, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Night time occurrence---Source of light---Scope---Accused party made firing upon the complainant party, due to which one person died and four were injured---As per ocular version, occurrence took place during night time at 8:20 p.m.---Occurrence was witnessed by the complainant and other witnesses in the light of electric bulb installed in the street and lights of the vehicle of the complainant---Neither said electric bulb nor said car was taken into possession during investigation---Thus, any source of identification of the assailants also could not be established by the prosecution---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed accordingly.

(g) Criminal trial---

----Medical evidence---Scope---Medical evidence is a supportive evidence and not corroborative piece of evidence.

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

----Ss. 302(b), 324, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Recovery of weapon---Inconsequential forensic report---Accused party made firing upon the complainant party, due to which one person died and four were injured---Record showed that a Kalashnikov was recovered from the accused---However, suffice it to say that as per report of Forensic Science Agency produced by prosecution, after comparison, it was found that though said weapon was found to be in mechanical operating condition yet empties were found as not fired from the same---Thus, said recovery had become inconsequential because mere report regarding working condition of weapon of offence was of no avail to the case of prosecution---Thus, recovery could not provide any corroboration to 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 accordingly.

Muhammad Arif v. The State 2019 SCMR 631 and Liaqat Ali and another v. The State and others 2021 SCMR 780 rel.

(i) Criminal trial---

----Motive---Scope---If substantive piece of evidence in the form of ocular account has been disbelieved to the extent of accused, then motive is of no help to the case of prosecution which is even otherwise a double edged weapon and can also be considered as reason for false implication.

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

----Ss. 302(b), 324, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Proclamation of accused---Arrest warrant---Mandatory pre-requisites not fulfilled---Scope---Accused party made firing upon the complainant party, due to which one person died and four were injured---Proper issuance of warrant of arrest and proper report on the same had to be proved by the prosecution but in the case prosecution got exhibited warrant of arrest of accused---However, perusal of the same revealed that it was not issued to any Police Officer for execution rather through that warrant police was asked to arrest accused---Similarly, it had not been mentioned in the proclamation that in how much period or till which date, accused had to surrender---Any detail of house number, street number, specific name of mohallah in the village or any other detail showing abuttals of house of accused was not available in the report of process server on the warrant as well as report on proclamation---In such state of affairs, both warrant and proclamation were defective and mandatory requirements for the same had not been fulfilled---Resultantly, same were of no avail and could not provide any corroboration to the case of prosecution---Even otherwise, abscondance was not proof of the charge---Furthermore, when ocular account to the extent of accused had been disbelieved, then abscondance was of no help to 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 accordingly.

Muhammad Arif v. The State 2019 SCMR 631; Wajeeh-ul-Hassan v. The State 2019 SCMR 1994 and Rohtas Khan v. The State 2010 SCMR 566 rel.

Mian Muhammad Aslam along with Rai Bashir Ahmed for Appellant (in Criminal Appeal No. 34006 of 2021).

Abdul Khaliq Safrani for the Complainant (in Criminal Appeal No. 34006 and for Petitioner in Criminal Revision No. 36234 of 2021).

Rai Akhtar Hussain, Deputy Prosecutor General for the State.

2023 P Cr. L J 1262

[Lahore]

Before Muhammad Tariq Nadeem, J

NASIR ALI RAJA alias ASIF---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 18050-J and Criminal Revision No. 18049 of 2020, heard on 28th June, 2022.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---No justification for the presence of eye-witnesses at the spot at the relevant time---Chance witnesses---Scope---Accused was charged that he along with his co-accused committed murder of the son of the complainant by firing---Motive behind the occurrence was a dispute of a house---Complainant/father of the deceased and his paternal uncle furnished the ocular account of the occurrence---Presence of the said eye-witnesses at the spot at the relevant time was not natural---However, it was mandatory for the said eye-witnesses to justify their presence at the place of occurrence at the relevant time through some cogent reason but the said witnesses had failed to give any plausible reasoning qua their presence at place of occurrence at the relevant time, thus, they were chance witnesses---According to the statements of both the eye-witnesses they were not residents of the vicinity where the occurrence took place---Complainant during his examination-in-chief stated that he along with his family had vacated the house of his in-laws two months prior to the occurrence---When complainant had already vacated the house of his in-laws two months prior to the occurrence then there was no need to go to the same house on fateful day---In that way, there was a contradictory stance of complainant qua visiting the house in dispute---Moreso, it was also evident from the statement of complainant that an FIR for murderous assault was lodged against him and he left his permanent abode and shifted in the house of his in-laws in the year 2009 due to his nomination in the said murder case---Complainant further stated in his examination-in-chief that two months before the alleged occurrence, he vacated the house of his in-laws at the asking of acquitted co-accused and went to his village, then question was as to what was the reason for the complainant to go to the house of the accused party---In the eventuality of said facts, the eye-witnesses could not justify any reason for their presence at the place of occurrence at the relevant time---Said witnesses were, therefore, chance witnesses and as such their evidence was also not free from doubt---As per prosecution case, the accused along with his co-accused had made repeated fire shots at the body of deceased---Complainant and other eye-witness did not receive even a single scratch---Said witnesses were closely related to the deceased, they were at the mercy of the accused and his co-accused, then why they were let off by the accused and his co-accused to become a witness against them during trial---Witnesses of ocular account were not witnesses of inquest report and postmortem report pertaining to deceased---If eye-witnesses were present at the scene of the occurrence at the relevant time, they must have been the witnesses of inquest report---Similarly, said witnesses should have escorted the dead body to the hospital being the close relatives and their names should have been incorporated in the post mortem report in the column of identification of the dead body---Said eye-witnesses were not present at the time and place of occurrence---Circumstances established that the prosecution failed to prove its case against the accused 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; Muhammad Irshad v. Allah Ditta and others 2017 SCMR 142; Sufran Nawaz and another v. The State and others 2020 SCMR 192; Najaf Ali Shah v. The State 2021 SCMR 736; Abdul Jabbar alias Jabri v. The State 2017 SCMR 1155 and Nadeem alias Kala v. The State and others 2018 SCMR 153 rel.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Conspiracy made by accused for committing the offence---Not proved---Accused was charged that he along with his co-accused committed murder of the son of the complainant by firing---According to the statement of complainant, his brother, his wife and his nephew had gone to another city to the house of accused party to offer condolence on the death of son of accused, where they heard that co-accused, mother of the accused (since acquitted) asked her sons that complainant was not vacating their house and they should kill his son---Other eye-witness had stated in his examination-in-chief that one day prior to the occurrence, brother of complainant and other went to the house of accused party to offer "Fateh" there and heard the conspiracy hatched by the accused persons---Noteworthy, that when the complainant's wife as well as other close relatives had already come to know regarding said conspiracy, why they had not disclosed the said fact to the complainant and the deceased especially when they had returned to their homes one day prior to the occurrence---Said fact did not appeal to a prudent mind that if a son of a person had died one day before, he would indulge in such like heinous crime---Moreover, when the dispute between the accused and complainant party already existed then there was no occasion for the complainant party to visit the house of the accused situated in another city for condolence upon the demise of his son---Circumstances established that the prosecution 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)---

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence---Contradictions---Accused was charged that he along with his co-accused committed murder of the son of the complainant by firing---Medical evidence ran contrary to the prosecution's case as according to the written application for registration of FIR submitted by complainant, his deceased son received two injuries at right thigh, two injuries at his chest and one injury at the abdomen and similarly three injuries on back---However, no injury was found existent at abdomen whereas injuries on chest as well as one injury on right thigh were exit wounds and said fact had been described by the Medical Officer---In that way, there was a material contradiction between the statements of the eye-witnesses and medical evidence---Thus, it was not safe to rely upon the statements of the eye-witnesses, in the peculiar circumstances of the case---Circumstances established that the prosecution failed to prove its case against the accused beyond any shadow of doubt--- Appeal against conviction was allowed, in circumstances.

Muhammad Idrees and another v. The State and another 2021 SCMR 612 and Khalid Mehmood and another v. The State and others 2021 SCMR 810 rel.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Weapon of offence recovered on the disclosure and pointation of accused---Inconsequential---Accused was charged that he along with his co-accused committed murder of the son of the complainant by firing---Record showed that a pistol .30 bore was recovered on the disclosure and pointation of the accused from his residential house---However, the said recovery being purely corroboratory in nature could not alone be considered to sustain conviction on a capital charge---Noticeable that while conducting the recovery proceedings no independent witness of the vicinity was associated by the Investigating Officer during the recovery proceedings, which fact made such recovery doubtful in nature---Even otherwise, the report of the Forensic Science Agency was only to the extent of its being in mechanical operating condition---In these circumstances of the case, the said recovery of pistol .30 bore was inconsequential and not helpful to the prosecution against the accused---Circumstances established that the prosecution failed to prove its case against the accused beyond any shadow of doubt--- Appeal against conviction was allowed, in circumstances.

Muhammad Mansha v. The State 2018 SCMR 772 and Khalid Mehmood and another v. The State and others 2021 SCMR 810 rel.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Motive was not proved---Effect---Accused was charged that he along with his co-accused committed murder of the son of the complainant by firing---Motive behind the occurrence was a dispute of a house---Record showed that the motive alleged by the prosecution had already been disbelieved by the Trial Court---Even otherwise, it was an oral assertion of the complainant and no material evidence in the shape of ocular or documentary was produced to substantiate the motive alleged by the prosecution---Although, the prosecution was not under obligation to establish a motive in every murder case, however if prosecution set up a motive and failed to prove it, then, it was the prosecution who had to suffer and not the accused---Circumstances established that the prosecution failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Ilyas and another v. Ameer Ali and another 2020 SCMR 305 and Liaqat Ali and another v. The State and others 2021 SCMR 780 rel.

(f) Criminal trial---

----Absconsion---Scope---Absconsion alone is not sufficient to record conviction on a capital charge and it can be used only as a corroboratory and confirmatory in support of ocular account---Absconsion of the accused may be relevant qua the guilt or innocence of accused, which is to be decided keeping in view overall facts of the case.

Rohtas Khan v. The State 2010 SCMR 566; Muhammad Sadiq v. The State 2017 SCMR 144; Wajeeh-ul-Hassan v. The State 2019 SCMR 1994 and Pervaiz Khan and another v. The State 2022 SCMR 393 rel.

(g) Criminal trial---

----Benefit of doubt---Principle---In the event of a doubt, the benefit must be given to the accused not as a matter of grace, but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345; Ayub Masih v. The State PLD 2002 SC 1048 and Najaf Ali Shah v. The State 2021 SCMR 736 rel.

Syed Tasaduq Murtaza Naqvi and Syed Tasaduq Mustafa Naqvi for Appellants.

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

Syed Karamat Ali Naqvi for the Complainant.

2023 P Cr. L J 1283

[Lahore]

Before Shehram Sarwar Ch. And Muhammad Tariq Nadeem, JJ

KHALID MEHMOOD---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 228257 and Murder Reference No. 306 of 2018, heard on 26th September, 2022.

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

----Ss. 302(b), 334, 324, 109, 148 & 149---Qatl-i-amd, itlaf-i-udw, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Promptly lodged FIR---Accused was charged that he along with his co-accused persons made firing upon sister and mother of the complainant, due to which the sister of complainant died whereas his mother received firearm injuries---Motive behind the occurrence was that the deceased sister of the complainant through a Court obtained divorce from the present accused---According to the prosecution version, the occurrence in the case had taken place at about 01:00 p.m. within the area of "S" situated at a distance of 10 kilometers away towards west from Police Station while the machinery of criminal law was set into motion by complainant while presenting written complaint to SI/witness on the same day at 02:30 p.m.---In consequence whereof FIR was registered at the said Police Station at 03:25 p.m.---Keeping in view the said circumstances of the case, it was held that the matter was reported to the police with sufficient promptitude which excluded the chance of deliberation or consultation on the part of the prosecution---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Asfandiyar v. The State and others 2021 SCMR 2009 rel.

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

----Ss. 302(b), 334, 324, 109, 148 & 149---Qatl-i-amd, itlaf-i-udw, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Delay of sixteen hours and thirty minutes in conducting the postmortem examination on the dead body of the deceased---Inconsequential---Accused was charged that he along with his co-accused persons made firing upon sister and mother of the complainant, due to which the sister of complainant died whereas his mother received firearm injuries---Defence objected that there was delay of sixteen hours and thirty minutes in conducting the postmortem examination on the dead body of the deceased---Prosecution was obliged to offer explanation for delay in holding autopsy---Such objection had no worth because in the present case, one lady lost her life whereas another was seriously injured---Victims were shifted to the DHQ Hospital where sister of the complainant succumbed to the injuries whereas mother of complainant due to critical condition was referred to the hospital of another city for treatment---Even otherwise, it was the prime consideration of the complainant to make efforts to save life of alive injured lady and not to first make attempt for autopsy on the dead body of the deceased lady---Occurrence took place in a far-flung area, therefore, time must have been consumed in arranging and shifting them to the hospital and treatment of one injured lady---In a country where the medical facility cum availability of paramedics for the job assigned was not an easy task, the consumption of such a time seemed to be quite reasonable, hence, the prosecution evidence could not be brushed aside on that score alone to extend the benefit of doubt as claimed---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Muhammad Asif and another v. Mehboob Alam and others 2020 SCMR 837 rel.

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

----Ss. 302(b), 334, 324, 109, 148 & 149---Qatl-i-amd, itlaf-i-udw, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Ocular account supported by medical evidence---Accused was charged that he along with his co-accused persons made firing upon sister and mother of the complainant, due to which the sister of complainant died whereas his mother received firearm injuries---To substantiate its case though direct evidence, the prosecution produced injured, complainant and an eye-witness---Complainant while appearing before the trial court had reiterated the same facts and leveled the same allegation against the accused in a mode and manner as he had mentioned in his statement before the police on the basis whereof FIR was registered---Statement of complainant was fully corroborated by the statements of injured and eye-witness---All the witnesses remained consistent upon the stance taken by them on the day of occurrence in their statements recorded under Ss. 154 & 161 of the Code of Criminal Procedure, 1898, respectively without any noticeable and material deviations---During the cross-examination, nothing beneficial to the accused could be extracted---No material discrepancies or contradictions in their statements could be hinted at by the defence during the arguments---Ocular account produced by prosecution was fully supported by medical evidence as the anti-mortem injuries on the body of deceased attributed to the accused were reflected in the post mortem report---Medical evidence furnished by Lady Medical Officer, who conducted autopsy on the dead body of deceased, proved post mortem report and gave opinion that injuries Nos. 1 and 2 were sufficient to cause death in ordinary course of nature---Said Lady Medical Officer also medically examined injured and proved her Medico-Legal Certificate---Statement of said doctor made before the trial Court was not cross-examined by the defence---Thus, the medical evidence provided full support to the ocular account in the case---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b), 334, 324, 109, 148 & 149---Qatl-i-amd, itlaf-i-udw, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Related and interested witnesses---Reliance---Accused was charged that he along with his co-accused persons made firing upon sister and mother of the complainant, due to which the sister of complainant died whereas his mother received firearm injuries---Though, the witnesses were closely related to the deceased yet their presence at the scene of occurrence was very much natural and they had furnished plausible explanation to be present along with deceased at the relevant time---Statements of the eye-witnesses had been found trustworthy and confidence inspiring---Much emphasis had been laid by the defence that the eye-witnesses being related to the deceased person were biased witnesses but statements of related or interested witnesses could be made basis for conviction of the accused if the same inspired confidence as it is the intrinsic worth of the evidence that matters and not the source it emanated from---Mere relationship of eye-witness with deceased could not render their evidence unreliable unless it was established that they had motive to entangle the accused falsely---Defence failed to even remotely infer that the accused had been falsely implicated in the case---Even otherwise, it did not appeal to a prudent mind that close relatives would let off the real culprit accused of killing their near and dear one's and falsely implicate an innocent person---It had been proved that eye-witnesses were present at the place of occurrence at the time of incident and their claim of having seen the tragedy stood proved from evidence available on record---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Ghaffar Mahesar v. The State through P.G. Sindh and others 2022 SCMR 1280 rel.

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

----Ss. 302(b), 334, 324, 109, 148 & 149---Qatl-i-amd, itlaf-i-udw, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Lengthy absconsion of accused---Effect---Accused was charged that he along with his co-accused persons made firing upon sister and mother of the complainant, due to which the sister of complainant died whereas his mother received firearm injuries---Crime in question was alleged to have taken place on 22-04-2011---Accused was arrested on 12-05-2015---Accused remained fugitive from law for a period of about four years---Long abscondence of accused for four years was a strong piece of corroborative evidence against him---Prosecution complied with all the legal formalities to declare the accused as proclaimed offender---Besides other evidence on record, the evidence of abscondence being strong corroborative evidence had supported the case of prosecution about his implication in the commission of crime---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Haroon Rasheed and 6 others v. The State and another 2005 SCMR 1568 rel.

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

----Ss. 302(b), 334, 324, 109, 148 & 149---Qatl-i-amd, itlaf-i-udw, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Recovery of crime weapon at the instance of accused---Reliance---Accused was charged that he along with his co-accused persons made firing upon sister and mother of the complainant, due to which the sister of complainant died whereas his mother received firearm injuries---Record showed that gun .12 bore pump action gun was recovered at the instance of the accused---So far as positive report of Forensic Science Laboratory was concerned, it was noticed that empties of .12 bore gun were secured from the place of occurrence on 22-04-2011, which were deposited in Forensic Science Laboratory on 02-06-2015---Subsequently, after the arrest of the accused gun .12 bore pump action was recovered at the instance of accused on 24.05.2015 and said gun was deposited to the office of Forensic Science Laboratory---According to the report, the said empty was identified as having been fired from .12 bore gun---Moreover, the defence had not denied the said recovery---Thus, the recovery provided sufficient support to the ocular account---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b), 334, 324, 109, 148 & 149---Qatl-i-amd, itlaf-i-udw, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Motive proved---Accused was charged that he along with his co-accused persons made firing upon sister and mother of the complainant, due to which the sister of complainant died whereas his mother received firearm injuries---Motive behind the occurrence was that the deceased obtained divorce from the accused through the court due to his bad character and on account of the said grudge and grouse the accused persons committed the occurrence---Motive was furnished in the FIR as well as in the statements of complainant and eye-witness---Motive had been established satisfactorily---Statements of witnesses on the point of motive stood un-rebutted--- Even the accused in his statement under S. 342, Cr.P.C., admitted the motive for the occurrence and murder of his divorcee, therefore, the prosecution successfully proved motive part of the occurrence---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b), 334, 324, 109, 148 & 149---Qatl-i-amd, itlaf-i-udw, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Admission and confession of accused---Scope---Accused was charged that he along with his co-accused persons made firing upon sister and mother of the complainant, due to which the sister of complainant died whereas his mother received firearm injuries---In his reply to the charge framed by the Trial Court on 13.03.2018, the accused narrated the whole story by admitting the commission of present occurrence---Moreover, the accused was arrested in this case on 13.05.2015 after the period of four years and charge was framed on 13.03.2018 after the lapse of almost 02 years and 10 months---Thereafter, case against the accused remained pending for recording evidence and other proceedings for a period of approximately two months---After the completion of prosecution evidence statement of accused under S. 342, Cr.P.C., was recorded and on that stage he again confessed his guilt with his free will and consent, without coercion and duress---In such way, the admission of accused regarding commission of present occurrence at different stages had supported the evidence of prosecution---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Nasir Mehmood and another v. The State 2015 SCMR 423; Malik Muhammad Mumtaz Qadri v. The State and others PLD 2015 SC 17 and Imran Ali v. The State 2018 SCMR 1372 rel.

Ali Azmar Khan and Saiqa Javed for Appellant.

Muhammad Arshad Ali Farooqi, D.P.G. for the State.

Muhammad Safdar Bhatti for the Complainant.

2023 P Cr. L J 1373

[Lahore]

Before Tariq Saleem Sheikh, J

KHALID SAFDAR MAKHDOOM---Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Secretary Specialized Healthcare and Medical Education Department and 8 others---Respondents

Writ Petition No. 76878 of 2021, heard on 31st March, 2022.

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

----Ss. 365, 337-F(vi) & 34---Constitution of Pakistan, Art. 199---Abduction for ransom, ghayr-jaifah-munaqqillah, common intention---Application for constitution of Medical Board---Maintainability---Complainant of FIR made an application to Secretary, Specialized Healthcare and Medical Education Department, to constitute a special Medical Board for examination of accused alleging that he was malingering and further prayed that he should be sent back to the District Jail---Secretary, Specialized Healthcare and Medical Education Department directed Executive Director, Punjab Institute of Neurosciences (PINS) to examine the matter---Consequent thereupon said Executive Director constituted a three-member special medical board (the "Special Board") comprising three Medical Officers---Said Special Board examined accused and concluded as follows in its report, "Considering the given facts and lack of objective element explaining his illness, the Board was of the opinion that there was strong element of malingering and he had no active neurological or neuro surgical illness demanding admission in tertiary care hospital---Accused might be referred back to Civil Hospital and subsequently to jail if local hospital decided so"---Petitioner (father of accused) challenged the formation of the Special Board and prayed that its report be declared null and void---Record showed that on 06.12.2021 the petitioner made an application to Secretary, Specialized Healthcare and Medical Education Department, for constitution of new Medical Board for re-examination of accused, which had not been decided---Public functionaries were obliged to dispose of the applications/representations made to them by the people within a reasonable time---Since that had not been done in the present case, the petitioner had a cause of action---Petitioner was not only an "aggrieved person" but also an "aggrieved party" within the meaning of Art. 199 of the Constitution---Hence, present petition was maintainable and the objection of complainant of FIR was overruled.

Hafiz Hamdullah v. Saifullah Khan and others PLD 2007 SC 52; Regina v. Deputy Governor Parkhurst Prison and others (1991) 3 All ER 733; Begum Shamim Afridi v. The Province of Punjab and another PLD 1974 Lah. 120; Shehla Zia and others v. WAPDA PLD 1974 SC 693 and Province of East Pakistan and another v. Hiralal Agarwala PLD 1970 SC 399 rel.

(b) Pakistan Prisons Rules, 1978---

----R. 197---Penal Code (XLV of 1860), Ss. 365, 337-F(vi) & 34---Abduction for ransom, ghayr-jaifah-munaqqillah, common intention---Application of complainant for constitution of Medical Board---Pakistan Prisons Rules, 1978, did not prescribe any procedure for constitution of a Medical Board for examination/re-examination of the prisoners---Such matter had been left to the doctors because they were the best judge and knew when it was required---However, situations might arise where the prisoner or the complainant party might want it to be constituted for various reasons---Rule 197 of the Pakistan Prisons Rules, 1978 mandated that if the prisoner was required to be removed to a hospital in another station, the Jail Superintendent could not do it on his own---Jail Superintendent must obtain permission from the Inspector General in advance and the latter was required to make an immediate report to the Government in anticipation of its sanction---In the present case, Rule 197 was flagrantly violated---Jail Superintendent shifted accused to other General Hospital on a letter of the Medical Superintendent, DHQ Hospital---Jail Superintendent did not obtain any order from the Inspector General as required and it appeared that he had not applied even for post-facto approval to date---Petitioner had not been able to refer any material which might suggest that there was such medical emergency that non-compliance with the above provision should be condoned, which required immediate probe---Application of complainant before Secretary, Specialized Healthcare and Medical Education Department, was incompetent---Petitioner ought to have approached the Trial Court if he had any grievance---Resultantly, all the proceedings conducted in pursuance of the said application, including the constitution of Special Board and its report were declared to be without lawful authority---Petition was disposed of.

Asif Kamal v. The Judge Accountability Court, Multan and others 2020 PCr.LJ 1 and Muhammad Khalid and others v. The State and others 2018 YLR 2433 rel.

Ch. Ishtiaq Ahmad Khan for Petitioner.

Mukhtar Ahmad Ranjha, Assistant Advocate General with Allah Ditta, Deputy Superintendent, District Jail, Sargodha, Dr. Noman Sarwar, Medical Officer, District Jail Sargodha, Nasir Mehmood/DSP, Amjad RIB Sargodha, Maqsood/ASI and Dr. Arif Rasheed, Surgeon Medico-Legal Punjab for Respondents Nos. 1, 2, 7 and 8.

Muhammad Akram Qureshi for Respondents Nos. 3, 4 and 6.

Waseem Mumtaz Malik assisted by Mazhar Ali Ghallu for Respondent No. 9.

2023 P Cr. L J 1394

[Lahore (Multan Bench)]

Before Muhammad Amjad Rafiq, J

NUMAN alias NOMI and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 364, 380, 382 and 407 of 2020, decided on 19th October, 2022.

Penal Code (XLV of 1860)---

----Ss. 376(ii) & 509---Criminal Procedure Code (V of 1898), Ss. 162 & 265-C---Kidnapping or abducting a person under the age of fourteen, causing sexual harassment---Appreciation of evidence---Audio/video clip including snaps/photographs---Admissibility as evidence---Video evidence, tapes, snaps/photographs made available due to forensic techniques were regarded as documentary evidence though in electronic or digital form, therefore, principle of evidence relating to admissibility of documents were fully applicable to such forensic evidence---Audio/video clip including snaps/photographs (in digital form) as evidence maintained a dual character in the law of evidence; it is termed as electronic document as well as a material thing (physical evidence), also known as real evidence---Electronic document in the sense that "information" contained therein are the evidence of facts and oral account of which is to be presented through the words of a witness and not the document alone, while as material thing it is to be produced for the inspection of court---Audio/video clip including snaps/photographs (in digital form) is treated as digital evidence and it carries information that includes expression, gestures, voice and video, therefore, such clips/snaps are sought to be produced before the court to prove the 'information' contained in it as evidence of facts recorded therein---For placing the information on the record such facts need to be spoken through the mouth of a witness who has recorded or watched it---In such situation, it can only be produced or exhibited in the statement of such witness---In the present case, bringing on record such clip through the statement of complainant and the victim in the case to depose about the information contained therein fact by fact while playing the video clip in the court particularly when such video clip/snaps were certified as non-tempered and non-edited, generated by the experts of Forensic Science Agency through a cell phone recovered from the accused as per Forensic Science Agency Report, such report is per se admissible pursuant to S. 9 of Forensic Science Agency Act, 2007---Evidence in the form of audio/video clip/snap as material thing/real evidence will only be exhibited and produced for the inspection of court in the statement of an Investigating Officer who has collected it during the course of investigation albeit through secondary evidence as well---Before using such evidence in any form i.e., as document or as material thing/real evidence, copy of it must be supplied to accused to avoid using it as surprise evidence which is against the principles of fair trial and due process---Every statement of a witness contained information and such information is regarded as evidence, therefore, every information contained in audio/video clip, tapes, photographs, films etc. are also statements in documentary form which are required to be given to the accused under S. 265-C, Cr.P.C.---As the forensic evidence in this case was collected during investigation process, therefore, same fell in the categories of statements mentioned in S. 162, Cr.P.C. and copies of the same could safely be provided at any stage of the proceedings if the statement/ evidence was essential for just decision of the case---In such situations, the case was remanded to the Trial Court for the purpose of bringing on record the cited forensic evidence (video/snaps) in accordance with law, therefore, it was directed that the trial Court would call an expert before the Court who would prepare required copies of such video evidence/snaps etc. which would be handed over to the accused persons with surety that it might not be misused and time might also be given to them for preparation of their defence---Appeal was disposed of accordingly.

Ishtiaq Ahmed Mirza and 2 others v. Federation of Pakistan and others PLD 2019 SC 675 and Nazim Ali v. Additional Sessions Judge and others 2016 MLD 25 rel.

James Joseph for the Appellant (in Criminal Appeal No. 364 of 2020).

Zohaib Hassan for the Appellant (in Criminal Appeal No.380 of 2020).

Malik Naseer Ahmad Thaheem, Shafqat Raza Thaheem and Syed Atif Moazam Bukhari for Appellant (in Criminal Appeal No.382 of 2020).

Malik Muhammad Saleem for the Appellant (in Criminal Appeal No.407 of 2020).

Hassan Mehmood Khan Tareen, Deputy Prosecutor General for the State.

Muhammad Shahbaz Khan for the Complainant.

2023 P Cr. L J 1437

[Lahore]

Before Aalia Neelum and Farooq Haider, JJ

ARSHAD ALI---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 47011-J and Murder Reference No. 159 of 2019, heard on 20th February, 2023.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of two and half hours in lodging FIR---Effect---Accused was charged for committing murder of the brother of the complainant by firing---Motive behind the occurrence was that accused suspected quarrels and cruelty with his sister on the part of deceased and others, due to which he committed the occurrence---Record showed that the occurrence took place at 02:30 a.m. (night) in the area of a village which was at a distance of one kilometer only from the police station and was connected by mettalled road---Two eye-witnesses had allegedly seen the occurrence---After the commission of crime, said witnesses had also seen the accused running away from the spot---Complainant informed the police about the occurrence through the written application and formal FIR was chalked out at 05:00 a.m. the same day---Delay of two and half hours in filing FIR in the instant case, irrespective of the fact that the Police Station was situated only at the distance of one kilometer from the spot of the incident, created sufficient doubt about the genuineness of the FIR---No explanation was coming forward as to why the complainant had not informed the police about the incident soon after the incident---Inordinate delay of about two hours and thirty minutes from the time of the commission of the offence remained unexplained and rendered the whole of the prosecution version doubtful---Appeal against the conviction was allowed accordingly.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Presence of eye-witnesses at the time and place of occurrence doubtful---Accused was charged for committing murder of the brother of the complainant by firing---Record showed that the Medical Officer, who conducted postmortem examination upon the dead body of the deceased, had noted that the rigor mortis present on the dead body of the deceased---Mouth and eyes of the deceased were semi-open---Death had not taken place at the time given by the prosecution witnesses, nor witnesses were present at the spot, which also got support from the inquest report wherein the names of complainant and eye-witness were not mentioned---Said fact indicated that the incident did not occur as stated by the prosecution---All these factual circumstances led to the conclusion that relying upon the FIR in the instant case was unsafe---Other essential fact of the case were that the Inquest Report was prepared on 24:05:2018, but the preparation time was not mentioned therein--- Appeal against the conviction was allowed accordingly.

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

----S. 302(b)---Qatl-i-amd--- Appreciation of evidence---Benefit of doubt---Delay of twelve hours in conducting post-mortem---Effect---Accused was charged for committing murder of the brother of the complainant by firing---In the present case, the Investigating Officer deposed during cross-examination that they reached the spot at about 06:30 a.m.---If the Investigating Officer had reached the place of occurrence and prepared an inquest report, there was no reason for conducting the postmortem of the dead body of deceased with the delay of approximately twelve hours---More significantly, the inquest report did not bear any signatures of the witnesses---At the bottom of the page, the names of the prosecution witnesses were also not mentioned--- Appeal against the conviction was allowed accordingly.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Conflict between the statements of material witnesses---Accused was charged for committing murder of the brother of the complainant by firing---In the present case, conflict between the statements of material witnesses were noticed regarding the length of time of stay of the Investigating Officer at the spot and the recording of statements of witnesses---Husband of the sister of accused/witness deposed that police stayed at the spot till 11:00/12:00 noon---Whereas, the complainant deposed during examination-in-chief that the Investigating Officer along with 3-4 other policemen, came to the place of occurrence and stayed there till 01:00/02:00 p.m.---Un-scaled site plan revealed that the accused fired at the deceased by standing at point "B" and crime empties were secured from the same point---In the un-scaled site plan, presence of witnesses was shown, but the cots of the prosecution witnesses were not revealed---Besides, the Investigating Officer had shown the direction of the foot side of the cot in different directions--- Appeal against the conviction was allowed accordingly.

Iftikhar Hussain and another v. The State 2004 SCMR 1185 rel.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence and crime empties---Reliance---Accused was charged for committing murder of the brother of the complainant by firing---Five crime empties collected from the place of occurrence by Investigating Officer were matched with the weapon recovered on the pointing of the accused resulting into a positive report of Forensic Science Agency---Investigating Officer deposed during examination-in-chief that Forensic Science Agency Team inspected the place of occurrence, collected five crime empties, made the same into parcels separately and handed over to him---Investigating Officer took the same into possession through recovery memo which was attested by the witnesses---Contrary to the deposition of Investigating Officer, the complainant deposed during examination-in-chief that Investigating Officer collected five crime empties from the place of occurrence, prepared the parcel of crime empties and took the same into possession through recovery memo, which was attested by the complainant and another witness---Eye-witness deposed in similar lines---As per the prosecution case, the accused was arrested on 28.05.2018, and the weapon, i.e., pistol was recovered on 30.05.2018 on his disclosure from his house---Per the prosecution case, the accused fled away from the place of occurrence after the occurrence---It was not the prosecution's case that he went inside the house, kept the pistol, and fled away---As per the admission of the Investigating Officer, at the time of the arrest of the accused from his house on 28.05.2018, he did not recover anything---Strangely, the weapon, which could not be retrieved on 28.05.2018, was recovered on 30.05.2018 after 02-days of his arrest from the accused's house---Furthermore the accused had ample opportunity to destroy the weapon from 24.05.2018 to 28.05.2018---Moreover, it did not appeal to a prudent mind that to facilitate the investigating agency, the accused would bring back the weapon, and he would conceal the same in his house, which the Investigating Officer could not recover at the time of his arrest---Prosecution evidence showed that a team consisting of the members of the Forensic Science Agency inspected the place of occurrence, collected five crime empties, made the same into parcels separately, and handed them over to the Investigating Officer---Members of the Forensic Science Agency Team were not officers covered by S. 510 of the Code of Criminal Procedure, 1898 and thus, the positive report of Forensic Science Agency was not conclusive and reliable in the absence of the officers being examined in Court, who collected crime empties from the spot and prepared separate parcels to prove the fact that they collected crime empties from the place of occurrence and after that, they prepared parcels which were handed over to the Investigating Officer---Appeal against the conviction was allowed accordingly.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence and crime empties---Safe custody of crime empties not established---Accused was charged for committing murder of the brother of the complainant by firing---Admittedly, the Investigating Officer, returned to the police station after conducting proceedings at the place of occurrence, and a search of the accused, and visiting the hospital---Prosecution evidence remained silent as to where five parcels of crime empties remained during the said period and in whose custody---Prosecution failed to establish by cogent evidence that the alleged parcels of crime empties seized from the place of occurrence were kept in safe custody---Report in question was of no help to the prosecution as there was nothing on record to prove that the recovery of five crime empties alleged to have been made by the members of the Forensic Science Agency Team, were the same which were recovered from the place of occurrence---Thus, there could be no dispute that it was incumbent upon the prosecution to produce members of the Forensic Science Agency Team who had collected the crime empties and prepared separate parcels in order to prove the chain of safe custody---Without such proof, report of Forensic Science Agency could not corroborate the case of prosecution---Appeal against the conviction was allowed accordingly.

(g) Criminal trial---

----Benefit of doubt---Principle---Benefit of every doubt is to be extended in favor of the accused.

Muhammad Akram v. The State 2009 SCMR 230 and Ayub Masih v. The State PLD 2002 SC 1048 rel.

Muhammad Adeel Gohar for Appellant.

Rana Ahsan Aziz, Additional Prosecutor General for the State.

Mian Shahid Hameed and Ch. Zahid Javed for the Complainant.

2023 P Cr. L J 1479

[Lahore (Bahawalpur Bench)]

Before Muhammad Sajid Mehmood Sethi and Ch. Abdul Aziz, JJ

SAQIB RAMZAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 485 of 2016, decided on 29th March, 2021.

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

----Ss. 9(b) & 21---Criminal Procedure Code (V of 1898 ), Ch. XXII-A, S. 265-C---Possession of narcotic drugs---Appreciation of evidence---Prejudice of the police official (complainant)---Search warrant from the Court, non-obtaining of---Police Officer (ASI) on whose complaint FIR was registered also assumed the role to investigate the case---Legality---Accused/appellant was already in custody of the police when a habeas corpus petition for his recovery was moved, however, Police asserted that he was arrested in connection with another FIR---Complainant alleged that the accused under custody, during interrogation made disclosure of 504 grams of Charas present in his house---Held, that there was no bar for a police officer to become complainant of the case and also to investigate it, unless prejudice was not pleaded by the accused facing trial or that such police officer was having some grudge or vengeance against the accused---Rancour or hostility of the police officer could be perceived from record based on some confidence inspiring substance---If complainant claimed that the appellant got recovered narcotic substance and that too during the investigation of an earlier registered criminal case, then as a token of fair investigation, he should have let some other police officer probe the matter but, in the present case, he himself performed each and every step of investigation from drafting of complaint to forwarding of accused to the judicial custody---Thus, he (complainant) ensured that no other police officer of higher rank got opportunity to dilate upon the genuineness or otherwise of the acclaimed recovery proceeding and violated the principle of natural justice which laid down that no one should be a judge of his own case---Alleged disclosure was made by the accused within four walls of concerned Police Station wherein some other police officials of higher ranks were also present---Complainant also did not endeavor to get search warrant from the concerned Court---Departure from the necessity of S. 21 of Control of Narcotic Substances Act, 1997 ('CNSA, 1997') on the part of Searching Officer, without any justifiable reason, in special statute, could not be appreciated---Where a thing was provided in law to be done in a particular manner it had to be done in that manner and if not so done the same would be unlawful---Said principle arose out of maxim "a communi observentia non est recedendum", which became more inflexible in cases arising out of special enactments like CNSA, 1997---Such facts convincingly demonstrated the malice of the complainant which was so deep rooted that he thought it better to investigate the case himself for appropriately grilling the appellant---Such sinister design lead one to believe that narcotics substance was planted to wreck vengeance against the appellant which arose out of a habeas corpus petition filed on his (accused's) behalf---Registration of a criminal case upon a complaint prepared at crime scene was also an important factor, and onus to prove the same also rested upon the shoulders of the prosecution, however, police official who transmitted the draft of complaint to the Police Station was neither cited as witness in report under S. 173, Cr.P.C., nor appeared in the dock during the trial---From the absence of any explanation for withholding the said evidence, Court leaned to hold that probably he was not willing to become a false witness---Record revealed that appellant, who was indicted as a juvenile, was not supplied with copies of documents mentioned in S. 265-C, Cr.P.C., at least seven days prior to framing of charges---Said non-compliance by the Trial Court would amount to vitiating the whole trial---Conflict/contradictions was also found in statements of recovery witnesses regarding place where the recovery memo was signed by the respective witnesses and number of officials of police contingent---Prosecution failed to establish the guilt of accused with regard to the alleged recovery of 504 grams of Charas beyond any shadow of doubt---High Court set aside conviction and sentence passed by the Trial Court and appellant stood acquitted---Appeal was allowed, in circumstances.

State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408; State through A.G. Sindh, Karachi v. Hemjoo 2003 SCMR 881; Sadiq Imran v. The State 2020 YLR 289; Minhaj Khan v. The State 2019 SCMR 326; Muhammad Tariq and another v. The State and others 2017 YLR 1999; Mst. Nusrat Mai (Tahira Sultana) and another v. The State 1997 MLD 2869; Nadeem Ahmed Khan and others v. The State 2007 PCr.LJ 233; Muhammad Siddique v. The State 2009 YLR 1007 and Hakam Deen v. The State through Advocate-General and 15 others 2005 YLR 2032 ref.

Malik Abdul Rashid Khokhar for Appellant with Appellant.

Asghar Ali Gill, Deputy Prosecutor General for the State.

2023 P Cr. L J 1546

[Lahore (Multan Bench)]

Before Ali Zia Bajwa, J

FIDA HUSSAIN and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 476, 492 and 578 of 2012, heard on 3rd December, 2021.

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

----Ss. 364-A, 365-B, 376(2), 452, 148 & 149--- Kidnapping, Kidnapping, abducting or inducing woman to compel for marriage, rape, house-trespass after preparation for hurt, assault or wrongful restraint, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Delay of four days in lodging FIR---Accused were charged for kidnapping the prosecutrix/ victim along with her minor daughter and raping her---Motive behind the occurrence as alleged in the crime report was that a relative of complainant side had abducted a lady of accused side and in order to take revenge of her abduction, accused persons had committed the occurrence---According to prosecution story crime was reported to police with an extraordinary delay of four days for which no plausible explanation could be furnished---Admittedly, the inter-se distance between the place of occurrence and police station was only 08-km---Extraordinary delay in reporting the alleged occurrence to police clearly suggested that possibility of deliberation, consultation and concoction could not be ruled out---When there was delay in reporting the incident to the police then prosecution was under obligation to explain such delay and failure to do that would badly reflect upon the credibility of prosecution version---Circumstances established that the prosecution had absolutely failed to prove its case against the accused persons beyond shadow of reasonable doubt---Appeal against conviction was allowed accordingly.

