PCRLJ 2024 Judgments

2024 P Cr. L J 499

[Federal Shariat Court]

Before Iqbal Hameedur Rahman, C.J. and Dr. Syed Muhammad Anwer, J

SADDAM HUSSAIN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 1-Q linked with 4-Q of 2022, decided on 16th November, 2023.

Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)---

----S. 17(4)---Penal Code (XLV of 1860), Ss. 391 & 396---Criminal Procedure Code (V of 1898), S. 367---Haraabah---Appreciation of evidence---Language of judgment---Contents of judgment---Scope---Accused three in number were charged for committing murder of the deceased by firing during haraabah---Section 391 of the Penal Code, 1860 (the Code) describes the number of accused persons committing the offence of a robbery conjointly committed by five or more persons, however, S. 396 of the Code provides punishment to the accused involving the offence of robbery committed conjointly by five or more persons---So far as, present case was concerned only three persons had been booked for the offence of committing robbery with murder which did not fall within the category of dacoity with murder as per S. 396 of the Code whose requirement of number of accused was five or more---Trial Court while awarding alternative sentence was required to take into consideration the mandatory provisions of law as required under S. 367 of Cr.P.C.---Trial Court was obliged to state the reasons in its judgment as to why death sentence was not passed as required by subsection (5) of S. 367 of Cr.P.C.---Appeal was allowed by setting aside the conviction and sentence and the case was remanded to the Trial Court for re-writing of judgment by taking into consideration the mandatory provisions contained in S. 367, Cr.P.C.

Muhammad Ismail v. The State 2017 SCMR 713 rel.

Ilahi Bakhsh Mengal and Abdul Samad Sasoli for Appellant (in Criminal Appeal No. 1-Q of 2022).

Ali Ahmed Lehri for Appellant (in Criminal Appeal No. 4-Q of 2022).

Jamroz Khan Afridi for the Complainant.

Abdul Latif Kakar, Additional Prosecutor General, Balochistan for the State.

2024 P Cr. L J 1492

[Supreme Appellate Court Giglit Baltistan (Gilgit)]

Before Sardar Muhammad Shamim Khan, C.J

The State---Petitioner

Versus

MuhabBat Jamal---Respondent

Crl. P.L.A. No. 55 of 2023, heard on 29th April, 2024.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Penal Code (XLV of 1860), Ss. 324 & 341---Government of Gilgit-Baltistan Order, 2018, Art.75(13)---Attempt to commit qatl-i-amd , wrongful constraint---Petition for cancellation of bail, dismissed of---Plea of the petitioner /State was that respondent/accused was involved a heinous offence which came within the purview of prohibitory clause of S.497, Cr.P.C, thus, bail granted to the respondent/accused was liable to be cancelled---Validity---Allegation against the respondent (accused) in the FIR was that he made firing upon the complainant with 12 bore rifle but fire did not hit him and he was saved---There was no allegation of against the respondent that he inflicted any injury on the person of the complainant---During investigation no crime empty was secured by the Police from the place of occurrence, therefore, allegation of firing against the respondent required further inquiry---Admittedly civil litigation pertaining to land-in-dispute was pending between the parties, therefrom, false involvement of the respondent in the present case on the basis of malafideson account of said dispute could not be ruled out---Whether the respondent had actively participated in the occurrence was a question which would be determined by the Trial Court after recording the prosecution's evidence---Respondent was admitted to post-arrest bail by the Chief Court after discussing the merits of the case---If bail is granted to an accused on merits, exceptional circumstances are required to cancel the same---Perusal of record revealed that no such circumstances were available to interfere with bail granting order passed by the Chief Court---Petitioner had not pointed out any perversity or illegality in the bail granting impugned order passed by the Chief Court---Petition was disissed.

Mir Muhammad, Prosecutor General for the State.

Date of hearing: 29th April, 2024.

Judgment

C.Misc. No. 56 of 2023:

Through instant application, learned Law Officer seeks condonation of delay in filing of instant Crl. petition for Leave to Appeal.

1. For the reasons recorded therein, instant application is accepted and delay in filing of instant Criminal Petition for leave to Appeal is hereby condoned. C.M stands disposed of.

Sardar Muhammad Shamim Khan, C.J.---Through instant Criminal Petition filed under Article 75 of the Government of Gilgit-Baltistan Order, 2018, the petitioner/State seeks Leave to Appeal against the impugned Order dated 17.08.2023 passed by the learned Chief Court, whereby, respondent namely Muhabbat Jamal was admitted to post arrest bail in case FIR No.12 of 2023 dated 10.06.2023 offences under sections 324 and 341, P.P.C. registered at Police Station Singul District Ghizer.

2024 P Cr. L J 824

[Gilgit-Baltistan Chief Court]

Before Raja Shakeel Ahmad, J

SUBOOR and another---Petitioners/Accused

Versus

The STATE---Respondent

Criminal Miscellaneous No. 218 of 2021, decided on 4th January, 2022.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324, 336, 337-F(iv) & 34---Arms Ordinance (XX of 1965), S. 13---Attempt to commit qatl-i-amd, itlaf-i-salahiyyat-i-udw, ghayr-jaifah, common intention and possession of arms---Bail, grant of---Further inquiry---Petitioners, along with co-accused, were directly nominated in the FIR attributing them equal role of firing, but without determination of effective firing upon the injured/victim---Police completed the investigation and put the petitioners behind the bars and released the co-accused under S. 169 of the Criminal Procedure Code, 1898---All accused persons though were alleged to be armed with fire arms, but none of them had repeated their fire, when the injured was at their mercy---Prima facie, there appeared no intention on the part of petitioners that they intended the death or qatl-i-amd of the injured---Injuries although grievous but were on non-vital part of the body which also, prima facie, showed lack of intention to cause qatl-i-amd, hence whether S. 324 of P.P.C could be invoked or not, which would only be resolved by the Trial Court after taking consideration the relevant evidence to be recorded in said respect, hence the case of the petitioners also fell within the ambit of further inquiry---Alleged offences i.e. Ss. 336 & 337-F(iv), P.P.C. reflected in the FIR did not fall under the ambit of prohibitory clause and S. 324, P.P.C., although fell within the prohibitory clause, but in case of further inquiry, bail was to be granted as a matter of right and not by way of any concession or grace---Mere fact that the accused were involved in a case falling within prohibitory clause would not be sufficient for the rejection of bail in the case of further inquiry---Bail was allowed to the petitioner, in circumstances.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324, 336, 337-F(iv) & 34---Arms Ordinance (XX of 1965), S. 13---Attempt to commit qatl-i-amd, itlaf-i-salahiyyat-i-udw, ghayr-jaifah, common intention and possession of arms---Bail, grant of---Delay in conclusion of trial---Petitioners were behind the bars since their arrest and trial against them had still not commenced---Speedy trial was recognized right of the petitioners and justified asking the relief of post arrest bail---Petitioners could not be detained for indefinite period in a case where the investigation up to extent of the petitioners had already been completed and they were no more required for the purpose of investigation---Mere detention of the petitioners prior to conviction amounted to punishment before conviction---Bail was allowed to the petitioner, in circumstances.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324, 336, 337-F(iv) & 34---Arms Ordinance (XX of 1965), S. 13---Attempt to commit qatl-i-amd, itlaf-i-salahiyyat-i-udw, ghayr-jaifah, common intention and possession of arms---Bail, grant of---Further inquiry---Generalized/ collective allegation of firing---Number of injuries as described in the Medico-Legal-Report did not commensurate with number of accused persons and in such eventuality it could not be said as to whose fire shot hit the injured and whose did not---None of accused had been assigned any specific role regarding the injuries inflicted to the victim---Allegations against the petitioners were of general and collective nature which ingrained an element of suspicion, hence the petitioners' case called for further inquiry within the meaning of S. 497(2) of the Criminal Procedure Code, 1898---Bail was allowed to the petitioners, in circumstances.