The State through P.G. Sindh and others v. Ahmed Omar Sheikh and others 2021 SCMR 873; Khair Muhammad and another v. The State through P.G. Punjab and another 2021 SCMR 130 and Mst. Asia Bibi v. The State and others PLD 2019 SC 64 rel.

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

----Ss. 364-A, 365-B, 376(2), 452, 148 & 149---Kidnapping, Kidnapping, abducting or inducing woman to compel for marriage, rape, house-trespass after preparation for hurt, assault or wrongful restraint, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Ocular account---Accused were charged for kidnapping the daughter of the complainant along with her minor daughter and raping her---Ocular account was furnished through the complainant and one of the victims of occurrence, i.e. daughter of complainant---Accused were nominated in the crime report despite the admitted fact that they were not previously known to the complainant of the case---Complainant stated during his cross-examination that accused were not known to him prior to the occurrence---Prosecution could not furnish any explanation as to how complainant got to know the names of accused persons nominated in the crime report---Victim also admitted such fact during her cross-examination that accused persons were not previously known to her---Said sole fact led to the inference that complainant got recorded the FIR after due deliberation and consultation as alleged by the accused side---Implication of all the accused persons by the name by the prosecutrix was also astonishing because it was admitted by her that accused persons were not known to her before the occurrence---Although prosecutrix tried to cover-up that deficiency by stating that she came to know about the names of accused persons during her confinement where they used to call each other by their names but that fact was negated from her own statement---Prosecutrix specifically mentioned in her statement before Trial Court that she was kept there by the accused persons and they committed rape with her without her consent---Prosecutrix failed to explain as to how she got to know about the names of the remaining accused persons because she did not allege that all other accused persons also used to visit the place of her captivity---One could easily infer that she did not get her statement recorded at her own rather same was recorded upon the dictation of her father i.e. complainant of the case, as he admitted in his statement---Prosecution version qua the escape of victim from the confinement of accused persons was also highly unbelievable---According to prosecutrix, when she got herself extricated from the clutches of accused persons and ran away from the place of her confinement, she met her husband and he took her to the police station, where she got recorded her statement and was medically examined thereafter---On the other hand, in her cross examination, she stated that at the time of recording her statement, her father and others accompanied her and that fact had also created doubt about her story regarding her extrication and recording of her statement before the local police especially when it was specifically asserted by the complainant that both the abductees were produced by him before the police and statements of both the abductees were also recorded on his dictation---Moreover, neither the prosecutrix pointed out her place of confinement nor did Investigating Officer visit the same---According to the prosecutrix she and her daughter were taken to the house of some person but astonishingly he was not joined into investigation by the Investigating Officer---Not pointing out the place of occurrence, despite the fact that victim extricated herself from accused persons and came to police station, created serious dent in prosecution case and made it highly doubtful---In the such circumstances, prosecution story qua the abduction of prosecutrix and her daughter and how they became free from the clutches of accused persons was shrouded in mystery and could not be proved by prosecution beyond reasonable doubt---Ocular account was full of doubts and contradiction qua the manner and mode of occurrence, hence, could not be relied upon being result of consultation and deliberation---Circumstances established that the prosecution had absolutely failed to prove its case against the accused persons beyond shadow of reasonable doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 364-A, 365-B, 376(2), 452, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)--- Kidnapping, abducting or inducing woman to compel for marriage, rape, house-trespass after preparation for hurt, assault or wrongful restraint, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Withholding best evidence---One of the abductees not produced as witness---Accused were charged for kidnapping the daughter of the complainant along with her minor daughter and raping her---Surprisingly, whole of prosecution's story was silent about the recovery of minor abductee---No prosecution witness uttered a single word regarding the date, place, time etc. of release of said minor abductee---Astonishingly, minor victim was also not produced as witness in the Court despite the fact that she was a star witnesses of prosecution case being one of the abductees of the occurrence---Silence of prosecution story regarding her recovery and her non-production before the trial Court had raised serious doubts about the prosecution story---Prosecution gave up minor victim because of being a minor---Giving up a witness as unnecessary or won over was prerogative of prosecution and it was at liberty to produce as many witnesses as it thought fit to prove its case against the accused---However, giving up a witness only because she was minor had no legal justification---In the circumstances, minor victim could have been the most natural witness of the occurrence and an adverse inference could legitimately be drawn under Art. 129(g) of the Qanun-e-Shahadat, 1984 that had she been produced, she would have not supported the case of the prosecution---According to crime report there were three other prosecution witnesses, who witnessed the abduction of prosecutrix and her daughter, but they were not produced before the Trial Court, hence prosecution withheld their evidence too---Circumstances established that the prosecution had absolutely failed to prove its case against the accused persons beyond shadow of reasonable doubt---Appeal against conviction was allowed accordingly.

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

----Arts. 3 & 17---Child witness, competency of---Child is fully competent to depose before a court of law subject to his/her capacity and intellect to understand what he/she deposes about---Whether a child is a competent witness or not and whether he/she passes the 'rationality test' is something which is to be decided by the court in accordance with Art. 3 read with Art. 17 of Qanun-e-Shahadat, 1984, after carrying out 'voir dire' which means speak the truth.

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

----Ss. 364-A, 365-B, 376(2), 452, 148 & 149--- Kidnapping, abducting or inducing woman to compel for marriage, rape, house-trespass after preparation for hurt, assault or wrongful restraint, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Medical evidence---Reliance---Accused were charged for kidnapping the daughter of the complainant along with her minor daughter and raping her---Medical expert was in a better position to confirm the allegation of prosecutrix regarding her alleged rape by the accused persons---Perusal of the statement of Medical Expert i.e. Woman Medical Officer delineated that although she observed two abrasions on upper side of left thigh and three fresh abrasions on the upper side of right thigh but she had specifically stated that she neither saw any suspected spots or stains nor any marks of injury or violence on the body and the pubic area---Further, three vaginal swabs were taken by the Woman Medical Officer and were sent to Chemical Examiner for forensic examination---After receiving the report of Chemical Examiner, Medical Expert had opined that no fresh act of sexual intercourse was done with victim---Chemical Examiner had not observed any semen (spermatozoa) on the vaginal swabs despite the fact that victim had alleged that accused persons committed rape with her regularly for consecutive seventeen days of her confinement---Though Law Officer had tried to justify the absence of semen by contending that as she was medically examined after a considerable span of time as she went to the police station first to get her statement recorded and thereafter got herself medically examined, therefore, seminal material could not be detected from the vaginal swabs, but said fact was not acceptable because 'Motile Spermatozoa' could be found for as long as 100 hours and non-motile for as long as 17 days---Sperms remained motile in the vagina for about two to three hours and non-motile forms were detectible for about twenty four hours and the sperms remained motile in the uterine cavity for 3-4 days--- In view of the said facts, absence of any motile and immotile sperm on vaginal swabs and opinion of Medical Expert had negated the version of prosecutrix regarding her alleged gang-rape---Prosecutrix also stated in her testimony that her clothes were fully stained with sperms (spermatozoa) of accused persons who allegedly committed rape with her continuously for seventeen days---Astonishingly those clothes of the prosecutrix were neither produced before the Investigating Officer nor sent for DNA test---Such aspect of the case further adversely hit the veracity of prosecution case and benefit of such doubt would go in favor of none else but the accused persons---Circumstances established that the prosecution had absolutely failed to prove its case against the accused persons beyond shadow of reasonable doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 364-A, 365-B, 376(2), 452, 148 & 149--- Kidnapping, abducting or inducing woman to compel for marriage, rape, house-trespass after preparation for hurt, assault or wrongful restraint, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Recovery of weapons of offence and crime empties---Reliance---Accused were charged for kidnapping the daughter of the complainant along with her minor daughter and raping her---Record showed that no crime empty was taken into possession by Investigating Officer from the alleged place of occurrence---Surprisingly, not a single crime empty could be recovered from place of occurrence despite the fact that it was alleged by the complainant that accused persons made indiscriminate firing for about half an hour---Alleged recovery of firearms on the pointing out of accused persons during the investigation remained legally inconsequential because no crime-empty had been secured from the place of occurrence so as to connect the recovered weapon with the occurrence in issue---In these circumstances, recovery of crime weapons was of no avail to the prosecution---Circumstances established that the prosecution had absolutely failed to prove its case against the accused persons beyond shadow of reasonable doubt---Appeal against conviction was allowed accordingly.

(g) Criminal trial---

----Recovery of crime weapon---Evidentiary value---Recovery of crime weapon is only a corroborative piece of evidence and same is valueless in the absence of credible direct evidence.

Naveed Asghar and 2 others v. The State PLD 2021 SC 600 rel.

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

----Ss. 364-A, 365-B, 376(2), 452, 148 & 149--- Kidnapping, abducting or inducing woman to compel for marriage, rape, house-trespass after preparation for hurt, assault or wrongful restraint, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence--- Acquittal of co-accused on same set of evidence---Rule of consistency---Accused were charged for kidnapping the daughter of the complainant along with her minor daughter and raping her---In the present case, Twenty-two (22) persons were indicted and stood trial---Seven accused were convicted and rest fifteen (15) accused were acquitted---Where same set of witnesses is disbelieved qua number of accused persons implicated in the case, it cannot be made foundation for conviction of rest of the accused persons in absence of strong and independent corroboration, which was conspicuously missing in the present case---Circumstances established that the prosecution had absolutely failed to prove its case against the accused persons beyond shadow of reasonable doubt---Appeal against conviction was allowed accordingly.

Altaf Hussain v. State 2019 SCMR 274 rel.

(i) Criminal trial---

----Benefit of doubt--- Principle--- Single circumstance creating reasonable doubt in a prudent mind regarding guilt of an accused is sufficient to extend such benefit to accused person(s) not as a matter of grace and concession but as a matter of right without slightest of hesitation.

The State through P.G. Sindh and others v. Ahmed Omar Sheikh and others 2021 SCMR 873; 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; Daniel Body (Muslim name Saifullah) and another v. The State 1992 SCMR 196 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

Malik Muhammad Saleem and Sheikh Muhammad Raheem for Appellants.

Ansar Yasin, Deputy Prosecutor General for the State.

Nemo for the Complainant.

2023 P Cr. L J 1588

[Lahore]

Before Tariq Saleem Sheikh, J

KABEER AKBAR---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 52233/B of 2022, decided on 8th December, 2022.

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

----S. 489-F--- Term "whoever"---Connotation---Liability of a company---Term "whoever" in S. 489-F, P.P.C., encompasses all offenders without distinction, whether natural or juristic persons---Criminal liability for dishonestly issuing a bad cheque is attributable to a company and it can be prosecuted.

Merriam-Webster Online Dictionary; The Oxford Advanced Learner's Dictionary (Eighth Edition); Corpus Juris Secundum, Vol. XCIV, p. 94; Seena M. Haniff & Co. v. Liptons Limited (23 Indian Cases 689) and Mst. Gulshan Bibi and others v. Muhammad Sadiq and others PLD 2016 SC 769 rel.

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

----S. 498---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a Bank cheque---Pre-arrest bail, confirmation of---Accused was CEO of company which entered into an agreement to purchase steel bars from complainant company---Bank cheque issued by accused company was dishonored and FIR was registered against accused---Plea raised by accused was that the bank cheque was to be encashed upon delivery of consignment and was so endorsed on the back of the instrument but complainant company breached its contractual obligations and illegally presented the cheque to the Bank---Validity---Criminal liability under S. 489-F, P.P.C., of the person signing the cheque on the company's behalf depended on his role, position and authority within the company---Mens rea of those managing the company's affairs, and its directing mind and will, may be attributed to it in certain circumstances---Prosecution was to prove that the particular person was in-charge of company's operations at the time of commission of offence---Offence under S. 489-F, P.P.C. was not one of strict liability and penal consequences depended on proof of dishonesty---Prima facie, the contention of accused that FIR was motivated by malice was not unfounded--- Pre-arrest bail was confirmed, in circumstances.

Mousell Brothers Limited v. London and North-Western Railway Company, [1917] 2 KB 836 (at p. 845); Lennard's Carrying Co Ltd v. Asiatic Petroleum Co Ltd [1915] AC 705; H.L. Bolton (Engineering) Co. Ltd. v. T.J. Graham and Sons Ltd. [1957] 1 QB 159; Tesco Supermarkets Ltd. v Nattrass, [1972] AC 153; Meridian Global Funds Management Asia Ltd. v. The Securities Commission, [1995] 2 AC 500; A-G's Reference (No. 2 of 1999), [2000] QB 796; St. Regis Paper Co Ltd., [2011] EWCA Crim 2527; New York Central and Hudson River Railroad Co. v. United States, 212 U.S. 481 (1909); Standard Chartered Bank and others v. Directorate of Enforcement and others (2005) 4 SCC 530; Iridium India Telecom Ltd. v. Motorola Incorporated and others AIR 2011 SC 20; Sunil Bharti Mittal v. Central Bureau of Investigation AIR 2015 SC 923; Muhammad Rashid v. The State PLD 1960 SC 168; Muhammad Yasin v. The State 1989 PCr.LJ 131; Rafiq Hussain v. Islamuddin and others PLD 1977 Kar. 183; State of Maharashtra v. Messrs Syndicate Transport Co. (Pvt.) Ltd. and others AIR 1964 Bombay 195; Muhammad Ayub and another v. The State 1980 PCr.LJ 429 and Pakistan International Airlines Corporation v. Khalid Waheed and others 1981 SCMR 573 rel.

Mian Tabassum Ali for Petitioner along with the Petitioner.

Muhammad Mustafa Ch., Deputy Prosecutor General with Tauqeer/ASI for the State.

Hafeez Saeed Akhtar and Haider Rasool Mirza as amici curiae.

2023 P Cr. L J 1623

[Lahore (Bahawalpur Bench)]

Before Ch. Abdul Aziz, J

RAFIQUE AHMED---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 890-B of 2021, decided on 16th April, 2021.

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

----S. 497---Penal Code (XLV of 1860), S. 161---Prevention of Corruption Act (II of 1947), S. 5(2)---Illegal gratification---Bail, grant of---Deficiencies in raid proceedings---Patwari was allegedly caught red-handed taking illegal gratification from the first informant for issuance of Fard Malkiat in order to get mutation entered in favour of his wife---Record revealed that raid proceedings were carried out after almost two months of the mutation-in-question having been entered and which (mutation) was sanctioned 16/17 days prior to registration of FIR---Even no assignment of the first informant was pending on the day when the case was registered---No member of raiding party heard conversation between the two while passing money---Application of the first informant was received by the Anti-Corruption Establishment after just one day of the filing of an application before the Sessions Judge for deputing a Magistrate to supervise raid proceedings---Section 161 of Penal Code, 1860 as well as S. 5(2) of PCA, 1947, entailed punishment less than ten years while both did not attract prohibitory clause of S. 497 of Criminal Procedure Code, 1898---Petitioner was no more required by the Anti-Corruption Establishment for investigation---Bail was allowed, in circumstances.

Bashir Ahmad v. The State 2001 SCMR 634; Dr. Iftikhar Ahmed Seehar v. The State 2014 YLR 1385; Muhammad Suleman v. The State 2013 PCr.LJ 1051; Imtiaz Ali v. The State 2017 MLD 146 and Sameen Jan (Naib Tehsildar) and another v. The State and another PLD 2011 SC 509 ref.

(b) Punjab Land Revenue Act (XVII of 1967)---

----Ss. 41, 42 & 43---Maintenance of revenue record---Functions to be performed by the Patwaris---Practice of Patwaris engaging private person(s) as their Munshi for performance of the acts assigned to them (Patwaris) under the law---Legality---Report requisitioned by the High Court revealed that numerous privately engaged persons were working as Munshi to the Patwaris, which did not fit into legal mythology---Apart from notified Patwarkhanas, the Munshis were working at rented buildings at prime localities through their own financial resources---Low-paid Patwaris and their said Munshis were at helms of the affairs throughout the province of Punjab---Such practices were giving vent to corruption in the revenue circles---Previously certain directions were passed by the Supreme Court in such regard which were binding upon all Executive and Judicial Authorities---High Court deprecated that despite said directions no steps had been taken to curb such malpractices---High Court disposed off the matter while passing directions to the Authorities, including Senior Member Board of Revenue and Director General Anti-Corruption Establishment to take concrete steps to curb malpractices of engaging private persons in affairs of the Patwaris.

Suo Motu Case PLD 2001 SC 1041 and Muhammad Adnan v. The State and others 2018 YLR Note 156 ref.

Syed Zeeshan Haider for Petitioner.

2023 P Cr. L J 1646

[Lahore (Rawalpindi Bench)]

Before Ch. Abdul Aziz, J

MAKHDOOMZADI GAUHAR BANO QURESHI---Petitioner

Versus

PROVINCE OF PUNJAB through Chief Secretary, Punjab and others-- Respondents

Writ Petition No. 1955 of 2023, decided on 6th June, 2023.

West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3 [as amended by Punjab Maintenance of Public Order (Amendment) Ordinance 2017]---Constitution of Pakistan, Art. 199---Constitutional petition---Alternate and efficacious remedy---Scope---Detention---Public safety---Petitioner assailed detention of her father under S. 3(1) of West Pakistan Maintenance of Public Order Ordinance, 1960, by the authorities---Plea raised by authorities was that petitioner had an alternate remedy available---Validity---Representation under S. 3(6) of West Pakistan Maintenance of Public Order Ordinance, 1960 was an alternate remedy but in view of the process involved therein, it in no manner could be termed as efficacious in nature, so as to oust Constitutional jurisdiction of High Court---Order of detention of father of petitioner did not fit into statutory requirement of S. 3 of West Pakistan Maintenance of Public Order Ordinance, 1960---High Court set aside the order of detention and detenu was ordered to be released forthwith---High Court observed that in case of any apprehension of future involvement of detenue in activity prejudicial to public safety, the same could be plugged by getting a bond under S. 3(9) of West Pakistan Maintenance of Public Order Ordinance, 1960 [as amended by Punjab Maintenance of Public Order (Amendment) Ordinance 2017] from the detenue---Constitutional petition was allowed accordingly.

Federation of Pakistan through Secretary, Ministry of Interior, Islamabad v. Mrs. Amatul Jalil Khawaja and others PLD 2003 SC 442 and The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279 ref.

Dr. Muhammad Shoaib Suddle v. Province of Sindh through Secretary, Home Department, Sindh Civil Secretariat, Karachi and another 1999 PCr.LJ 747 rel.

Barrister Taimur Altaf Malik and Barrister Faiza Asad for Petitioner.

2023 P Cr. L J 1675

[Lahore]

Before Syed Shahbaz Ali Rizvi, J

AFZAL NAZIR---Appellant

Versus

COLLECTORATE, TAXATION AND ANTI-SMUGGLING, LAHORE and others---Respondents

Criminal Appeal No. 15248 of 2020, decided on 27th September, 2022.

Customs Act (IV of 1969)---

----Ss. 156(1), 156(8)(i), 156(70) & 185-F---Notification SRO No.1017(I)/98, dated 21-7-1998---Smuggling of foreign currency---Appreciation of evidence---Accused was alleged to be carrying illegal foreign currency which was recovered from his possession at airport---Trial Court convicted the accused and sentenced him to imprisonment for five years with fine---Validity---To establish fact of valid possession of foreign currency with accused in the light of clause (e) of Notification SRO No.1017(I)98 dated 21-07-1998, accused produced print out of email sent by Money Exchange Company along with attachment of forex receipt issued in his name; original bank statement evincing banking transaction of personal account of accused; electronic printout of email forwarded by accused to representative of Money Exchange Company---Trial Court erroneously read clauses (d) and (f) with clause (e) of Notification SRO No.1017(I)98 dated 21.7.1998---Provision of clause (e) of Notification SRO No.1017(I)98 dated 21.7.1998 was an independent clause that spoke about the persons not ordinarily residing in Pakistan like accused---Prosecution failed to prove its case against accused beyond shadow of reasonable doubt, in circumstances---If there is a single circumstance which has created reasonable doubt regarding credibility of prosecution case, the same is sufficient to give benefit of the same to accused---High court set aside sentence and conviction awarded to accused by Trial Court and he was acquitted of the charge---Appeal was allowed, in circumstances.

Lal Khan v. The State 2006 SCMR 1846 and Muhammad Rafique and others v. The State and others 2010 SCMR 385 ref.

2006 SCMR 1609 distinguished.

Maqbool Hussain Sheikh and Mian Talat Mahmood for Appellant along with Appellant.

Muhammad Faisal Nawaz for Appellant (in Criminal Miscellaneous Nos. 1 and 2 of 2022).

Ms. Amna Parveen, Special Prosecutor for Customs for the State.

2023 P Cr. L J 1688

[Lahore (Bahawalpur Bench)]

Before Raheel Kamran, J

MUHAMMAD LATIF---Petitioner

Versus

The STATE and another---Respondents

Writ Petition No. 573-Q of 2022, decided on 1st February, 2022.

(a) Interpretation of statutes---

----Preamble to a statute---Scope---Although preamble to a statute is not operative part thereof, however, the same provides a useful guidance for determining the purpose and intention of the legislature behind the enactment.

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

----Ss. 419, 420, 468, 471 & 109---Federal Investigation Agency Act, 1974 (VIII of 1975), Ss. 3(1), 4(1) & Sched.---Constitution of Pakistan, Art. 199---Impersonating a candidate during an exam for recruitment in Federal Investigation Agency--- Quashing of FIR---Federal Investigation Agency (FIA)---Jurisdiction to register and investigate an FIR---Through the Federal Investigation Agency Act, 1974 ('the Act'), the FIA, in terms of Schedule to the Act, has been granted jurisdiction to take cognizance in respect of several offences under the Pakistan Penal Code, 1860 ("P.P.C.") which are cognizable by the local police also---For the FIA to exercise its jurisdiction in the matter of offences enumerated in the Schedule to the Act, there has to be some nexus between the offences complained of and the Federal Government---Offences under Ss. 419, 420, 468 & 471, P.P.C., specified in the impugned FIR, are included in the Schedule to the Act---Additionally, the offence of abetment punishable under S. 109, P.P.C. has also been made cognizable by the FIA under S. 3 of the Act---Impugned FIR was registered against the petitioner (accused) when allegedly he was appearing in a computer based test for recruitment in the FIA while impersonating a candidate, therefore, the impugned FIR prima facie discloses commission of the said offence against the agency of the Federal Government---Superintendence and administration of the FIA vests in the Federal Government in terms of S. 4(1) of the Act---FIA was, therefore, possessed of lawful authority to take cognizance in the present case, register the impugned FIR and investigate the same---Neither the petitioner pleaded particulars of mala fide of complainant (Sub-Inspector FIA) or his motive to falsely implicate the petitioner nor has he placed any material on record to establish the same---Constitutional petition seeking quashing of FIR was dismissed, in circumstances.

Director General FIA and others v. Kamran Iqbal and others 2016 SCMR 447 ref.

Director General FIA and others v. Kamran Iqbal and others 2016 SCMR 447 distinguished.

(c) Constitution of Pakistan---

----Art. 199--- Criminal Procedure Code (V of 1898), S. 154---Constitutional jurisdiction of the High Court---Scope---Allegations leveled against an accused in the FIR---While exercising constitutional jurisdiction, the High Court cannot determine the falsehood or otherwise of the allegations leveled against the accused, which comes within the exclusive jurisdiction of the Trial Court.

Habib Ahmad v. M.K.G. Scott Christian PLD 1992 SC 353; Imtiaz Ahmad v. Government of Pakistan 1994 SCMR 2142; Col. Shah Sadiq v. M. Ashiq and others 2006 SCMR 276; Seema Farooq v. The State 2008 SCMR 281 and Dr. Sikandar Ali Mohi-ud-Din v. Station House Officer and others 2021 SCMR 1846 ref.

(d) Mala fide---

----Proof---Mala fide must be pleaded with particularity---Wage and general allegations have no value in the eye of law.

Rehan Malik for Petitioner.

Mian Muhammad Shahid Akhtar, Assistant Attorney General along with Musarrat Ayub, Sub-Inspector FIA, Bahawalpur for Respondents.

2023 P Cr. L J 1720

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Abbasi and Muhammad Tariq Nadeem, JJ

SHAHZEB---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 72 of 2017, decided on 9th June, 2022.

(a) Administration of justice---

----If a thing is required to be done in a particular manner, that should be done in that manner and not otherwise.

Irfan Ali alias Ghulam Raza alias Ramzan v. The State 2011 YLR 522 rel.

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

----S. 9(c)---Transportation of narcotics---Appreciation of evidence---Safe custody and safe transmission of samples to the Forensic Science Laboratory not established---Benefit of doubt---Prosecution case was that 33 maunds crushed dodas of post were recovered in 35 toras and two boras from the truck, driven by the accused---In the trial, it was essential for the prosecution to establish through cogent and convincing evidence that the alleged contraband was seized from the possession of the accused and was kept in safe custody in the Malkhana at police station and thereafter samples separated from each tora/bora of contraband were sent to the office of Chemical Examiner for analysis but there was no explanation for prosecution's failure to establish safe custody of recovered contraband---Samples so deposited in the office of Chemical Examiner could not be tagged with samples taken from the seized substance from the possession of the accused---Thus, no evidence was available to connect the report of Chemical Examiner with the substance that was seized from the possession of the accused---In that view of the matter the prosecution had not been able to establish that after the alleged recovery the substance so recovered was either kept in safe custody or that the samples taken from the recovered substance had safely been transmitted to the office of the Chemical Examiner without the same being tampered with or replaced while in transit---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039; Amjad Ali v. The State 2012 SCMR 577; Ikramullah v. The State 2015 SCMR 1002; Haji Nawaz v. The State 2020 SCMR 687 and Qaiser Khan v. The State 2021 SCMR 363 rel.

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

----Ss. 9(c) & 36---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.5 & 6---Transportation of narcotics---Appreciation of evidence---Reports of Government Analysts---Result of test or analysis---Protocols applied not mentioned---Effect---Prosecution case was that 33 maunds crushed dodas of post were recovered in 35 toras and two boras from the truck, driven by the accused---Report of Chemical Examiner was vague since it did not show the nature of protocols observed and test applied, hence, there was violation of Rr. 5 & 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001---In the instant case, required test was not applied on the basis of which Chemical Examiner had concluded that the samples sent to him for chemical examination contained crushed poppy heads---Chemical Examiner had failed to provide the details that how much quantity, he had tested---When the report was not prepared in the prescribed manner then it might not qualify to be called a report in the context of S. 36 of the Control of Narcotic Substances Act, 1997 and such report of Chemical Examiner would lose its sanctity and it could not be relied upon for the purposes of conviction---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039; Khair-Ul-Bashar v. The State 2019 SCMR 930; Qaiser Javed v. The State PLD 2020 SC 57 and Muhammad Boota v. The State 2020 SCMR 196 rel.

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

----S. 9(c)---Transportation of narcotics---Appreciation of evidence---Benefit of doubt---Contradictions in statement of official witness---Prosecution case was that 33 maunds crushed dodas of post were recovered in 35 toras and two boras from the truck, driven by the accused---As per prosecution story, on 13.05.2014 at 08:00 a.m. complainant along with other contingents of the police halted the truck at picket near a Chowk and apprehended accused along with his co-accused (since PO) and upon search of the truck 33 maunds crushed poppy "Dodaas", which were lying in 35 toras and 02 boras (bags), were recovered---Noticeable that complainant/Investigating Officer had prepared complaint on 13.05.2014 at 09:30 a.m. whereas during his cross-examination, he had stated that it took 5 to 6 hours in weighing and sampling the contraband---If complainant/Investigating Officer in weighing and sampling process of contraband took time 5 to 6 hours then, such mentioned proceedings would be completed between 1:00 p.m. to 2:00 p.m. then how it was possible that without weighing and sampling the recovered contraband detail of same could be mentioned prior to the time in the complaint at 09:30 a.m.---In such way, it was evident from the prosecution evidence that all the proceedings of recovery as well as registration of FIR were completed within a period of one hour and 55 minutes---Said contradictory versions taken by the prosecution witness, who was complainant as well as Investigating Officer of the case was not minor in nature rather it touched the root of the case and badly damaged the case of the prosecution and was also sufficient to create dent 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 accordingly allowed.

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

----S. 9(c)--- Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Transportation of narcotics---Appreciation of evidence---Benefit of doubt---Withholding material evidence---Important witness given up---Prosecution case was that 33 maunds crushed dodas of post were recovered in 35 toras and two boras from the truck, driven by the accused---Record showed that although examination-in-chief of Head Constable/recovery witness was recorded on 22.08.2016 but the cross-examination upon said witness was reserved for 27.08.2016 as lawyers were observing strike---Subsequently, the prosecution gave up said witness being unnecessary---According to the prosecution case, said witness accompanied the complainant along with other contingent of the Police Station and in his presence alleged contraband was recovered from the truck driven by the accused---After preparing complaint, complainant sent the said witness along with complaint for registration of formal FIR at Police Station---In such situation, examining of the said witness, who carried the complaint to the Police Station for registration of crime report, was necessary but said witness was given up by the prosecution without any cogent reasoning---Thus, adverse inference in the light of Art. 129(g) of the Qanun-e-Shahadat, 1984 could be drawn, which casted serious doubt upon the story of 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 accordingly allowed.

Minhaj v. The State 2019 SCMR 326 rel.

(f) Criminal trial---

----Benefit of doubt---Principle---Benefit of even a slightest doubt in the prosecution case must be extended to the accused.

Muhammad Hashim v. The State PLD 2004 SC 856 and Ameer Zaib v. The State PLD 2012 SC 380 rel.

(g) Criminal trial---

----Benefit of doubt--- Principle--- Single circumstance creating reasonable doubt will be sufficient to cast doubt about the veracity of the prosecution case and the benefit of said doubt has to be extended in favour of the accused not as a matter of grace or concession but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345; Akhtar Ali and others v. The State 2008 SCMR 6 and Muhammad Zaman v. The State and others 2014 SCMR 749 rel.

Talat Mehmood Zaidi for Appellant.

Sajjad Hussain Bhatti, D.P.G. for the State.

2023 P Cr. L J 1771

[Lahore]

Before Aalia Neelum and Farooq Haider, JJ

MUHAMMAD FAROOQ---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 23151 and Murder Reference No. 94 of 2019, decided on 10th January, 2023.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay in lodging FIR---Accused was charged that he along with his co-accused committed murder of the brother-in-law of the complainant by firing---Perusal of application for registration of case and FIR revealed that both said documents did not contain receipt of application for registration of case by the police at the spot and then transmitting the same to the police station for registration of case--- Furthermore, A.S.I., who scribed FIR, categorically stated that on 31.05.2018, he was posted as A.S.I./Duty Officer at the police station and complainant submitted application before him and on the basis of the same, he drafted FIR---Said witness further stated that complainant reached at police station at about 07:30 a.m. and at that time he was all alone---Both such stances were contradictory and the mystery that when and where application was moved by the complainant for registration of case to the police either at the place of occurrence or at the police station, could not be resolved which raised question marks in that regard---Moreover, it was crystal clear that case was not registered at the stated time rather with much delay, therefore, neither any sanctity nor evidentiary value could be attached to said FIR and same could not provide any corroboration to the case of prosecution--- Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of six hours and thirty minutes in conducting postmortem examination---Accused was charged that he along with his co-accused committed murder of the brother-in-law of the complainant by firing---Perusal of application for post-mortem examination revealed that same was forwarded to C.M.O. at 03:20 p.m. on 31.05.2018 whereas statement of Medical Officer reflected that dead body was received in the mortuary at 09:50 a.m. on 31.05.2018---Police papers were received in the mortuary on 31.05.2018 at 04:00 p.m. and post-mortem examination over dead body of the deceased was conducted at 04:20 p.m. on the same day---Medical Officer also categorically stated that due to non-production of relevant documents i.e. inquest report, application for autopsy and FIR, the postmortem could not be conducted---As per FIR, deceased of the case succumbed to the injuries at the spot but question arose that if case was registered at the claimed time i.e. 07:45 a.m., then why police papers were not dispatched with dead body which was received in the mortuary at 09:50 a.m.---Answer to such question was very simple that same were not prepared till then---Such sort of delay in conducting post-mortem examination dislodged promptness of recorded FIR and it reflected that none of the cited eye-witnesses was present at the time and place of occurrence and time had been consumed for procuring, inducing witnesses and after deliberation and consultation concocting story for 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 accordingly allowed.

Sufyan Nawaz and another v. The State and others 2020 SCMR 192 rel.

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

----S. 154---First Information Report---Delay in lodging FIR---Effect---First Information Report lays foundation of the criminal case and when it has not been promptly recorded rather with delay and no reasonable explanation regarding its delayed recording has come on the record, then it is fatal for the case of prosecution.

Haroon Shafique v. The State and others 2018 SCMR 2118; Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068; Tariq Mehmood v. The State and others 2019 SCMR 1170; Tariq Ali Shah and another v. The State and others 2019 SCMR 1391 and Safdar Mehmood and others v. Tanvir Hussain and others 2019 SCMR 1978 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Chance witnesses---Accused was charged that he along with his co-accused committed murder of the brother-in-law of the complainant by firing---Record showed that the sister and son-in-law of the deceased had furnished ocular account of the incident---Admittedly, both said eye-witnesses were not residents of the place of occurrence, so, they were chance witnesses---Though in the application for registration of case it was recorded by the complainant that on the day of occurrence of the case, both the eye-witnesses were accompanying deceased for going to Court with respect to date of hearing of the case because said deceased was nominated in a criminal case---Whereas both the said witnesses had to meet accused arrested in said case and that's why they were coming with deceased---However, it was mandatory for the prosecution to prove that said criminal case was pending before the Court and on that day, date of hearing was fixed in said case but attested copy of order sheet, cause list or any other document to prove/substantiate said contention/version was not produced during trial of the case---Hence, cause claimed by the prosecution with respect to eye-witnesses accompanying the deceased to Court in connection with date of hearing in a case, could not be established, therefore, their testimonies being suspect evidence could not be believed--- Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Muhammad Ameer and another v. Riyat Khan and others 2016 SCMR 1233; Naveed Asghar and 2 others v. The State PLD 2021 SC 600; Sufyan Nawaz and another v. The State and others 2020 SCMR 192 and Mst. Mir Zalai v. Ghazi Khan and others 2020 SCMR 319 rel.

(e) Criminal trial---

----Witness--- Chance witness--- Scope--- Chance witness has to plausibly/reasonably explain and prove reason of his presence at the time and place of occurrence.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Mouth and eyes of the deceased partially open---Effect---Accused was charged that he along with his co-accused committed murder of the brother-in-law of the complainant by firing---Both the eye-witnesses stated that assailants made 4/5 fire shots at the deceased of the case but they did not utter even a single word regarding locale of receipt of injuries---Perusal of column No. 8 of the inquest report reflected that eyes and mouth of the deceased were found as semi opened---Said state of affairs raised eyebrows regarding presence of said eye-witnesses at the time and place of occurrence particularly when they both were closely related to the deceased---Had they been present at the place of occurrence, at the relevant time, then they would have definitely closed the eyes and mouth of the deceased---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

Muhammad Asif v. The State 2017 SCMR 486 rel.

(g) Criminal trial---

----Dishonest improvements by witness--- Scope--- Witness who introduces dishonest improvements for strengthening the case, can not be relied upon.

Muhammad Arif v. The State 2019 SCMR 631 and Khalid Mehmood and another v. The State and others 2021 SCMR 810 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence--- Benefit of doubt---Contradictions in statements of witnesses---Accused was charged that he along with his co-accused committed murder of the brother-in-law of the complainant by firing---Complainant claimed that though he was not eye-witness of the occurrence yet he was told about the occurrence by the witnesses---However, one of the eye-witnesses categorically stated that she did not tell the complainant about the occurrence---As per site plan when assailant made firearm shots at the deceased, distance between them was 5-feet---Meaning thereby that if length of arm of the assailant was subtracted, then there should be definitely blackening on the entry wounds received by the deceased but the Medical Officer had categorically stated that there was no blackening in the wounds---Though it was claim of the prosecution that cited eye-witness was also accompanying the deceased on the motorcycle but neither said witness disclosed any registration number, model, company, colour of said motorcycle nor produced the same during investigation/trial of the case---Said motorcycle of witness was not even shown in site plan---Perusal of Inquest Report reflected that neither the complainant nor cited eye-witnesses identified the dead body of the deceased of the case---Similarly, Inquest Report was neither attested by the complainant nor cited eye-witnesses rather same was attested by other witnesses---Thus, testimonies of the complainant and both the cited eye-witnesses were neither confidence inspiring nor trustworthy, hence, could not be relied in a case of capital punishment---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of pistol from accused and empties from the spot---Inconsequential---Accused was charged that he along with his co-accused committed murder of the brother-in-law of the complainant by firing---Record showed that pistol was recovered from the accused---As per report of Forensic Science Agency, four empties/cartridge cases secured from the place of occurrence, were not found as having been fired from said pistol---Thus, said recovery was inconsequential and of no help to the case of prosecution---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of motorcycle from the spot---Inconsequential---Accused was charged that he along with his co-accused committed murder of the brother-in-law of the complainant by firing---So far as recovery of motorcycle taken into possession by the Investigating Officer through recovery memo at the alleged place pointing out of co-accused and statedly used in the occurrence, was concerned, suffice to say that since any model, company, number or colour of the motorbike was not given in the FIR, therefore, same could not provide any corroboration to the case of prosecution---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Medical evidence---Accused was charged that he along with his co-accused committed murder of the brother-in-law of the complainant by firing---Since no locale of injuries was mentioned in the ocular account therefore, medical evidence could not give any confirmation to said extent---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

(l) Criminal trial---

----Medical evidence---Scope---Medical evidence is mere supportive type of evidence, it can tell about locale, nature, magnitude of injury and kind of weapon used for causing injury but it cannot tell about identity of the assailant who caused the injury---Thus, medical evidence is of no help to the prosecution in peculiar facts and circumstances of the case.

Sajjan Solangi v. The State 2019 SCMR 872 rel.

(m) Criminal trial---

----Motive---Scope---When substantive piece of evidence in the form of ocular account has been disbelieved, then motive is of no help to the case of prosecution as the same loses its significance---Furthermore, motive is a double edged weapon and in peculiar facts of the case, can also be considered as a reason for roping the accused in the case.

Sohail Shafique for Appellant.

Rana Ahsan Aziz, Additional Prosecutor General for the State.

Malik Muhammad Riaz Awan for the Complainant.

2023 P Cr. L J 1806

[Lahore]

Before Aalia Neelum and Ali Zia Bajwa, JJ

AZIZ KHAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 39152 of 2019, heard on 20th September, 2022.

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

----S. 9(c)---High Court (Lahore) Rules and Orders, Vol. III, Chapt. 24, Part-B, R. 14-H---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Report of Forensic Science Laboratory not exhibited---Effect---Prosecution case was that four packets of charas weighing 10 kilograms and 200 grams was recovered from the car of the accused---Perusal of the record available on the file reflected that on 22.01.2019, Moharrar handed over sample parcels to the complainant for its submission to the office of Forensic Science Agency, which were deposited there on 23.01.2019---Report of Forensic Science Agency, in that regard, was prepared on 15.02.2019---Though, said report had been annexed with the record of the Trial Court, however, it was not exhibited during the course of trial---Statement of prosecutor dated 17.05.2019 was made before the Court without oath wherein it was incorporated that report of Forensic Science Agency was tendered in evidence---However, original report of Forensic Science Agency available with the record of the Trial Court reflected that it was never exhibited---Exhibit meant a document exhibited for the purpose of being taken into consideration in deciding some question or other in respect of the proceeding in which it was filed---Rule 14-H, Part-B, Chapter-24, Volume III of the High Court (Lahore) Rules and Orders provided a self-explanatory procedure for exhibiting a document to be read in evidence, which had been blatantly overlooked in the present case by the Trial Court---In the present case, undeniably, the report of Forensic Science Agency could not be exhibited during the course of trial, therefore the same could not be taken into consideration to maintain conviction of the accused---When no report of Forensic Science Agency could be exhibited during the course of trial to be read in evidence, recovery of entire narcotic substance allegedly recovered from the accused became inconsequential, thus, prosecution case fell to the ground---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed accordingly.

Rakhaldas Pramanick v. Sm. Shantilata Ghose and others AIR 1956 Cal. 619 rel.

(b) Criminal trial---

----Benefit of doubt---Principle---A single circumstance creating reasonable doubt, will be sufficient to smash the veracity of prosecution case and is enough to extend the benefit of doubt in favour of the accused, not as a matter of grace or concession but as of right.