Muhammad Kumail for Petitioners/accused.

2024 P Cr. L J 1383

[Gilgit Baltistan Chief Court]

Before Ali Baig C.J, and Mushtaq Muhammad J.

Shahzad Hussain---Convict/Appellant

Versus

The State---Complainant/Respondent

Criminal Appeals Nos. 57, 61 of 2022 and Criminal Revision No. 24 of 2022, 15th November, 2023.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive proved---Accused were charged for committing murder of the brother of complainant---Motive behind the occurrence was stated by the complainant that the deceased collided or pushed the wife of accused in a street, however the matter after exchange of some bitter words ended with an apology tendered by the deceased---Evidently, the occurrence flared up when the deceased teased and harassed wife of accused in a public passage---Attempt to outrage the modesty of wife of deceased by the deceased was conceded by the complainant in his application and in his statement---On that material fact, statement of wife of accusedwas very much important wherein she had sufficiently explained the alleged attempt on her person by the deceased---Other witness in his statement also stated about that attempt and the subsequent apology tendered by the deceased---This was the motive behind the occurrence and same was sufficiently explained by wife of accused and in view of the document/murasila read with statement of complainant and other witness, that fact was proved on record---Appeal against conviction being meritless was dismissed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Presence of witnesses at the time and place of occurrence established---Accused were charged for committing murder of the brother of complainant---According to the complainant, after failure of his mediation attempt between the family of wife of accused and deceased, the second part of the occurrence happened when the accused party consisting of twenty persons assaulted the deceased at the place of occurrence---Complainant had claimed his presence at the place of occurrence at the relevant time---Complainant in his statement before the Court had explained the fine details of the occurrence---In his statement, complainant had explained how the accused were duly armed with weapons; the presence of mob consisting of hundreds of people; how the accused party intercepted the deceased; how the deceased escaped from the hands of accused; how the mob/crowd remained as silent spectator; how he was restrained by the mob/crowd from interfering in the violent episode; how the deceased tried to escape from the clutches of accused party; how he failed in his attempt and how the accused party finished their task at the outer entrance of the house of a witness---Complainant had verified his application (fard bayan) and had verified the contents and his signature over the FIR---In his statement complainant had categorically charged the convict and deceased accused for making the fatal shots at the deceased at the place of occurrence, i.e., the outer entrance of house of a witness---Complainant had verified the presence of convict and other accused by specifically mentioning their names---During cross-examination complainant stood consistent and there was no material contradiction---Defence had failed to shatter the statement of complainant on material points---Other eye-witness/cousin of the deceasedwas the resident of the same locality and had verified the motive behind the occurrence---Said witness had stated about his presence at the place of occurrence and had verified the presence of deceased in the shop of a tailor, when the accused party assaulted the deceased---Said witness had verified the place of occurrence and had named the incumbents of accused party---During cross-examination, said witness had verified the presence of complainant and witness at the place of occurrence---Another witness who was a resident of same locality identified all the five accused during his Court statement---Said witness had categorically stated that when the mob/crowd tried to save the deceased, convict pointed his weapon towards the crowd---Said witness had categorically charged the convict and other accused, since dead, for actually committing the murder of deceased---Tailor master stated that from his shop, the accused party intercepted deceased and he verified the occurrence---During cross-examination, said witness had verified the arrival of convict at the place of occurrence and his inquiry about the presence of deceased ---Said witness had verified the occurrence committed at the said place and the fire shots---Appeal against conviction being meritless was dismissed, in circumstances.

Khadim Nabi v. Rasheed ur Rehman and another 2020 PCr.LJ 433; Faisal Mehmood and others v. The State and another 2010 SCMR 1025; Meero v. The State 2021 PCr.LJ 1237; The State and others v. Zaidullah and 2 others Cr. Appeal No.01/ 2014 dated 27/ 11/ 2017; Nasir v. The State 2011 YLR 576; Muhammad Saleem v. The State and another 2010 YLR 2115; Najam-un-Nisa's case 2002 YLR 3658; Yasir v. The State 2010 YLR 2344; Muhammad Riaz v. The State 1996 PCr.LJ 150; Nadir Husain v. The State 2013 MLD 885; Zarif Khan v. The State 2010 YLR 935; Mehboob Ali v. The State 1991 MLD 2455; Muhammad Ashraf v. The State 1991 PCr.LJ 2274 and Gehna Khan's case 2009 PCr.LJ 1137 ref.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Medical evidence supporting ocular account---Accused were charged for committing murder of the brother of complainant---Post mortem report revealed five gunshot wounds on the dead body of deceased---Two gunshots were on the vital parts that is right posterior occipital area of head and the second wound at anterior side of left ear and exit from later side of mouth---Rest of three wounds were on non-vital parts---Cause of death according to the postmortem report was damage to vital organs including brain, lungs and major vessels of thorax due to firearm injury---Autopsy report and injury sheet prepared by Investigating Officer soon after the occurrence supported each other and there was no difference in the conclusion drawn---Appeal against conviction being meritless was dismissed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence on the instance of accused persons---Reliance---Accused were charged for committing murder of the brother of complainant---According to recovery memo a 30-bore pistol with number was recovered at the pointation of convict from his residential house---Recovery witness had verified the recovery memo---Evidence worth consideration was the Forensic Science Laboratory Report---Opinion of Fire Arm Expert was that two .30-bore crime empties were fired from .30-bore pistol---Similar opinion was recorded against the weapon .30-bore pistol, which was recovered from the deceased accused---Appeal against conviction being meritless was dismissed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Related and interested witnesses, evidence of---Reliance---Accused were charged for committing murder of the brother of complainant---Record showed that all the eye-witnesses in the case were close relatives of the deceased---Complainant was real brother of deceased---Eye-witness was cousin of deceased---Other witness in his statement had accepted his close relationship with the deceased---Another witness also accepted his relationship with both the parties---After a careful examination of evidence rendered by the said eye-witnesses it was evident that although the said witnesses were close relatives of the deceased but from their statements, it did not appear that eye witnesses had falsely testified against the accused---There was previous enmity between the two parties and the present occurrence was an immediate reaction of an incident that took place between the deceased and wife of accused---Interestedness of a witness has to be judged on the touchstone of a motive connected to a previous enmity or grudge---In this case there was nothing on record that prior to the occurrence parties were involved in any kind of enmity or grudge---Evidence rendered by the complainant and witnesses were corroborated by the independent witnesses---Mere relationship of complainant and witnesses with the deceased was not sufficient to reject their evidence---Appeal against conviction being meritless was dismissed, in circumstances.

(f) Criminal trial---

---Interested and related witness, evidence of---Scope---Mere relationship of witness with the complainant party is no ground to reject his evidence, who otherwise furnishes a credible and trustworthy account of the occurrence.

Khadim Hussain v. The State 2010 SCMR 1092 and Hasil Khan v. The State and others 2012 SCMR 1936 rel.

(g) Criminal trial---

----Discrepancies and contradictions in evidence---Scope---Discrepancy/contradiction in a testimony will be given importance when the said discrepancy or contradiction leads to the existence or non-existence of a material fact---Minor contradictions or differences and even improvements made by witnesses can safely be ignored if the substantial evidence leads to a definite conclusion.

Anwar Shamim and others v. The State 2010 SCMR 179 rel.

Shahbaz Ali for the convict/Appellant (in Criminal Appeal No. 57 of 2022) and for convict/Respondent No. 1 (in Criminal Revision No. 24 of 2022).

Imtiaz Hussain and Mudassir Hassan for the Appellant/Complainant (in Criminal Appeal No. 61 and for Petitioner (in Criminal Revision No. 24 of 2022).