Qaisarullah and others v. The State 2009 SCMR 579 rel.

Hafiz Naimat Ullah and Nazir Ahmad Asad for Appellant.

Ikram Ullah Khan Niazi, Deputy Prosecutor General for the State.

2023 P Cr. L J 1834

[Lahore]

Before Farooq Haider, J

MUHAMMAD AFZAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 64331-J and Criminal Revision No. 43121 of 2019, heard on 6th March, 2023.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Contradictions and lapses in evidence---Accused was charged for committing murder of his wife/sister of the complainant by firing---As per prosecution case, occurrence took place at 03.00 p.m. on 07.07.2009 in the house of complainant, which was at a distance of1/2 kilometer from the Police Station---Police reached at the place of occurrence and complainant recorded his statement regarding the occurrence at 04.00 p.m. to SI there, which was sent to the Police Station and FIR was recorded---However, SI while recording his statement in the Court clearly stated that he recorded statement of the complainant when he was on patrol duty and thereafter reached at the place of occurrence---So, place of recording statement of complainant for registration of case was under a cloud---In the statement of complainant and FIR, it was mentioned that deceased of the case received firearm shots when she was taking meal/food while sitting on the cot in upper portion of the house and it was not mentioned with exactness that either she was available in the room, veranda or courtyard of said portion of the house---Similarly, it was mentioned in statement that after receiving firearm shots, deceased fell but it was not mentioned that she fell on ground---In Column No.24 of the Inquest Report, it was clearly shown that dead body was found on cot but neither said cot nor any blood of the deceased from said cot was taken into possession during investigation of the case rather blood was statedly secured from the floor---Case of prosecution was that deceased was taking meal/food but neither any residue of food nor any utensil was secured during investigation of the case and even same was not mentioned as available, near or around the dead body of the deceased at the place of occurrence in Columns Nos.22 and 23 of the Inquest Report---Though it was alleged that deceased lady received various firearm shots and as per Post-mortem Examination Report, there were entry and exit wounds yet no empty shell or foreign metallic body fired from any bullet was found from the spot---Any marks of hitting or striking of any such foreign metallic body at cot, floor, wall or roof of the house, were also not found and in that regard in the site plans of the place of occurrence and Columns Nos. 22 and 23 of the Inquest Report, therefore, exact place of occurrence, was also under a cloud---Last worn clothes of the deceased were neither blood stained nor had holes of firearm shots---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was accordingly dismissed.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Medical evidence contradicting claimed time of death---Accused was charged for committing murder of his wife/sister of the complainant by firing---Post-mortem report of the deceased and statement of Medical Officer clearly showed that death of the deceased was immediate after receipt of injuries hence it was a sudden death, therefore, according to established principles of Medical jurisprudence, onset of rigor mortis was later and its duration was longer---Thus, the opinion given by the Medical Officer regarding time between death and post-mortem as five to six hours was mere ipse dixit and not according to settled principles of Medical jurisprudence on the subject---Thus, when Medical Officer had himself observed that rigor mortis was fully developed, then by no stretch of imagination, time between death and post-mortem of the deceased person could be considered as less than twelve hours---Therefore, medical evidence had negated that occurrence took place at the stated/alleged time and when exact time of occurrence had not been proved by the prosecution, then entire superstructure of the case of prosecution fell---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was accordingly dismissed.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular account and medical evidence---Contradictions---Accused was charged for committing murder of his wife/sister of the complainant by firing---Though, complainant claimed himself as resident of house of occurrence as well as an eye-witness, yet close scrutiny of the record revealed that complainant in his statement and also during statement before the Court stated that accused fired consecutive shots with pistol upon his sister, which hit her on the bicep of left arm, front side of abdomen, left rib and right bicep but as per Post-mortem Examination Report, no entry wound on front of abdomen and no entry wound on left rib of the deceased was found---If eye-witnesses had themselves opted to narrate exact locale of the entry wounds in their statements and same was not confirmed by medical evidence, then no one else but prosecution had to suffer---So, ocular version deposed by complainant had not been supported/confirmed in stricto sensu by medical evidence---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was accordingly dismissed.

(d) Criminal trial---

----Dishonest improvements--- Scope--- Witness, who introduced dishonest improvements for strengthening the case, could not be relied upon.

Muhammad Arif v. The State 2019 SCMR 631 and Khalid Mehmood and another v. The State and others 2021 SCMR 810 rel.

(e) Criminal trial---

----Witness---Reliability---Witness who denied admitted facts could not be termed as reliable witness.

Arshad Masih v. The State 2006 MLD 1078; Muhammad Riaz v. The State 2007 PCr.LJ 446 and Muhammad Ramzan and another v. The State 2008 YLR 1859 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---No justification for the presence of eye-witness at the spot---Chance witness---Accused was charged for committing murder of his wife/sister of the complainant by firing---So far as eye-witness was concerned, he was admittedly not resident of the place of occurrence rather lived 5/6 kms. away from the place of occurrence---Admittedly, said witness did not have any business or office in the area of place of occurrence during the relevant time---So, said eye-witness was a chance witness and no explanation/plausible reason regarding his presence at the time and place of occurrence was mentioned in his statement and FIR---Said witness tried to introduce reason of his presence at the spot as settling a family dispute between deceased and accused and for such purpose three other persons including a neighbor were allegedly present there---Said neighbor did not state such fact---Therefore, testimony of said witness, who was a chance witness, was suspect evidence and could not be accepted without pinch of salt---Furthermore, locale of receipt of firearm shots by deceased i.e. in front of abdomen and left rib as narrated by eyewitness, was not confirmed by medical evidence and entry wounds at right renal area and on breast of the deceased were not mentioned by said eye-witness, hence his version was also not supported/confirmed by medical evidence stricto sensu--- So, prosecution's ocular account was neither trustworthy nor confidence inspiring, hence not reliable---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was accordingly dismissed.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; G. M. Niaz v. The State 2018 SCMR 506; Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652; Sufyan Nawaz and another v. The State and others 2020 SCMR 192 and Mst. Mir Zalai v. Ghazi Khan and others 2020 SCMR 319 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of pistol from the possession of accused---Inconsequential---Accused was charged for committing murder of his wife/sister of the complainant by firing---Record showed that a pistol was recovered from the accused---As per report of Forensic Science Agency, said recovered pistol was not functional---In absence of recovery of any empty from the place of occurrence, said recovery was inconsequential and could not provide any corroboration to the case of prosecution---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was accordingly dismissed.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive not proved---Accused was charged for committing murder of his wife/sister of the complainant by firing---As far as motive was concerned, it was notable that in case of murder of a person by his trusted/closely related person, if any cause of murder was alleged/claimed by the prosecution, same attained vital importance---In the present case, complainant categorically claimed that due to institution of suit for recovery of maintenance allowance in Family Court by the deceased lady, which was decreed in her favour, accused bore a grudge and committed her murder---However, during cross-examination, it came out from the mouth of the complainant that suit for recovery of maintenance allowance was decreed on condition of rehabilitation of his deceased sister with accused---Moreover, it was not mentioned in the statement and FIR that after decree of the suit, whether deceased went to the house of the accused or was residing with him but he did not pay the maintenance allowance and she filed petition for execution of the decree---Without such facts there was no cause of annoyance/grudge for the accused to commit murder of the deceased---Therefore, motive had rightly not been believed by the Trial Court---Even otherwise, when substantive piece of evidence in the form of ocular account had been disbelieved, then motive was of no help to the case of prosecution as the same lost its efficacy---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was accordingly dismissed.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Absconsion of the accused---Accused was charged for committing murder of his wife/sister of the complainant by firing---So far as abscondance of the accused was concerned, suffice to say that it had to be proved like any other fact---However, in the present case, warrant of arrest revealed that it was not issued to any Police Officer or public servant for execution rather through such warrant accused was asked to arrest accused---Similarly, it had not been mentioned in the proclamation that in how much period or till which date, accused had to surrender, therefore, both warrant and proclamation were defective, as mandatory requirements in the same had not been fulfilled and prosecution could not prove this limb of its case---Abscondance was not proof of the charge---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was accordingly dismissed.

Wajeeh-ul-Hassan v. The State 2019 SCMR 1994; Khalid Mehmood alias Khaloo v. The State 2022 SCMR 1148 and Rohtas Khan v. The State 2010 SCMR 566 rel.

Mrs. Bushra Qamar with Ch. Hamood-ur-Rehman Waseem Zafar for Appellant.

Ms. Nuzhat Bashir, Deputy Prosecutor General along with Haroon Rasheed, Deputy Prosecutor General for the State.

Muhammad Muzaffar Samore for the Complainant.

2023 P Cr. L J 19

[Peshawar]

Before Lal Jan Khattak and Musarrat Hilali, JJ

SAJID---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 354-P of 2018, decided on 2nd November, 2021.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of twenty four hours in lodging FIR---Scope---Accused was charged for committing murder of the deceased by firing---Record showed that occurrence took place on 31.07.2015 at 04.15 p.m., while report was lodged on the same day at 05.20 p.m., whereas the FIR was chalked on the following day, at 05.35 p.m., after the delay of twenty four hours with no explanation---Contents of FIR further revealed that after registration of the case, it was handed over to Police Official---Investigating Officer in cross-examination admitted that an inquiry was conducted by Police Official---Investigating Officer further admitted that the said inquiry was not available on record nor he had gone through the said inquiry report---Said evidence was suggestive of the fact that the FIR was lodged after considerable consultations and deliberation and after conducting preliminary investigation in the case---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Contradictions in the statement of witnesses---Scope---Accused was charged for committing murder of the deceased by firing---Record showed that the testimony of the Investigating Officer was not in line with the contents of report because he stated in his cross-examination that the occurrence took place in the field of an another person while as per contents of FIR the occurrence took place in the playground---Investigating officer further stated that he had investigated the case regarding cricket match and found that there was cricket match at the relevant time---Similarly, the report of injured complainant was recorded on 31.07.2015 at 05.20 p.m., while according to the Medico Legal Report, the victim was brought by Police Official on 31.07.2015 at 05.00 p.m., while, as per report the injured was brought by an other person---Police Official stated in cross-examination that the victim was taken by a passerby and the people who brought the injured to the hospital were present at the time of scribing the report---Said witness further stated that the report was not endorsed by the doctor, therefore, possibility could not be ruled out that name of the accused might have been shown by the people present with the deceased then injured at the time of recording report, thus, in the present scenario, the dying declaration was not free from doubt---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt--- Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Withholding of material witnesses---Scope---Accused was charged for committing murder of the deceased by firing---Investigating Officer had stated that there was a cricket match between two teams in the playground, therefore, people would have been present on the spot but none of them was produced by the prosecution---Similarly, according to the report of deceased, then injured, he was brought by one private person, but neither his statement was recorded by police under S. 161, Cr.P.C., nor cited him in the calendar of witnesses nor he was produced before the Trial Court for recording his statement, as such, withheld its best evidence---If a best piece of evidence was available with a party and the same was withheld, then it was presumed that the party had some sinister motive behind it in not producing the said evidence, therefore, presumption under illustration (g) to Art. 129 of Qanun-e-Shahadat, 1984 could fairly be drawn in the case---Circumstances established that the prosecution had miserably failed to prove its case against the accused beyond reasonable doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Non-recovery of crime empty and blood form the place of occurrence---Scope---Accused was charged for committing murder of the deceased by firing---Record showed that neither any empty nor blood was recovered from the spot and even the Investigating Officer had not verified the site plan through the injured complainant after his discharge from the hospital, nor the site plan borne the date of its preparation, which aspect of the case also created doubt in the prosecution story---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

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

----Art. 46--- Dying declaration--- Scope---Dying declaration is the statement which is made by the victim of homicide offences as to cause of his death---Rule relating to dying declaration and its admissibility is provided in Art. 46 of the Qanun-e-Shahadat, 1984, which says that the statement of dying man is relevant and admissible in evidence, however, for recording such declaration no particular mode has been provided---Sub-Article (1) of Art. 46 of the Qanun, provides that when the evidence or statement of a person, who is dead, relates to the cause of his death or as to any of the circumstances of the transaction, which resulted in his death---Such statement becomes relevant and gains evidentiary value because of the special circumstances that the person, who made such statement, was no more alive/available---Dying declaration is a weak type of evidence and is similar to the statement of an interested witness, therefore, requires close scrutiny and is not to be believed merely for the reason that dying person is not expected to tell a lie.

Abdur Rahim alias Rahima v. The State and others PLD 2003 SC 662; Mst. Zahida Bibi v. The State PLD 2006 SC 255; Farman Ahmed v. Muhammad Inayat 2007 SCMR 1825 and Tahir Khan v. The State 2011 SCMR 646 rel.

(f) Criminal trial---

----Medical evidence---Scope---Medical evidence might confirm the ocular evidence with regards to receipt of injuries, nature of the injuries, kinds of weapon used in the commission of offence but it would not connect the accused with the commission of the offence.

Shabbir Hussain Gigyani for Appellant.

Ali Zaman for the Complainant.

Arshad Ahmad, Additional A.G. for the State.

2023 P Cr. L J 65

[Peshawar (D.I. Khan Bench)]

Before Ishtiaq Ibrahim and Muhammad Faheem Wali, JJ

RIAZ MUHAMMAD---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 35-D and Criminal Miscellaneous No. 19-D of 2019, decided on 17th May, 2022.

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 brother of the complainant by firing---Accused got recorded his confessional statement before the Assistant Commissioner, on the basis of which, accused was convicted and sentenced---Defence mainly argued that the conviction and sentence so awarded to the accused was illegal as, after the merger of FATA into province Khyber Pakhtunkhwa, the Assistant Commissioner/ADM was having no jurisdiction to try criminal cases thus, the impugned order being void was liable to be set-aside---Validity---Record showed that the impugned order was passed by the Assistant Commissioner by exercising powers as Additional District Magistrate--- Regulation 2(f) of the FATA Interim Governance Regulation (FIGR), 2018 recognized an Assistant Commissioner to be a Judge to adjudicate criminal matters in each tribal district and vested with the requisite powers under the Code of Criminal Procedure, 1898, to try offences---Clauses 3 & 4 of the Regln. 7 further conferred all the ordinary powers of a Magistrate of the First Class as specified in Schedule I and additional powers as specified in Part I of Sched. IV of the Cr.P.C. upon the Assistant Commissioner to pass any sentence of imprisonment or fine, or both, as provided by the Regulation---When exercising powers of a Deputy Commissioner under the FATA Interim Governance Regulation, 2018 (FIGR), an Assistant Commissioner shall be deemed, for the purpose of regulation, to be the District Magistrate and shall exercise all or any of the powers specified in the First Schedule of the Regulation---Procedure of the trial in criminal case, conviction and manner of enforcing sentences, had been provided in Reglns. 13, 16 & 17 respectively---As per provisions of Regln. 13 that upon commission of any cognizable offence, falling within the competence of Deputy Commissioner, the same shall be registered and after arrest of accused, he shall be produced before the Judge within 24 hours of his arrest, who shall refer the matter to the Council of Elders for its finding on facts but after holding necessary inquiry, hearing parties and witnesses---Council of elders shall submit its findings on the fact to the judge and latter shall record its findings on the legal issues, if any, and pass order accordingly---Said specific provision for hearing parties and their witnesses by the council of elders before recording its finding on facts, become more nuanced when viewed in the constitutional context---Admittedly, and undeniably, after the arrest of accused, the matter was not referred by the Assistant Commissioner/Judge to the Council of Elders for recording its finding on facts after inquiry and hearing parties and their witnesses---Judge could pass sentence under Regln. 16 only after satisfying the mandate of Regln. 13(3) and that could be done subject to submission of findings on facts by the Council of Elders---Hence, provisions of S. 16 were supplemental to S. 13(3) and could not be applied in isolation thereto---Sentence could be enforced under Regln. 17 in the cases where provisions of Regln. 16 were fulfilled---As the matter was not referred to the council of elders for recoding its findings on facts and non-compliance of mandatory provisions of Regln. 13 invalidated the impugned conviction and sentence by the Assistant Commissioner/ ADM---For that reason, the impugned conviction and sentence were legally unwarranted, and that fact brought the appeal of accused within the scope of Arts. 9, 10-A & 14 of the Constitution---Accordingly, the delay in filing the appeal is condoned and while treating the appeal within time allowed this appeal, set aside the impugned conviction and sentence awarded to the accused, passed by Assistant Commissioner/ADM and remanded his case for de novo trial.

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

Saif-ur-Rehman Khan Gandapur for Appellant.

Adnan Ali, Assistant Advocate General for the State.

Asad Aziz Mehsud for the Complainant.

2023 P Cr. L J 100

[Peshawar (Abbottabad Bench)]

Before Shakeel Ahmad, J

Mufti KIFAYAT ULLAH---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous (BA) No. 652-A with Criminal M. No. 731-A of 2021, decided on 2nd July, 2021.

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

----S. 497---Penal Code (XLV of 1860), Ss. 506, 505, 503, 153-A, 131, 124-A, 120-A, 120-B & 188---Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7 & 11-X---Sedition---Bail, grant of---Scope---Accused was alleged to have made anti-State/anti-establishment comments---Insertion, applicability and attraction of Ss. 153-A, 131, 124-A, 120-A & 120-B, P.P.C. and Ss. 6, 7 & 11 of Anti-Terrorism Act, 1997, required further probe into guilt of the accused---Rest of the sections of law i.e. Ss. 505, 506 & 188, P.P.C. did not fall within the ambit of prohibition contained in S. 497, Cr.P.C.---Grant of bail in such like offence was a rule and refusal thereon an exception---Reasonable grounds were available on record to believe that the prosecution case required further probe into the guilt of accused---Petition for grant of bail was allowed, in circumstances.

Hazrat Wali v. The State 2008 PCr.LJ 611 and Muhammad Tanveer v. The State PLD 2017 SC 733 ref.

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

----S. 153-A---Promoting enmity between different groups---Scope---Section 153-A, P.P.C. takes into account the act of promoting enmity between groups and classes---It is intended to prevent accused from making attacks on a particular community as it exists at the present time and also to curb various classes from coming into conflict by mutual abuse and recrimination and to prevent breaches of public tranquility which might result from exciting feelings of enmity between different religious, racial or language groups or castes or communities.

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

----S. 131---Abetting mutiny, or attempting to seduce a soldier, sailor or airman from his duty---Scope---Section 131 of P.P.C. can be attracted when an offender abets the committing of mutiny by an officer, soldier, sailor or airman in the Army, Navy or Air Force or attempts to seduce any such officer, soldier, sailor or airman from the allegiance of his duty.

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

----S. 131---Abetting mutiny, or attempting to seduce a soldier, sailor or airman from his duty---Mutiny---Scope---Term mutiny has not been defined in the P.P.C.---Mutiny implies a collective insubordination to obey high command, a revolt, a resistance or refusal to obey lawful command especially in the military and naval services.

(e) Words and phrases---

----Mutiny---Scope---In criminal law, mutiny means an insurrection of soldiers or seamen against the authority of their commanders, a sedition or revolt in the Army or Navy---One is guilty of mutiny who with intent to usurp or override lawful military authority refers in concert with any other person or persons to obey orders or otherwise do his duty or creates any violence or disturbance.

Black's Law Dictionary ref.

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

----S. 124-A--- Sedition---Scope---Section 124-A of P.P.C. provides measures to protect government from seditious activities, actual or attempted disaffection oral or advocacy as to over throw the Government (Central or Provincial) by force or violence.

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

----S. 11-X--- Responsibility for creating civil commotion---Scope---Subsections (2) & (3) of S. 11-X of Anti-Terrorism Act, 1997 come into play when an accused makes any call for action or shut down, imposed through the use of threats or force resulting in damage or destruction of property or injury to person.

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

----Ss. 6 & 7---Act of terrorism---"Terrorism"---Scope---For attraction of the provisions of S. 7 of Anti-Terrorism Act, 1997, it is necessary that ingredients of alleged offence must have nexus with the object of case as contemplated in S. 6 of the Anti-Terrorism Act, 1997, and for this purpose it would be essential to have a glance over allegations made in the crime report, record of case and surrounding circumstances.

Kamran Murtaza, Syed Amjad Shah and Yasir Huda for Petitioner.

Sajid-ur-Rehman Khan, Assistant Advocate General for Respondents.

2023 P Cr. L J 154

[Peshawar]

Before Syed Arshad Ali and Muhammad Naeem Anwar, JJ

NAVEED DAUD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 41-P of 2021, decided on 9th July, 2021.

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

----Ss. 9(c) & 35---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4---Trafficking of narcotics---Dispatch of sample for test or analysis---Appreciation of evidence---Benefit of doubt---Scope---Accused was convicted for having been apprehended while trafficking thirty six kilograms of charas in his motorcar---Evidence revealed that neither motorcar was registered in his name nor a driving license was taken into possession from him---Material discrepancies existed in the statements of prosecution witnesses which also gave a hint that the prosecution case was not free from doubt---All three important witnesses of the prosecution viz, complainant, Investigating Officer and marginal witness to the recovery memo. were oblivious as to departure from the police station and arrival back to the police station nor there were any written diaries in that respect---Complainant also showed his ignorance on certain material points---Samples were delivered in the Forensic Laboratory after a delay of about five days whereas the same were required to have been sent to the Forensic Laboratory within 72 hours of its seizure as required by R. 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001---Tests on samples were carried out by the Chemical Examiner, who was not qualified to be termed as a Government Analyst within the meaning of S. 35 of the Control of Narcotic Substances Act, 1997 and the rules framed thereunder, thus, he was so declared with retrospective effect---Conviction rendered by the Special Court was set aside---Accused was acquitted of the charge---Appeal against acquittal was allowed, in circumstances.

Pir Noroz Ali Shah v. The State 2019 PCr.LJ 457; Khair ul Bashar v. The State 2019 SCMR 930; Muhammad Naeem v. The State and others PLD 2019 SC 669 and Qaiser Javed Khan v. The State PLD 2020 SC 57 rel.

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

----S. 35--- Government Analyst--- Scope--- When the person who furnishes opinion and analyzing the samples is not qualified to be termed as Government Analyst under S. 35 of the Control of Narcotic Substances Act, 1997 and Rules framed thereunder then such report, even if it be in positive, is of no avail to the prosecution as it cannot be relied upon.

Malik Nasuminallah for Appellant.

Atif Ali Khan, A.A.G. for the State.

2023 P Cr. L J 174

[Peshawar]

Before Rooh ul Amin Khan and Ishtiaq Ibrahim, JJ

HARIS---Appellant

Versus

ZAHOOR KHAN and another---Respondents

Criminal Appeal No. 279-P and Murder Reference No. 8-P of 2021, decided on 22nd March, 2022.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Substitution---Scope---Accused was charged for committing murder of the son of complainant by firing---First Information Report revealed that occurrence had taken place which had been reported on the same day at 08:35 p.m., in emergency room of hospital by father of deceased, wherein he had directly and singularly charged accused for murder of the deceased with firearm--- Accused was directly and singularly charged for murder of the deceased and substitution of accused in such like cases was a rare phenomenon.

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

(b) Criminal trial---

----Benefit of doubt--- Conviction--- Principles--- For recording conviction strong and corroborative evidence of unimpeachable character is required and that findings of guilt against accused must not be based on probabilities to be inferred from evidence, rather must rest surely and firmly on the evidence of unimpeachable character, otherwise, the golden rule of benefit of doubt will be reduced to naught.

(c) Criminal trial---

----Witness---Presence of eye-witnesses at the spot---Scope---Witness who claimed to be the eye-witness of the occurrence must prove his presence at the spot at the time of occurrence and would satisfy mind of the Court qua his presence through some physical circumstances or corroborative evidence.

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

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Presence of complainant at the spot at the time of occurrence was doubtful---Chance witness---Scope---Accused was charged for committing murder of the son of complainant by firing---Ocular account of the incident had been furnished by the complainant/father of the deceased being eye-witness---On reappraisal of the testimony of complainant, it could be held that complainant was not present at the time of occurrence, as such was a procured witness---Complainant had not furnished any explanation, much less plausible, about his presence at the spot along with his brother at the time of occurrence---Complainant had also failed to prove his presence at the spot at the time of occurrence through some strong physical circumstance---Circumstances established that the Trial Court failed to appreciate the evidence available on record in its true perspective, thus, had arrived at an erroneous conclusion by holding the accused guilty of the offence---Appeal against conviction was allowed, in circumstances.

(e) Criminal trial---

----Chance witness--- Scope--- Testimony of a chance witness is ordinarily not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time, because in normal course, the presumption under the law would be that such witness was absent from the crime spot.

Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 rel.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Recovery of weapon of offence from the accused and crime empties from the spot---Reliance---Scope---Accused was charged for committing murder of the son of complainant by firing---Record showed that .30-bore pistol was recovered from possession of the accused and positive Forensic Science Laboratory Report about the said pistol with .30 bore crime empty allegedly recovered by Investigating Officer---However, complainant in his statement had categorically denied recovery of any .30 bore crime empty from the spot by the Investigating Officer in his presence---Besides, .30 bore crime empty had been shown recovered from the spot by the Investigating Officer but the same had not been sent to the Forensic Science Laboratory on the same day, rather was allegedly handed over by him to Moharrir of the Police Station for safe custody---Accused had been shown arrested by SHO/witness during raid on his house---Said witness admitted that there were residential houses around the house of the accused and he further admitted that he had not associated any elder of the locality during raid and recovery proceedings---Said witness also admitted that the accused had not made any resistance at the time of his arrest---Arrest of the accused inside his house without associating any note-able of the area coupled with the factum of no resistance of the accused created the serious doubt about the recovery of the alleged crime pistol because it did not appeal to a prudent mind that a person charged for murder would keep pistol in folding of his shalwar inside his house and would not make any effort to escape on noticing the Police Officials---In such state of affairs, pistol and ammunitions shown recovered from the accused was a planted piece of evidence on the part of the Investigating Officer just to strengthen the prosecution's case---Circumstances established that the Trial Court failed to appreciate the evidence available on record in its true perspective, thus, had arrived at an erroneous conclusion by holding the accused guilty of the offence---Appeal against conviction was allowed in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Delay in sending the weapon of offence and crime empties for analysis---Scope---Accused was charged for committing murder of the son of complainant by firing---Allegedly, .30 bore crime empty had been shown recovered from the spot and the crime pistol after almost a week---Empty had not been sent to the Forensic Science Laboratory on the same day---Similarly, the pistol along with crime empty had also not been sent to the Forensic Science Laboratory, rather sent to the Forensic Science Laboratory after almost a week---Whether empty and the pistol remained during the said period in safe custody or otherwise, no explanation, much less plausible had been furnished by the prosecution---No doubt, Forensic Science Laboratory Report about the crime empty and pistol was in positive, but the empty recovered from the spot should be sent to the laboratory without any delay, failing which such recovery evidence would not be free from doubt and could not be used against the accused---Circumstances established that the trial court failed to appreciate the evidence available on record in its true perspective, thus, had arrived at an erroneous conclusion by holding the accused guilty of the offence---Appeal against conviction was allowed, in circumstances.

Ghulam Akbar and another v. The State 2008 SCMR 1064; Jehangir v. Nazar Farid and another 2002 SCMR 1986; Muhammad Younus Khan v. The State 1992 SCMR 545 and Attaullah and others v. The State PLD 1990 Pesh. 10 rel.

(h) Criminal trial---

----Crime weapon and empty---Sending the weapon of offence and crime empty to the laboratory for analysis---Scope---If the crime empty is 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 loses its evidentiary value.

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.

(i) Criminal trial---

----Recovery of weapon of offence and crime empty---Recovery of crime empty or rifle with matching report of Forensic Science Laboratory is a corroborative piece of evidence, which by itself is not sufficient for conviction of the accused in absence of substantive evidence.

Noor Muhammad v. The State and another 2010 SCMR 97 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive was not proved---Scope---Accused was charged for committing murder of the son of complainant by firing---Motive behind the occurrence as alleged by the complainant was that the accused was forbidding the deceased from friendship with a person---Record showed that the motive part of the prosecution story remained shrouded in mystery---Said person from whose company and friendship the accused was allegedly forbidding the deceased had neither been examined by the Investigating Officer nor produced in the witness box---Similarly, no other proof in respect of motive had been brought on record by the prosecution---Circumstances established that the Trial Court failed to appreciate the evidence available on record in its true perspective, thus, had arrived at an erroneous conclusion by holding the accused guilty of the offence---Appeal against conviction was allowed, in circumstances.

(k) Criminal trial---

----Medical evidence---Scope---Medical evidence is only supporting piece of evidence, which may confirm the ocular account with regard to receipt of injury, nature of the injury, kind of weapon used in the occurrence but it will not tell the name of the assailant.

Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53; Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 and Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 rel.

(l) Criminal trial---

----Benefit of doubt---Principle---If any single doubt arises, benefit of the same must be given to accused, as the accused is always considered a most favourable child of law.

Tariq Pervez v. The State 1995 SCMR 1345; Muhammad Akram v. The State 2009 SCMR 230 and Faryad Ali's case 2008 SCMR 1086 rel.

Shabbir Hussain Gigyani for Appellant.

Muhammad Nisar Khan, A.A.G. for the State.

Fawad Hussain for Respondent.

2023 P Cr. L J 259

[Peshawar (Mingora Bench)]

Before Muhammad Ijaz Khan, J

SHAH NAWAZ KHAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 160-M of 2022, decided on 19th September, 2022.

Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019)---

----Ss. 10 & 11(b)---Recovery of methamphetamine---Appreciation of evidence---Police witnesses, evidence of---Accused was convicted and sentenced by Trial Court for 10 years imprisonment along with fine---Validity---Seizing officer, or any other prosecution witness, did not have any ill-will or grudges or motive for false implication of accused---Such was not even remotely suggested to accused during course of trial---Consistent, trustworthy and confidence inspiring evidence of prosecution witnesses was free from any kind of manipulation---Prosecution successfully established safe custody of contraband as well as safe transmission of parcels from the spot to police station and from police station to Forensic Science Laboratory (FSL)---Result of FSL so obtained showed that contraband recovered from accused was ICE (methamphetamine)---All prosecution witnesses were consistent, coherent and in line with prosecution case and their evidence could not be disbelieved on any score---Trial Court had rightly convicted accused after finding him guilty of commission of offence by recording valid reasons in its judgment---Appeal was dismissed accordingly.

Shabbir Hussain v. The State 2021 SCMR 198; Faheem Ullah v. The State 2021 SCMR 1795; Faisal Shahzad v. The State 2022 SCMR 905; Liaqat Ali and another v. The State 2022 SCMR 1097; Khadim Hussain v. The State PLD 2010 SC 669 and Muhammad Ilyas v. The State 2011 SCMR 460 ref.

Sabir Shah, Advocate Supreme Court for Appellant.

Sohail Sultan, Assistant A.G. for Repondents.

2023 P Cr. L J 310

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

NOOR REHMAN and another---Appellants

Versus

The STATE through Additional Advocate General, Darul Qaza, Swat and another---Respondents

Criminal Appeal No. 55-M of 2014, decided on 24th September, 2020.

Penal Code (XLV of 1860)---

----Ss. 302, 322 & 34---Pakistan Arms Ordinance (XX of 1965), S.13---Criminal Procedure Code (V of 1898), S. 345---Qatl-i-amd, qatl-bis-sabab, common intention, possessing illicit weapon---Appreciation of evidence---Sentence, reduction in---Compounding the offence---Accused were charged for committing murder of the deceased---Motive behind the occurrence was that the accused were suspecting the deceased to be of immoral---Record showed that legal heirs of the deceased had effected compromise with the accused persons at trial stage---Murder having been allegedly committed on the pretext of honour, was non-compoundable in terms of S. 345, Cr.P.C, however; the said bar was introduced through Criminal Law (Amendment) (Offences in the Name of or on Pretext of Honour) Act, 2016 and later on extended to PATA---Thus, the main question which arose at that juncture was that as to whether the said Act could be applied to the present case which was committed prior to the enforcement of the Act---Admittedly, the clog on compromise in honor killing cases was introduced through Criminal Law (Amendment) (Offences in the Name or on Pretext of Honour) Act, 2016---Prior to that the offence of honour killing was compoundable though of course with permission of Court, however, thereafter the said Amendment Act, 2016, was brought restricting compromise in honor killing cases---Moot questions before the Court were whether the said Act would have retrospective effect on the present case and what would be the relevant date of composition of the offence in question---Relevant date of composition of offence would be the date on which the occurrence took place---Alleged honour killing took place in 2011 and by that time the said offence was compoundable albeit with permission of Court, therefore, the bar of compromise introduced through the Amendment Act, 2016, could not be made retrospectively applicable to the case---Certainly, the bar to compound the offence so introduced in the Amendment Act, 2016, would take away certain rights of the present accused persons available to them under the existing law---Established rule in such eventuality was that every statute which took away or impaired vested rights enjoyed by a person under the existing law must be presumed to be intended not to have retrospective effect---Although the said rule was not applicable in matters of procedure, however, if a statute dealing together with rights and procedure at the same time then the Courts must prefer the construction to protect the existing rights under the old procedure---Report of the Trial Court showed that major legal heirs of the deceased had effected a genuine compromise with the present accused persons without any pressure whereas interests of the minor legal heirs had been protected through deposit of their share in Diyat amount in profitable account---Resultantly, the appeal was accepted on the basis of compromise, the impugned judgment was set aside and accused persons were acquitted of the charges.

Muhammad Arif and another v. The State and another 1993 SCMR 1589 and Asif Ali Zardari v. The State 1993 PCr.LJ 781 rel.

Farman Ali Khan for Appellants.

Razauddin, A.A.G. for the State.

2023 P Cr. L J 367

[Peshawar]

Before Lal Jan Khattak and Shahid Khan, JJ

ZAHID KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 164-P of 2022, decided on 28th July, 2022.

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

----S. 7---Penal Code (XLV of 1860), Ss. 387, 506, 419 & 34---Telegraph Act (XIII of 1885), S. 25-D---Act of terrorism, putting person in fear of death or of grievous hurt in order to commit extortion, criminal intimidation, cheating by personation, penalty for causing annoyance---Appreciation of evidence---Benefit of doubt---Scope---Prosecution case against accused pertained to demand of donation (Bhatta), criminal intimidation, cheating, etc. from the complainant---Prosecution witnesses had never ever attributed the alleged threatening calls to the accused and had expressed their ignorance regarding the alleged threat calls---Complainant had repeatedly disclosed that the demand with respect to the event in hand from the caller was with respect to donation for the welfare of orphans and widows and nothing as such was highlighted which could give slight presumption of Bhatta amounting to extortion---Evidence led by the prosecution suffered from material contradictions and discrepancies which made the prosecution case highly doubtful---Trial Court had not appreciated evidence in its true perspective, reached to a wrong conclusion by holding the accused guilty of the offence---Appeal against conviction was allowed, in circumstances.

2023 P Cr. L J 398

[Peshawar]

Before Mohammad Ibrahim Khan, J

FARMAN HUSSAIN---Petitioner

Versus

The STATE---Respondent

Criminal M. B.A. No. 2177-P of 2022, decided on 28th July, 2022.

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

----S. 497---Penal Code (XLV of 1860), Ss. 489-F & 420---Dishonestly issuing a cheque---Cheating and dishonestly inducing delivery of property---Bail, refusal of---Scope---Accused sought bail after arrest in an FIR lodged under Ss. 489-F & 420, P.P.C.---No mala fide or ulterior motive had been attributed on the part of the complainant to falsely implicate the accused in the case---Before his dismissal from service, the accused was serving as Director Finance of the college, who had robbed the college by committing breach of trust---Accused by filing his affidavit and executing an agreement with the college administration of his own sweet will, had provided cheques of different nominations for its payment on different dates---First cheque given by the accused had been dishonoured due to insufficient funds---Bail application was dismissed, in circumstances.

Abdul Saboor v. The State through A.G. KPK and another 2022 SCMR 592 and Muhammad Ishaq v. The State and another 2018 YLR Note 140 ref.

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

----S. 497---Penal Code (XLV of 1860), S. 498-F---Dishonestly issuing a cheque---Bail, refusal of---Scope---Dishonouring of the cheque even if become part of prosecution evidence bring home the charges would entail punishment to the maximum 3 years or with fine or with both but it is also to be taken into consideration that when there is exception for refusal of bail even for the offence where grant of bail is a rule, bail may be and can be refused---Mere fact that an offence does not fall within the prohibitory clause of S. 497(1), Cr.P.C. would not mean that such an offence had become a bailable offence---Discretion still remains with the competent Court to consider whether a person accused of such an offence does or does not deserve the grant of bail in accordance with established norms governing the exercise of such a power.

Afzaal Ahmed v. The State 2003 SCMR 573; Muhammad Afzal v. The State 1997 SCMR 278 and Imtiaz Ahmed v. The State PLD 1997 SC 545 ref.

2023 P Cr. L J 436

[Peshawar (Abbottabad Bench)]

Before Mohammad Ibrahim Khan, J

MUHAMMAD RAHAT FAREED---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous (Bail) No. 762-A of 2020, decided on 17th September, 2020.

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

----Ss. 497 & 164-B---Penal Code (XLV of 1860), Ss. 377 & 34---Khyber Pakhtunkhwa Child Protection and Welfare Act (XIII of 2010), Preamble, Ss. 2(1)(e) & 53---Unnatural offences, otherwise than on grave provocation and common intention---Child at risk---Sexual abuse---DNA test---Bail, grant of---Delayed FIR---Contradiction in medical and ocular evidence---Scope---Accused was charged for committing carnal intercourse against the order of nature with the minor son of complainant---First Information Report was lodged with a delay of about seven hours which was not explained---Except solitary statement of the complainant, no other eye-witness was cited so as to support his version---Report of Forensic Laboratory revealed that semen of human origin was not detected on the articles sent to Forensic Laboratory, which went in favour of the accused---Section 164-B, Cr.P.C. had not been complied with because no samples for DNA test had been obtained either from the accused or victim despite the fact that the word "shall" was used in the said provision, making its applicability mandatory---Keeping the Preamble of the Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010 in juxtaposition with the definition of the "child at risk" as contemplated under S. 2(1)(e) of the Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010, coupled with the facts and circumstances of the case, it could not be ascertained as to whether the alleged victim fell under the definition of "child at risk" or otherwise---Applicability of S. 53 of the Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010, to the case of accused was yet a begging question---Investigation in the case was complete and the accused was no more required to the prosecution for the very purpose---Case called for further inquiry under subsection (2) of S. 497, Cr.P.C.---Bail application was allowed, in circumstances.

2016 SCMR 1523; 2014 MLD 190 and 2018 YLR Note 114 ref.

(b) Khyber Pakhtunkhwa Child Protection and Welfare Act (XIII of 2010)---

----Preamble---Scope---Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010 was specially introduced/enacted and promulgated in the Khyber Pakhtunkhwa with particular purposes i.e. to provide for the care, protection, maintenance, welfare, training, education, rehabilitation and reintegration of "children at risk".

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

2023 P Cr. L J 475

[Peshawar]

Before Qaiser Rashid Khan, C.J. and Ijaz Anwar, J

SHAFIQ-UR-REHMAN and another---Petitioners

Versus

The STATE---Respondent

Criminal Appeal No. 808-P with Criminal Miscellaneous No. 546-P of 2022 converted into Criminal Miscellaneous Quashment Petition No. 83-P of 2022, decided on 20th September, 2022.

Criminal Procedure Code (V of 1898)---

2023 P Cr. L J 496

[Peshawar (Abbottabad Bench)]

Before Mohammad Ibrahim Khan, J

FAKHAR ZAMAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous (B.A.) No. 748-A of 2021, decided on 15th July, 2021.

Criminal Procedure Code (V of 1898)---

2023 P Cr. L J 544

[Peshawar (Abbottabad Bench)]

Before Wiqar Ahmed and Fazal Subhan, JJ

MUHAMMAD AZAM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 216-A of 2019, decided on 5th October, 2022.

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

2023 P Cr. L J 577

[Peshawar]

Before Ishtiaq Ibrahim, J

YASIR KHAN and another---Petitioners

Versus

The STATE through Advocate-General, Khyber Pakhtunkhwa, Peshawar

and another---Respondents

Criminal Revision No. 62-P of 2022, decided on 18th July, 2022.

Criminal Procedure Code (V of 1898)---

2023 P Cr. L J 608

[Peshawar]

Before Shakeel Ahmad and Shahid Khan, JJ

ZULFIQAR ADDITIONAL SHO, POLICE STATION JAMRUD AT JAMRUD DISTRICT KHYBER and 2 others---Petitioners

Versus

ZULFAT SHAH and 2 others---Respondents

2023 P Cr. L J 635

[Peshawar]

Before Rooh-ul-Amin Khan, J

MUHAMMAD IKRAM---Petitioner

Versus

The STATE---Respondent

Criminal Misc. Quashment Petition No. 106-P of 2021, decided on 24th January, 2022.

(a) Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019)---

2023 P Cr. L J 693

[Peshawar]

Before Abdul Shakoor and Shakeel Ahmad, JJ

JUMA KHAN---Appellant

Versus

ZARIF and another---Respondents

Criminal Appeal No. 144-P of 2022, decided on 19th September, 2022.

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

2023 P Cr. L J 826

[Peshawar (Abbottabad Bench)]

Before Wiqar Ahmad and Kamran Hayat Miankhel, JJ

NOOR-UR-REHMAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 118-A of 2019, decided on 18th May, 2022.

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

----S. 302(c)---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd--- Appreciation of evidence---Specific plea of self defence---Scope---Accused was charged for committing murder of the son of complainant by firing---Motive was stated to be entrance of deceased at the house of accused for search of his pigeons---Accused had taken specific plea of self defence and even otherwise if accused had not taken plea of self defence in his statement recorded under S. 342, Cr.P.C., but if the circumstances of the case and the evidence so produced reflected that the accused acted in self-defence the benefit could be extended to him---Appeal was partially allowed.

Ghulam Farid v. The State 2009 SCMR 929 rel.

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

----S. 302(c)---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd---Appreciation of evidence---Plea taken by the accused in his statement recorded under S. 342, Cr.P.C.---Scope---Accused was charged for committing murder of the son of complainant by firing---Motive was stated to be entrance of deceased at the house of accused for search of his pigeons---Accused had taken specific plea in his statements under S. 342, Cr.P.C., that in his self defence he made firing upon the deceased---Though the accused acted in his defence but had exceeded what was required for his defence---Accused should have made aerial shot instead of directly firing upon the deceased---No doubt, the accused had not repeated and only one fire shot had been made which hit the deceased on his right thigh---Complainant as well as the eye-witness during course of cross-examination admitted to be correct that there was no previous enmity between them meaning thereby that if the deceased had not entered in the house of accused no offence would have been taken place---Record depicted that deceased had himself committed illegal trespass in the house of accused---Accused was living alone with his two daughters and the illegal trespass of the deceased annoyed the accused and thus resulted in the present occurrence---Moreover, the fire was made at the non-vital part of the deceased and after making firing from shotgun the accused had got three more live cartridges but he did not make any fire on the vital part of the deceased though the deceased was at the mercy of the accused for sufficient time---Said facts led to the conclusion that the accused had exercised his right of self defence, therefore, the sentence of fourteen years was excessive and sentence of ten years would meet ends of justice in the circumstances of the case---Appeal was partially allowed by reducing the sentence.

Ravez Akhtar for Appellant.

Mojahid Khan, A.A.G. for the State.

Masood Azhar for the Complainant.

2023 P Cr. L J 865

[Peshawar (Mingora Bench)]

Before Muhammad Ijaz Khan, J

IJAZ AHMAD and others---Appellant

Versus

The STATE through A.A.G. and others---Respondents

Criminal Appeals Nos. 102-M, 97-M and Criminal Revision No. 27-M of 2022, decided on 27th June, 2022.

Penal Code (XLV of 1860)---

----S. 494---Marrying during lifetime of husband---Appreciation of evidence---Void marriage---Pre-condition---Accused persons were alleged to have married with each other during existence of valid marriage of lady accused---Trial Court convicted both the accused persons and sentenced them to imprisonment for four years---Validity---For establishing an offence under S. 494, Cr.P.C., existence of void marriage was a sine qua non---Provision of void marriage could not be pressed in cases of irregular or voidable marriages---Husband of lady accused was living therefore without proper separation from him she could not have entered into second marriage, and as such, her marriage with her co-accused was a void marriage---Lady accused was a married woman and male co-accused could not have entered into marriage with her during existence of first marriage who had willfully contracted void marriage---High Court declined to interfere in conviction and sentence awarded to both the accused persons by Trial Court---Appeal was dismissed, in circumstances.

Mst. Nazir Yasin v. Yasin Faryat PLD 2000 Lah. 594; Abdul Sattar v. Mst. Zahida Perveeen and 10 others 1991 MLD 403 and Mst. Payari v. Faqir Chand Alakha AIR 1961 PH-549 rel.

Azad Bakht Khan for Appellants (in all cases).

Sohail Sultan, Assistant A.G. for the State (in Criminal Appeals Nos. 102-M and 97-M of 2022).

Anwar-ul-Haq (Tarmizi) for the Complainant (in Criminal Appeals Nos. 102-M and 97-M of 2022).

Shaibar Khan for Appellants (in Criminal Appeal No. 97-M of 2022).

Azad Bakht Khan for Respondent No. 1 (in Criminal Revision No. 27-M of 2022).

Shaibar Khan for other Respondents (in Criminal Revision No. 27-M of 2022).

2023 P Cr. L J 945

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmed, JJ

ANWAR BADSHAH---Appellant

Versus

STATE through Additional Advocate General and another---Respondents

Criminal Appeal No. 392-M of 2019, decided on 23rd September, 2021.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Minor as sole eye-witness---Delay in recording the statement of witness---Effect---Accused was charged that he along with his father committed murder of the daughter of complainant---Prosecution had examined minor daughter of the deceased aged six years as the sole eye-witness of the occurrence---As per record, the occurrence took place on 25.06.2018 at unknown time whereas the minor witness was examined under S. 164, Cr.P.C., before the concerned Judicial Magistrate on 09.07.2018, after 14 days of the occurrence---According to her admission in cross-examination that she had told the entire story to her maternal grandfather (complainant) at evening time, which was most probably the evening of the day of occurrence but despite that she was not associated with the process of investigation from the very inception---Prosecution had never explained with reasons non-association of the child witness with investigation from the initial stage nor her examination under S. 164, Cr.P.C., at a belated stage had been justified with reasons---No doubt existed regarding innocence of the child witness but on the other hand possibility could not be ignored that she was associated with the case by complainant and police as a false eye-witness of the occurrence and such possibility was substantiated by her emergence in the case after 14 days of the occurrence---Thus, testimony of the minor witness in the case in view of her belated introduction as eye-witness of the occurrence could not be considered as genuine---Circumstances established that prosecution case was suffering from glaring inconsistencies and infirmities creating serious doubts regarding the mode and manner of the occurrence as well as involvement of the present accused in commission of the offence---Appeal was allowed by setting aside conviction and sentence awarded to the accused and he was acquitted accordingly.

Abdul Khaliq v. The State 1996 SCMR 1553 and Muhammad Asif v. The State 2017 SCMR 486 rel.

(b) Criminal trial---

----Witness---Statement of witness recorded at belated stage---Scope---Belated examination of a witness without plausible explanation annuls his credibility.

(c) Criminal trial---

----Witness---Child witness---Scope---Evidence of a witness cannot be rejected because of his age factor rather the test of competency of a witness is his capacity to understand the questions and to give rational answers.

Amir Khan and others v. The State PLD 1985 Lah. 18 and State through Advocate-General, Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Place of occurrence doubted---Effect---Accused was charged that he along with his father committed murder of the daughter of complainant in a jungle---Record showed that minor brother of the eye-witness also sustained multiple abrasions and scratches on both his cheeks, forehead and buttock in the same occurrence as was evident from medical report, prepared by Medical Officer after examining the said kid after three days of the occurrence---According to the contents of site plan, the kid fell from the lap of deceased when she was hit by accused in the uneven land of the jungle---Sustaining bruises and scratches by the kid in the mentioned place being uneven and slope stand to reason but on the other hand prosecution, in light of the statement of the child witness, had changed the place of occurrence from jungle to residential room of the deceased where though falling of the kid from the lap of her mother was certain but coming of multiple abrasions and scratches on both his cheeks, forehead and buttock in a room was repellent to reason---Prosecution itself was not sure regarding the actual place of occurrence, hence, the mode and manner of the occurrence was highly doubtful---In such situation, on the basis of finding of the trial court, the accused could not be convicted---Circumstances established that prosecution case was suffering from glaring inconsistencies and infirmities creating serious doubts regarding the mode and manner of the occurrence as well as involvement of the present accused in commission of the offence---Appeal was allowed by setting aside conviction and sentence awarded to the accused and he was acquitted accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of blood stained axe on the pointation of accused---Accused was charged that he along with his father committed murder of the daughter of complainant---Record showed that police had searched the house of accused twice on 26.06.2018 and 27.06.2018 but no axe was recovered during the two raids---According to prosecution version, police recovered the bloodstained axe on pointation of the present accused on 30.06.2018 from veranda of his house---Close perusal of the sketch of recovery and photograph showed that the alleged recovery had been effected from point A which was the end point of veranda and the axe had been shown at corner of the wall meaning thereby that the axe was placed openly in the veranda---How was it possible for police to lose sight of such an important thing placed openly in the veranda more particularly when they were so cautious and vigilant---Similarly, the stance of prosecution that the accused had placed the axe stained with blood at the mentioned place after committing the murder, also did not appeal to prudent mind and it could not be expected from a person of ordinary prudence to leave a sign of his involvement in a crime so conspicuously in his house---Thus, the recovery of axe from the house of accused on his pointation was highly doubtful, hence, could not be considered as a convincing evidence in corroboration of the statement recorded by the child eye-witness---Circumstances established that prosecution case was suffering from glaring inconsistencies and infirmities creating serious doubts regarding the mode and manner of the occurrence as well as involvement of the present accused in commission of the offence---Appeal was allowed by setting aside conviction and sentence awarded to the accused and he was acquitted accordingly.

Rashid Ali Khan for Appellant.

Sohail Sultan, Assistant A.G. for the State.

Muqadar Khan for the Complainant.

2023 P Cr. L J 998

[Peshawar (Mingora Bench)]

Before Muhammad Naeem Anwar and Muhammad Ijaz Khan, JJ

ZAHIREEN and another---Appellants

Versus

The STATE through A.A.G. and others---Respondents

Criminal Appeal No. 314-M and Criminal Revision No. 75-M (for enhancement) of 2021, decided on 17th May, 2022.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Delay of twenty two hours in lodging the FIR---Effect---Accused was charged for committing murder of his sister-in-law and her paramour by firing---Motive behind the occurrence was stated to be illicit relations of female deceased with the male deceased---In this case the record revealed that the occurrence had taken place on 30.08.2002 at 03:00 p.m. whereas the report had been lodged by the complainant on the next day of the occurrence i.e. on 31.08.2002 inside the house of one of the deceased at 01:00 p.m. and as such there was twenty two hours delay in lodging of the First Information Report and that too when the local police visited the house of the complainant---Said delay had cast heavy doubt on the veracity of the FIR---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Akram v. The State 2009 SCMR 230 rel.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Site plan negating complainant's version---Accused was charged for committing murder of his sister-in-law and her paramour by firing---In this case, the site plan was prepared on the pointation of the complainant as well as other alleged eye-witnesses of the occurrence which showed that the houses of the two deceased though were situated in front of each other, but at a distance of 300 yards---Site plan further stipulated that female deceased was shown at point "B" which was inside her room whereas the complainant had been shown at point No. 5 and the mother of the deceased had been shown at point No.6, whereas the other deceased had been shown at point No. 1 at the veranda of his house, whereas witnesses had been shown at points Nos. 3 & 4 inside the house and as such the complainant at point No. 5 could not see the places assigned to both the deceased---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---Ocular account---Scope---Accused was charged for committing murder of his sister-in-law and her paramour by firing---Ocular account in the case had been furnished by mothers of both the deceased persons---Mother of male deceased had clearly stated in her statement that at the relevant time her deceased son was sitting outside the house when in the meanwhile the accused came there and started altercation with the allegation of illicit relations of my son with the sister-in-law of the accused and he then fired upon his son and shot him dead with three fire shots---Said witness had candidly stated that it was 03:00 p.m. and on the next day of the occurrence the local police came to the spot and prepared site plan on her pointation and the police also recovered three empty shells and blood stained earth from the scene of occurrence---Statement of said witness had presented a totally different picture when it was seen in juxtaposition with the site plan---In the site plan the male deceased had been shown at point No. 1 which was inside the veranda of the house of said witness and as such her statement alone was sufficient that the prosecution had not been able to prove the mode and manner of the occurrence as the statement of said witness went a long way to contradict the First Information Report as well as the site plan which was prepared on pointation of the complainant and other eye-witnesses of the occurrence---Another alleged eye-witness of the occurrence, mother of the female deceased, appeared in the Court and she in her examination-in-chief had straight-away stated that she did not want to prosecute the present 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.

Iqbal Shah v. The State 1998 PCr.LJ 1177 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Informer of incident not appearing as witness---Effect---Accused was charged for committing murder of his sister-in-law and her paramour by firing---Record showed that the prosecution had not been able to prove the contents of the First Information Report for the reason that the complainant, the very maker of the report, had not been produced as witness in the Court to support the contents of the FIR---Thus, when the very foundation of the prosecution case had not been established, then any superstructure built upon it through production of any other witnesses would be of no fruitful result for 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.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Mode and manners of the occurrence doubtful---Scope---Accused was charged for committing murder of his sister-in-law and her paramour by firing---In the present case, the fathers, brothers or any other male members of both the deceased had not come forward to charge the present accused and both of them had opted to just produce the old ladies in the Court i.e. mothers of both the deceased, which conduct of the complainant-party prima facie showed that they had suppressed the mode and manner and real facts of the 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.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Medical evidence contradicting contents of FIR---Accused was charged for committing murder of his sister-in-law and her paramour by firing---In the present case, as per the contents of the 'Murasila' the occurrence had taken place on 30.08.2002 at 03:00 p.m. whereas the report was made to local police on the next day i.e. on 31.08.2002 at 01:00 p.m., after twenty two long hours of the occurrence, however, Medical Officer appeared in Court had stated that on 31.08.2002 at about 06:00 p.m. i.e. after 27 hours of the occurrence when he examined the two deceased fresh blood was oozing from their injuries---Said fact alone was sufficient to cast a serious doubt as how fresh blood could ooz from the injuries after twenty seven hours and that too in hot summer weather--- 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)---

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Motive not proved---Effect---Accused was charged for committing murder of his sister-in-law and her paramour by firing---Motive behind the occurrence was stated to be illicit relations of female deceased with the male deceased---In the present case, although the prosecution had alleged motive of illicit relations between the two deceased, however, the prosecution had not brought on record an iota of evidence to prove the same---If at all there was a motive as alleged by the prosecution in the FIR, then the same had no relevancy with the present accused when admittedly, husband of the female deceased, her father and brothers were still alive as it could be a matter of honour for them at the first hand and not for the present accused---Thus, it was too unreasonable and improbable that a person with such a remote relationship would act in such a manner, as alleged 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.

(h) Criminal trial---

----Benefit of doubt---Principle---Not essential that there should be many grounds for giving benefit to the accused, even a single doubt will be sufficient to extend its benefit to an accused person as it is the cardinal principle of criminal administration of justice that let hundred guilty persons be acquitted but one innocent person should not be convicted.

Muhammad Mansha v. The State 2018 SCMR 772; Tariq Pervez v. The State 1995 SCMR 1345; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Muhammad Akram v. The State 2009 SCMR 230; Muhammad Zaman v. The State 2014 SCMR 749; Tariq Pervaiz v. The State 1995 SCMR 1345 and Faryad Ali v. The State 2008 SCMR 1086 rel.

Razaullah for Appellant (in Criminal A. No. 314-M of 2021).

Saeed Ahmad, Assistant A.G. for the State (in Criminal

A. No. 314-M of 2021).

Amjad Ali for the Complainant (in Criminal A. No. 314-M of 2021).

Amjad Ali for Petitioner (in Criminal R. 75-M (for enhancement) of 2021).

Saeed Ahmad, Assistant A.G. for the State (in Criminal

R. 75-M (for enhancement) of 2021).

Razaullah for the Complainant (in Criminal R. 75-M

(for enhancement) of 2021).

2023 P Cr. L J 1173

[Peshawar (D.I. Khan Bench)]

Before S M Attique Shah and Muhammad Faheem Wali, JJ

MUHAMMAD FARHAN TARIQ---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 11-D of 2020, decided on 2nd March, 2022.

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

----Ss. 302(b) & 201---Qatl-i-amd, causing disappearance of evidence of offence, giving false information to screen defenders---Appreciation of evidence---Benefit of doubt---Accused was charged for firing upon the complainant's son and his companion, due to which the son died and his companion became injured---Two stories in respect of the incident had been introduced---Firstly, the matter was reported by the accused himself by stating that on the eventful day, he along with the deceased, was riding on a motorbike, when two persons riding on a motorcycle came from behind and started firing, as a result whereof, he sustained injury on his left arm, while his companion died on the spot---Second story of the incident was introduced by father of the deceased, who recorded his statement under S. 164, Cr.P.C., before the Judicial Magistrate, where he charged the accused for the commission of offence---Complainant stated that one eye-witness had seen the occurrence---While going through the record and evidence on file, no independent evidence of unimpeachable nature in support of the story narrated by the accused was found, however, second version of the incident, statements of father of the deceased and his maternal uncle were necessary to be referred---Complainant received information that his son was taken to the hospital, upon which he reached there and found his son lying dead---Complainant stated that on the next morning, an eye-witness informed him that he had seen the accused killing his son by firing, so complainant along with said witness visited police station where he charged the accused---Complainant recorded his statement before the Court of Judicial Magistrate, under S. 164, Cr.P.C.---Complainant further stated that the Investigating Officer had visited his house where statements of his wife and daughters were recorded---During course of investigation, complainant presented to the Investigating Officer letters from the accused to the deceased and his wife containing threatening material along with one live round of .30 bore---However, in cross-examination, complainant admitted that he was not the eye-witness of the occurrence---Complainant stated that the eye-witness was his relative---Said witness stated that he had seen the accused fire at the deceased with his pistol who after receiving the injury fell to the ground; that the accused aimed his pistol at him and due to fear he moved his motorcycle ahead to save himself; that instead of going to his house, he went to the house of his friend; that on the way to the house of his friend, there were number of check posts where police was present, however, he did not stop nor disclosed anything to Police Officials; that he did not return to his workshop and did not disclose the fact of having seen the occurrence to anyone until next morning; that he also did not disclose the same to anybody in the house of his friend out of severe fear---Said witness also did not inform anybody about the incident on telephone or mobile about the 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.

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

----Ss. 302(b) & 201---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, causing disappearance of evidence of offence, giving false information to screen defenders---Appreciation of evidence---Withholding best evidence---Effect---Accused was charged for firing upon the complainant's son and his companion, due to which the son died and his companion became injured---In the present case, in view of statement of eye-witness, his friend, who the eye-witness visited immediately after the incident, was the best evidence to corroborate his testimony, but he was not cited as witness in the calendar of witnesses, as admitted by the Investigating Officer in his cross-examination---Story of the incident was allegedly told to complainant by the latter's eye-witness and in order to corroborate the testimony, friend of said eye-witness was never associated with the investigation nor was examined before the Court to ascertain the fact that after the occurrence, eye-witness spent a night at the house of his friend---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)---

----Ss. 302(b) & 201---Qatl-i-amd, causing disappearance of evidence of offence, giving false information to screen defenders---Appreciation of evidence---Weapon of offence recovered from the accused---Reliance---Accused was charged for firing upon the complainant's son and his companion, due to which the son died and his companion became injured---Recovery of .30 bore pistol was made which was allegedly used by the accused in the commission of offence---In that respect, employee of an Arms Dealer Shop was examined, where he stated that accused was well known to him being his friend, who was asking from him since six months prior to the occurrence to give him some pistol; that few days prior to the occurrence, the accused came to his shop and he gave him .30 bore pistol along with five live cartridges---Said witness stated that the accused demanded for the pistol urgently for his safety---Witness further stated that he did not know as to what for the accused was purchasing pistol from him---Said witness stated that during investigation, his statement was recorded by the police as well as before the Judicial Magistrate---During cross-examination, a question was put to the said witness regarding identification parade of the pistol in question to which he replied that the police did not conduct any identification parade and never asked him to identify the pistol in any such identification parade---Said witness also admitted that .30 bore pistols were openly available in the market and those could be easily purchased by someone in the open market---In view of such situations, it was necessary to put the recovered pistol to identification parade to ascertain that it was the same pistol which the accused had purchased from the witness---In the circumstances, recovery of pistol could not be used against the accused for sustaining conviction on a capital charge---Hence, Court was left with no option but to discard the matching report of Forensic Science Laboratory from consideration---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) & 201---Qatl-i-amd, causing disappearance of evidence of offence, giving false information to screen defenders---Appreciation of evidence---Blood and gun powder secured from hand of the accused---Reliance---Accused was charged for firing upon the complainant's son and his companion, due to which the son died and his companion became injured---Record showed that blood and gun powder from right hand of the accused were secured---In that respect Head Constable (witness) was examined, and he was also associated with the investigation and in his presence the Investigating Officer took into possession .30 bore pistol with two bullets in its magazine duly fitted and one bullet loaded in its chamber---Said witness was asked by the Investigating Officer to secure said pistol which he did accordingly and packed the same into a box and delivered to the Investigating Officer---However, during cross-examination, said witness stated that the Investigating Officer had indicated it by pointing out the same in a plot and asked him to preserve it which he did accordingly---Said witness stated to have obtained the finger prints as well as the blood and gun powder from the hands of the accused while he was admitted in the hospital, however, he did not ask any doctor or ward attendant to be the witness of said proceedings, which fact was also admitted by Investigating Officer, during cross-examination---In such eventuality, when no one from the ward staff was examined to support the testimony of Head Constable, securing of gun powder from the accused could not be believed, what to talk of the positive Forensic Science Laboratory Report in that regard---Circumstances established that the prosecution had miserably 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) & 201---Qatl-i-amd, causing disappearance of evidence of offence, giving false information to screen defenders---Appreciation of evidence---Medical evidence---Bullet wounds---Medical jurisprudence---Accused was charged for firing upon the complainant's son and his companion, due to which the son died and his companion became injured---Accused was medically examined by the Medical Officer, who conducted autopsy on the dead body of the deceased and stated that in case of both the deceased as well as injured, there was no blackening and cheering marks etc---According to medical jurisprudence, charring marks, with pistol's fire, could be caused from a distance of six inches---In the present case, no charring marks or blackening was observed by the Medical Officer, which belied the stance of prosecution---As per prosecution version, if the accused had fired from a close distance at the deceased as well as inflicted injury to himself, then in that eventuality, Medical Officer must have noticed blackening and charring marks, which was not the case 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.

Abdul Latif Khan Baloch for Appellant.

Rehmatullah, Assistant A.G. for the State.

Muhammad Ismail Alizai for the Respondents.

2023 P Cr. L J 1213

[Peshawar]

Before Ishtiaq Ibrahim and Dr. Khurshid Iqbal, JJ

JANAT GUL---Appellant

Versus

MUHAMMAD SAEED and another---Respondents

Criminal Appeal No. 269-P of 2021, decided on 20th July, 2022.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Benefit of doubt---Sole statement of complainant---Scope---Accused was charged for committing murder of the son of the complainant by firing---Prosecution case rested on the sole statement of the complainant, father of the deceased---Admittedly, the complainant did not see the accused firing at the deceased---Complainant's assertion was that near the place of the occurrence, he heard fire shots and saw the accused running after firing---Complainant was not alone when he heard the fire shot---While on the way home, the complainant was accompanied by other people---Prosecution didn't bring any single person from amongst those present with the complainant to support its stance---In order to plug such fundamental dent in his case, the complainant recorded a supplementary statement before the Investigating Officer, after two hours of the occurrence---In that statement, the complainant offered an absolutely new version of the story of the occurrence and thereby put at naught his entire case---Circumstances established that the prosecution had failed to prove the charge against the accused beyond reasonable shadow of doubt---Appeal against conviction was allowed accordingly.

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

----S. 302(b)---Qatl-i-amd--- Appreciation of evidence--- Benefit of doubt---Improvements made by complainant in his statement---Effect---Accused was charged for committing murder of the son of the complainant by firing---Complainant admitted that in the murasila he did not disclose the name of father of the accused---Complainant and other persons were at a distance of 70/80 paces from the graveyard---In the murasila, complainant showed that distance in respect of hearing the fire shots---Crime spot and the place where he heard firing were at distance of 40/42 paces---In the murasila, complainant disclosed that he heard the firing at 70/80 paces---Complainant admitted in the murasila that he heard the firing and saw the accused running after firing---Said fact contradicted supplementary statement of complainant in which he said that he saw with his own eyes the accused firing at his son---Complainant admitted that in the murasila he did not specifically show himself as an eye-witness---Complainant denied a suggestion that he was not present on the spot---In the supplementary statement, complainant showed himself as an eye-witness; in the murasila as having heard the firing only---Despite all that, complainant admitted the murasila and the supplementary statement as correct---Complainant also admitted that other people accompanied him and that some village people were attracted to the spot and helped him in lifting up the dead body of his deceased son---But no person was examined as an independent witness of the occurrence---However, it needed no emphasis that the information the complainant disclosed in his supplementary statement was well within his knowledge at the time he was making report in the murasila---Thus, it was established that the complainant made dishonest improvements---Circumstances established that the prosecution had failed to prove the charge against the accused beyond reasonable shadow of doubt---Appeal against conviction was allowed accordingly.

Muhammad Rafique and others v. The State and others 2010 SCMR 386; Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120; Akhtar Ali and others v. The State 2008 SCMR 6 and Farman Ahmad v. Muhammad Inayat and others 2007 SCMR 1825 rel.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Withholding material evidence---Effect---Accused was charged for committing murder of the son of the complainant by firing---Complainant admitted that ordinarily young males of the village dug a grave when someone passed away---Thus, it could not be presumed that complainant would have been present in the graveyard or, for that matter, was returning from the graveyard, having regard to common course of natural events and human conduct---If that aspect was ignored for a while, another aspect worth consideration was that the complainant was not alone while he was either in the graveyard or was returning home from the graveyard---But no person was examined in support of the prosecution case---Said fact led to an adverse inference that had such evidence been produced, it would have not favoured the prosecution---Circumstances established that the prosecution had failed to prove the charge against the accused beyond reasonable shadow of doubt---Appeal against conviction was allowed accordingly.

Abdul Haleem and others v. The State and others 2015 PCr.LJ 1269 and Riaz Ahmed v. The State 2010 SCMR 846 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence--- Benefit of doubt---Contents of murasila not verified---Effect---Accused was charged for committing murder of the son of the complainant by firing---Record showed that the contents of the murasila were not verified by anyone despite the fact that other persons accompanied the complainant---Complainant was not confronted on that point---However, the police official who recorded the report at the strength of the murasila was asked about it and he admitted that the report was not verified by any other person---Report clearly showed that the complainant was accompanied by other persons---Corroboration by another witness would have lent credibility to the account of murasila---Circumstances established that the prosecution had failed to prove the charge against the accused beyond reasonable shadow of doubt---Appeal against conviction was allowed accordingly.

(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 son of the complainant by firing---No doubt, the injuries observed by the concerned Police Official on the dead body of the deceased were found to be the same by the Medical Officer in the post mortem report---Said fact alone was not sufficient to prop up the prospection case as medical evidence was supportive evidence but by itself could not identify assailant---Circumstances established that the prosecution had failed to prove the charge against the accused beyond reasonable shadow of doubt---Appeal against conviction was allowed accordingly.

Sajjan Solangi v The State 2019 SCMR 872 rel.

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

----S. 302(b)---Qatl-i-amd--- Appreciation of evidence---Benefit of doubt---Complainant not present at the spot---Effect---Accused was charged for committing murder of the son of the complainant by firing---At the foot of the site plan, the Investigating Officer made an endorsement to the effect that the accused himself pointed out the manner in which he committed the crime---Accused was taken to the place of the occurrence where he, as per the contention of the Investigating Officer, indicated point No. 2, as his place of presence the complainant pointed at the time of preparation of the site plan---Investigating Officer prepared a memo of this fact in the presence of two marginal witnesses, however one of those witnesses was produced as its witness by the prosecution---Said recovery witness stated in the cross-examination that no recovery was made during the pointation---Cross-examination of said witness further showed that the complainant was not present at that time---Circumstances established that the prosecution had failed to prove the charge against the accused beyond reasonable shadow of doubt---Appeal against conviction was allowed accordingly.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Arts. 39 & 40---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery on the disclosure of the accused---Scope---Accused was charged for committing murder of the son of the complainant by firing---No doubt, the provision of Art. 40, Qanun-e-Shahadat, 1984, provided that so much of information as was brought to light in consequence of discovery might be proved---However, the information obtained in such manner as the situation was in the case in hand, did not attract the application of Art. 40---Reason was that this did not amount to discovery as the Investigating Officer had already seen the scene of the occurrence and prepared its site plan---Mere taking of the accused to the same place and verifying from him his place of presence and other details were not sufficient---Legally, such evidence was inadmissible and should, in no case, be allowed to be brought on the record, let alone believing in it---Circumstances established that the prosecution had failed to prove the charge against the accused beyond reasonable shadow of doubt---Appeal against conviction was allowed accordingly.

Hayatullah v The State 2018 SCMR 2092 rel.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence and crime empty---Reliance---Scope---Accused was charged for committing murder of the son of the complainant by firing---Record showed that a shell of 30 bore pistol from the place of the deceased on the spot on the date of the occurrence (i.e. 24.03.2020) was recovered, and a .30 bore pistol from the possession of the accused at the time of his arrest on 10.04.2020 was recovered---Pistol was unlicensed, so a separate criminal case was registered against the accused---Shell and the pistol were sent to the Forensic Science Laboratory on 12.04.2020, which tendered a positive report---Investigating Officer, who arrested the accused on 10.04.2020, deposed that he made no recovery from accused---Said witness stated that nothing incriminating was recovered by him from the possession of the accused---Said fact made the recovery of the pistol substantially doubtful---Circumstances established that the prosecution had failed to prove the charge against the accused beyond reasonable shadow of doubt---Appeal against conviction was allowed accordingly.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Benefit of doubt--- No motive alleged--- Effect---Accused was charged for committing murder of the son of the complainant by firing---Prosecution set up no motive---In his supplementary statement, too, the complainant remained silent about motive---On the judicial record, a copy of a police Daily Diary was available---Daily Diary was recorded by the Police Officials who raided the house of the accused on the day of the occurrence at 07:30 p.m.---While the accused was not found at his residence, two women informed the police that at 02:00 p.m. the same day, one Mr. "H" of the same village took the minor son of the accused to the nearby jungle and committed sodomy with him, which the victim reported in his house---Said witnesses further reported that a jirga was also sent to the house of complainant but to no avail---Daily Diary was not exhibited---Such fact did not intend to read it a motive as neither the prosecution had stated it, nor was motive itself a material aspect of the case---Circumstances established that the prosecution had failed to prove the charge against the accused beyond reasonable shadow of doubt---Appeal against conviction was allowed accordingly.

Muhammad Irfan Khattak for Appellant.

Syed Abdul Fayaz for the Complainant.

Qaiser Ali Shah, Additional A.G. for the State.

2023 P Cr. L J 1331

[Peshawar (Bannu Bench)]

Before Sahibzada Asadullah and Shahid Khan, JJ

IMTIAZ ALI KHAN---Appellant

Versus

The STATE through Advocate-General, Bannu Bench---Respondent

Criminal Appeal No. 96-B of 2022, decided on 19th October, 2022.

(a) Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019)---

----S. 9(d)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Non-production of sample-bearer---Report of result of test or analysis---Scope---Accused was convicted for having been found in possession of 8000 grams of charas---Neither sample-bearer nor Moharrir of the concerned police station was examined by the prosecution during trial---Register No. XIX was also not produced during trial---Record was silent regarding the protocols of drawing of samples followed by its safe custody and its transmission to the Forensic Laboratory for analysis---Besides, there were material contradictions in the evidence so furnished which damaged the case of prosecution---Prosecution had failed to prove the case against the accused beyond shadow of doubt---Appeal was allowed and the accused was acquitted of the charge, in circumstances.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 rel.

(b) Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019)---

----S. 9---Possession of narcotics---Samples---Safe custody---Scope---Prosecution is under obligation to establish the safe custody of the samples strictly in accordance with law.

Mst. Sakina Ramzan v. The State 2021 SCMR 451 and Ishaq v. The State 2022 SCMR 1422 rel.

(c) Criminal trial---

----Benefit of doubt---Scope---Every individual is presumed to be innocent, unless proved guilty---It is bounden duty of the prosecution to prove its case beyond any shadow of doubt and if any reasonable dent or doubt is found in prosecution case, the benefit of the same is to be extended to the accused, not as a matter of grace or concession but as a matter of right.

(d) Criminal trial---

----Benefit of doubt---Scope---Benefit of doubt, if any, favourable to the accused cannot be withheld in the exercise of discretion of the Court.

(e) Criminal trial---

----Duty of prosecution---Scope---Prosecution is not only duty-bound but also obligated to substantiate its case beyond any reasonable doubt---Even if a single or slightest doubt arises from the evidence, it must be extended to the accused, not as a matter of grace but as a matter of right---Such doubt should be sufficient to discredit the prosecution's story.

(f) Criminal trial---

----Benefit of doubt---Scope---There is no need for multiple doubts in the prosecution's case; instead, a single reasonable doubt arising from the prosecution's evidence that pricks the judicial mind is sufficient for the acquittal of the accused.

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

(g) Criminal trial---

----Benefit of doubt---Scope---Cardinal principle of justice always emphasizes the quality of evidence, which must be of the highest standard and sufficient to dispel any apprehension of implicating innocent individuals along with the guilty ones---Otherwise, the golden principle of justice would come into play, providing that even a single reasonable doubt would be sufficient to acquit the accused, granting him the benefit of doubt---It is not necessary to have a bundle of doubts to extend the legal benefit to the accused.

Riaz Masih alias Mithoo v. State 1995 SCMR 1730 694 ref.

Imran Ali Shah Mandan and Abid Anwar Khattak for Appellant.

Qudrat Ullah Khan Gandapur, Assistant A.G. for the State.

2023 P Cr. L J 1370

[Peshawar (Bannu Bench)]

Before Muhammad Naeem Anwar, J

GUL SHAH PEERI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous B.A. No. 162-B of 2021, decided on 9th April, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 109---Qatl-i-amd, abetment---Bail, grant of---Female accused with infant---Allegations against the petitioner was of abetment---Petitioner was a woman and had been behind the bars along with her suckling daughter, aged about 14 months, since her arrest---Concept of 'welfare of minor' was surely incompatible with jail life, so, on this score also, accused was entitled to the concession of bail because instead of detaining the innocent infant in the jail for indefinite period for the crime allegedly committed by her mother, particularly, when husband of the petitioner was in a foreign country in connection with his livelihood and there would be no one to look after the baby outside the jail premises---Holy Prophet Muhammad (P.B.U.H) was pleased to suspend the sentence of a pregnant woman not only till the delivery of child but also postponed it till the period of 'Riza' i.e., lactation period"---Bail was allowed, in circumstances.

Mst. Nusrat v. The State 1996 SCMR 973; Sadiu Wauas v. The State and another 2012 PCr.LJ 841 and Mst. Shehnaz v. The State and another Criminal Misc. (B.A.) No. 1023-P/2017 ref.

Malik Rehman Khattak for Petitioner.

Shahid Hamid Qureshi, A.A.G. for the State.

Anwar ul Haq and Qaidullah for the Complainant.

2023 P Cr. L J 1401

[Peshawar (Abbottabad Bench)]

Before Kamran Hayat Miankhel, J

ZEESHAN HAFEEZ---Petitioner

Versus

The STATE and another---Respondents

Criminal Misc. (B.A.) No. 394-A of 2022, decided on 27th June, 2022.

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

----S. 497---Penal Code (XLV of 1860), Ss. 279 & 322---Rash driving or riding on a public way, qatl-bis-sabab---Bail, grant of---Accused, who was charged under Ss. 279 & 322 of the P.P.C., applied for bail after being arrested---Section 279 of the P.P.C. is bailable---Punishment for qatl-bis-sabab was limited to 'diyat' only---If an accused charged under S. 322 of the P.P.C. is convicted, he can only be detained if he defaults on the payment of the diyat amount--- Provision of S. 382-B, Cr.P.C., does not apply in such cases---Therefore, incarcerating the accused as an under-trial prisoner is not justified since it would not serve any useful purpose---Furthermore, even if the accused is convicted, such a period cannot be compensated in any manner---Accused was granted post-arrest bail.

Muhammad Shafi v. The State and another 2020 PCr.LJ 1530; Israr Hussain Shah v. The State and 2 others 2020 PCr.LJ 1164; Shah Hussain v. The State PLD 2009 SC 460 and 2022 SCMR 515 rel.

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

----S. 497---Bail---Scope---If an offense does not carry the punishment of imprisonment, the accused has the right to bail---Denying bail to such an accused would constitute a case of double jeopardy because he would effectively be serving time as an under-trial prisoner.

Rabnawaz Khan Tanoli for Petitioner.

Sajid ur Rehman Khan, Assistant A.G. for the State.

None appeared on behalf of the Complainant despite date by Court.

2023 P Cr. L J 1413

[Peshawar (Abbottabad Bench)]

Before Wiqar Ahmad and Kamran Hayat Miankhel, JJ

NOOR HABIB SHAH---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 104-A of 2019, decided on 12th October, 2022.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Promptly lodged FIR---Accused was charged for committing murder of the brother of the complainant by firing---Time of occurrence was shown as 02:00 p.m. while report thereof was lodged at 03:45 p.m. on the same day---Distance between spot of occurrence and Police Station was shown to be 10/15 kilometers in a mountainous area---Thus, the report could be considered as a promptly lodged one keeping in view the distance through which the complainant had to take dead body to the hospital or Police Station both of which were situated nearby---Circumstances established that the prosecution had been able to prove its case against the accused beyond reasonable doubt---Appeal against conviction 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 brother of the complainant by firing---Ocular account of the incident had been furnished by two eye-witnesses including complainant---Statement of the complainant was fully corroborated by medical evidence---Other eye-witness had also given similar narration of the occurrence in his examination-in-chief and in his cross-examination no major contradiction could be solicited from his mouth---Defence tried to develop an argument that the eye-witnesses were consistent in respect of the place where the accused had been present at the time of occurrence---Defence had also contended that the other witness was not present at the spot of occurrence, but was rather present in his home---However, when the statements of complainant and other witness were with the site plan, the contentions of the defence were misconceived---Even otherwise, a part of site plan where the Investigating Officer tries to re-enact happening of an occurrence was not a substantive piece of evidence---Appeal against conviction was dismissed.

Taj Muhammad v. Muhammad Yousaf and 2 others PLD 1976 SC 234 and Javed Ishfaq v. The State 2020 SCMR 1414 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Presence of the witnesses at the time and place of occurrence not doubtful---Accused was charged for committing murder of the brother of the complainant by firing---Objection of defence that the eye-witness had not been present at the spot arose from misinterpretation of the relevant sentence in his cross-examination---Statement of the eye-witness remained fully consistent with the complainant regarding all the facts that had taken place prior to, at the time of and after the occurrence---Both the said witnesses had stated that they had not attempted to catch the accused after the occurrence and that they attended to their deceased brother---Manufactured inconsistencies created in statements of eye-witnesses due to efforts of relentless cross-examiner should not be overweighed---When presence of witness was believable at the spot, intrinsic worth of his testimony was acceptable, and the witness was not found inimical and biased but truthful in respect of his narrations made in the examination-in-chief, then statement of such witness should not be discarded for any inconsistency that was crafted during course of his cross-examination through skills of a cross-examiner---Circumstances established that the prosecution had been able to prove its case against the accused beyond reasonable doubt---Appeal against conviction was dismissed accordingly.

Roshan and 4 others v. The State PLD 1977 SC 557 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Accused was charged for committing murder of the brother of the complainant by firing---Unnatural conduct of eye-witnesses, plea of---Defence objected that both the brothers/eye-witnesses stood as spectators and had not tried to save their brother or catch the accused after commission of the offence and, therefore, their conduct should be dubbed as unnatural---Held, that there had not been any enmity between the parties and the complainant party might not have expected such a reaction from the accused---In the first report of the occurrence, it was mentioned that the moment the deceased, then alive, went towards the accused, he was fired at---Occurrence had taken place all of a sudden where both the witnesses stated that they attended to their deceased brother immediately after the occurrence---Said fact was very much natural that they would have rushed towards their brother so as to save him---Moreso, there were also maize crops in the vicinity, therefore, the accused would not have faced much difficulty in disappearing from the spot of occurrence---In the given circumstances, no unnatural conduct was displayed by any of the eye-witnesses---Circumstances established that the prosecution had been able to prove its case against the accused beyond reasonable doubt---Appeal against conviction was dismissed accordingly.