Manzoor Hussain for the accused/Respondents (in Criminal Appeal No. 61 of 2022).

Malik Sherbaz Khan, Additional Advocate General for the State in all the above cited Appeals and Revision.

Date of hearing: 25th October, 2023.

Judgment

MuSHtaq Muhammad, J.---We intend to decide all the above cited two criminal appeals and the criminal revision petition through this single judgment, because all the above cited appeals and the revision petition are directed against the same judgment of conviction dated 31/ 10/2022 passed by the learned Additional Sessions Judge Gilgit (hereinafter called as trial court) in the Sessions Trial No.85/ 2018, whereby the learned trial court has convicted the appellant of Criminal Appeal No.57/ 2022 for committing Qatl-e-Amd (intentional murder) of deceased Mumtaz Hussain son of Muhammad Hussain resident of Muhallah Yarkot Khomer Tehsil Gilgit and sentenced him for life with fine Rs.500,000/- under Section 544-A Cr.P.C and in default of payment of compensation amount for further imprisonment of six months S.I. Learned trial court has extended the benefit of Section 382-B Cr.P.C. to the convict Shehzad Hussain.

Learned trial court on the other hand acquitted the co-accused Wahid Hussain, Saqib Hussain and Abid Hussain of the charge. Para 54 and 56 of the impugned judgment dated 31/10/2022 read as follows:

1. Due to some contradiction in prosecution case against the accused Shehzad Hussain not made for punishment of death sentence while prosecution failed in establishing the case to the extent of rest of co-accused Wahid Hussain, Saqib Hussain and Abid Hussain.

56. Co-accused Wahid Hussain, Saqib Hussain and Abid Hussain are acquitted from charge under Section 302/34 P.P.C. in case in hand.

Accused Afraz Hussain son of Hoor Shah during his custody committed suicide within the premises of judicial lockup, hence case to his extent is abated.

1. FACTS OF THE CASE

Complainant Imran Hussain son of Muhammad Hussain, appellant of Cr. Appeal No.61/ 2022, reported the occurrence dated 20/ 06/ 2018 happened at 1450 hours (ten minutes to 3 'O' clock afternoon), wherein the said occurrence his real brother deceased Mumtaz Hussain lost his life in the hands of accused Afraz Hussain (died later on), Shehzad Hussain, Wahid Hussain , Saqib Hussain and Abid Hussain.

Complainant Imran Hussain vide his written application dated 20/ 06/ 2018 (fard bayan), marked as Ex.PW-1/ A on 16/ 09/ 2019 during his statement on oath recorded before the trial court, has disclosed the occurrence from its starting point to the end. He has mentioned that on the day of occurrence at about half past eight O' clock morning deceased Mumtaz Hussain collided or pushed Mst. Bina (PW-8) in a street and the matter after exchange of some bitter words ended with an apology tendered by the deceased Mumtaz Hussain. It is in the document Ex.PW-1/ A that accused Shehzad Hussain and others named therein did not accept the said apology tendered by the deceased Mumtaz Hussain and jointly assaulted the deceased Mumtaz Hussain by taking him out from the shop of Jamati (PW-4), took the deceased Mumtaz Hussain to the place of occurrence and committed murder there. Complainant Imran Hussain has named the eye-witnesses in his said application.