Rehmatullah v. Muhammad Iqbal and others 2006 SCMR 1517 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of pistol from house of the accused---Accused was charged for committing murder of the brother of the complainant by firing---Record showed that the pistol had not been recovered from or on pointation of the accused rather same had been shown recovered from house of the accused on 29.09.2015 while he had been arrested on 24.08.2016---After the arrest of accused, identification memo had been prepared by the Investigating Officer, showing that accused had identified the pistol to be his own but marginal witness to the recovery memo had stated that when the accused was being confronted with the pistol same was not in sealed form---Such evidence of recovery from a house which was not proved to be in exclusive possession of the accused could not, therefore, be called to be believable---However, recovery of pistol was a corroboratory piece of evidence and case of the prosecution which was otherwise based upon direct testimony of two eye-witnesses was found well-established--- Circumstances established that the prosecution had been able to prove its case against the accused beyond reasonable doubt--- Appeal against conviction was dismissed accordingly.

(f) Criminal trial---

----Absconsion---Scope---Absconsion by itself is not sufficient to declare a person offender but such evidence may be used for the purpose of corroborating other evidence of the prosecution.

Riaz Hussain v. The State 2001 SCMR 177 rel.

Shad Muhammad Khan for Appellant.

Sardar Ali Raza, A.A.G. for the State.

Qazi Muhammad Arshad for the Complainant.

2023 P Cr. L J 1455

[Peshawar]

Before Lal Jan Khattak and Muhammad Faheem Wali, JJ

MUHAMMAD ZAHOOR UL ISLAM---Petitioner

Versus

CONVENING AUTHORITIES AIR FORCE COMMODORE, PESHAWAR and others---Respondents

Writ Petition No. 5469-P of 2020, decided on 22nd February, 2022.

Penal Code (XLV of 1860)---

----Ss. 419, 420, 468, 471 & 109---Official Secrets Act (XIX of 1923), Ss. 6-C & 9---Pakistan Air Force Act (VI of 1953), Ss. 2(dd), 37(e) & 71---Constitution of Pakistan, Art. 199---Constitutional petition---Armed Forces personnel---Court Martial, conviction and sentence of---Petitioner was convicted after Court Martial and was sentenced to imprisonment for life---Validity---Accused was charged under Ss. 6 & 9 of Official Secrets Act, 1923 that carried a punishment of two years---When same sections of law were read with Ss. 71 & 2(dd) of Pakistan Air Force Act, 1953 then punishment of two years would enhance to death or imprisonment for life, in addition to the punishment of imprisonment for two years, provided under Ss. 6 & 9 of Official Secrets Act, 1923---High Court in view of the bar contained in Art. 199(5) of Constitution declined to interfere in conviction and sentence awarded to accused as the Tribunal established under the law relating to armed forces was specifically excluded from definition of term "person"--- Constitutional petition was dismissed, in circumstances.

PLD 2007 SC 405; PLD 1975 SC 506 and PLD 2021 Pesh. 135 rel.

Hussain Ali and Tauqeer Ellahi Minhas for Petitioner.

Aamir Javed, Additional Attorney General for Respondents.

2023 P Cr. L J 1476

[Peshawar (Abbottabad Bench)]

Before Fazal Subhan, J

MUHAMMAD EJAZ SAEED---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal Miscellaneous (Bail) No. 60-A of 2023, decided on 3rd March, 2023.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 345---Penal Code (XLV of 1860), S. 109---Emigration Ordinance (XVIII of 1979), S. 22---Prevention of Smuggling of Migrants Act (XVIII of 2018), Ss. 3 & 6---Receiving money, etc. for providing foreign employment, smuggling of migrants---Bail, refusal of---Non-compoundable offence---Accused was alleged to have committed an offence under S. 109 of P.P.C., S. 22 of the Emigration Ordinance, 1979 and Ss. 3 & 6 of the Prevention of Smuggling of Migrants Act, 2018---Accused sought bail on the new ground of compromise---Held; the accused was charged with a non-compoundable offence---Considering the serious nature of such offences, no leniency could be granted to the accused involved in such crimes---Section 345 of the Cr.P.C. had listed the offences that could be compounded by the parties---Legislature had explicitly prohibited the compounding of offences not mentioned in S. 345 of the Cr.P.C.---Moreover, under Chapter XXIII of Sched. II of the Cr.P.C., offences against other laws (special laws) were deemed non-compoundable---Therefore, the accused did not deserve to be released on bail based on the new ground of compromise---Consequently, the bail petition was dismissed.

Muhammad Rawab v. The State 2004 SCMR 1170 rel.

Sardar Aamir Iqbal for Petitioner.

Malik Noman, Additional Attorney General for the State.

Bilal Zaman Kayani for the Complainant.

2023 P Cr. L J 1508

[Peshawar (Abbottabad Bench)]

Before Wiqar Ahmad, J

SAJJAD AHMED---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous (BCA) No. 42-A of 2022, decided on 6th February, 2023.

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

----S. 497(5)---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Bail, cancellation of---Scope---Bail was granted on the ground that, in the FIR, the complainant had stated that firing had been made with a .30 bore pistol, while later on, a 9mm pistol had been recovered on the indication of the accused---High Court observed that pistols of .30 bore and 9mm were manufactured by numerous local and foreign manufacturers in different shapes and models---Just seeing a pistol in somebody else's hand was not always sufficient to determine its bore with exactitude---Bail granted to the accused was cancelled, in circumstances.

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

----Ss. 497(5) & 161---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Bail, cancellation of---Examination of witnesses by police, delay in---Scope---Where bail was granted on the ground that the statement of an eye-witness had been recorded after a delay of almost one month, the High Court observed that the prosecution also had other evidence against the accused---Evidence included the statement of the complainant and other corroboratory evidence such as the post-mortem report and the recovery of the weapon of offense---Therefore, the fact that the statement of one of the witnesses had been recorded with a delay of 35 days was not sufficient to warrant further inquiry in the case---Bail granted to the accused was cancelled, in circumstances.

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

----S. 497(5)---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Bail, cancellation of---Rule of consistency---Scope---Where bail was granted on the rule of consistency, the High Court observed that the co-accused had been treated as having a role at par with the accused, without realizing the fact that the role of causing a firearm injury to the deceased had solely been attributed to the accused by the complainant---Bail granted to the accused was cancelled, in circumstances.

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

----S. 497(5)---Bail, cancellation of---Scope---Where bail granting order is patently illegal, erroneous, factually incorrect and causes miscarriage of justice, then the same may be recalled.

Samiullah v. Laiq Zada 2020 SCMR 1115 rel.

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

----S. 497(5)---Bail, cancellation of---Scope---Where bail granting order is perverse, arbitrary or based on irrelevant considerations, same may well be recalled.

Sidra Abbas v. The State and another 2020 SCMR 2089 rel.

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

----S. 497---Bail---Amount of surety bond---Scope---Where accused is being released on bail, his surety bonds should be procured from him in a reasonable amount which is sufficient for ensuring his presence and attendance before the Trial Court.

Shad Muhammad Khan for Petitioner.

Sajid-ur-Rehman Khan, Assistant Advocate General for the State.

Yasir Mustafa Swati for Accused/Respondent.

2023 P Cr. L J 1567

[Peshawar (Abbottabad Bench)]

Before Wiqar Ahmad and Fazal Subhan, JJ

Sheikh ZAHOOR AHMED---Petitioner

Versus

The STATE and others---Respondents

Writ Petition No. 991-A of 2017, decided on 15th November, 2022.

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

----S. 169---Release of accused when evidence deficient---Scope---Petitioner assailed the discharge of accused persons by the Magistrate---Held; petitioner had got lodged an FIR against the accused persons under Ss. 489-F, 420, 506 & 34, P.P.C.---Prosecution had opined that the dishonoured cheque was issued by the main accused while the other two accused had no role in the offence of issuing cheque, as such, they were recommended for discharge under S. 169, Cr.P.C.---Magistrate had passed an order of their discharge and proceeded to try the main accused---Order passed by Magistrate, in view of insufficient material on record against the co-accused, was neither found to be illegal nor erroneous to call for interference and was quite in accordance with S. 169, Cr.P.C.---Constitutional petition was dismissed.

Naseem Khan v. Banaras Khan Jadoon and 3 others 2019 PCr.LJ 154 and Basar Khan v. The State and another 2009 PCr.LJ 964 rel.

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

----S. 169---Constitution of Pakistan, Preamble---Release of accused when evidence deficient---Scope---Preamble, which is integral part of the Constitution has laid down the aim, objective and purpose of constitution and it has been laid down therein that beside other rights and obligations the object of constitution is to observe principles of democracy, freedom, equality, tolerance and social justice---Such an objective can only be achieved when laws are made in line with the above cherished goals---With the passage of time and dwindling social values, laws are flouted, molded or misused for personal gains and objectives---In such a scenario, the importance of an efficient judicial system, especially at criminal side, has attained great significance to cope with ever changing circumstance, for the reason that it mainly effects the life and liberty of a person/citizen---In this respect S. 169, Cr.P.C., is an important tool available to an Investigating Officer, conducting an investigation in a criminal case---Said provision empowers the Investigating Officer to release an accused person, if, after investigation, he arrives to a conclusion that there is no sufficient evidence, reasons or grounds to justify forwarding the accused to a Magistrate---In that case, the SHO/Investigating Officer may forward the challan to the Magistrate and the Magistrate, so empowered, has to decide either to take cognizance on police report and try the accused and forward him for trial---Though the SHO/Investigating Officer may report the insufficiency of evidence but final order of discharge is the domain of Magistrate.

Awais Khan Alizai for Petitioner.

Sardar Ali Raza, A.A.G. for the State.

Muhammad Shafique Awan for Respondents Nos. 2 and 3.

2023 P Cr. L J 1604

[Peshawar (Abbottabad Bench)]

Before Wiqar Ahmad and Fazal Subhan, JJ

SHERAZ KHAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 71-A of 2008, decided on 10th January, 2023.

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

----Ss. 302(b), 324, 337-F(ii) & 34---Criminal Procedure Code (V of 1898), S. 417(2)---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-badi'ah, common intention---Appreciation of evidence---Appeal against acquittal---Ocular account not supported by medical evidence---Effect---Accused were charged for committing murder of sister-in-law of the complainant and also caused injuries to the complainant and his relative---From the contents of FIR, it was clear that besides the complainant, the occurrence was witnesses by three persons and being the eyewitnesses of the occurrence, they were expected to be consistent and coherent in their statements---Complainant in his report attributed the role of axe blow to accused and one fire each to other two accused resulting in injuries one each to deceased sister-in-law of complainant and the complainant himself---In their statements, they consistently replied that two accused had fired one fire each, which hit deceased and complainant---In contrast to the above, it was in the evidence of Medical Officer that deceased received three (3) fire shots, one grazing injury on arm, another fire arm injury and third on right hypochondrum with corresponding holes present on the shirt---Thus, the medical evidence was in startling contrast to the ocular account forwarded by the complainant and eyewitness regarding the number of fire received by the deceased---Appeal against acquittal was dismissed accordingly.

Tajamal Hussain Shah v. The State and another 2022 SCMR 1567 rel.

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

----Ss. 302(b), 324, 337-F(ii) & 34---Criminal Procedure Code (V of 1898), S. 417(2)---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-badi'ah, common intention---Appreciation of evidence---Appeal against acquittal---Delay of one hour and forty five minutes in lodging the FIR---Effect---Accused were charged for committing murder of sister-in-law of the complainant and also causing injuries to the complainant and his relative---Record showed that the occurrence allegedly took place at 04:30 p.m. and report was lodged at 06:15 p.m.---Prosecution version was that two witnesses reached the spot of occurrence as soon the quarrel started and allegedly they tried to intercept the accused party, which meant that if the prosecution story was accepted to be true, then both these persons were present at the time of quarrel and injuries sustained by the injured, but they took about two hours to shift the injured to the hospital, when admittedly the spot of occurrence was near to the metalled road where vehicles plied regularly---Thus, time was consumed in lodging the report and inference could be drawn that report was lodged after due deliberation and consultation to rope all their opponents in the case---Appeal against acquittal was dismissed accordingly.

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

----Ss. 302(b), 324, 337-F(ii) & 34---Criminal Procedure Code (V of 1898), S. 417(2)---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-badi'ah, common intention---Appreciation of evidence---Appeal against acquittal---Recovery of crime empties from the spot and weapon of offence on the pointation of accused---No reliance without supporting evidence---Accused were charged for committing murder of sister-in-law of the complainant and also causing injuries to the complainant and his relative---Prosecution story described two fire shots resulting in injury to complainant and deceased---As per recovery memo two alleged crime empties were recovered from the spots of two accused---Deceased had three bullet wounds on her person and therefore recovery of only two empties did not commensurate the number of injuries of the two injured---Allegedly, a 30 bore pistol was recovered on the pointation of accused, which was sent to the Forensic Science Laboratory for analysis along with two alleged crime empties and the report thereof revealed that the pistol was without a firing pin, hence, no comparison could be made---Other .30 bore pistol and axe, allegedly used in the offence, were not recovered to conclusively prove that those were used in the commission of offence---Though shirt and shalwar of the two injured were sent to the Forensic Science Laboratory and it was opined that those contained human blood and report was in positive, but without any other supporting material on the record, it would not connect the accused persons with the alleged crime---Appeal against acquittal was dismissed accordingly.

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

----Ss. 302(b), 324, 337-F(ii) & 34---Criminal Procedure Code (V of 1898), S. 417(2)---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-badi'ah, common intention---Appreciation of evidence---Appeal against acquittal---Contradictions and willful improvements made by witnesses in their statements---Effect---Accused were charged for committing murder of sister-in-law of the complainant and also causing injuries to the complainant and his relative---From the statements of complainant and eye-witnesses, it was clear that their statements were not only contradictory but they also suffered from willful improvements---Site plan was prepared on the pointation of eye witnesses, but in their statements complainant and eyewitness had misdescribed the presence of each and every accused as well as their own spot---In his cross-examination complainant replied that at the time of occurrence and inflicting of injury, injured was standing on eastern side of the house of Mr. "B" whereas accused was standing on western side whereas in the site plan the spot given to said accused was towards south of the house of Mr. "B" and injured was further towards north of accused---In his initial report, complainant had not stated anything about the grappling of two persons but complainant in his cross examination had stated that on arrival at the spot the said witnesses grappled with the accused persons---In the FIR, it was mentioned that on hearing fire shot and hue and cry, the two witnesses were attracted, whereas, a witness, who in his statement recorded under S. 161, Cr.P.C., had not mentioned anything about seeing the entire incident, had recorded full-fledged statement, stating to have seen the entire occurrence---Thus, there existed material contradiction in the statements of the said witnesses and at the same time they had made willful improvements in their court statements to bring the case in line with prosecution story, hence, their testimony was not free from doubt, and in the absence of independent corroboration, their statements could not be believed to be true and reliable---Appeal against acquittal was dismissed accordingly.

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

----Ss. 302(b), 324, 337-F(ii) & 34---Qanun-e-Shahadat (10 of 1984), Art. 46---Criminal Procedure Code (V of 1898), S. 417(2)---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-badi'ah, common intention---Appreciation of evidence---Appeal against acquittal---Dying declaration---Accused were charged for committing murder of sister-in-law of the complainant and also causing injuries to the complainant and his relative---Statement of injured, then deceased, was recorded during investigation by the Investigating Officer, after gaining her consciousness, wherein she charged accused for making firing upon her and causing injures upon her person---Injured then deceased later-on died in the hospital---On scrutiny of her statement, it was observed that injured, then deceased, died after some 38/39 days of the occurrence---Said victim remained alive for sufficient time, hence, having no immediate apprehension of death, her statement could not be considered as dying declaration---To authenticate such statement, the Investigating Officer was required to have recorded the statement of the concerned Medical Officer of the hospital to confirm that injured, then deceased, was conscious and well oriented in time and space and that it was a voluntary statement to implicate the respondent for the crime---Thus, in all, the statement of injured, then deceased, recorded after 38 days of occurrence did not qualify to be accepted as dying declaration---Appeal against acquittal was dismissed accordingly.

Mst. Zahida Bibi v. The State PLD 2006 SC 255 rel.

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

----Art. 46---Dying declaration---Scope---Dying declaration is a statement which a person makes, under the belief that as he/she is to depart to the world hereafter, hence, the person would make a true statement without advancing the cause or reason of his/her death.

Miss Ayesha Bibi for Appellant.

Sardar Ali Raza, A.A.G. for the State.

Shad Muhammad Khan for Respondent/Accused.

2023 P Cr. L J 1631

[Peshawar (Bannu Bench)]

Before Sahibzada Asadullah and Muhammad Naeem Anwar, JJ

LUTF UR REHMAN and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 337-B of 2019, decided on 9th February, 2022.

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

----Ss. 302(b), 315, 316, 324, 334, 337-F(vi), 109, 148 & 149---Qatl-i-amd, qatl-shibh-i-amd, attempt to commit qatl-i-amd, causing hurt, ghair-jaiffah munaqqillah, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Sentence, modification of---Motive not proved---Accused were charged for making a murderous assault upon the complainant party, due to which the complainant sustained injuries and later on died---Motive for the offence was stated to be a dispute over landed property---Record showed that the Investigating Officer visited the spot, prepared the site-plan on pointation of the witnesses---Blood stained earth and empties could not be secured from the place of incident, as the site-plan was prepared after registration of the FIR---Site-plan depicted that the disputed property was the ownership of the deceased, but the Investigating Officer did not collect anything in that respect---Not only the deceased but the accused also claimed the same to be in their ownership---Eye-witness disclosed in his court statement that the same was purchased by the deceased, then injured, from one Mr. "A", but record was silent in that respect---Even the Investigating Officer did not record the statement of the actual owner from whom the property was allegedly purchased, so much so that his name did not figure in the calendar of witnesses---Though prosecution had succeeded in proving its case against the accused persons, however, after assessing the collected material the correct application of law, in case of the accused, would be S. 315 of the P.P.C. i.e. Qatl-Shibh-i-amd and not S. 302(b), P.P.C---Resultantly, the sentence awarded under S. 302(b), P.P.C to the accused was altered to one under S. 316, P.P.C, and he was convicted and sentenced to five years---Other accused was only responsible for the injury caused on the scalp of the deceased and the same was punishable under S. 337-A(i), P.P.C, as such his sentence awarded under S. 302(b), P.P.C was set-aside and the said accused was convicted under S. 337-A(i), P.P.C and sentenced to two years---Appeal was partially allowed.

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

----Ss. 302(b), 324, 334, 337-F(vi), 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, causing hurt, ghair-jaiffah munaqqillah, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Minor contradictions---Procedural lapses---Inconsequential---Accused were charged for making a murderous assault upon the complainant party, due to which the complainant sustained injuries and later on died---As the matter was reported in the shape of Daily Diary, the prosecution went with an understanding that until and unless inquiry was conducted FIR could not be registered, and as such the statements of the witnesses could not be recorded soon after the incident---Said fact at the most could be taken a procedural lapse, which alone could not overturn the prosecution case---Though one could not agree with what the prosecution did, as an FIR should have been registered soon after the injured was received in the hospital, however, the intention of the prosecution was noble, despite the procedural lapses---Such procedural lapse alone was not the sole criteria to adjudge---Circumstances established that the prosecution had succeeded in proving its case against the accused persons---Appeal was partially allowed.

Ashfaq Ahmad v. The State 2007 SCMR 641 rel.

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

----Ss. 302(b), 324, 334, 337-F(vi), 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, causing hurt, ghair-jaiffah munaqqillah, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Case of free fight---Role played by individual accused to be assessed instead of joint liability---Accused were charged for making a murderous assault upon the complainant party, due to which the complainant sustained injuries and later on died---Sole eye-witness stated that on the day of incident, the accused persons along with others assaulted the deceased---Said witness specified the role played by each accused---When the parties were engaged in a free fight then instead of looking for joint liability, the role of every individual accused charged was to be assessed on the basis of his involvement in the episode and the role played---During his cross-examination, the witness admitted grappling between the parties and he also explained the way the deceased resisted---Cross-examination of the said witness had resolved the controversy regarding the counter claim of ownership to the property and the ensuing free fight between the parties---In case of a free fight the role played by every accused was to be judged individually in light of the attending circumstances of the case---Circumstances established that the prosecution had succeeded in proving its case against the accused persons---Appeal was partially allowed.

The State and another v. Umer Hayat and another 2011 SCMR 1527 rel.

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

----Ss. 302(b), 324, 334, 337-F(vi), 109, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, attempt to commit qatl-i-amd, causing hurt, ghair-jaiffah munaqqillah, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Dying declaration---Accused were charged for making a murderous assault upon the complainant party, due to which the complainant sustained injuries and later on died---Record showed that soon after the incident the deceased, then injured, was rushed to the hospital, who was examined by the doctor and his Medico-Legal Certificate was prepared, whereafter he was referred to another hospital, and after getting confirmation regarding the fracture caused, the deceased, then injured, was referred to for specialized treatment, where he remained hospitalized for few days and after gaining stability was discharged from the hospital for further management at home---Although no certificate was obtained from the concerned doctor, regarding the capability of deceased to talk and nothing was brought on record that at the time when the deceased then injured, was lodging the report, he was alert and conscious, but it could not be ignored that the deceased received a fracture on his leg which later on turned to be the cause of his death---As the injury was on non-vital part of the body and the deceased, then injured, did not die on the day of incident, it was in itself suggestive of the fact that by that time the deceased, then injured, was fully conscious---Subsequent travel of complainant/deceased from hospital to hospital and his last management at home further clarified the situation---Attending circumstances of the case lent support to the report made in the shape of dying declaration and even the subject of dispute between the parties left no ambiguity that both the parties were claiming the property in question---Circumstances established that the prosecution had succeeded in proving its case against the accused persons---Appeal was partially allowed.

Ibrar Hussain and another v. The State 2006 SCMR 962 rel.

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

----Ss. 302(b), 324, 334, 337-F(vi), 109, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, attempt to commit qatl-i-amd, causing hurt, ghair-jaiffah munaqqillah, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Statement of complainant (deceased) recorded by the police---Admissibility---Accused were charged for making a murderous assault upon the complainant party, due to which the complainant sustained injuries and later on died---Defence objected that the statement of complainant (deceased) was recorded to police during investigation, which was only and only a statement recorded under S. 161, Cr.P.C., and that the same was not admissible in evidence---Validity---Mere fact of recording the statement of the deceased by the Police Officer during investigation did not make it inadmissible in evidence, as S. 162(2), Cr.P.C., specially excluded dying declaration from the restriction application---Ascertaining the veracity of a dying declaration in any particular case was an exercise into a question of fact and not of law---Thus, the usual aids employed by the Courts for determining the truthfulness of any statement would all be relevant for evaluating a dying declaration---Each and every dying declaration was liable to be scrutinized in its attending circumstances as well as on the basis of integrity of its maker---In the present case, it was the deceased then injured who reported the matter, who was fully conscious and oriented in time and space---Cause of death had fully been explained by the doctor before the Trial Court---Attending circumstances of the case lent full support to the statement of the deceased recorded before the police---Circumstances established that the prosecution had succeeded in proving its case against the accused persons---Appeal was partially allowed.

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

----Ss. 302(b), 315, 316, 324, 334, 337-F(vi), 109, 148 & 149---Qatl-i-amd, qatl-Shibh-i-amd, attempt to commit qatl-i-amd, causing hurt, ghair-jaiffah munaqqillah, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Sentence, quantum of---Scope---Accused were charged for making a murderous assault upon the complainant party, due to which the complainant sustained injuries and later on died---Record showed that the prosecution fully succeeded in bringing home guilt against the accused persons, but it was yet to be ascertained as to what should be the appropriate sentence in the given circumstances of the case---Initially all the accused i.e. the present accused persons and the co-accused were charged for forming unlawful assembly, but the same could not be proved on record, as the circumstances of the case convinced the Trial Court in that respect---As none of the accused had been convicted under Ss. 148/149, P.P.C, which confirmed that on one hand the trial Court was not satisfied with the evidence produced in that respect and on the other, the role of every accused was assessed individually, as there was a free fight between the parties---Weapon used in the episode was another circumstance which attracted attention to the intention behind the occurrence---While reporting the matter, the complainant then injured attributed a blow to the accused, with the dull side of the weapon, whereas to the other accused an incised wound on his scalp was attributed---Record showed that the deceased died of the injury caused to his leg, so it was essential to assess from the record as to whether the intention was to kill---Record of the case and the statements recorded led nowhere but to hold that the intention was not to kill, as the selection of weapon and the seat of injury excluded the eagerness to kill---Correct application of law, in case of the accused, would be S. 315 of the P.P.C and not S. 302(b) P.P.C, i.e. Qatl Shibh-i-amd---Resultantly, the sentence awarded under Section 302(b) P.P.C to the accused was altered to one under S. 316, P.P.C, and he was convicted and sentenced to five years---Other accused was only responsible for the injury caused on the scalp of the deceased and the same was punishable under S. 337-A(i), P.P.C, as such the sentence awarded under S. 302(b), P.P.C was set-aside and the said accused was convicted under S. 337-A(i), P.P.C and sentenced to two years---Appeal was partially allowed.

Sultan Mehmood Khan for Appellants.

Saif-ur-Rehman Khattak, Additional A.G. for the State.

Anwar Hussain for Respondents.

2023 P Cr. L J 1670

[Peshawar]

Before Ishtiaq Ibrahim and Sahibzada Asadullah, JJ

Mst. SHAKIRA---Appellant

Versus

The STATE and others---Respondents

Jail Criminal Appeal No. 163-P of 2023, decided on 1st June, 2023.

Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 465---Qatl-i-amd---Appreciation of evidence---Lunatic, trial of---Mental illness---Determination---Accused lady was convicted by Trial Court and was sentenced to imprisonment for life---Plea raised by accused was that she was mentally ill and Trial Court did not determine such fact---Validity---Complainant himself admitted mental illness of accused and Trial Court did not refer her to Standing Medical Board for examination and thereafter to proceed with the case in accordance with law---Trial Court incorrectly opted to conclude the trial without adverting to the provisions of S. 465, Cr.P.C.---High Court directed Trial Court to conduct inquiry regarding mental illness of accused after examining her through Standing Medical Board consisting of qualified medical experts in the field of mental health, who would opine whether accused was capable or otherwise to understand proceedings of trial and make her defence---High Court set-aside conviction and sentences of accused and remanded the matter to Trial Court for decision afresh---Appeal was allowed accordingly.

Sirajuddin v. Afzal Khan and another PLD 1997 SC 847 and Mst. Safia Bano and another v. Home Department Government of Punjab through Secretary and others PLD 2021 SC 488 ref.

Shakil Ahmad Khan for Appellant.

Muhammad Nisar, A.A.G. for the State.

Respondent No. 2 in person.

2023 P Cr. L J 1693

[Peshawar]

Before Lal Jan Khattak and Muhammad Faheem Wali, JJ

HAROON---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 511-P of 2020, decided on 24th February, 2022.

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

----S. 376(3)---Khyber Pakhtunkhwa Child Protection and Welfare Act (XIII of 2010), S. 53--- Rape, sexual abuse---Appreciation of evidence---Benefit of doubt---Delay of two hours in lodging FIR---Consequential---Accused was charged for committing rape with the minor niece of the complainant---Occurrence allegedly occurred at 04:30 p.m., while according to the complainant, he was informed by the victim at about 05:00 p.m., while he reported the matter at about 06:30 p.m.---Total time consumed in reaching to the house of accused by the complainant party and thereafter to the police station as well as to the hospital, on calculation, came out to be 45 minutes---According to said deposition of the complainant, the matter should have been reported at about 05:15 p.m. as according to the complainant, they reached to the house of accused within ten minutes after commission of the occurrence---If time was considered from 05:00 p.m., when the complainant was informed by the victim about the occurrence, then the report should have been made at about 05:45 p.m., but the matter was reported at about 06:30 p.m.---Circumstances established that the prosecution had failed to bring home guilt against the accused---Appeal against conviction was allowed, in circumstances.

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

----S. 376(3)---Khyber Pakhtunkhwa Child Protection and Welfare Act (XIII of 2010), S. 53--- Rape, sexual abuse---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of complainant and victim---Accused was charged for committing rape with the minor niece of the complainant---Victim stated that her father and uncle were present with her in the police station wherefrom her mother took her to the doctor in the hospital, which was belied by the complainant, who stated in cross-examination that they were three in number---Victim stated that they stayed in the hospital till Maghrib prayer and thereafter went to their house, whereas the complainant stated that they remained in the hospital for two hours---Keeping in view the said contradictions between the statements of the complainant and the victim, their testimony could not be believed for sustaining conviction---Appeal against conviction was allowed, in circumstances.

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

----S. 376(3)---Khyber Pakhtunkhwa Child Protection and Welfare Act (XIII of 2010), S. 53---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Rape, sexual abuse---Appreciation of evidence---Benefit of doubt---Withholding best evidence---Effect---Accused was charged for committing rape with the minor niece of the complainant---Record showed that the parents of the victim were abandoned by the prosecution being unnecessary---Parents of the victim were the best witnesses to corroborate the depositions of the complainant and the victim, but they were not produced by the prosecution before trial Court for reasons best known to it---Article 129(g) of the Qanun-e-Shahadat, 1984 catered for the situation that if the best possible evidence was withheld then its non-production would react against the prosecution with an adverse inference---Appeal against conviction was allowed, in circumstances.

Lal Khan v. The State 2006 SCMR 1840 rel.

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

----S. 376(3)---Khyber Pakhtunkhwa Child Protection and Welfare Act (XIII of 2010), S. 53--- Rape, sexual abuse---Appreciation of evidence---Benefit of doubt---Medical evidence---Accused was charged for committing rape with the minor niece of the complainant---Woman Medical Officer found the victim oriented and stable, however, observed bleeding from vagina and fresh blood on thigh---No bruises or laceration on body of the victim were found---Medical witness found the clothes with blood and semen stains and handed over to the local police---During cross-examination, said witness stated that the victim was accompanied by her mother and none else was present with her---Said witness admitted that there were no marks of violence, however, there were bite marks on the victim's neck area and admitted that this fact was not mentioned in her report---Woman Medical Officer stated that neither the victim nor her mother stated anything about the occurrence---At the time of examination, the blood of the victim had not yet coagulated and it was still fresh, however, Medical Officer was unable to specify the exact time of injury received by the victim---According to Forensic Science Laboratory Report, semen of human was found, but surprisingly no grouping of the semen/blood on shalwar of the victim with that of the accused was conducted by the Forensic Expert in order to confirm that the semen stains on shalwar of the victim were that of the accused---Though forensic testing was neither mandatory nor self sustainable to rest conviction and is always used as a corroborative piece of evidence which in the present case, along with other lacunae, was unfortunately lacking despite availability of means and facilities---In peculiar facts and circumstances of the case, such omission could not have been taken lightly to award conviction to the appellant---Appeal against conviction was allowed, in circumstances.

Atif Zareef and others v. The State PLD 2021 SC 550 and Ali Haider alias Papu v. Jameel Hussain and others PLD 2021 SC 362 rel.

(e) 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 are not required to extend the legal benefit to the accused.

Muhammad Akram v. State 2009 SCMR 230; Muhammad Zaman v. State 2014 SCMR 749; Hashim Qasim v. The State 2017 SCMR 986; Muhammad Mansha v. State 2018 SCMR 772 and Mst. Asia Bibi v. State PLD 2019 SC 64 rel.

Zarbad Shah Khan for Appellant.

Muhammad Inam Yousafzai, A.A.G. for the State.

Shah Nawaz Khan Burhankhel for the Respondents.

2023 P Cr. L J 1768

[Peshawar]

Before Qaiser Rashid Khan, C.J. and Fazal Subhan, J

AJMAL and 5 others---Petitioners

Versus

The STATE through Advocate General, Government of Khyber Pakhtunkhwa, Peshawar and 4 others---Respondents

Writ Petition No. 2550-P of 2022 with IR, decided on 18th July, 2022.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 156, 249-A & 265-K---Constitution of Pakistan, Art. 199---Penal Code (XLV of 1860), Ss. 324, 148 & 149---Attempt to qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Quashing of FIR sought---Alternate and efficacious remedy---Complainant got registered an FIR on the basis of injury on his hand but in the final medical report the same (injury) proved to be fake, whereafter he was charged for forgery and using fake documents as genuine---Petitioners (accused persons) sought quashing of the FIR in wake of change of legal and factual aspects of the case---Validity---All the petitioners were nominated in the FIR whereas one of the petitioners had been attributed the role of firing---Investigation of the case though showed the medical report as a result of forgery, however, on the same ground three accused persons had already been granted bail by the subordinate Court---If, at all, the petitioners had been charged in a false case, then they could seek acquittal under S. 249-A or 265-K of the Criminal Procedure Code, 1898, which was the appropriate remedy available to them, for which the Trial Court could be approached---Even, after the registration of the case, the local Police was empowered under section 156 of the Criminal Procedure Code, 1898 to investigate a cognizable offence, therefore, no restriction could be laid to halt the process of investigation---Constitutional petition was dismissed, in circumstances.

State through Advocate General, N.W.F.P v. Gulzar Muhammad and others 1998 SCMR 873 and Ajmeel Khan v. Abdur Rahim and others PLD 2009 SC 102 ref.

2023 P Cr. L J 31

[Balochistan]

Before Jamal Khan Mandokhail, C.J. and Abdul Hameed Baloch, J

ABDUL NABI and others---Appellants

Versus

The STATE through Deputy Prosecutor General (NAB), Balochistan Quetta---Respondent

Criminal Ehtesab Appeals Nos. 3 and 4 of 2013, decided on 31st August, 2020.

(a) Administration of justice---

----Good governance---Scope---State functionary has to act in accordance with law not on his whim, capricious and arbitrary manner and follow the procedure as nobody is above the law.

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

----S. 9(a)(vi)---Qanun-e-Shahadat (10 of 1984), Art. 59---Misuse of authority---Appreciation of evidence---Hand writing expert report---Accused persons were President of Clerk Association and custodian of record who sold out plots belonging to the Association---Trial Court convicted both the accused persons for misuse of their authority and sentenced them to imprisonment along with fine---Validity---Hand writing expert appeared before Trial Court and produced report and confirmed the facts that documents bearing signatures were of the accused---Accused as President of the Association, misused his authority and acted illegally in order to facilitate the beneficiary, whereas his co-accused was custodian of record who transferred land of Association to a private person, despite the fact that they had to protect the interest of government and citizens---All prosecution witnesses stood firm on their deposition and accused failed to create material contradictions/doubt in the evidence which could make the case of prosecution doubtful---Appeal was dismissed in circumstances.

Sarwat Hina for Appellants (in Criminal Ehtesab Appeal No. 3 of 2013).

Jaffar Raza, Special Prosecutor NAB for the State (in Criminal Ehtesab Appeals Nos. 3 and 4 of 2013).

H. Shakil Ahmed for Appellants (in Criminal Ehtesab Appeal No. 4 of 2013).

2023 P Cr. L J 78

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

JUMA KHAN---Petitioner

Versus

DIRECTOR GENERAL NATIONAL ACCOUNTABILITY BUREAU BALOCHISTAN, QUETTA and another---Respondents

Constitutional Petition No. 122 of 2021, decided on 8th April, 2021.

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

----S. 9---Constitution of Pakistan, Art. 199--- Corruption and corrupt practices---Pre-arrest bail, grant of---Private person---Scope---Accused sought concession of pre-arrest bail in an enquiry/investigation initiated by the National Accountability Bureau (NAB)---Accused was alleged to have excavated sand without authorization/permission---Held; accused was an authorized contractor of Mines and Minerals Department and he was authorized/permitted by the Department for mining of sand and bajri over an area of 100 acres of land---Pleas of prosecution and defence agitated at bar were to be examined at final stage by the Trial Court after recording of evidence and forming of such an opinion before commencement of trial was against the norms of criminal justice--- Accused was a private person holding no public office and the proceedings had been initiated against him on the basis of a private complaint, as such, the question of mala fide on the part of complainant and possibility of false implication could not be ruled out and the case of prosecution qua the guilt of the accused required further probe---Accused had appeared before the Investigating Officer and his physical custody was not required by the Investigating Officer---Petition for grant of pre-arrest bail was allowed.

(b) Constitution of Pakistan---

----Art. 14---National Accountability Ordinance (XVIII of 1999), S. 9---Inviolability of dignity of man---Scope---Article 14 of the Constitution is the only guarantee which is not subject to law but is an unqualified guarantee---Said fundamental right of any citizen whenever violated and complained of, the Court must step into and investigate on the constitutional jurisdiction and pass such order as may be found just, legal and equitable---Right to live is not confined to mere living but it means a meaningful life, which can be enjoyed with dignity---No person in whatever capacity is allowed to detract, defame or disgrace any other person, thereby diminishing, decreasing and degrading the dignity, respect, reputation and value of life in particular the officials of the NAB, who are entrusted the sacred duty to investigate white collar crimes---Inhuman treatment meted out to the NAB victim violates not only the Convention Against Torture and other cruel, inhuman or degrading treatment or punishment ratified by the Government of Pakistan, but also Art. 14 of the Constitution and directions issued time and again by the superior courts of the country.

PLD 1994 SC 693 ref.

Muhammad Riaz Ahmed for Petitioner.

Amin-ud-Din Bazai, Deputy Prosecutor General, NAB assisted by Jaffar Raza, Special Prosecutor, NAB for Respondents.

2023 P Cr. L J 143

[Balochistan]

Before Abdullah Baloch and Abdul Hameed Baloch, JJ

ABDUL QADEEM SHAH---Appellant

Versus

ABDUL WADOOD and another---Respondents

Criminal Acquittal Appeal No. 330 of 2020, decided on 29th June, 2021.

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

----Ss. 302 & 34---Qatl-i-amd and common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Last seen evidence---Chance witness---Scope---Complainant assailed the acquittal of accused by the trial court in a case involving unwitnessed murder of his brother---Prosecution case rested on circumstantial evidence consisting upon last seen evidence, report of Forensic Laboratory and medical evidence---Complainant had nominated the accused through subsequent application but had failed to describe the source of information in respect of involvement of accused in the commission of offence---Prosecution witness, claiming to have seen the deceased accompanying with accused, was a chance witness---Prosecution had not conclusively proved that the deceased was killed shortly after the alleged last seen---Conviction could not be recorded on the strength of last seen evidence in a case of circumstantial evidence---Complainant had failed to point out any illegality and irregularity in the impugned judgment---Appeal against acquittal was dismissed, in circumstances.

Sanaullah v. State 2020 MLD 659 rel.

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

----S. 154---Information in cognizable cases---Subsequent statement---Scope---Any subsequent application made during the investigation to the police would neither be equated with the FIR nor as part of the FIR.

Muhammad Saleem v. State 2010 YLR 2115 ref.

(c) Criminal trial---

----Report of Chemical Examiner--- Scope--- Report of Forensic Laboratory is corroborative evidence---Conviction cannot be awarded only on the basis of corroborative evidence without substantive piece of evidence.

(d) Criminal trial---

----Evidence---One tainted piece of evidence cannot corroborate another tainted piece of evidence.

Muhammad Ali v. State 2005 PCr.LJ 830 ref.

(e) Criminal trial---

----Medical evidence--- Circumstantial evidence--- Scope--- Medical evidence is only for confirmation of ocular evidence regarding seat of injury and weapon, etcetera but medical evidence itself does not constitute any corroboration qua the identity of the accused to prove culpability---When the case hinges on circumstantial evidence, utmost care is required to reach the just conclusion---Circumstantial evidence is like a chain and every chain should be linked with the other, if any chain misses, then its benefit should be given to the accused.

Muhammad Sharif v. State 1997 SCMR 866 ref.

Naveed Asgher v. State PLD 2021 SC 600 rel.

(f) Criminal trial---

----Last seen evidence---Scope---Last seen evidence is generally regarded as a weak type of evidence unless corroborated by other strong piece of evidence.

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

----S. 417---Appeal against acquittal---Scope---Standard of appreciation of evidence in appeal against the acquittal is quite different---Order of acquittal of accused by a court of competent jurisdiction carries double presumption of innocence and the court seized with acquittal appeal is obliged to be very careful in dislodging the presumption.

Mst. Anwar Begum v. Akhtar Hussain Alias Kaka 2017 SCMR 1710 rel.

Saifullah Kakar for Appellant.

2023 P Cr. L J 164

[Balochistan]

Before Muhammad Ejaz Swati and Iqbal Ahmed Kasi, JJ

RAZA MUHAMMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 357 of 2022, decided on 1st August, 2022.

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

----Ss. 32 & 33---Articles connected with narcotics---Procedure for confiscation---Scope---Appellant assailed order passed by Trial Court only to the extent of confiscation of vehicle from which heroin was recovered---Accused was acquitted of the charge, on an application under S. 265-K, Cr.P.C., however, the vehicle along with contraband was ordered to be confiscated in favour of the State---Appellant had not claimed ownership of the vehicle in question during the course of investigation or trial---Appeal was presented before the Court with a considerable delay of four months, that too, without any plausible explanation, whereas, on the other hand the appellant was claiming that the vehicle in question was the only source of his income and his entire family depended upon the same---Document through which the appellant was trying to prove his ownership was a purchase slip---Vehicle was registered in the name of another person---Appellant was not entitled to claim ownership rights over the vehicle in question---Appeal was dismissed.

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

----S. 32---Articles connected with narcotics---Scope---Whenever an offence has been committed under the Control of Narcotic Substances Act, 1997, the intoxicant, utensils, etc., in respect or by means of which the offence has been committed shall be liable to confiscation along with receptacles or packages and vehicle, vessel or other conveyance used to carry the same.

Noor Bakhsh Baloch for Appellant.

2023 P Cr. L J 233

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

MIRA BUKHSH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 223 of 2020, decided on 12th July, 2021.

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

----Ss. 302(b), 324, 337-D, 337-F(iii) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, jaifah, ghayr-jaifah-mutalahimah, common intention---Appreciation of evidence---Ocular account---Scope---Accused were charged for committing murder of the assistant of brother of complainant and causing injuries to his brother---Motive behind the occurrence was stated to be an old enmity---Ocular account had been furnished by complainant, his minor brother and injured---Complainant appeared and reiterated the contents of FIR---Said witness though did not witness the crime directly, however, the fact remained that he brought the criminal machinery into motion and he fully corroborated the testimonies of other witnesses---Statement of child witness had fully been corroborated by the direct evidence of injured witness and complainant, thus, nothing adverse had come on record to disbelieve the evidence of minor witness---Case of prosecution had further got strength from the statement of injured witness---Said witness had correctly stated the date, time and the place of occurrence as well as the manner in which the occurrence had taken place---Said witness had fully corroborated the statement of complainant and minor witness---Said witness had confirmed that the accused made firing upon him with pistol, while absconding accused inflicted dagger blows upon him and upon the person of deceased, whereafter he was taken to hospital for medical treatment---Injured witness had correctly identified the accused in the trial to be the culprit, who made firing upon him with pistol---Said witness was cross examined at sufficient length, but it appeared that the witness remained firm in his deposition and the defence had failed to shake his testimony---Since said witness was not only the victim/injured, but also the direct eye witness of the occurrence---Evidence of injured witness appeared to be trust worthy, reliable, confidence inspiring and free from any prejudice or mala fides---No reason existed to disbelieve or discard the statement of injured witness---Statement of said witness being injured witness was enough to establish the charge against the accused---Circumstances established that the prosecution had successfully proved its case against the accused beyond any shadow of reasonable doubt---Appeal against conviction was dismissed accordingly.

Muzammil Shah v. State 1991 MLD 1944 rel.

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

----Ss. 302(b), 324, 337-D, 337-F(iii) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, jaifah, ghayr-jaifah-mutalahimah, common intention---Appreciation of evidence---Statement of minor witness---Scope---Accused were charged for committing murder of the assistant of brother of complainant and causing injuries to his brother---Admittedly, minor brother of the complainant was a witness, but at the time of his examination-in-chief the court enquired several questions from him and found him mentally mature and fit to answer the questions correctly and even during cross-examination he replied the questions correctly, which established the soundness of his mind and his statement could not be thrown aside merely on the ground of his being minor age of 12/13 years rather alone his statement was enough to establish the charge against the culprits---Even otherwise, there was nothing on record showing that said witness was tutored by his elders---Circumstances established that the prosecution had successfully proved its case against the accused beyond any shadow of reasonable doubt---Appeal against conviction was dismissed accordingly.

(c) Criminal trial---

----Witness---Statement of minor witness---Reliance---Scope---Rule of prudence required that the testimony of child witness should not be relied upon unless it was corroborated by some cogent evidence on the record.

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

----Ss. 302(b), 324, 337-D, 337-F(iii) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, jaifah, ghayr-jaifah-mutalahimah, common intention---Appreciation of evidence---Minor discrepancies---Scope---Accused were charged for committing murder of the assistant of brother of complainant and causing injuries to his brother---Although, the defence attempted to discredit the case of prosecution on the basis of some minor discrepancies in the evidence of prosecution witnesses, however, those discrepancies were not substantive enough to justify or create reasonable doubt in the case of prosecution about the involvement and guilt of the accused with common intention---Statements of complainant, injured and minor eye-witness were similar with each other on all counts---Circumstances established that the prosecution had successfully proved its case against the accused beyond any shadow of reasonable doubt---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b), 324, 337-D, 337-F(iii) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, jaifah, ghayr-jaifah-mutalahimah, common intention---Appreciation of evidence---Statement of injured witness supported by medical evidence---Scope---Accused were charged for committing murder of the assistant of brother of complainant and causing injuries to his brother---One of the witnessess was injured in the incident, thus according to settled norms of justice, the solitary statement of injured witness being confidence inspiring was sufficient to convict the culprit, because legally the statement of an injured witness could not be challenged---Defence had also not doubted or challenged the injuries sustained by the injured in cross-examination---Injuries sustained by injured had been duly supported by medical evidence furnished by Police Surgeon---Circumstances established that the prosecution had successfully proved its case against the accused beyond any shadow of reasonable doubt---Appeal against conviction was dismissed accordingly.

Saleem Zada and others v. The State 2019 SCMR 1309 and Farooq Khan v. State 2008 SCMR 917 rel.

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

----Ss. 302(b), 324, 337-D, 337-F(iii) & 34---Qanun-e-Shahadat (10 of 1984), Art. 40---Qatl-i-amd, attempt to commit qatl-i-amd, jaifah, ghayr-jaifah-mutalahimah, common intention---Appreciation of evidence---Weapon of offence was recovered on the disclosure of accused---Reliance---Scope---Accused were charged for committing murder of the assistant of brother of complainant and causing injuries to his brother---Case of prosecution had further been strengthened from the disclosure of accused, which was followed by the recovery of crime weapon on his pointation from his own home---Investigating Officer brought on record that during investigation the accused confessed his guilt by recording his disclosure and stated that they had enmity with injured witness, who had committed the murder of his brother---Accused along with his younger brother and relatives planned to commit the crime, thus, they all launched attack upon them---Accused also volunteered to recover the crime weapon from his house, thus the disclosure was prepared and the accused was taken in an official vehicle to his house, from where he got recovered the pistol used in the crime---Record showed that soon after the occurrence the police had also collected five empties from the place of occurrence and the recovered pistol along with the empties were sent to Forensic Science Laboratory for examination---After examination, Forensic Science Laboratory issued its report---Perusal of which established the fact that not only the pistol was in running condition, but also the recovered empties were fired from the said pistol---Disclosure of the accused was followed by the recovery of crime weapon and the empties were matched from the said pistol, thus legally the disclosure was admissible under the law, when more particularly, it got strength from the recovery of crime weapon as well as matching of empties---Disclosure of accused coupled with discovery of new facts and the recovery of crime weapon was admissible under Art. 40 of the Qanun-e-Shahadat, 1984---Circumstances established that the prosecution had successfully proved its case against the accused beyond any shadow of reasonable doubt---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b), 324, 337-D, 337-F(iii) & 34---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, attempt to commit qatl-i-amd, jaifah, ghayr-jaifah-mutalahimah, common intention---Appreciation of evidence---Defence plea---Scope---Accused were charged for committing murder of the assistant of brother of complainant and causing injuries to his brother---Accused throughout the proceedings had taken the plea of his false implication due to previous enmity, but had failed to produce any solid or concrete evidence to rebut the confidence inspiring evidence produced by the prosecution---Mere denial of the accused was not enough to brush-aside the entire prosecution evidence---Defence plea so taken had established the motive behind the occurrence, which was stated to be an old enmity and the injured was nominated in the murder of brother of accused---Circumstances established that the prosecution had successfully proved its case against the accused beyond any shadow of reasonable doubt---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b), 324, 337-D, 337-F(iii) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, jaifah, ghayr-jaifah-mutalahimah, common intention---Appreciation of evidence---Vicarious liability---Scope---Accused were charged for committing murder of the assistant of brother of complainant and causing injuries to his brother---Accused and his co-accomplices, duly armed with pistol and dagger, made surveillance surrounding the shop of victims, chased them on motorcycle and on getting a chance made firing and inflicted dagger blows upon the person of deceased and the injured---Deceased did not sustain injury at the hands of accused, the act of firing at the injured itself was strong evidence of sharing the common intention to commit the crime---Common intention generally involved the element of common motive, pre-planned preparation and action pursuant to such plan---Circumstances established that the prosecution had successfully proved its case against the accused beyond any shadow of reasonable doubt--- Appeal against conviction was dismissed accordingly.

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

----S. 34---Common intention---Scope---Once it is proved that the accused persons had common intention to commit the crime, it is immaterial as to what part was played by whom, as the law as to vicarious liability is that those who stand together must fall together.

Sh. Muhammad Abid v. State 2011 SCMR 1148 rel.

Abdul Razzaq Shar for Appellant.

Yahya Baloch, Additional P.G. for the State.

2023 P Cr. L J 285

[Balochistan]

Before Abdul Hameed Baloch, J

MUHAMMAD ANWAR---Petitioner

Versus

The STATE---Respondent

Criminal Revision No. 20 of 2021, decided on 24th May, 2021.

Penal Code (XLV of 1860)---

----Ss. 302, 147, 148 & 149---Criminal Procedure Code (V of 1898), S. 512---Qanun-e-Shahadat (10 of 1984), Art. 47---Qatl-i-amd, rioting, rioting armed with deadly weapons, unlawful assembly---Transposition of statement in subsequent trial---Effect---Complainant/petitioner had implored for transposition of the statement of a witness recorded earlier in the case because of his death---Said application was accepted by the Trial Court---Validity---As per S. 353, Cr.P.C., the evidence should be taken in the presence of accused, if the presence of accused was dispensed with by the competent court, then the statement of witness was to be recorded in the presence of his pleader---If the Trial Court recorded the statement of witnesses in absence of accused, on arrest of accused the court should record the statement of witnesses de novo, provided that such witness was alive---If the witnesses was/were found dead, incapable of giving evidence or his attendance could not be procured without delay or expense then evidence of such witness could be considered---Object of S. 512, Cr.P.C., was to exclude the possibility of lost of evidence or preserve the statement recorded during abscondence of accused---Section 512, Cr.P.C. and Art. 47 of Qanun-e-Shahadat, 1984, empowered the court to believe the evidence of a witness if it had been recorded in absence of accused, provided that on arrest of accused, the witness had died or incapable to give evidence or his attendance could not be procured without an amount of delay---Under the said provisions, the protection was given to the deposition of such witnesses who were not alive or incapable to give evidence or their attendance could not be procured without an amount of delay---From the perusal of record, the case fell within the eventualities mentioned in S. 512, Cr.P.C., as the referred witness had died---Contention of petitioner that under S. 353, Cr.P.C., the statement of witness should be recorded in presence of accused had no force---Sections 353, 512, Cr.P.C. and Art. 47 of the Qanun-e-Shahadat, 1984, were to be read conjointly not in isolation---Section 512, Cr.P.C., empowered the court to record the statements of witnesses in absentia while Art. 47 of the Qanun-e-Shahadat, 1984 dealt with the relevance of evidence recorded in judicial proceedings---Petitioner failed to point out any illegality in the impugned order passed by the Trial Court---Petition was dismissed accordingly.

Muhammad Saddique v. State 2018 SCMR 71 rel.

Sultan Khalid for Petitioner.

Muhammad Sadiq Kakar for the Complainant.

Miss Shumaila Iftikhar for the State.

2023 P Cr. L J 326

[Balochistan (Sibi Bench)]

Before Muhammad Ejaz Swati and Rozi Khan Barrech, JJ

DOST MUHAMMAD---Petitioner

Versus

Malik SHAH MUHAMMAD and 6 others---Respondents

Constitutional Petition No. (s) 54 of 2021, decided on 20th May, 2021.

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

----Art. 150---Question by party to his own witness---Scope---Complainant was aggrieved of the dismissal of his application for declaring the Medico Legal Officer as hostile---Complainant, prior to the lodging of FIR, had moved an application under S. 22-A, Cr.P.C. with the averment that the accused persons had attacked upon him with sticks as a result whereof he had sustained injuries---SHO (Police) concerned had referred the complainant for treatment, where the witness had issued Medico Legal Certificate (MLC)---Application was accepted and the FIR was lodged---Medico Legal Officer on his appearance before the Trial Court had denied the issuance of MLC (Medico Legal Certificate)---Nothing was available on record to show that the witness had ever issued any MLC in respect of the injuries allegedly caused to the complainant---Witness from the day one was negating the issuance of any MLC in favour of the complainant---MLC was never challenged by the complainant before any forum---No improvement, deviation, accumulation or suppression of material facts in the statement of Medico Legal Officer, adverse to the interest of complainant or inconsistent with his previous statement was found--- Constitutional petition was dismissed.

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

----Art. 150---Question by party to his own witness---Scope---Plain reading of Art. 150 of Qanun-e-Shahadat, 1984, indicates that it is the discretion of the Court to permit the party who calls a witness to put any question to him, and it is not the right of that party---Such discretion is to be exercised with due caution and attention, keeping in view the interests of both the parties so that no one is prejudiced from the order of the Court---Normally a witness who becomes hostile or antagonistic to the party who produced him for recording evidence in his support is allowed to be cross-examined to impeach the credit of the witness by evidence of the kind mentioned in Art. 151 of the Qanun-e-Shahadat, 1984---In order to enable a party to invoke Art. 150 of the Qanun-e-Shahadat, 1984, it is necessary to establish that the witness is guilty of equivocation, or that he is varying in his statement, or trying to suppress the truth or that he bears animosity towards the party who calls him---In absence of any act on the part of the witness of the above nature, a party is not entitled to cross-examine his witness to impeach his credit.

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

----Art. 150---Question by party to his own witness---Scope---Witness who is unfavourable is not necessarily hostile, a hostile witness is one who from the manner in which he gives his evidence, shows that he is not desirous of telling the truth to the Court; that the witness's answer to a certain question is in direct conflict with the evidence of other witnesses and is not and can never be a reason for allowing the witness to be treated as hostile and permitted to be cross-examined.

Muhammad Boota and another v. The State 1984 SCMR 560 rel.

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

----Art. 150---Question by party to his own witness---Scope---Witness would not necessarily be declared a hostile witness for the reasons that he was unfavourable to the party calling him and he was not desirous of telling the truth.

Syed Muhammad Zahid (Absent) for Petitioner.

Anwar-ul-Haq Chaudhry for Respondents Nos. 1 to 6.

2023 P Cr. L J 387

[Balochistan]

Before Abdullah Baloch and Rozi Khan Barrech, JJ

ABDULLAH---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 50 of 2021, decided on 22nd August, 2022.

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

----Ss. 302(b), 337-A & 337-D--- Qatl-i-amd---Appreciation of evidence---Accused was charged for committing murder of his wife and caused dagger blow to his mother---Ocular account of the incident had been furnished by mother and sister-in-law of the accused---Record showed that both the witnesses recorded their statements in line with each other---Said witnesses brought the house inmates, their presence in the house at the relevant time was not disputed and was natural---Accused was the son of a witness, as such, it was also beyond imagination that a mother might have falsely implicate her own son in the false case, when naturally a mother was the most selfless person---In such like situation and keeping in view the love and affection of mother towards her son, it was beyond imagination that a mother could falsely implicate her own son in a false case, when more particularly the accused was the only source of their bread and butter---Statement of witness being mother was most credible and worth credence than any other witness, as she was giving evidence against her own son and more particularly she was also attacked upon by the accused---Under the law the evidence of a injured witness was most credible than any other witness---Since said witness herself was injured in the incident, thus according to settled norms of justice, the solitary statement of injured witness being confidence inspiring was sufficient to convict the culprit, as such, legally the statement of an injured witness could not be challenged---Circumstances established that the prosecution had successfully proved the charges leveled against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Farooq Khan v. State 2008 SCMR 917 rel.

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

----Ss. 302(b), 337-A & 337-D--- Qatl-i-amd---Appreciation of evidence--- Direct evidence--- Scope--- Accused was charged for committing murder of his wife and causing dagger blow to his mother---Conduct of the accused had 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 brutal murder of his wife, who received more than eleven deep wounds on her person---Besides, it had also been established through record that at the time of said murder, the accused was present in his house and the crime weapon was also recovered from his possession---Accused also not disputed the unnatural death of his wife---All the said facts suggested that actually it was the accused, who had committed the murder of his wife and injured his mother---Direct, circumstantial and medical evidence was fully implicating the accused with the murder of his wife and circulation of such information to landlord of accused as well as receipt of such information to the Levies Control Room had further corroborated the direct evidence---Circumstances established that the prosecution had successfully proved the charges levelled against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

2023 P Cr. L J 449

[Balochistan (Turbat Bench)]

Before Muhammad Ejaz Swati and Gul Hassan Tareen, JJ

MIR HAMMAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. (T) 76 of 2022, decided on 26th December, 2022.

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

----S. 9(c)---Police Rules, 1934, Rr. 22.18 & 22.70---Qanun-e-Shahadat (10 of 1984), Art. 102---Transportation of narcotics---Custody of property---Safe custody---Store-Room Register, non-production of---Evidence of terms of contracts, grants and other disposition of property reduced to form of document---Scope---Accused was convicted for transporting narcotics---In-charge Store Room had deposed that Investigating Officer had handed over parcels for safe custody and that he had made an entry of taking over in the Register XIX (Store Room Register)---However, neither extract of the entry was produced in evidence nor the same was made as part of the challan---Where a written document existed, it had to be produced as being best evidence of its own contents---Safe custody of the case property could have been established only when copy of the register of store room was formally brought on the record of the Court---Any matter which was required by law to be reduced in the form of a document, no oral evidence could be given for proof of that matter except the document itself---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 161---Qanun-e-Shahadat (10 of 1984), Art. 140---Transportation of narcotics---Cross-examination as to previous statements in writing---Contradictory statements---Delay in recording statement under S. 161, Cr.P.C.---Dishonest improvements---Scope---Accused was convicted for transporting narcotics---Investigating Officer had recorded statements of prosecution witnesses after 23 days of the recovery for which no explanation was given---Prosecution had alleged that the samples were separated from the four slabs which were sealed in parcel Nos. 1 to 4, while the remaining 3980 grams were sealed in parcel No. 5---According to S. 161, Cr.P.C. statement of In-charge Store Room, parcel No. 5 was not handed over to him by the Investigating Officer, while in Court's statement he failed to explain the improvement made by him in his examination-in-chief---Such improvement was duly confronted to him under Art. 140 of the Qanun-e-Shahadat, 1984 but he and the Investigating Officer had failed to tender any plausible explanation---Accused could not be held guilty for recovery of four kilograms of narcotics---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 382-B---Qanun-e-Shahadat (10 of 1984), Arts. 67 & 68---Transportation of narcotics---Period of detention to be considered while awarding sentence of imprisonment---Previous good character, relevance of---Previous bad character not relevant---Scope---Accused was convicted for transporting narcotics---Trial Court had withheld the benefit of S. 382-B, Cr.P.C. on the ground that the accused was previous convict of an offence under S. 9(c), Control of Narcotic Substances Act, 1997---Held, that observations and findings of the Trial Court were absolutely illegal, because in a criminal case, the bad character of an accused was irrelevant under Art. 68 of the Qanun-e-Shahadat, 1984, unless the evidence of his good character had not been given---Accused had not made statement on oath nor had he led any evidence that he was a person of good character---Trial Court had placed reliance and referred to an inadmissible piece of evidence---Appeal against conviction was allowed, in circumstances.

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

2023 P Cr. L J 558

[Balochistan]

Before Zaheer-ud-Din Kakar and Muhammad Aamir Nawaz Rana, JJ

Mir AHMED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 199 of 2021, decided on 29th November, 2022.

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

----Ss. 302 & 109---Qatl-i-amd, abetment---Appreciation of evidence---Natural presence of the eye-witnesses at the spot---Accused was charged for committing murder of the brother of the complainant by firing---First Information Report was lodged with remarkable promptitude in which single accused was nominated---Ocular account in the case had been furnished by the complainant and four other witnesses, so five eye-witnesses were produced by the prosecution---Presence of the said eye-witnesses at the place of incident was justified as one witness was the father of the deceased, while three other witnesses were real brothers of deceased and they all were living in the same house which fact was not disputed by the defense side during cross-examination---Apart from that another eye-witness lived in the neighborhood of the deceased, therefore the presence of thesaid witnesses at the place of incident was natural and logically they were the natural eye-witnesses as incident took place just after Sehri time, in early hours of the morning, in front of the house of deceased---Circumstances established that the prosecution successfully brought home the charge against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Major (R.) Nadir Ali v. The State 2003 YLR 761; Mir Mat Khan alias Matokai v. The State 2002 PCr.LJ 1914; Sobho v. The State PLD 2004 Kar. 8; Shafique Ahmed v. The State 1997 PCr.LJ 1; Mir Hassan v. The State 1999 SCMR 1418; Riaz Ahmed v. The State 2010 SCMR 846; The State v. Muhammad Haroon PLD 2006 Kar. 20 and Muhammad Mukhtiar alias Moju v. The State 2010 PCr.LJ 1750 ref.

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

----Ss. 302 & 109---Qatl-i-amd, abetment---Appreciation of evidence---Related witnesses---Reliance---Accused was charged for committing murder of the brother of the complainant by firing---Five eye-witnesses recorded their statements and identified the accused as he was previously known to them, therefore there was no question of misidentification---So the testimony of said witnesses, though they were relatives of deceased, could not be discarded on the basis of mere relationship---Mere relationship of the prosecution witnesses with the deceased could not be a ground to discard such witnesses unless previous enmity or ill-will was established on record to falsely implicate the accused in the case---Circumstances established that the prosecution successfully brought home the charge against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Niaz-ud-Din v. The State 2011 SCMR 725; Asim v. The State 2005 SCMR 417; Lal Khan v. The State 2006 SCMR 1846; Muhammad Sadiq v. The State 2022 SCMR 690 and Shamsher Ahmed v. The State 2022 SCMR 1931 rel.

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

----Ss. 302 & 109---Qatl-i-amd, abetment---Appreciation of evidence---Trivial contradictions and discrepancies in the statements of witnesses---Accused was charged for committing murder of the brother of the complainant by firing---Allegedly, there were discrepancies and inconsistencies in the statements of the eye-witnesses---However, the discrepancies or contradictions pointed out were trivial in nature and considering the long absconsion of the accused for more than seven years, those immaterial discrepancies were but natural and if such minor contradictions having no significance were given importance then there would hardly be any conviction---Circumstances established that the prosecution successfully brought home the charge against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Allah Bakhsh v. Ahmad Din 1971 SCMR 462 rel.

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

----Ss. 302 & 109---Qatl-i-amd, abetment---Appreciation of evidence---Absconsion of the accused---Accused was charged for committing murder of the brother of the complainant by firing---Accused after the incident chose to remain an absconder---However, father and brothers of accused were arrested and on the charge of conspiracy to commit murder, they faced the trial and subsequently were acquitted---During that period the accused remained fugitive from law and no explanation in that regard had been furnished by him---Though absconsion itself was not sufficient to convict an accused but it was a strong piece of corroborative evidence of the other direct substantive evidence of the case---Circumstances established that the prosecution successfully brought home the charge against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Qaisar Khan v. The State 2009 SCMR 471 rel.

2023 P Cr. L J 589

[Balochistan]

Before Muhammad Ejaz Swati and Sardar Ahmed Haleemi, JJ

NASRULLAH alias MOMIN and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No. 6 and Criminal Revision Petition No. 25 of 2021, decided on 14th November, 2022.

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

----Ss. 302 & 397---Qanun-e-Shahadat (10 of 1984), Art. 129, Illustration (g)---Qatl-i-amd and robbery or dacoity with attempt to cause death or grievous hurt---Appreciation of evidence---Complainant not an eye-witness---Best evidence, withholding of---Presumption---Accused was convicted by Trial Court for committing robbery with causing death and was sentenced to imprisonment for ten years---Validity---Complainant was not eye-witness of the occurrence and no eye-witness was cited in FIR---Subsequently, complainant introduced an eye-witness through his supplementary statement---Such kind of witness nominated later on through supplementary statement was made for the purpose to strengthen case of prosecution at the behest of police or some other ulterior motives---Such aspect was enough to shatter credibility of such witness---Material witnesses of secure and safe custody as well as safe transmission of crime weapon to Forensic Science Laboratory were not produced, which was a clear violation of provision of Art. 129, Illustration (g) of Qanun-e-Shahadat, 1984---Prosecution failed to establish charge against accused as the evidence was suffering from infirmities and there existed sufficient doubts in the case of the prosecution---Trial Court failed to extend benefit of doubts to the accused and judgment of Trial Court was suffering from misreading and non-appreciation of evidence available on record---High Court set aside conviction and sentence awarded by Trial Court and accused was acquitted of the charge---Appeal was allowed accordingly.

Muhammad Kamran v. The State 2021 SCMR 479; Mst. Sughra Begum and another v. Qaiser Pervaiz and others 2015 SCMR 1142; Naveed Asghar and 2 others v. The State PLD 2021 SC 600; Mir Zaman and 5 others v. The State and others 2012 SCMR 580 and Muhammad Shah Khesro and another v. The State and others 2006 PCr.LJ 606 rel.

(b) Criminal trial---

----Recovery of crime weapon---Proof---When chains of circumstantial evidence from safe and secure custody of case property till its safe transmission to forensic science laboratory are missing, then safe custody and transmission are not probable---Positive report of Ballistic expert loses its significance in such circumstances.

Nazeer Ahmed v. State 2016 SCMR 1656 rel.

2023 P Cr. L J 621

[Balochistan]

Before Zaheer-ud-Din Kakar and Shaukat Ali Rakhshani, JJ

NABI KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 608 of 2021, decided on 15th November, 2022.

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

2023 P Cr. L J 655

[Balochistan]

Before Zaheer-ud-Din Kakar and Muhammad Aamir Nawaz Rana, JJ

ABDUL REHMAN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 251 of 2022, decided on 21st November, 2022.

Penal Code (XLV of 1860)---

2023 P Cr. L J 711

[Balochistan]

Before Muhammad Ejaz Swati and Iqbal Ahmed Khan, JJ

FAZUL and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. (T) 112 of 2021, decided on 15th August, 2022.

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

----S. 9(c)---Transportation of narcotics---Appreciation of evidence---Benefit of doubt---Contradictory statements---Scope---Accused persons assailed their conviction under S. 9(c) of Control of Narcotic Substances Act, 1997---Complainant in his cross-examination stated that only some money was recovered from personal possession of the accused while a marginal witness stated that CNIC of accused was also recovered from personal search, in his presence---Contradiction was available in the statements of prosecution witnesses about receiving of information from a spy---Fard-e-bayan was sent through a constable for lodging the FIR but the prosecution did not produce him as a Court witness---One of the marginal witnesses had failed to identify the accused persons before the Trial Court, during his examination-in-chief---Vehicles used for transportation of narcotics were produced before the court but the engine numbers of both the vehicles were found different to those mentioned in the recovery memo---Record revealed that statement of accused was recorded by Investigating Officer 10 days prior to the alleged incident---Occurrence had not taken place in the mode and manner narrated in the FIR---No doubt, huge quantity of contraband was recovered but recovery of huge quantity was not the only criteria to convict the accused charged with trafficking of contraband unless the indictment was proved by the prosecution beyond reasonable doubt through confidence inspiring and worth reliable evidence---Appeal was allowed and the accused persons were acquitted of the charge, in circumstances.

2023 P Cr. L J 769

[Balochistan]

Before Naeem Akhtar Afghan, C.J. and Rozi Khan Barrech, J

ABDUL GHAFFAR and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 194, Criminal Acquittal Appeal No. 193 and Murder Reference No. 6 of 2020, decided on 28th June, 2022.

(a) Criminal trial---

----Related witnesses---Scope---Evidence of the related witnesses can not be discarded on the ground of its being related to the victim---If it is found that the testimony of the related witness got no corroboration from attending circumstances of the case or the conduct shown by them at the time of occurrence or just thereafter, which can not be expected from a prudent person, then the evidence furnished by related witnesses can be easily discarded.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Chance witnesses---Accused were charged for committing murder of the mother and sister of complainant by firing---Ocular account had been furnished by complainant, brother of one of the deceased and uncle of the complainant being eye-witnesses---Oral statement of eye-witnesses was recorded by the Investigating Officer of the case at the hospital at 5:45 a.m. on 10.10.2019, whereas the occurrence took place on 10.10.2019 at 2:30 a.m.---Oral statement of complainant was hence recorded after three hours and fifteen minutes of the occurrence that too at the hospital and not at the place of occurrence---No reason, much less plausible, had been given by the prosecution at any stage for such deferral in reporting the matter to the police---In the present case, the ocular account furnished was suffering from legal and factual infirmities and did not appeal to a prudent mind because, according to the prosecution's case, as a result of the firing made at the place of occurrence two ladies died at the place of occurrence and the same fact was also confirmed by the witnesses---However, the witnesses never reported the matter to the police at the place of occurrence for as many as three hours and fifteen minutes---Moreover, none of the prosecution witnesses, including eye-witnesses, ever proceeded to the police station or reported the matter at the place of occurrence and it was the Investigating Officer of the case, who, according to him, reached the place of occurrence where he found the dead bodies of the deceased ladies---Investigating Officer and recovery witness who had first reached the place of occurrence did not state a single word that eye-witnesses were present at the place of occurrence---Said aspect of the prosecution case had left no doubt that eye-witnesses did not witness the occurrence---Prosecution case was that the oral statement of the complainant was recorded at the hospital---Thus, there must be some plausible reason for that failure of the eye-witnesses, not to report the matter at the place of occurrence to the police promptly---However, none was available and hence doubts had arisen regarding the presence of the said witnesses at the place and time of occurrence---In that regard an inference against the prosecution eye-witnesses had to be drawn---Apart from the above, eye-witnesses were highly interested and inimically deposed against the accused---First reason for disbelieving them was that their presence on the spot was unnatural because had they been present at the spot, they would have received some injuries from the shots fired by the accused---Thus, it appeared that they had tried to suppress their interestedness---Both the said eye-witnesses did not justify their presence at the time and place of occurrence---Thus, it did not appeal to the logic that the person whose sister and mother were being murdered neither made any resistance nor raised a hue and cry for help despite the fact that the alleged occurrence took place in a populated area where there were other houses near the place of occurrence---According to the Call Detail Records (CDRs) of the said witnesses, they were not present at the place of occurrence at the time of occurrence---Alleged occurrence took place in the area of District "Q", whereas both the eye-witnesses were residing in another province, and the said place was at a distance of 350 kilometers from the place of occurrence---Both the said witnesses had not given any plausible explanation for their presence at the spot at the time of the incident---Said witnesses had no place of business near the place of the incident, therefore, both the said witnesses were chance witnesses---Circumstances established that the prosecution had failed to prove the culpability of the accused through reliable, trustworthy and confidence-inspiring evidence---Appeal against conviction was allowed, in circumstances.

G. M. Niaz v. The State 2018 SCMR 506 and Zafar v. The State and others 2018 SCMR 326 rel.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Delay in lodging the FIR---Effect---Accused were charged for committing murder of the mother and sister of complainant by firing---Record showed that the alleged occurrence took place on 10.10.2019 at 2:30 a.m., and the FIR was lodged on the same night at 5:45 a.m. with unexplained delay of three hours and fifteen minutes---Distance between the place of occurrence and the police station was one and a half kilometers, but no explanation whatsoever had been furnished by the prosecution for such delay---Furthermore, it could be inferred from the circumstances and the statements of the witnesses that it was only after consultation and concert that the oral statement of the complainant was prepared, and the same was neither prompt nor spontaneous, hence worthy of no reliance---Circumstances established that the prosecution had failed to prove the culpability of the accused through reliable, trustworthy and confidence-inspiring evidence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Mode and manner of the occurrence doubtful---Effect---Accused were charged for committing murder of the mother and sister of complainant by firing---In the present case, if the statements of the eye-witnesses were believed to be true for a moment, then the question arose as to why and how the accused spared them and did not even try to kill them when he could have easily killed them because they were empty-handed and at his mercy, coupled with the fact that they could depose against him as eye-witnesses being brother and son of the deceased---Mode and manner of the occurrence advanced by the prosecution witnesses was not appealable to a prudent mind---Another interesting feature of the case was that the accused had no motive to fire at the deceased---According to statements of the purported eye-witnesses, they were empty-handed and the accused pointed a pistol upon them and they were totally at the mercy of the accused but they were left alive and the accused selected to kill the sister and mother of the complainant---One of the deceased was the wife of the accused with whom he had no direct motive and so it might be inferred that the incident did not take place in the way and manner as it was alleged---Circumstances established that the prosecution had failed to prove the culpability of the accused through reliable, trustworthy and confidence-inspiring evidence--- Appeal against conviction was allowed, in circumstances.

(e) Criminal trial---

----Chance witness, testimony of---Scope---Testimony of a chance witness is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time---In the normal course, the 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 on the crime spot are put forth when the occurrence took place---Otherwise, testimony of chance witness would fall within the category of suspect evidence and cannot 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.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Postmortem examination report contradicting time of occurrence alleged in the FIR---Effect---Accused were charged for committing murder of the mother and sister of complainant by firing---Record showed that the occurrence took place at 2:30 a.m. on 10.10.2019---Postmortem of the deceased was conducted at 5:20 a.m. on 10.10.2019 i.e. before registration of FIR---According to Medical Officer the time between death and postmortem examination was 12 to 13 hours---In view of the said evidence produced by the prosecution, the alleged occurrence had not taken place as alleged by the prosecution, i.e. on 10.10.2019 at 2:30 a.m. rather, the alleged occurrence took place 12 to 13 hours before the time alleged by the prosecution---Said aspect of the case also created reasonable doubt in the prosecution case---Circumstances established that the prosecution had failed to prove the culpability of the accused through reliable, trustworthy and confidence-inspiring evidence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Dishonest improvements made by the eye-witnesses---Effect---Accused were charged for committing murder of the mother and sister of complainant by firing---Record showed that the alleged two eye-witnesses made dishonest improvements in their statements before the Trial Court---Complainant claimed in his statement before the court that acquitted accused and absconding accused were told that if they came forward they would be killed---However, the said portion of the statement of complainant was not mentioned in his Fard-e-Bayan---Eye-witness claimed in his statement before the court that acquitted accused made firing upon one deceased, and present accused made firing upon other deceased---However, when statement of eye-witness was recorded under S. 161l Cr.P.C., before the police, he did not state a single word that the absconding accused made firing upon one deceased and present accused made firing upon the other deceased---Said willful and dishonest improvement was made by eye-witnesses in order to strengthen the prosecution case---In view of such improvements in the statements of eye-witnesses, it was not safe to rely upon their testimonies and to maintain the conviction and sentence recorded against the accused under capital charge---Such dishonest and deliberate improvement and omission made them unreliable and they were not trustworthy witnesses---Circumstances established that the prosecution had failed to prove the culpability of the accused through reliable, trustworthy and confidence-inspiring evidence--- Appeal against conviction was allowed, in circumstances.

Amir Zaman v. Mahboob and others 1985 SCMR 685; Akhtar Ali's case 2008 SCMR 6; Khalid Javed's case 2003 SCMR 149; Mohammad Shafique Ahmad v. The State PLD 1981 SC 472; Syed Saeed Mohammad Shah and another v. The State 1993 SCMR 550 and Mohammad Saleem v. Mohammad Azam 2011 SCMR 474 rel.

(h) Criminal trial---

----Dishonest improvement by witnesses in their statement---Scope---When a witness makes an improvement in his/her statement, and the moment it is observed that the said improvement is made dishonestly to strengthen the prosecution case, such portion of their statement is to be discarded.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence at the instance of accused doubtful---Accused were charged for committing murder of the mother and sister of complainant by firing---In the present case, 9mm pistol was recovered at the instance of accused and the positive report of the Firearms Expert was received---Prosecution produced recovery witness in that regard---According to the version of said witness, the accused disclosed that he could recover the pistol he used to make firing upon his wife and mother-in-law---Said witness further stated that on the pointation of the accused, one 9mm pistol was recovered from the house of the relative of the accused---Prosecution had not produced any other witness to corroborate the statement of said witness to the extent that the alleged pistol was recovered on the pointation of the accused from the house of his relative---However, Investigating Officer of the case only stated in his statement that he prepared recovery memo of the pistol in the presence of witnesses but did not state a single word in his statement that the alleged pistol was recovered from the house of relative of accused on pointation of the accused---Prosecution failed to produce the person from whose home alleged recovery of 9mm pistol was effected on the pointation of the accused---Moreover, when neither the said house belonged to the accused nor the prosecution produced any witness to establish that the said person was a relative of the accused, then how it was possible that the accused kept the pistol in the house of a stranger, which created reasonable doubt in the prosecution case---Circumstances established that the prosecution had failed to prove the culpability of the accused through reliable, trustworthy and confidence-inspiring evidence--- Appeal against conviction was allowed, in circumstances.

Sajjan Solangi v. The State 2019 SCMR 872 rel.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Contradictions in the statement of recovery witness and Investigating Officer---Accused were charged for committing murder of the mother and sister of complainant by firing---Record showed that there was contradiction in the statement of recovery witness and Investigating Officer---Recovery witness stated in his statement that on 10.10.2019, the accused was arrested---On the other hand, Investigating Officer stated in his statement that the accused was arrested on 11.10.2019---Said contradiction created reasonable doubt in the prosecution case---Circumstances established that the prosecution had failed to prove the culpability of the accused through reliable, trustworthy and confidence-inspiring evidence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Weapon and crime empties sent for analysis together and after a delay of six days---Accused were charged for committing murder of the mother and sister of complainant by firing---Allegedly, the occurrence took place on 10.10.2019 and the accused was arrested on the next day---Alleged recovery was effected on 12.10.2019 after two days of the arrest of accused---Alleged three empties were taken into possession by the prosecution through a recovery memo on the day of occurrence, i.e. 10.10.2019---As per record, the recovered pistol and empties were received together by the Firearms Expert on 18.10.2019, with a delay of six days---Sending of crime weapon (9mm pistol) and bullet empties together with delay of six days to Firearms Expert created reasonable doubt in the prosecution case---Thus, the Firearms Expert report in that regard was inconsequential to the prosecution case---Circumstances established that the prosecution had failed to prove the culpability of the accused through reliable, trustworthy and confidence-inspiring evidence---Appeal against conviction was allowed, in circumstances.

Nazir Ahmed v. The State 2016 SCMR 1628; Ali Sher and others v. The State 2008 SCMR 707; Israr Ali v. The State 2007 SCMR 525 and Muhammad Ashraf v. The State 2019 SCMR 652 rel.

Tahir Ali Baloch and Adnan Ejaz Sheikh for Appellants (in Criminal Appeal No. 194 of 2020).

Attaullah Langove for the Complainant (in Criminal Appeal No. 194 of 2020).

Attaullah Langove for Appellants (in Criminal Acquittal Appeal No. 193 of 2020).

Tahir Ali Baloch and Adnan Ejaz Sheikh for Respondents Nos. 1 and 2 (in Criminal Acquittal Appeal No. 193 of 2020).

Abdul Latif Kakar, A.P.G. for the State.

2023 P Cr. L J 885

[Balochistan]

Before Abdullah Baloch and Rozi Khan Barrech, JJ

MEER MUHAMMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 589 of 2021, decided on 28th November, 2022.