On the said application of complainant Imran Hussain, police formally registered the case on the same day at 1520 hours and arrested all the nominated accused on 21-6-2018 and started investigation. Prosecution case rests mainly on the ocular account of witnesses Imran Hussain (complainant), Iqtidar Hussain (Ww-2), Touseef Haider (Pw-3), Jamati (PW-4) and Haji Mir Afzal (PW-5). Corroboratory evidence post mortem report Ex.P11/A, injury sheet prepared by 1.0 Ex.PW-6/M, recovery of weapon of offence Ex.PW-7/ A, Ex.PW-7/ B, seizure memos regarding blood stained soil, blood stained clothes of deceased Mumtaz Hussain, crime empties, crime shell and site plan with site inspection report are part of prosecution evidence. After a full dress trial and recording the defense evidence, learned trial court convicted the principal accused Shehzad Hussain and sentenced him for life with fine Rs.500000/ - under Section 544- A Cr.P.C. Learned trial court has extended the benefit of section 382-B Cr.P.C. to the convict Shehzad Hussain. Learned trial court however, acquitted the co-accused Wahid Hussain, Abid Hussain and Saqib Hussain sons of Ajab Khan. Felt aggrieved with the judgment of conviction dated 31-102022, convict Shehzad Hussain has called in question the same vide Cr.Appeal No.57/ 2022. Complainant Imran Hussain has challenged the acquittal order of learned trial court passed in favour of co-accused Wahid Hussain and two others respondents in Cr. Appeal No. 61/2022. Complainant Imran Hussain has also prayed for enhancement of sentence awarded to principal accused Shehzad Hussain vide his Cr. Revision Petition No.24/ 2022.

1. Arguments have been heard on 25/ 10/2023. Mr. Shahbaz Ali advocate submitted that there is contradiction between the statement of complainant Imran Hussain and SHO PW-13. Learned counsel has submitted that regarding the exact time of occurrence prosecution evidence on record is full of doubts. He referred the statements of complainant, I.O Pw-13 and Sher Jahan PW-9. Learned counsel has submitted with specific reference to the statement of Dr. Mehboob ul Haq PW-11 that occurrence took place on 1450 hours and post mortem was conducted on 1645 hours and there is no explanation given regarding the custody of dead body during the intervening period from 1450 to 1645 hours. Learned counsel raised objection that complainant Imran Hussain did not go to the police station after the occurrence whereas I.O PW-13 claims that he had received the complainant Imran Hussain at police station Jutial at 1450 hours. Learned counsel objected that dead body was removed from the place of occurrence to the hospital by the incumbents of Rescue 1122 but no person of Rescue 1122 is cited to verify the said fact. Learned counsel submitted that it is in the statement of complainant Imran Hussain that at the relevant time of occurrence various people were present on the spot and they conducted fire at the deceased Mumtaz Hussain whereas, in the FIR Ex.PW-1/ A the statement regarding presence of various people nothing is mentioned. He pointed out the contradiction between the statement of PW-5 Mir Afzal and Tufail Abbas PW-6 on the particular point of their relationship with the complainant and accused party. He submitted that according to the FIR it was a day light occurrence and various people were present on the spot but all the eye-witnesses are close relatives of the deceased hence, their evidence cannot be accepted. He submitted that PW-5 Mir Afzal in his statement before the Court has claimed that he had identified the accused Shahzad Hussain while conducting fire at the deceased Mumtaz Hussain from a distance of 150 feet. Learned counsel submitted that this kind of identification cannot be accepted. Learned counsel submitted that owner of the house Sohail Abbas who was allegedly present on the spot of occurrence was not cited as a witness which create serious doubts in the prosecution case. Learned counsel submitted that inquiry conducted prior to registration of FIR is a nullity in the eyes of law. Learned counsel submitted that convict appellant Shehzad Hussain on oath recorded his statement to rebut the case against him but the prosecution failed to shatter his statement. Learned counsel on the particular defense of Alibi taken by the principal accused, referred the statements of DWs Najmul Hassan, Riazat Hussain, Wahid Hussain, Muhammad Jabir and Mufeed Hussain. Learned counsel submitted that regarding the fatal shots to the deceased Mumtaz Hussain, the evidence rendered by the alleged eye-witnesses is contradictory to each other. He submitted that prosecution witnesses have improved their statements hence, same cannot be relied upon. Learned counsel submitted that learned trial court has accepted the improved contradictory evidence of the prosecution witnesses, hence the impugned judgment of conviction dated 31/ 10/2022 passed by the learned trial court is liable to be set aside. He relied upon the case laws cited, "Khadim Nabi v. Rasheed ur Rehman and another" (2020 PCr.LJ 433), "Faisal Mehmood and others v. The State and another" (2010 SCMR 1025), "Meero v. The State" (2021 PCr.LJ 1237), "The State and others v. Zaidullah and 2 others" (Cr. Appeal No.01/ 2014 dated 27/ 11/ 2017), Nasir v. The State" (2011 YLR 576), "Muhammad Saleem v. The State and another" (2010 YLR 2115), "Najam-un-Nisa's case" (2002 YLR 3658), "Yasir v. The State" (2010 YLR 2344), "Muhammad Riaz v. The State" (1996 PCr.LJ 150), "Nadir Husain v. The State" (2013 MLD 885) and "Zarif Khan v. The State" (2010 YLR 935). Learned counsel prayed that impugned judgment of conviction dated 31/ 10/ 2022 may be set aside and convict appellant may be acquitted of the charge as framed against him.