(a) Criminal trial---

----Witness---Related and interested witness---Reliance---Scope---No doubt, evidence of a related witness can not be discarded on the ground of his being related to the victim, but if it is found that the testimony of a related witness gets no corroboration from attending circumstances of the case or the conduct shown by him at the time of occurrence or just thereafter is such which can not be expected from a prudent person, then in such circumstance the evidence furnished by a related witness can easily be discarded.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Presence of eye-witnesses at the spot doubtful---Accused was charged for committing murder of deceased persons by firing on the instigation of co-accused---Conduct of complainant and eye-witnesses, who were cousins of the deceased, was strange as instead of shifting the dead body of the deceased and injured (deceased) to the hospital, they kept waiting for Levies Officials for taking the deceased and the injured to the hospital---Had they been present at the spot at the time of the alleged occurrence, they must have taken the deceased and injured either to the hospital or to Levies station, which admittedly was not done---If it was presumed for a moment that personally they were unable to take them to the hospital then, they could at least have deputed someone else for the purpose rather than waiting for the Levies Officials on the spot to take the deceased and the injured to the hospital---Ordinarily, from complainant and eye-witnesses, being cousins of the deceased, one did not expect such conduct---Complainant was not an eye-witness of the alleged occurrence, but the FIR was lodged by the said witness---If it was presumed that eye-witnesses were present at the place of occurrence, then naturally, they would have gone to lodge the report promptly, but they did not do so---Thus, it seemed that said eye-witnesses were not present at the place of occurrence---Furthermore, the FIR was lodged with a delay of seven hours and forty minutes without any explanation, which created doubt in the credibility of the said two witnesses---Circumstances established that the prosecution had failed to establish the culpability of the accused in the present case through reliable, trustworthy and confidence inspiring evidence---Appeal against conviction was allowed, in circumstances.

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

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Mode and manner of the occurrence doubtful---Accused was charged for committing murder of deceased persons by firing on the instigation of co-accused---If the statements of the eye-witnesses were believed to be true for a moment, then the question arose as to why and how the accused and absconding accused spared them and did not even try to kill them when they could have easily killed them because they were empty-handed and at their mercy, coupled with the fact that they could depose against them as eye-witnesses being cousins of the deceased---Mode and manner of the occurrence advanced by the prosecution witnesses was not appealable to a prudent mind---Circumstances established that the prosecution had miserably failed to establish the culpability of the accused in the present case through reliable, trustworthy and confidence inspiring evidence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Accused was charged for committing murder of deceased persons by firing on the instigation of co-accused---Record showed that the accused and absconding accused had no motive to fire at the deceased despite the fact that allegedly eye-witnesses were empty-handed and were totally at the mercy of the accused and absconding accused, but they were left alive and the accused and absconding accused selected to kill the cousins of eye-witnesses with whom they had no direct motive and so it might be inferred that the incident did not take place in the way and manner as it was alleged---Circumstances established that the prosecution had failed to establish the culpability of the accused in the present case through reliable, trustworthy and confidence inspiring evidence--- Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Contradictions in the statement of eye-witnesses---Accused was charged for committing murder of deceased persons by firing on the instigation of co-accused---Record showed that the presence of eye-witnesses became doubtful because the complainant did not mention the names of eye-witnesses in the report and did not state a single word in his report as well as in his statement before the court that they were present at the time of alleged occurrence---Moreover, the statement of one eye-witness was contradictory to the statement of other eye-witness---Both the said eye-witnesses did not name each other in their statement about their presence at the place of occurrence, which created reasonable doubt in the prosecution case---Circumstances established that the prosecution had failed to establish the culpability of the accused in the present case through reliable, trustworthy and confidence inspiring evidence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Delay of seven hours and forty minutes in lodging the FIR---Effect---Accused was charged for committing murder of deceased persons by firing on the instigation of co-accused---Record showed that the alleged occurrence took place at 10:30 a.m.---First Information Report was lodged on the same day at 6:10 pm with an unexplained delay of seven hours and forty minutes despite the fact that the distance between Levies Station and place of occurrence was 65/70 kilometers, but no explanation whatsoever had been furnished by the prosecution for such delay---Furthermore, it could be inferred from the statements of the witnesses that it was only after consultation and concert that the oral statement of the complainant was prepared and the same was neither prompt nor spontaneous, hence worthy of no reliance---In that regard, an inference against the prosecution witnesses had to be drawn---Circumstances established that the prosecution had failed to establish the culpability of the accused in the present case through reliable, trustworthy and confidence inspiring evidence---Appeal against conviction was allowed, in circumstances.

G. M. Niaz v. The State 2018 SCMR 506 and Zafar v. The State and others 2018 SCMR 326 rel.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Delay in recording the statements of witnesses by the police---Effect---Accused was charged for committing murder of deceased persons by firing on the instigation of co-accused---Record showed that the names of the eye-witnesses did not figure in the FIR lodged by the complainant, and both the said eye-witnesses claimed to have seen the alleged occurrence---However, the statements of eye-witnesses under S. 161, Cr.P.C., were recorded with delay---Statement of one eye-witness was recorded under S. 161, Cr.P.C., on the next day of the occurrence---Complainant stated during cross-examination that he brought the witnesses to Levies Station for recording their statements on the next day of the occurrence---On the other hand, Risaldar Levies stated during cross-examination that the statement under S. 161, Cr.P.C. of one eye-witness was recorded five days after the alleged occurrence and no explanation whatsoever had come on record that why the statements of the said witness was recorded with delay---Such fact rendered the case of the prosecution extremely doubtful---Delay of even one or two days without explanation in recording the statements of witnesses was fatal for the prosecution and not worthy of reliance---Circumstances established that the prosecution had failed to establish the culpability of the accused in the present case through reliable, trustworthy and confidence inspiring evidence---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.

Abdullah Khan Kakar for Appellant.

Naseer Ahmed Bangulzai and Nisar Ahmed Alizai for the Complainant.

Ameer Hamza Mengal, A.P.G. for the State.

2023 P Cr. L J 964

[Balochistan]

Before Abdullah Baloch and Rozi Khan Barrech, JJ

SARDAR MUHAMMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 174 and Murder Reference No. 2 of 2022, decided on 19th September, 2022.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Contradictions and dishonest improvements made by witnesses---Effect---Accused was charged for committing murder of his wife, who was daughter of the complainant---Ocular account of the incident had been furnished by the complainant, father of deceased and mother and sister of deceased---Admittedly, all the witnesses were related with each other---Nothing had been mentioned by the complainant in his fard-e-bayan that at the relevant time sister of deceased was present in the house of deceased---First Information Report was registered on 18th June 2020, while the accused was arrested on 28th June 2020 and after completion of investigation he was remanded to judicial custody on 13 July 2020, but the fard-e-bayan of complainant, his Court statement as well as the statement of sister of deceased were silent with regard to presence of sister of deceased in the house of accused or witnessing the crime---Occurrence was dated 18th June 2020, while this witness was introduced in the trial Court on 22nd October 2021 i.e. after delay of more than 16-months, when till that time not only the trial had commenced, but it was at the verge of conclusion as out of nine witnesses, the Trial Court had already examined eight witnesses and only the statement of Investigating Officer was remaining---Undoubtedly, the introduction of new witness could not be denied strict sensu, but certainly the scheme of law was bypassed by introducing and recording statement of a witness, who otherwise was not earlier in picture by the prosecution---Father, mother as well as sister of the deceased were well aware about the murder of their blood relation, but despite this fact none of the witnesses during investigation approached the Investigating Officer to record the statement of sister of deceased---Even otherwise, the 161, Cr.P.C. statement of sister of deceased as well as her examination in chief were silent with regard to her presence at the relevant time in the house of her sister---Apparently, the prosecution made an unsuccessful attempt to fill in the lacunas at belated stage and that too after lapse of 16-months, which otherwise had diminished the evidentiary value of the statement of sister of the deceased---Circumstances established that the prosecution had failed to prove the charge against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Shah Jahan and another v. Raheem Shah 2022 SCMR 352 rel.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Benefit of doubt---Presence of witnesses at the spot doubtful---Scope---Accused was charged for committing murder of his wife, who was daughter of the complainant---Admittedly, the statement of complainant and sister of deceased were not helpful to the case of prosecution as none of the witnesses were present at the relevant time at the place of occurrence and apparently they did not see the accused committing the murder of deceased---Mere past strained relation of spouses was no ground to hold accused responsible for future mis-happening, while the statement of sister of deceased, who claimed to be the eye-witness of the occurrence also had no evidentiary value, who otherwise kept mum for complete 16-months and during intervening period she was not produced before the Investigating Officer---Such silence of the said witness had cast serious doubt about the involvement of the accused---Circumstances established that the prosecution had failed to prove the charge against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd---Appreciation of evidence---Delay in recording confessional statement of accused by the Court---Effect---Accused was charged for committing murder of his wife, who was daughter of the complainant---Record showed that the confessional statement of accused was recorded under S. 164, Cr.P.C. by the Judicial Magistrate, wherein the accused allegedly confessed his guilt of committing the murder of his deceased wife on the allegations of Siya Kari that his deceased wife had kept illicit relations with his step brother and earlier accused had warned his wife and also apprised the situation to his parents, but despite such fact the deceased did not mend her way and continued illicit relations with her paramour and according to the contents of confessional statement allegedly the deceased had admitted that she had committed Zina with her paramour twelve times---Irrespective of the contents of confessional statement, the admitted feature of the case was that the accused was arrested on 28th June 2020 and his confessional statement was recorded on 13th July 2020 i.e. on the sixteenth day of his arrest---No explanation on the part of prosecution had been furnished that as to why the accused remained under custody for more than the provided period of remand---Even otherwise, according to that witness the custody of accused after recording his statement under S. 164, Cr.P.C., was handed over to the Investigating Officer for judicial lock-up---According to settled norms of justice, voluntariness of confession was doubtful when recorded after unauthorized confinement of accused---Admittedly, confession was obtained after keeping the accused in illegal police custody, thus serious doubts were created with regard to its voluntariness and the element of blackmailing and torturing could not be ruled out of consideration---Circumstances established that the prosecution had failed to prove the charge against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Hamzo v. The State PLD 1960 Kar. 817 and State v. Asfandyar Wali and 2 others 1982 SCMR 321 rel.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt--- Extra-judicial confession--- Accused was charged for committing murder of his wife, who was daughter of the complainant---In the present case, the extra judicial confession of accused recorded in police custody appeared to be untrustworthy---Extra judicial confession of the accused was recorded on 10th July 2020, while on the fourth day of such disclosures his confessional statement was recorded on 13th July 2020---Now question arose that if the accused recorded his disclosures on 10th July 2020 then as to why he was not produced on the said date before the concerned Judicial Magistrate for recording his confessional statement---In order to eliminate any sort of doubt the Investigating Officer ought to have got recorded such confessional statement on the said date, but it was not done so---Even otherwise, both the disclosure and confessional statement did not corroborate any other piece of evidence---Hence, the element of accused being tortured during investigation could not be ruled out of consideration---Thus, both the confessional and the extra judicial confessional statements of the accused were also not helpful to the case of prosecution, because the same were not corroborating any other piece of evidence---Circumstances established that the prosecution had failed to prove the charge against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Yousaf v. The State 1995 SCMR 351 and Umar Hayat v. The State 2020 YLR 1398 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---Accused can not be deprived of benefit of doubt, merely because there is only one circumstance, which created doubts in the prosecution story.

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Kamran Murtaza, Adnan Ejaz and Wali Muhammad Barech for Appellant.

Ameer Hamza Mengal, Additional P.G. for the State.

2023 P Cr. L J 1043

[Balochistan]

Before Zaheer-ud-Din Kakar and Muhammad Aamir Nawaz Rana, JJ

ABDUL GHAFFAR---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos. (T) 44, (T) 45 and (T) 46 of 2022, decided on 21st November, 2022.

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

----Ss. 365, 395, 324, 353, 186 & 34---Abduction for ransom, dacoity, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, common intention---Appreciation of evidence---Benefit of doubt---Accused was charged that he along with his co-accused kidnapped the clerk and brother of the complainant and also took account registers and cash amount of diesel amounting to rupees five million and later, encounter took place which resulted into death of two accused persons---Accused was not nominated in both the FIRs---Subsequently, FIR was lodged on 17.01.2022 at Levies Station in which it was mentioned that encounter took place which resulted into death of two accused---Accused was not even mentioned in the third FIR regarding alleged encounter between the Levies Personnel and accused party---Features of accused were also not mentioned in the FIR lodged by the Levies Personnel, nevertheless, it had been alleged that subsequently the accused was arrested in wounded condition and no weapon was recovered from the possession of accused---Statements of abductees had immense significance considering the attending circumstances of the case---Both abductees were allegedly kidnapped and subsequently, after encounter in which two accused died, were recovered---Both abductees were produced by the prosecution as witnesses in all the three cases and it was found that their statements had been reproduced in all three cases which were found to be verbatim and was gross-violation of S. 356(1), Cr.P.C---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) Penal Code (XLV of 1860)---

----Ss. 365, 395, 324, 353, 186 & 34---Abduction for ransom, dacoity, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, common intention---Appreciation of evidence---Conflict in statements of abductees---Accused was charged that he along with his co-accused kidnapped the clerk and brother of the complainant and also took account registers and cash amount of diesel amounting to rupees five million, and later, encounter took place which resulted into death of two accused persons---Perusal of statements of two abductees were found to be contradictory on material points---Abductee had not recognized the accused as an accused who had any role to play in his abduction, while the other abductee, in his Court statement, had recognized the accused as one of the accused who was present with main accused who had abducted clerk of complainant---Absolutely no role had been attributed to the accused by any of the witnesses---Identification of accused in Court by the abductee had been considered incriminatory by the Trial Court for the purpose of convicting the accused---Since, admittedly the accused was not known to the abductees and the Investigating Officer did not conduct any identification parade, so identification of accused by abductee in Court was not safe as abductee had not assigned any role to the accused in the whole episode, starting from his abduction till his recovery---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 Ashraf v. The State 2001 SCMR 424 and Majeed alias Majeedi v. The State 2019 SCMR 301 rel.

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

----Ss. 365, 395, 324, 353, 186 & 34---Abduction for ransom, dacoity, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, common intention---Appreciation of evidence---Contradictions in ocular account and medical evidence---Accused was charged that he along with his co-accused kidnapped the clerk and brother of the complainant and also took account registers and cash amount of diesel amounting to rupees five million, and later, encounter took place which resulted into death of two accused persons---Record showed that it was the case of prosecution that encounter took place on 17.01.2022 at 06:30 a.m., while the accused was arrested on the same day at 05:00 pm---Investigation Officer had alleged that the accused was arrested in wounded condition and subsequently at 05:30 p.m. he was brought to the Civil Hospital for treatment and medical examination---Perusal of Medico-Legal Certificate of accused narrated a different story as it was mentioned that the injury received by the accused in between thumb and index figure of right hand was one or two days old, so the Medico Legal Certificate contradicted the prosecution version that encounter took place at 06:30 a.m. and accused was arrested approximately 11 hours later, on same day---Said contradiction had also caused doubts about 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.

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

----Ss. 365, 395, 324, 353, 186 & 34---Abduction for ransom, dacoity, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, common intention---Appreciation of evidence---Place of incident doubtful---Accused was charged that he along with his co-accused kidnapped the clerk and brother of the complainant and also took account registers and cash amount of diesel amounting to rupees five million, and later, encounter took place which resulted into death of two accused persons---Record showed that the Investigation Officer did not collect any blood sample from the place of incident where according to prosecution story the encounter had taken place, so the place of incident where the encounter took place had become suspicious---Absolutely no role had been assigned to the accused during the encounter and when allegedly he was arrested subsequently, no weapon was recovered from his possession which could connect him with the commission of alleged offence---All the said aspects of the matter had casted doubts upon the 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.

Naveed Asghar's case PLD 2021 SC 600 rel.

Allauddin Baloch for Appellant.

Sudheer Ahmed, Additional Prosecutor General for the State.

2023 P Cr. L J 1115

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Gul Hassan Tareen, JJ

NOOR ZAMAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 216 and Murder Reference No. 5 of 2022, decided on 25th October, 2022.

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

----Ss. 302, 324, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Presence of the accused at the place of occurrence not doubtful---Accused was charged for committing murder of the son of the complainant by firing---Statements of prosecution witnesses and defence transpired that accused and complainant were known to each other and there was a suit pending between them on the land on which the incident took place---Accused was defendant in the civil suit instituted by the complainant---Suit was pending in the court of Civil Judge---Civil Court issued a commission for the site inspection and appointed an Advocate---Pendency of suit and issuance of commission, presence of local commissioner and the revenue staff, were not disputed or denied---Local commissioner and his junior advocate were independent witnesses and deposed about the presence of complainant, his sons, and the accused along with his armed guards at the scene of occurrence---Even the witnesses, examined by the accused in his defence deposed that accused arrived at the place of occurrence where the accused and the complainant indulged in a scuffle with each other---Both defence witnesses in their 161, Cr.P.C. statements attributed role of firing to the accused and his fellows and the death of the complainant's son due to the fire shot of the accused---Defence witnesses were not declared hostile by the defence---Said defence witnesses proved the presence of accused at the place of incident---Said witnesses were confronted by the prosecution with their statements recorded under S. 161, Cr.P.C, but they could not justify their inconsistent statements made in the court---Circumstances established that the prosecution had succeeded to substantiate the charge against the accused beyond shadow of any reasonable doubt through coherent and confidence inspiring evidence---Appeal against conviction was dismissed accordingly.

Notice to Police Constable Khizar Hayat son of Hadayatullah PLD 2019 SC 527; Arshad Khan v. The State 2017 SCMR 564; Sardar Bibi v. Munir Ahmed 2017 SCMR 344; Commissioner Inland Revenue FBR v. ICI Pakistan 2017 SCMR 1159; Nazeer Ahmed v. The State 2019 SCMR 594; Atta Muhammad v. The State 1995 SCMR 599; Rehmat and others v. The State PLD 1959 SC 109; Muhammad Aslam v. The State 1988 SCMR 940; Sajjad Hussain v. The State 2022 SCMR 1540; Muhammad Ashraf alias Nikka v. The State 2022 SCMR 1328; Sarwar v. The State 2020 SCMR 1250; Imtiaz alias Taji v. State 2020 SCMR 287; Syed Hamid Mukhtar Shah v. Azam and 2 others 2005 SCMR 427; Ijaz Ahmed v. The State 2009 SCMR 99; Altaf Hussain v. The State 2010 SCMR 1020 and Jawed Malik v. The State 2005 SCMR 49 ref.

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

----Ss. 302, 324, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Related and interested witnesses, evidence of---Reliance---Accused was charged for committing murder of the son of the complainant by firing---Though, the complainant was the father of the deceased and eye-witnesses were brothers of the deceased, however mere fact that they were related to deceased and as such falsely roped the accused in the case, was not of legal significance as substitution was a rear phenomenon---Nothing could be brought on record to indicate any reason on the part of prosecution witnesses for absolving the actual culprits and instead implicating the accused in the crime in question---Circumstances established that the prosecution had succeeded to substantiate the charge against the accused beyond shadow of any reasonable doubt through coherent and confidence inspiring evidence---Appeal against conviction was dismissed accordingly.

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

----Ss. 302, 324, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Presence of eye-witnesses at the time and place of occurrence not doubtful---Scope---Accused was charged for committing murder of the son of the complainant by firing---Cross-examination of eye-witnesses did not suggest that they were not present at site along with their father/complainant---Said witnesses specifically figured the position of accused beside the deceased at the scene of occurrence---Eye-witness account by one brother of deceased got necessary corroboration from medical certificate and entry register which proved that the dead body of deceased was brought in Hospital by Police Official and an eye-witness---Circumstances established that the prosecution had succeeded to substantiate the charge against the accused beyond shadow of any reasonable doubt through coherent and confidence inspiring evidence---Appeal against conviction was dismissed accordingly.

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

----Ss. 302, 324, 147, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 21(1)---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Motive proved---Circumstances establishing preparation for offence alleged---Accused was charged for committing murder of the son of the complainant by firing---Record showed that the incident took place in broad day light, therefore, the question of mistaken identity did not arise---Pendency of civil suit and motive was put, by the Trial Court, to the accused under S. 342, Cr.P.C---Complainant not only alleged motive, rather proved it through evidence i.e. pendency of suit and intention of accused to occupy the subject land---Evidence of motive also corroborated the testimony of complainant and eye-witnesses---Medical evidence was another piece of evidence which corroborated the statements of complainant and eye-witnesses---Arriving in the company of armed guards at the scene of occurrence showed the preparation of the accused for the commission of offence---Any fact which showed preparation for any fact in issue and relevant fact, was relevant under Art. 21(1) of the Qanun-e-Shahadat, 1984, which was another piece of corroborative evidence---Advocates at the site also corroborated ocular account of complainant and eye-witnesses---Circumstances established that the prosecution had succeeded to substantiate the charge against the accused beyond shadow of any reasonable doubt through coherent and confidence inspiring evidence---Appeal against conviction was dismissed accordingly.

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

----Ss. 302, 324, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Non-existence of the report of ballistic experts and serologist---Not consequential---Accused was charged for committing murder of the son of the complainant by firing---Since there was overwhelming evidence in the form of direct ocular evidence corroborated by the evidence of motive and medical certificate, entry register and preparation, therefore, non-existence of the report of ballistic experts and serologist would not cast any shadow of doubt on the eye-witness account of the incident furnished by the witnesses---Circumstances established that the prosecution had succeeded to substantiate the charge against the accused beyond shadow of any reasonable doubt through coherent and confidence inspiring evidence---Appeal against conviction was dismissed accordingly.

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

----Ss. 302, 324, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Author of the murasila and FIR not cited as witnesses---Not consequential---Accused was charged for committing murder of the son of the complainant by firing---Contention of the defence that the authors of the murasilla and FIR were not cited as witnesses was not of any significance because the prosecution had succeeded to substantiate the charge of qatl-i-amd against the accused by producing direct and circumstantial evidence---Circumstances established that the prosecution had succeeded to substantiate the charge against the accused beyond shadow of any reasonable doubt through coherent and confidence inspiring evidence---Appeal against conviction was dismissed accordingly.

(g) Criminal trial---

----Site plan---Scope---Site plan is not a substantive piece of evidence to be used to contradict or counter the ocular account and cannot be given preference over the direct evidence of the eye-witnesses .

Abdul Rauf v. The State 2003 SCMR 522 and Sardar Khan v. The State 1998 SCMR 1823 rel.

(h) Criminal trial---

----Related witness, evidence of---Reliance---Mere friendly relation or relationship of the witness with the deceased or complainant party is no ground to discard his evidence describing him as an interested witness.

Sardar Khan and 3 others v. The State 1998 SCMR 1823; Muhammad Ali v. Muhammad Yaqoob and 3 others 1998 SCMR 1814; Iqbal alias Bhala and 2 others v. The State 1994 SCMR 1 and Ijaz Ahmed v. The State 2009 SCMR 99 rel.

Sardar Muhammad Latif Khan Khosa, Syed Ayaz Zahoor, Abdul Basit Tareen, Ahsan Gohar Yousafzai, Aster Mehak, Abdul Aziz Barrech and Bakhtiar Sherani for Appellant (in Criminal Appeal No. 216 of 2022) and for Respondent (in Murder Reference No. 5 of 2022).

Yahya Baloch, Additional Prosecutor General for the State (in Criminal Appeal No. 216 and Murder Reference No. 5 of 2022).

Jameel Ahmed Khan Babai, Muhammad Ayub Khan Tareen and Arbab Enam for the Complainant (in Criminal Appeal No. 216 and Murder Reference No. 5 of 2022).

2023 P Cr. L J 1250

[Balochistan (Sibi Bench)]

Before Muhammad Hashim Khan Kakar and Gul Hassan Tareen, JJ

SHAHZAD KHAN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. (s) 15 of 2022, decided on 30th August, 2022.

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

----Ss. 9(c) & 29---Criminal Procedure Code (V of 1898), S. 161---Transportation of narcotics---Appreciation of evidence---Benefit of doubt---Contradictory statements---Safe custody---Delay in recording statement---Withholding best evidence---Scope---Accused persons were alleged to have been apprehended while transporting 170 kilograms of charas---Investigating Officer had neither visited the place of recovery nor prepared sealed parcels---Statement of the In-charge of Malkhana was recorded with an unexplained delay of 21 days---Prosecution had miserably failed to establish the safe custody of the recovered charas---Murasila/Fard-e-Bayan had not attributed the role of driving of the car to any one of the accused---Since the role of driving was not attributed to any person, the question of conscious possession of the recovered charas within the meaning of S. 29 of the Control of Narcotic Substances Act, 1997 did not arise at all---Prosecution had also failed to inquire about the ownership of the car from which the charas was allegedly recovered---Chemical Examiner's report mentioned the recovered substance as "Hashish Garda," which is a raw form of cannabis resin and could not be used as a narcotic drug, whereas baked charas was used for smoking---Assistant Commissioner allegedly present during the recovery process was not cited as a witness---Prosecution had conducted the entire investigation in an unprofessional manner and had failed to substantiate the accusation against the accused to connect them with the commission of the alleged offence---Appeal was allowed, in circumstances.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 and Muhammad Afzal and 2 others v. The State 2012 MLD 220 rel.

Kamran Murtaza and Ahsan Rafiq Rana for Appellants.

Jameel Akhtar Gajani, Additional Prosecutor General for the State.

2023 P Cr. L J 1276

[Balochistan]

Before Abdullah Baloch and Rozi Khan Barrech, JJ

KHALIQ DAD---Appellant

Versus

NADIR KHAN and others---Respondents

Criminal Acquittal Appeal No. 308 of 2021, decided on 21st December, 2022.

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

----Ss. 249-A, 265-K & 417(2-A)---"Appeal against acquittal"---Acquittal of accused under S. 249-A or 265-K, Cr.P.C.---Distinction---No embargo is placed on the appellate court from reviewing the evidence upon which an order of acquittal was based---Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal---However, in appeal or revisional proceedings, the order of acquittal of the accused under S. 249-A or S. 265-K of the Cr.P.C. would not have the same sanctity as orders of acquittal on merits---Consequently, the principles, which are to be observed and applied in setting aside the findings of acquittal, or the principles, relating to the presumption of double innocence, when an accused is acquitted after a full-fledged inquiry and trial to acquittals under S. 265-K of the Cr.P.C., will not be applicable---Paramount consideration of the Court is to ensure that miscarriage of justice is prevented---Miscarriage of justice, which may arise from the acquittal of the guilty, was no less than from the conviction of an innocent---In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence in a case where the accused has been acquitted for the purpose of ascertaining as to whether any of the accused committed any offence or not.

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

----Ss. 337-A, 337-D, 337-F, 147 & 149---Criminal Procedure Code (V of 1898), Ss. 249-A & 417(2-A)---Shajjah, jaifah, ghayr-jaifa, rioting, unlawful assembly---Appreciation of evidence---Appeal against acquittal---Counter cases arising out of same incident---Procedure to be adopted by Trial Court---Complainant was aggrieved of order passed by Trial Court under S. 249-A, Cr.P.C., acquitting accused of the charge---Validity---Record showed that obviously there was sufficient oral and documentary evidence, i.e. medical certificate and ocular evidence of the other injured witnesses and the same would establish that no fair opportunity was provided to the prosecution to prove its version by producing evidence---Trial Court had erred in entertaining the application under S. 249-A, Cr.P.C., filed on behalf of accused/respondents and ordering their acquittal at a time when the prosecution evidence was yet to be recorded against the accused/ respondents---No bar of limitation existed as to the trial or the stage of the proceedings for filing an application for acquittal of the accused, but propriety demands that fair opportunity should be provided to the prosecution to prove its case by producing evidence and the matter should be decided on merits as envisaged under S. 245, Cr.P.C. after providing a proper opportunity to the prosecution for producing its evidence and recording the statements of the accused persons under S. 342, Cr.P.C.---Record revealed that that FIR was lodged by SHO with the allegation that 25/30 persons from one tribe and 35/40 persons from the other tribe were quarrelling with each other with the cudgels and stones and that people from both sides received injuries---Complainant lodged the FIR about the incident and after completion of the investigation, separate challans were submitted against the accused persons of both the tribes and the Trial Court proceeded against the accused from both sides separately---When the law provides a detailed inquiry into offences for which an accused had been sent up for a trial, then ordinarily and normally the procedure prescribed by law for deciding the fate of the criminal case should be followed unless some extraordinary circumstances are shown to exist to abandon the regular course and follow the exceptional routes---In criminal administration of justice, the Trial Court seized of a criminal case should know about all the attending circumstances of the offences so as to reach a just conclusion regarding the roles of each individual vis-a-vis his innocence and motive behind the offence---Trial Court, while deciding the case, also has to consider the mitigating circumstances, and that is possible only when the versions of both sides are before the Court, and for that purpose, the necessary documents of the cross-case are also exhibited for reaching a just conclusion---In the present case, trial in both cases should have been conducted side by side by the Trial Court, as in such like cases, the prime question was the determination of the aggressor and aggressed upon---Such a question could not be determined without analysis of the evidence of both cases---Trial Court, without concluding the trial against the accused/respondents, acquitted them in a haphazard manner, dealt with their trial and recorded their acquittal, which exercise undertaken by the Trial Court was against the general practice in cases of counter versions---True that the Code of Criminal Procedure is silent with regard to the procedure to be adopted in the trial of counter cases arising out of the same incident, and it has not been laid down anywhere in the Code of Criminal Procedure as an absolute rule that all charges and counter-charges must be tried by the same court, however, it is a salutary practice that when two criminal cases relate to the same incident, they are to be tried and disposed of by the same Court by pronouncing judgments on the same day---Two different versions of the same incident, resulting in two criminal cases, are compendiously called "case and counter case" or "cross cases---Fair procedure which should have been adopted was that the trial Court should have conducted a trial in both cases side by side---Practical reasons for adopting such a procedure were nothing but to stave off the danger of an accused being convicted before his whole case was before the Court; to deter conflicting judgments being delivered upon similar facts and finally to determine the question as to who was the aggressor and who was aggressed upon---Appeal was partly allowed by setting aside the impugned order passed by the Trial Court and the case was remanded to the Trial Court with directions that the case shall proceed from the stage at which it stood when application under S. 249-A, Cr.P.C. was decided; and that after the conclusion of the trial in both the cross cases and after hearing the arguments from both sides, Trial Court shall pronounce the judgment in both the cases simultaneously.

The State through Advocate General, Sindh High Court of Karachi v. Raja Abdul Rehman 2005 SCMR 1544 and Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522 rel.

Mehboob Alam Mandokhail for Appellant.

Abdul Rehman Lawun for Respondent.

Ameer Haza Mengal, A.P.G. for the State.

2023 P Cr. L J 1346

[Balochistan]

Before Zaheer-ud-Din Kakar and Shaukat Ali Rakhshani, JJ

MUHAMMAD ISMAIL and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 20 of 2022, decided on 19th December, 2022.

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

----Art. 40---Test Identification Parade (TIP)---Pre-requisites---Evidentiary value---Pre-requisite of identification via TIP is that the person, who is likely to identify perpetrators of crime, must give a detailed description such as features, height, and complexion of perpetrators in advance---Giving details with promptitude far earlier to carrying out TIP is mandatory; otherwise, TIP loses its evidentiary value.

Sohail Ahmed v. State 2019 SCMR 956 rel.

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

----Art. 40--- Test Identification Parade--- Scope--- Picking out of accused in identification parade is not substantive piece of evidence but is merely corroborative in nature.

Kanwar Anwaar Ali, Special Judicial Magistrate's case PLD 2019 SC 488 rel.

(c) Criminal trial---

----Medical evidence--- Scope--- Medical evidence has a pivotal importance which can only confirm ocular account but cannot identify accused.

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

----S. 377---Sodomy---Appreciation of evidence---Benefit of doubt---Negative Forensic Science Laboratory Reports--- Effect--- Accused persons were convicted by Trial Court for sodomizing two minor boys and were sentenced to imprisonment for life---Validity---Even if victims were subjected to carnal intercourse, even then it would not be helpful for the case of prosecution, particularly when ocular account and other circumstantial evidence did not connect accused persons with culpability so alleged---Investigating officer collected pieces of Shalwar of victims suspected to be stained with semen, and blood samples of victims for DNA and human semen analysis---On the arrest of one accused his blood and buccal swabs were also taken into possession, which were sent to Forensic Science Agency whereof reports were found to be negative---No reliance could be placed on such Forensic Science Laboratory Reports---Second accused was neither put to any Test Identification Parade nor was he medically examined by Medico Legal Officer or samples of blood and buccal swabs were taken, so his case was even better than the case of other accused---Prosecution failed to connect both accused persons with the indictment and findings arrived at by Trial Court were based upon improper appraisal of evidence---High Court set aside conviction and sentence awarded to accused persons who were acquitted of the charge---Appeal was allowed in circumstances.

Kashif Ali v. The Judge ATC and others PLD 2016 SC 951; Akhtar Ali and others v. The State 2008 SCMR 6; Zia-ur-Rehman v. The State 2000 SCMR 528 and Askar Jan v. Muhammad Dawood 2010 SCMR 1604 ref.

Bahauddin Sial Kakar for Appellants.

Naeem Kakar, Additional Prosecutor General for the State.

2023 P Cr. L J 1388

[Balochistan]

Before Muhammad Hashim Khan Kakar and Shaukat Ali Rakhshani, JJ

The STATE through Additional Attorney General---Appellant

Versus

MUHAMMAD JUMA---Respondent

Criminal Acquittal Appeal No. 97, Criminal Revision Petitions Nos.13 and 27 of 2022, decided on 12th April, 2023.

(a) Foreign Exchange Regulation Act (VII of 1947)---

----Ss. 5, 19(3) & 23---Anti-Money Laundering Act (VII of 2010), S. 8(1)---Smuggling of foreign currency---Appreciation of evidence---Appeal against acquittal---Raid conducted without search warrant---Effect---Accused was found in possession of foreign currency---Recovery witness testified before the court, reiterating what complainant had incorporated in his report on the basis whereof FIR was registered---Said witness produced seizure memo of the currency notes as well as other documents recovered from the shop of the acquitted respondent, which were secured through recovery memo---During cross-examination, regarding obtaining of the search warrant the recovery witness showed ignorance---Even otherwise, neither the complainant nor any other witness claimed to have had obtained any search warrants prior to the raid at the shop of the acquitted respondent, which was utter violation of S. 19(3) of the Foreign Exchange Regulation Act, 1947---Said provisions clearly manifested that before making entry into the place, search warrant at least from a Magistrate of first class was necessary, which had not been adhered to by the raiding party of Federal Investigation Agency (FIA), which made the entire proceedings of seizure illegal---Federal Investigation Agency had failed to assign a single reason, which compelled them to conduct raid in the shop of the acquitted respondent without obtaining search and arrest warrants, which had nullified the entire seizure of the currency notes as it had travelled beyond its mandate and authority---Circumstances established that the impugned order of acquittal of the respondent was based upon proper appreciation and application of law, suffering from no infirmity and perversity---Appeal against acquittal was dismissed, in circumstances.

Sajjad Ahmed v. Federation of Pakistan 2018 YLR 2668 and Abdul Razzaq v. The State 2020 MLD 1921 rel.

(b) Administration of justice---

----When a law requires a thing to be done in a particular manner, then it must be done in same manner as provided under the law and not otherwise.

Muhammad Rashid, Assistant Attorney General (A.A.G.) for Appellant (in Criminal Acquittal Appeal No. 97 of 2022).

Syed Ayaz Zahoor for Respondent (in Criminal Acquittal Appeal No. 97 of 2022).

Syed Ayaz Zahoor for Petitioner (in Criminal Revision Petition No.13 of 2022).

Muhammad Rashid, Assistant Attorney General (A.A.G.) for Respondent (in Criminal Revision Petition No.13 of 2022).

Muhammad Rashid, Assistant Attorney General (A.A.G.) for Petitioners (in Criminal Revision Petition No. 27 of 2022).

Syed Ayaz Zahoor for Respondent (in Criminal Revision Petition No. 27 of 2022).

2023 P Cr. L J 1429

[Balochistan (Sibi Bench)]

Before Abdullah Baloch and Shaukat Ali Rakhshani, JJ

IHSAN ALI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-13 and Murder Reference No. S-4 of 2021, decided on 27th December, 2022.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Ocular account truthful and confidence inspiring---Accused was charged for committing murder of his wife and injuring his cousin after proclaiming him to be siyakaar with his wife---Record showed that complainant was the brother of deceased and he reiterated what he had reported in his application on the basis whereof FIR was registered---Complainant was cross-examined from various angles with regard to timing, place of occurrence and other aspects, but he remained firm to his examination-in-chief---Other witness was uncle of the deceased and he testified and corroborated the testimony of his nephew---Said witness gave similar account of the occurrence as deposed by other eye-witnesses---Another witness testified in line with the testimony of both the said witnesses by furnishing the detailed account of murder of deceased and causing injuries to injured---Said witnesses were cross-examined on various points with the purpose to discredit and dispute their presence, but their testimony went unshaken---Though, some minor discrepancies were observed, but same were ignorable, having no importance to discredit their testimony or to be fatal to the case of the prosecution---Injured, who received injuries at the hands of the accused testified that while he was asleep, he woke up due to the clamor and had seen the accused armed with a hatchet, who attacked him, whereby he sustained injuries, and when complainant and witnesses tried to apprehend him, he escaped by proclaiming him siyakaar with his wife---Testimony of injured, despite lengthy cross-examination could not be shattered---Injured remained firm and consistent to his testimony like other eye-witnesses---Ocular account had been found to be confidence-inspiring and truthful---Eye-witnesses had proved their presence as all of them were living together almost in the same premises---Nothing had been brought on record to justify that the testimony of the eye-witnesses was fabricated or false---Even otherwise, there was also no plausible justification as to why they would let go the real culprits and falsely implicate the accused for no reason---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, due to mitigating circumstance sentence was converted and reduced from capital penalty to that of life imprisonment---Appeal was dismissed with said modification in sentence.

(b) Criminal trial---

----Medical evidence---Scope---Medical evidence is not considered as a corroborative piece of evidence rather it merely confirms the nature, locale and timing of the injuries, but it does not indentify an accused.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Medical evidence---Corroborating ocular account---Accused was charged for committing murder of his wife and injuring his cousin after proclaiming him to be siyakaar with his wife---Medical evidence confirmed that the injuries received by the deceased as well as by injured were caused by a sharp weapon, having been caused within a short span of time as rigor mortis had not yet developed---Even otherwise, homicidal death of the deceased had not been disputed by the defence except suggesting that such Medico-Legal Certificates were fake---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, due to mitigating circumstance sentence was converted and reduced from capital penalty to that of life imprisonment---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Recovery of hatchet from the accused---Reliance---Accused was charged for committing murder of his wife and injuring his cousin after proclaiming him to be siyakaar with his wife---Crime weapon (hatchet) was recovered from the possession of the accused---Forensic Science Laboratory Report affirmed that clothes and the hatchet were stained with human blood---Recovery of hatchet stained with blood from the accused soon after the occurrence corroborated and strengthened the prosecution case---Recovery witness, who produced the memo was cross-examined at length, but he remained firm and consistent and his testimony went unshaken---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, due to mitigating circumstance sentence was converted and reduced from capital penalty to that of life imprisonment---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Motive not proved---Accused was charged for committing murder of his wife and injuring his cousin after proclaiming him to be siyakaar with his wife---Prosecution had pleaded that the accused had committed murder of the deceased and had attacked the injured after proclaiming them siyahkar, but the prosecution failed to prove the motive by producing any independent, convincing and confidence inspiring evidence to establish that actually the occurrence took place due to the motive of siyahkari---Thus, failure by the prosecution to set up the motive and then not proving it gave rise to mitigating circumstance---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, due to mitigating circumstance sentence was converted and reduced from capital penalty to that of life imprisonment---Appeal was dismissed with said modification in sentence.

Muhammad Shoban v. The State 2022 SCMR 1608 rel.

Nemo for Appellant (in Criminal Jail Appeal No. S-13 of 2021).

Jamil Akhtar Gajani, Additional P.G. for the State (in Criminal Jail Appeal No. S-13 of 2021).

Jamil Akhtar Gajani, Additional P.G. for Appellant (in Murder Reference No. S-4 of 2021).

Rizwan Ali Soomro for Respondent (in Murder Reference No. S-4 of 2021).

2023 P Cr. L J 1466

[Balochistan]

Before Zaheer-ud-Din Kakar and Muhammad Aamir Nawaz Rana, JJ

SAIFULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 591 of 2021, decided on 12th September, 2022.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4---Transportation of narcotics---Appreciation of evidence---Dispatch of sample for test or analysis---Safe custody---Contradictory statements---Accused assailed his conviction on the charge of transporting 08 kilograms of charas---Investigating Officer had not delivered the narcotic substance at the Forensic Laboratory rather he had asserted that the recovered narcotic was sent through docket---Perusal of the report of Forensic Laboratory revealed that the samples were received through Investigating Officer, which fact had negated the statement of the Investigating Officer---Neither the statement of special messenger was recorded nor any witness in this regard was produced who could prove that he delivered the samples of narcotic substance at Forensic Laboratory---No document was available on record which could verify that the samples were sent through insured post, so the mandatory provision of R. 4 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, had been violated---Accused was acquitted, in circumstances.

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

----S. 9---Possession of narcotics---Safe custody---Scope---Prosecution has to prove its case beyond any reasonable doubt---Chain starting from recovery of narcotic substance till its delivery at the concerned Forensic Laboratory has to be proven without any missing link and in case any link is broken, the whole prosecution case would crumble on its foundation.

Khair-ul-Bashar v. The State 2019 SCMR 930; The State v. Imam Bakhsh 2018 SCMR 2039; Shafa Ullah Khan v. The State 2021 SCMR 2005; Razia Sultana v. The State 2019 SCMR 1300 and Ameer Zeb v. The State PLD 2012 SC 380 ref.

Muhammad Ali Mughal for Appellant.

Muhammad Naeem Kakar, Additional Prosecutor General for the State.

2023 P Cr. L J 1489

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Nazeer Ahmed Langove, JJ

RAMZAN and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 289, 311 and Criminal Revision Petition No. 21 of 2021, decided on 22nd August, 2022.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Disclosure made by accused before a 'Jirga'---Scope---Accused were charged for committing murder of the son of complainant by slaughtering him with sharp edged weapon---Allegation levelled against the accused persons was that they in furtherance of their common intention, called the complainant's son in the area of a garden, tied his hands and then slaughtered him---First Information Report was initially registered against unknown persons, but thereafter, the complainant filed his supplementary statement by nominating the accused persons in the case---Prosecution case mainly rested upon the statement of disclosures made by the accused, firstly before the Jirga, which was requisitioned to ascertain the truth, wherein the said accused confessed his guilt while nominating the other accused persons for commission of offence---Disclosure and the proceedings of the jirga were recorded by the brother of deceased in his mobile and saved in his memory card---Said memory card was taken into possession vide recovery memo and produced before the Trial Court---Said accused also made disclosure before the Judicial Magistrate---Record was indicative of the fact that the alleged memory card containing the video of alleged disclosure of said accused before the jirga was not visualized/played in the Court during trial nor the accused was afforded an opportunity to admit or rebut the same, nor the witness(es) of the said jirga was/were associated with investigation and nor produced before the Court to ascertain the factual position--- Resultantly, the case was remanded to the Trial Court with direction to summon at least two witnesses/members/participants of the Jirga, in front of whom the accused had made disclosure, while the Investigating Officer of the case was directed to prepare CD of the video clip, and provide the same to the accused persons and thereafter, the same be visualized/played in the Court in presence of brother of deceased, and opportunity of rebuttal/cross-examination be provided to the accused persons---Appeal was disposed of in the above terms.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence--- Defective investigation--- Accused were charged for committing murder of the son of complainant by slaughtering him with sharp edged weapon---Initially the investigation of the case was conducted by the levies, but the Tehsildar, Investigating Officer destroyed the case by ignoring the material evidence---Complainant being dissatisfied from the investigation conducted by levies, submitted an application for transfer of case to the Crimes Branch, which course was accordingly done and investigation was transferred to the Crimes Branch---Unfortunately Sub-Inspector, Crimes Branch, also failed to collect the necessary evidence and record the statements of the material witnesses---File showed that due to obliviousness of first Investigating Officer, reasonable delay seemed to have been occasioned for collecting and recording necessary evidence, but the negligence of second Investigating Officer had also caused serious flaws in the prosecution case, which seemed to be colorful exercise of powers by both the Investigating Officers---Delay in recording the necessary evidence is not always fatal to the prosecution case, but any such delay castes reasonable doubt and suspicion on veracity of evidence so collected and recorded---Complainant and other witnesses could not be held responsible for such delay, which was ultimately caused by mis-exercising of power for extending undue leverage to the accused---Since such aspects of the case were yet to be addressed, therefore, Court intentionally refrained to render any observation in that behalf---Appeals were partly allowed and case was remanded to Trial Court.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Extra-judicial confession of accused---Accused were charged for committing murder of the son of complainant by slaughtering him with sharp edged weapon---Accused was neither nominated nor arrested nor was in custody of any investigating agency, when he made the extra-judicial confession, thus its veracity and voluntariness before the Jirga was required to be ascertained and to do so the Trial Court had ample powers under the relevant provision of law---However, such part of the evidence had not been put to the accused during trial, nor the same was played/visualized in the court, nor any copy of the same was provided to the accused persons, enabling them to admit or rebut the same---Jirga before which the extra-judicial confession was made consisted of about 200 persons, but the Investigating Officer had failed to associate any member of the Jirga, in presence of whom, the accused had made disclosure in respect of commission of the offence---Similarly, the Trial Court also failed to observe the necessity of the presence of Jirga members/participants as witnesses---Thus, keeping in view the circumstances of the case, the statements of Jirga members/ participants were essential for just decision of the case and summoning them as a witness would be justified under the second part of S. 540, Cr.P.C.---However, prior to summoning the Jirga members/ participants, the accused could not be deprived of his right of holding the copy of the video clip---Thus, without going into merit of the case and rendering any observation thereon, it would be appropriate to direct the Investigating Officer of the Crimes Branch at first instance to ensure provision of a CD of the visual clip/video record of the Jirga proceedings to the accused persons, and thereafter, the Trial court shall ensure summoning of at least two Jirga members/participants for confirmation of the constitution of Jirga, proceedings carried out therein and the disclosure made by the accused before the same, and by playing the video of the Jirga proceedings in the court shall also ensure a fair opportunity to the accused persons to cross-examine the witness(es) so produced---Since the recording was made by the brother of deceased and the memory card was produced by the recovery witness, therefore, said witnesses shall also be recalled and re-examined with opportunity to the accused persons to cross-examine them---Resultantly, the case was remanded to the Trial Court with direction to summon at least two witnesses/members/participants of the Jirga, in front of whom the accused had made disclosure, while the Investigating Officer of the case was directed to prepare CD of the video clip, provide the same to the accused persons and thereafter, the same be visualized/played in the Court in presence of brother of deceased, and opportunity of rebuttal/cross-examination be provided to the accused persons---Appeal was disposed of in the above terms.

Syed Manzoor Shah for Appellants (in Criminal Appeal No. 289 of 2021).

Nadir Ali Chalgari for the Complainant (in Criminal Appeals Nos. 289 and 311 of 2021).

Muhammad Yunus Mengal, A.P.G. for the State (in Criminal Appeals Nos. 289, 311 and Criminal Revision Petition No. 21 of 2021).

Wali Muhammad Barrech for Appellants (in Criminal Appeal No. 311 of 2021).

Nadir Ali Chalgari for Petitioner (in Criminal Revision Petition No. 21 of 2021).

Syed Manzoor Shah for Respondents Nos. 1 and 2 (in Criminal Revision Petition No. 21 of 2021).

Wali Muhammad Barrech for Respondent No. 3 (in Criminal Revision Petition No. 21 of 2021).

2023 P Cr. L J 1530

[Balochistan]

Before Muhammad Ejaz Swati and Iqbal Ahmed Kasi, JJ

MUHAMMAD NAWAZ---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 21 of 2022, decided on 1st August, 2022.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Prosecution case was that 32 kilograms charas in 27 packets and one packet of opium weighing 500 grams were recovered from the possession of the accused while he was travelling in a passenger bus---Perusal of record revealed that prosecution in support of its case produced as many as five witnesses, out of whom, two were the star/eye-witnesses of the case---Perusal of statement of complainant showed that he had narrated the same facts and figures, as laid down in the FIR, about the recovery of 27 packets of charas weighing 32 kilograms and 01 packet of opium weighing 500 grams from the bag owned by the accused---Statement of complainant further revealed that his statement was in line with the FIR while narrating the facts in respect of date, time, place and mode of recovery---Circumstances established that the prosecution succeeded in proving its case against the accused beyond any reasonable doubt---Appeal against conviction was dismissed accordingly.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotic---Appreciation of evidence---Non-association of private persons as witnesses---Effect---Prosecution case was that 32 kilograms charas in 27 packets and one packet of opium weighing 500 grams were recovered from the possession of the accused while he was travelling in a passenger bus---Defence objected that there was sheer violation of S. 103, Cr.P.C. for not associating private mashir, despite the fact that private persons were also travelling in the passenger bus---Validity---Section 25 of the Act, 1997, denoted that non-compliance of S. 103, Cr.P.C., could not be considered as strong ground for holding that trial of accused was bad in the eye of law, as official witnesses were competent witnesses and their statements could not be discarded merely for the reason that they belonged to any department---Section 25 of the Act of 1997 suggested that there was no provision to comply the S. 103, Cr.P.C---On the other hand, the complainant categorically stated while lodging the FIR that no one from the passengers was ready to be associated as a private Mushir---Official witnesses were trustworthy witnesses, until and unless, any ill-will of the said witnesses was found towards the accused---In the present case, defence had failed to point out any ill-will of the Coast Guard Officials against the accused---Circumstances established that the prosecution succeeded in proving its case against the accused beyond any reasonable doubt---Appeal against conviction was dismissed accordingly.

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

----S. 9(c)--- Possession of narcotic--- Appreciation of evidence---Representative samples---Prosecution case was that 32 kilograms charas in 27 packets and one packet of opium weighing 500 grams were recovered from the possession of the accused while he was travelling in a passenger bus---Defence objected that the representative samples had not been taken from the recovered contraband material---Validity---Complainant specifically stated that sample from each packet weighing 50/50 grams, total 1350 grams from the recovered Charas and 50 grams from the Opium, was separated for chemical analysis and that portion of his statement was not challenged in the cross-examination---Forensic Science Laboratory Report further supported the contentions of complainant---Circumstances established that the prosecution succeeded in proving its case against the accused beyond any reasonable doubt--- Appeal against conviction was dismissed accordingly.

Shah Muhammad v. The State 2012 SCMR 1276 rel.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Minor contradictions in the statements of witnesses---Not consequential---Prosecution case was that 32 kilograms charas in 27 packets and one packet of opium weighing 500 grams were recovered from the possession of the accused while he was travelling in a passenger bus---Though, there were minor contradictions in the statements of the witnesses, but such contradictions could not dent the prosecution story and the acquittal order could not be passed merely on minor contradictions---Circumstances established that the prosecution succeeded in proving its case against the accused beyond any reasonable doubt--- Appeal against conviction was dismissed accordingly.

Noor Bakhsh Baloch for Appellant.

Syed Iqbal Shah, Deputy Attorney General for the State.

2023 P Cr. L J 1578

[Balochistan (Sibi Bench)]

Before Zaheer-ud-Din Kakar and Gul Hassan Tareen, JJ

MUHAMMAD AZEEM and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. (s) 7 and Murder Reference No. (s) 1 of 2022, decided on 30th March, 2023.

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

----Ss. 302(b), 324, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Night time occurrence--- Source of light i.e. bulb not secured during investigation---Accused were charged for making firing upon the complainant party, due to which the brother and mother of the complainant died while complainant and his brother were grievously hurt---According to the report of complainant, the incident took place at 02:00 a.m. in odd hours of night---Complainant alleged that he identified the accused persons and unknown accused in the light of electricity bulbs---Accused were roped in the case on the basis of their identification by the complainant and the eye-witnesses through the said source of light---However, the record revealed that the said source of light was not taken into possession by the Investigating Officer during the course of investigation---According to Investigating Officer, he visited the site and sketched a rough site plan---Perusal of site plan did not reveal the existence of electricity bulbs at the scene of occurrence---In this case the existence of the light of electricity bulbs at the time and place of incident was a relevant fact but the prosecution had failed to secure such piece of evidence during the course of investigation---As such, the identification of the accused persons by the complainant as well as by the eye-witness at the scene of occurrence was not beyond shadow of doubt rather created a reasonable doubt in a prudent mind---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt--- Appeal against conviction was accordingly allowed.

Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344 rel.

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

----Ss. 302(b), 324, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Recovery of crime weapon on the instance of accused---Doubtful---Accused were charged for making firing upon the complainant party, due to which, the brother and mother of the complainant died while complainant and his brother were grievously hurt---Prosecution had alleged that on 30th March, 2020, accused persons made disclosures and got effected recovery of crime weapons---Evidence of recovery of crime weapons at the instance of accused persons was not trustworthy---Accused persons were arrested on 18th March, 2020, while the alleged recovery was effected on 30th March, 2020 at the instance of each accused---Prosecution had not explained the delay of twelve days in procuring such piece of evidence---Prosecution also alleged that the said recoveries were effected from unlocked boxes lying in a room---Prosecution had failed to establish that the place from where the recoveries were allegedly effected, was in the exclusive knowledge and possession of the accused persons---Ample time was available for the accused persons to conceal them in a secret place---Witnesses of recovery memos admitted that the room wherefrom recovery was effected, was also inhabited by other family members---Thus, the recovery evidence could not have been relied upon by the trial Court as a material piece of evidence for sentencing the accused persons for capital punishment---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt--- Appeal against conviction was accordingly allowed.

Khalid Mehmood and another v. The State 2004 YLR 334 rel.

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

----Ss. 302(b), 324, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Delay of two months and twelve days in sending the crime empty shells and crime weapons for analysis---Effect---Accused were charged for making firing upon the complainant party, due to which, the brother and mother of the complainant died while complainant and his brother were grievously hurt---According to Forensic Science Laboratory Report, the parcels containing crime empty shells and crime weapons were received on 11th June, 2020 at Forensic Science Laboratory Office---Recoveries were allegedly effected on 30th March, 2020 which should have been instantly sent to the Forensic Science Laboratory by the Investigating Officer, however, report revealed that the same were sent to the Forensic Science Laboratory with an unexplained delay of two months and twelve days---Besides the above, the Investigating Officer sent the parcels of crime empties and crime weapons together to the Forensic Science Laboratory---Sending crime empties along with the crime weapons created doubt on the use of crime weapon at the scene of occurrence and recoveries at the instance of the accused persons---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

Hayatullah v. The State 2018 SCMR 2092 rel.

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

----Ss. 302(b), 324, 147, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Withholding key witness---Presumption---Accused were charged for making firing upon the complainant party, due to which, the brother and mother of the complainant died while complainant and his brother were grievously hurt---List of witnesses attached with challan mentioned the name of the brother of complainant and deceased---However, the said eye-witness was not produced by the prosecution without any reasonable cause---Thus presumption was that evidence which could be and was not produced would, if produced, be unfavourable to the person who withheld it---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

(e) Criminal trial---

----Benefit of doubt---Principle---Benefit of even a single doubt is to be extended to the accused.

Muhammad Imran v. The State 2020 SCMR 857 rel.

Hasnain Iqbal Minhas for Appellant (in Criminal Appeal No. (s) 7 of 2022).

Jamil Akhtar Gajani, Additional Prosecutor General for the State (in Criminal Appeal No. (s) 7 of 2022).

Jamil Akhtar Gajani, Additional Prosecutor General for Appellant (in Murder Reference No. (s) 1 of 2022).

Hasnain Iqbal Minhas for Respondents (in Murder Reference No. (s) 1 of 2022).

2023 P Cr. L J 1619

[Balochistan]

Before Muhammad Hashim Khan Kakar and Shaukat Ali Rakhshani, JJ

ALI SHER---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 63 of 2022, decided on 16th June, 2023.

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

----Ss. 9(c) & 48 [as amended by the Control of Narcotic Substances (Amendment) Act, 2022]--- Constitution of Pakistan, Art. 12---Possession of 3000 grams of charas---Conviction and sentence as per (Amending Act)---Retrospective effect---Scope---Trial Court convicted and sentenced the appellant/accused under S. 9(c) of CNSA, 1997, to suffer nine years' rigorous imprisonment with a fine of Rs. 80,000 as per the new scheme of penalties inserted by the Control of Narcotic Substances (Amendment) Act, 2022---Validity---New scheme of penalties under Control of Narcotic Substances (Amendment) Act, 2022 ('the Amending Act 2022') had provided that when the quantity of Charas weighed 1000-grams to 4999-grams , the imprisonment might extend to fourteen years which would not be less than nine years along with a fine up to Rs. 400,000 but not less than Rs. 80,000---Trial Court had misconceived and mis-interpreted the Amending Act, 2022 as the amendment was promulgated after about three months of offence having been commitment in the present case , therefore, new amendment could not be applied and enforced retrospectively; and the sentence awarded by the Trial Court was in utter violation of Art. 12 of the Constitution---High Court observed that the sentence awarded to the appellant, being a first offender, was harsh , who had no previous criminal record, therefore, the appellant deserved leniency---Impugned judgment was modified by reducing the sentence of the appellant from nine years to three years and the fine of Rs. 80,000 to Rs. 30,000 with the premium of 382-B of Criminal Procedure Code, 1898---Appeal was partly allowed, in circumstances.

State v. Sultan Ahmed PLD 2007 SC 48; Asghar Ali v. State 1986 PCr.LJ 1953 and Arshad Mehmood v. The Government of Pakistan PLD 1998 Lah. 152 ref.

Nisar Hussain Mastoi for Appellant.

Habibullah Gul, Additional Prosecutor General for the State.

2023 P Cr. L J 1681

[Balochistan]

Before Zaheer-ud-Din Kakar and Shaukat Ali Rakhshani, JJ

NAZEER AHMED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 8 of 2022, decided on 24th October, 2022.

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

----S. 11-F(6)---Qanun-e-Shahadat (10 of 1984), Arts. 38, 39 & 40---Member of proscribed organization---Appreciation of evidence---Possession of a flag of a proscribed organization "Daesh" along with narcotic substances---Accused while riding bike on road was intercepted by the police whereupon the alleged recovery was made---Accused assailed his conviction and sentence contending that nothing was available on record against him except an allegedly recovered flag, black in colour---Validity---Case of the prosecution rested upon the ocular account furnished by its six witnesses---Statement of the In-charge Malkhana as a prosecution witness was only relevant with regard to safe custody of narcotics in Malkhana but had no significance regarding the indictment in the present case---Disclosure was allegedly made by the accused in presence of the prosecution witnesses, whereof memo of disclosure was prepared, which memo was duly exhibited---Said exhibited memo was the bedrock of the case as per prosecution---Indisputably, the flag was not recovered in consequence of said disclosure , therefore, the disclosure amounted to a confession before the police officer , which was inadmissible under Arts. 38 & 39 of the Qanun-e-Shahadat, 1984, squaring out the disclosure (exhibited memo) from the purview of Art. 40 of Qanun-e-Shahadat, 1984---Another exhibited document (S.R.O No.690(i) dated 15-07-2015) merely envisaged "Daesh" as proscribed organization, which was no help to indict the accused---Merely possessing a flag, having resemblance to the flag of "Daesh" or some other proscribed organization, itself alone would not constitute an offence under S. 11-F of Anti-Terrorism Act, 1997---Prosecution had failed to produce independent, tangible and strong corroborative evidence to establish indictment---Reasoning of the Trial Court might be sufficient to the extent of indictment for recovery of narcotic substance, but not sufficient to hold the accused guilty of crime as enunciated under S. 11-F of the Anti-Terrorism Act, 1997---High Court set aside the conviction and sentence of the accused and acquitted him from the charge---Appeal was allowed, in circumstances.

Tajuddin Sherani for Appellant.

Naeem Kakar, Additional Prosecutor General (A.P.G.) for the State.

2023 P Cr. L J 1741

[Balochistan]

Before Naeem Akhtar Afghan, C.J. and Sardar Ahmed Haleemi, J

NIAZ MUHAMMAD and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 130, Murder Reference No. 4 and Criminal Acquittal Appeal No. 123 of 2020, decided on 10th October, 2022.

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

----Ss. 302(b), 365 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Qatl-i-amd, act of terrorism---Appreciation of evidence---Recovery of incriminating material on disclosure of accused---Reliance---Accused were charged for abducting the brother of the complainant for ransom and thereafter killing him---Perusal of record revealed that prior to the disclosure of the accused, it was not known to anybody that the abductee had been murdered and his body had been buried in the sewage pit of the farmhouse, which was recovered in 39 pieces in presence of Judicial Magistrate and Lady Police Surgeon---DNA samples taken from 39 pieces of the dead body and buccal swab of parents of deceased matched in the DNA report of Forensic Science Agency---DNA report had proved that the recovered pieces of human meat were of the late abductee and Forensic Science Laboratory Report of bloodstained tuka and knife, cap, and pair of Sandals (identified by a relative) recovered from the buried place of the abductee lent further corroboration---Farmhouse was in possession of co-accused being tenant and such fact had been proved through the statement of owner of farm supported by the revenue record produced by the patwari---Disclosure of the accused was further corroborated by medical evidence i.e. postmortem report, which revealed that the death of the late abductee was caused by firearm injury in the skull---Receiving of the ransom amount and paying debts from the same to the creditors by the complainant stood corroborated by the statements of three creditors and by recovery of Rs.7,00,000/- from the accused---Prosecution had succeeded in proving its case through such circumstantial evidence, therefore, appeal against conviction was dismissed.

Fazal Akbar v. State 2013 PCr.LJ 369; Zakir Khan v. State 1995 SCMR 1793; Khurram Ali Khan v. Tayyaba Bibi PLD 2020 SC 146; Muhammad Azad v. State 2019 SCMR 1330; Najiba v. Ahmed Sultan 2001 SCMR 988 and Khurram Ali Khan v. Tayyaba Bibi PLD 2020 SC 146 ref.

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

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

----Ss. 302(b), 365, 201 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Criminal Procedure Code (V of 1898), S. 417(2-A)---Qatl-i-amd, act of terrorism---Appreciation of evidence---Appeal against acquittal---Disclosure of co-accused---Accused were charged for abducting the brother of the complainant for ransom and thereafter killing him---Perusal of the record revealed that acquitted co-accused also made a disclosure wherein he disclosed that when he reached his farmhouse, he found the accused along with the dead body of the late abductee, and the accused told him that he had committed a mistake by causing death of deceased---Instead of informing the police, acquitted co-accused facilitated the accused after bringing the chopper from the city and thereafter chopped the dead body into several pieces with the accused and they both dumped the dead body along with cap and shoes, etc., in the sewage pit of the rented farmhouse---While dumping the pieces of the dead body in the sewage pit, his mobile phone dropped from the front pocket of shirt into the sewage pit---Thereafter acquitted co-accused received Rs.25,00,000/- (Rupees Twenty Five Lacs Only) from the ransom amount and purchased birds and animals, which were recovered from the farmhouse---Police auctioned the birds and animals---Despite knowing all the facts of the occurrence, acquitted co-accused concealed the crime---Prosecution had proved the role of acquitted co-accused and his sharing of common intention with the accused through circumstantial evidence linking one circumstance with the other without any lapse---In such circumstances, the appeal against acquittal of co-accused was allowed and he was convicted and sentenced under S. 201, P.P.C to suffer seven years imprisonment.

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

----Ss. 302(b), 365 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Qatl-i-amd, act of terrorism---Appreciation of evidence---Ordinary kidnapping for ransom case---Not an act of terrorism---Accused were charged for abducting the brother of the complainant for ransom and thereafter killing him---In the present case, it had been established through circumstantial and medical evidence that acquitted co-accused had shared common intention by brutally disposing of the dead body by chopping it into pieces, receiving ransom amount, purchasing birds and animals from the ransom amount and remaining fugitive from the law---Role of sharing common intention of acquitted co-accused attracted S. 201, P.P.C---Perusal of record showed that the complainant/ prosecution prima face had no motive to falsely implicate the accused and acquitted co-accused---Evidence produced by the prosecution was confidence inspiring---In absence of any possibility of false implication, the prosecution evidence could not be disbelieved---Circumstances of case clearly depicted that there was no mitigating factors, benefit of which could be extended to the acquitted co-accused by the Trial Court---When the prosecution proved its case beyond any doubt then it was the legal duty of the Court to impose harsh punishment to set an example---Abduction or kidnapping for ransom under S. 365-A, P.P.C., was included as item No. 4(g) in the Third Schedule of the Anti-Terrorism Act, 1997 ('Act, 1997') which was triable by Anti-Terrorism Court being a Scheduled Offence---However, present case was an ordinary case of kidnapping for ransom and as such ingredients of Ss. 6 & 7 of the Act 1997 were not attracted in the facts and circumstances of the case---Thus, sentence under S. 7(e) Anti-Terrorism Act, 1997, was set aside and appeal was dismissed by maintaining the sentence.

Ghulam Hussain v. State PLD 2020 SC 61 rel.

Kamran Murtaza, Tahir Ali Baloch and Jaffer Awan for Appellants (in Criminal Appeal No. 130 of 2020).

Syed Ayaz Zahoor, Mumtaz Mehfooz, Abdul Kabir Khan, Bakhtiar Khan Sherani and Ms. Aster Mehak for the Complainant (in Criminal Appeal No. 130 of 2020).

Abdul Latif Kakar, Additional Prosecutor General ("A.P.G.") for the State (in Criminal Appeal No. 130, Murder Reference No. 4 and Criminal Acquittal Appeal No. 123 of 2020).

Kamran Murtaza, Tahir Ali Baloch and Jaffer Awan for Respondents (in Murder Reference No. 4 of 2020).

Syed Ayaz Zahoor, Mumtaz Mehfooz, Abdul Kabir Khan, Bakhtiar Khan Sherani and Ms. Aster Mehak for Appellant (in Criminal Acquittal Appeal No. 123 of 2020).

Kamran Murtaza, Tahir Ali Baloch and Jaffer Awan for Respondent No. 1 (in Criminal Acquittal Appeal No. 123 of 2020).

2023 P Cr. L J 1792

[Balochistan]

Before Abdullah Baloch and Rozi Khan Barrech, JJ

TAWEEZ KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 159 of 2022, decided on 6th September, 2022.

(a) 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 important witness---Accused was charged for committing murder of the son of the complainant and a lady by firing---Complainant was not eye-witness to the occurrence, however, when he received information about the injuries caused to his son, he reached the hospital and there he found the dead body of the deceased---Complainant had not disclosed the source of information regarding the occurrence in his report---Complainant stated during his cross-examination that he was informed about the occurrence by his relative---Investigating Officer also stated that he handed over the dead bodies of the deceased to the said relative of complainant---Neither the statement of said relative was recorded under S. 161, Cr.P.C., by the Investigating Officer, nor he was produced before the Court---Non-production of said important witness as provided under Art. 129(g) of Qanun-e-Shahadat, 1984, would cast adverse inference that if the said witness had been produced he would not have supported the prosecution version---Circumstances established that the prosecution had failed to prove the charge against the accused beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay of more than three and a half hour in lodging the FIR---Accused was charged for committing murder of the son of the complainant and a lady by firing---Record showed that there was a delay of more than three and a half hours in lodging the report by the complainant---Complainant stated during cross-examination that his relative informed him about the occurrence and within 15/20 minutes, he reached the hospital---For the sake of arguments, if it was presumed that the complainant reached at civil hospital at or about 5:30 p.m., the dead bodies of the deceased were also examined by the doctor around 6:00 p.m., then how the dead bodies of the deceased were handed over to the relative of complainant and the complainant did not receive the same---Meaning thereby that at that time complainant was not present at the hospital---On the other hand, if the complainant reached the hospital at 5:30 p.m. and allegedly saw the deceased's dead body at the hospital, then what prevented him from lodging the report at 5:30 p.m.---Said fact created serious doubt in the prosecution story as to why the report was not lodged promptly---Delay in lodging the report could not be simply brushed aside, as it assumed great significance, and it could be attributed to consultations, taking instructions and calculatedly preparing the report keeping in view the names of the assailants opened for involving such persons who ultimately the prosecution might wish to nominate---Circumstances established that the prosecution had failed to prove the charge against the accused beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sole eye-witness---Accused was charged for committing murder of the son of the complainant and a lady by firing---Ocular account deposed by sole eye-witness did not diverge from the story as narrated by the prosecution---However, said witness categorically denied recognizing and identifying the accused person before the court---Moreover, it had also come on record that prior to the occurrence, the accused was not known to said witness, who stated in his statement that the person who made the firing gave his mobile number and told his name as the name of present accused---Investigation Officer held no identification parade of the accused through the said witness---Since said witness had not identified the accused before the Trial Court as such prosecution declared him hostile and cross-examined the said witness, but could not extract anything from his mouth to connect the present accused with the commission of the alleged offence---Circumstances established that the prosecution had failed to prove the charge against the accused beyond shadow of any doubt--- Appeal against conviction was accordingly allowed.

(d) Criminal trial---

----Witness---Hostile witness---Scope---No doubt a witness who has been declared hostile will not become unworthy of reliance, and his evidence cannot be brushed aside if found true and credible, but since said witness has spoken in two different voices and two different tones, his evidence has to be assessed with much more care and circumspection---May be said witness is telling the truth when exonerating the accused, or he is telling the truth when charging him---Only those voices and tones of witnesses can be considered worthy of reliance supported by sources essentially unimpeachable because one tainted piece of evidence cannot corroborate another.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Call Data Record (CDR)---Accused was charged for committing murder of the son of the complainant and a lady by firing---In the present case, the Investigation Officer had taken into possession CDR of the mobile of accused---According to the Investigation Officer, at the time of occurrence, the accused was near the place of occurrence, and there was nothing on record in respect of the CDR of the accused who allegedly called the deceased---However, it was not clarified as to whether the telephone/SIM number was in the name of the accused as the same fact had not been established from the record---Even otherwise, said fact was also confirmed by the Investigation Officer that the phone/SIM was not in the name of the accused, and he stated that according to his record, the mobile number of the accused was not reflected in the CDR---Said witness further stated during cross-examination that it could not be ascertained from the CDR that whether the said number belonged to the accused or otherwise---CDR produced and relied on by the prosecution was neither attested nor sent by the issuing authority, nor was any witness either associated during the investigation or produced before the court---Thus, it could not be relied on as a valid piece of evidence---Circumstances established that the prosecution had failed to prove the charge against the accused beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of eleven crime empties from the spot---Inconsequential---Accused was charged for committing murder of the son of the complainant and a lady by firing---Record showed that eleven empties of T.T pistol were recovered from the place of occurrence, and the same were not sent to the Forensic Science Laboratory to establish that whether the said empties were fired from one weapon or otherwise, which made the same doubtful, therefore, the same could not be relied upon for the purpose of conviction---Moreso, such piece of evidence was only a corroborative and was of no avail---Circumstances established that the prosecution had failed to prove the charge against the accused beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

Ghulam Akbar and another v. The State 2008 SCMR 1064 rel.

(g) Criminal trial---

----Medical evidence---Scope---Medical evidence simply disclosed the nature of injuries, kind of weapon and duration of time as well as the cause of death, but it cannot signify the author of injuries.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Mode and manner of the occurrence doubtful---Accused was charged for committing murder of the son of the complainant and a lady by firing---Record showed that the Trial Court found the accused guilty on the sole ground that his sister-in-law was found murdered by means of firearms on the National Highway---In the absence of any explanation by accused regarding his sister-in-law's murder, the inference was to be drawn against him that he was responsible for the said murder---Undoubtedly, the unnatural death of the deceased lady on the main road was not disputed by the defence---Motive behind the occurrence had not emerged from the evidence produced by the prosecution and it was strongly felt that both the parties withheld the actual facts and did not come forward with a true story of the incident---Nothing came on record about why the deceased lady was present in the car at the time of the incident with the deceased---Complainant also did not state a single word about any relationship of the deceased lady with the accused, however, when eye-witness appeared before the Court, he stated during cross-examination that the woman who had been murdered was the sister-in-law of accused---However, the said witness further stated during cross-examination that it was correct that he was not acquainted with either of the parties---Circumstances established that the prosecution had failed to prove the charge against the accused beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

(i) Criminal trial---

----Proof---Suspicion---Scope---Suspicion, howsoever, grave or strong, can never be a proper substitute for the standard of proof required in a criminal case, i.e. beyond a reasonable doubt.

Muhammad Pervaiz v. The State and others PLD 2019 SC 592 rel.

(j) Criminal trial---

----Conviction---Conjectures and probabilities---Not the substitute of proof---In criminal cases finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case---Finding as regard the guilt of accused should be rested surely and firmly on the evidence produced in the case and the plain inference of guilt that may irresistibly be drawn from that evidence---Mere conjectures and probabilities cannot take the place of proof---If a case is decided merely on high probabilities regarding the existence or non-existence of a fact to prove the guilt of a person, the golden rule of giving "benefit of doubt" to an accused person, which has been a dominant feature of the administration of criminal justice will be reduced to a naught.

Abdul Sattar Sherani and Abdul Ghani Sherani for Appellant.

Habibullah Nasar for the Complainant.

Ameer Hamza Mengal, A.P.G. for the State.

2023 P Cr. L J 1823

[Balochistan]

Before Abdullah Baloch and Iqbal Ahmed Kasi, JJ

MUSHTAQ AHMED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 271 of 2022, decided on 19th June, 2023.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---CCTV footage---Forensic test not carried out---Effect---Accused was charged for committing murder of the uncle of the complainant---Prosecution alleged that the accused was involved in the present case through CCTV footage---For proving the murder, video clips/tapes were produced during the evidence through a Police Official---According to said witness, the video clips/tapes were downloaded in USB from the room of deceased and from a Medical Store, but the original video clips/tapes were never produced during the trial---No forensic analysis of the said video clips/tapes was ever carried out, nor any report of expert was ever produced by the prosecution---If original video clips/tapes were delivered to Investigating Officer, then, the forensic test would have been done---Original clips/tapes were not brought on record, thus, an adverse presumption could be drawn that the said clips/tapes were the result of camera trick---Moreover, it was not established by the prosecution that as to when and by whom the video in a USB were prepared/downloaded, so there was possibility that same were prepared in the lab or some film studio---In absence of any forensic report, the genuineness or otherwise of the said video clips/tapes could not be determined and no reliance could be placed on such piece of evidence---Circumstances established that the prosecution had failed to bring home guilt of accused---Appeal against conviction was allowed accordingly.

Asfadyar and another v. Kamran and another 2016 SCMR 2084 and Ishtiaq Ahmed Mirza and others v. Federation of Pakistan PLD 2019 SC 675 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Admission of accused before the police---Non-admissible---Accused was charged for committing murder of the uncle of the complainant---Admittedly, the admission of accused was before Police, but he was not produced before the Judicial Magistrate, concerned, as admittedly, at that time he was in police custody---Confession made by any person while he was in custody of Police Officials would not be proved against an accused of any offence---In the present case, the accused was arrested on 08.12.2020, while the alleged confession was made before Police on 11.12.2020, which showed delay of about 03 days and hence lost its credibility---Circumstances established that the prosecution had failed to bring home guilt of accused---Appeal against conviction was allowed accordingly.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 103---Qatl-i-amd---Appreciation of evidence---Recovery of currency from the house of circumstantial witness---Non-associating of private witnesses during recovery proceedings---Effect---Accused was charged for committing murder of the uncle of the complainant---Circumstantial witness deposed that no currency was recovered from his house, while as per recovery memo, Rs.5,42,000/- were recovered from the house of said witness---Alleged recovery was also made in sheer violation of S. 103, Cr.P.C.---Admittedly, the alleged recovery was made in thickly populated area, but none of the inhabitants was made as mushir---As per recovery memo, when the main door of the house was knocked one person came out, who was inquired about said witness, whereafter, he called the said witness, but surprisingly, he was also not associated as mushir to strengthen the prosecution version---Circumstances established that the prosecution had failed to bring home guilt of accused---Appeal against conviction was allowed accordingly.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Material contradictions between the statements of witnesses---Effect---Accused was charged for committing murder of the uncle of the complainant---Record showed that there were material contradictions between the statements of prosecution witnesses---Circumstantial witness in his testimony before the Court deposed that on 06.12.2020, he was present at his shop, in the meanwhile, a witness came there and told that the deceased was lying unconscious in his room; as he knew the deceased, for the last 3/4 years, therefore, he and other witness rushed towards the room of deceased and when he checked the pulse of deceased, the same had stopped; thus, he came out and informed other people---However, the statement of the other witness did not support the version of circumstantial witness, as he did not state a single word with regard to presence of said witness at the place of occurrence, in his testimony before the Court---Circumstances established that the prosecution had failed to bring home guilt of accused---Appeal against conviction was allowed accordingly.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd---Appreciation of evidence---Non-conducting of identification parade of the accused---Effect---Accused was charged for committing murder of the uncle of the complainant---Record showed that the witness, who first visited the room/office of the deceased, where he found him dead, deposed that he saw a young boy there, but after arrest, the prosecution did not conduct identification parade of the accused through said witness, which also gave rise to doubts that why the Investigating Officer did not conduct identification parade---Thus, a presumption could be drawn that the said witness did not support the stance of prosecution---Circumstances established that the prosecution had failed to bring home guilt of accused---Appeal against conviction was allowed accordingly.

(f) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance creats reasonable doubt in a prudent mind regarding guilt of an accused, then the accused will be entitled to such benefit not as a matter of grace and concession, but as a matter of right.

Muhammad Mansha v. The State 2018 SCMR 772; Tariq Pervez v. The State 1995 SCMR 1345; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Muhammad Akram v. The State 2009 SCMR 230 and Muhammad Zaman v. The State 2014 SCMR 749 rel.

Alamzaib Nasar and Rehmatullah Momin for Appellant.

Hameedullah Kakar for the Complainant.

Ameer Hamza Mengal, Additional Prosecutor General for the State.

2023 P Cr. L J 132

[Supreme Court (AJ&K)]

Present: Raja Saeed Akram Khan, C.J. and Muhammad Younas Tahir, J

NAZIM SHAHEEN and 10 others---Appellants

Versus

ADALAT KHAN and 8 others---Respondents

Criminal Appeal No. 15 of 2019, decided on 22nd December, 2021.

(On appeal from the judgment of the Shariat Appellate Bench of the High Court dated 31.12.2018 in Criminal Miscellaneous No. 79 of 2018)

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

----S. 426---Suspension of sentence pending appeal---Hardened, desperate or dangerous criminal---Scope---Where allegation against convict-appellant was that he had made telephone calls from abroad and had hatched the conspiracy to commit murder of three innocent persons, Supreme Court observed that the convict was not a hardened, desperate or dangerous criminal.

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

----S. 426---Suspension of sentence pending appeal---Scope---Main purpose of S. 426, Cr.P.C. at first is to ascertain whether delay in deciding appeal is occasioned by act or omission of convict or any other person on his behalf.

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

----S. 426---Suspension of sentence pending appeal---Scope---Convict-appellant earns a statutory right for suspension of sentence and grant of bail in his favour under S. 426(1-A)(c) of the Code of Criminal Procedure, 1898, when the delay in disposal of the appeal by the Appellate Court is not occasioned by an or omission of appellant or any other person acting on his behalf---Furthermore, as per conditions laid down in the proviso to S. 426, he should not be previously convicted or a person who in the opinion of the Court is hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life.

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

----S. 426---Suspension of sentence pending appeal---Hardened, desperate or dangerous criminal---Scope---If the Appellate Court comes to the conclusion that the convict person, who has filed an application for suspension of sentence on the ground of statutory period is a hardened, desperate or dangerous criminal and has acted in a desperate manner his application for suspension of sentence bail can be refused.

Raja Inamullah Khan, Advocate for Appellants.

Abdul Majeed Mallick, Advocate for Respondents.

2023 P Cr. L J 1232

[Supreme Court (AJ&K)]

Present: Raja Saeed Akram Khan, C.J. and Raza Ali Khan, J

TASLEEM ZAHEEN---Appellant

Versus

MUHAMMAD NAJEEB and another---Respondents

Criminal Appeal No. 25 of 2022, decided on 20th March, 2023.

(On appeal from the order of the Shariat Appellate Bench of the High Court dated 10.10.2022 in Criminal Revision No. 156 of 2022)

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302, 109, 448 & 334---Qatl-i-amd, abetment, house trespass and itlaf-i-udw---Bail, cancellation of---Accused absconded after bail---Prosecution sought cancellation of bail granted to accused---After grant of bail, the accused had proceeded abroad---If circumstances were of such nature that travelling of the accused abroad was necessary then he should have moved the Court for grant of permission but the proper course was not adopted---Prima facie, the accused was fugitive from law and he had misused the concession of bail, hence, he was not entitled to any relief---Bail granted to the accused was recalled, in circumstances.

Aziz Bi and others v. Fazal Bi and others 2007 SCR 138 rel.

Raja Inamullah Khan, Advocate for Appellant.

Imtiaz Hussain Raja, Advocate for Respondent No. 1.

Kh. M. Maqbool War, Advocate General for the State.