Mr. Manzoor Hussain advocate appearing on behalf of respondents in Cr. Appeal No.61/ 2022 (accused acquitted by the learned trial court) submitted that learned trial court has rightly acquitted the accused/ respondents for the reasons that accused Saqib Hussain was subsequently involved in the case by the I.O, despite the fact that he was not nominated by the complainant Imran Hussain in the FIR Ex.PW-1/ A. learned counsel submitted that PW-5 Mir Afzal and PW Tauseef Haider (PW-3) in their statements did not specifically charge the accused/ respondents. Learned counsel referred the statements of PW-5 Mir Afzal and Tauseef Haider (PW-3). Learned counsel submitted that no recovery has been effected from the accused/ respondents, hence the Cr. Appeal No.61/ 2022 is devoid of merits. He prayed that this appeal may be dismissed.

Messrs Imtiaz Hussain and Muddasir Hassan advocates presented the case of complainant Imran Hussain. They submitted that it was a day light occurrence, that occurrence was promptly reported by the real brother of deceased Mumtaz Hussain. They submitted that motive behind the occurrence is fully explained and that eye witnesses of the occurrence are named in the FIR Ex.PW-13/ A. They argued that ocular account of the occurrence is fully corroborated by the corroboratory confirmatory evidence, post mortem report Ex.PW11/ A, injury sheet prepared by the I.O Ex.PW-6/ M. They have referred the statements of complainant Imran Hussain, Iqtidar Hussain Pw-2, Touseef Haider (PW-3), Jamati (PW-4), Haji Mir Afzal (PW-5) and Mst. Bina (Pw-8). They argued that learned trial court on the one hand accepted the statements of eye-witnesses and on the other hand acquitted the respondents of Cr. Appeal No.61/ 2022. They contested the findings of learned trial court vide para 54 and 56 of the impugned judgment dated 31/ 10/2022. They submitted that case in hand is one of capital punishment but the learned trial court awarded lesser punishment to the convict-appellant Shehzad Hussain and acquitted the co-accused Wahid Hussain, Saqib Hussain and Abid Hussain. They referred the judgments cited "Mehboob Ali v. The State" (1991 MLD 2455), "Muhammad Ashraf v. The State" (1991 PCr.LJ 2274) and "Gehna Khan's case" (2009 PCr.LJ 1137). They prayed that by accepting the Cr. Appeal No.61/ 2022, the acquitted accused Wahid Hussain and 2 others may be convicted for the charge as framed against them on 08/ 05/2019 and sentenced them under Section 302 (b) P.P.C. read with Section 34 P.P.C. They prayed that Cr. Revision No.24/2022 may be accepted and sentence of life imprisonment awarded to the convict Shehzad Hussain may be enhanced to normal penalty of death. They prayed for dismissal of Cr. Appeal No.57/ 2022. Learned AAG submitted that case is one of ocular evidence duly supported with motive behind the occurrence. He submitted that it was a broad day light occurrence and both the parties were known to each other prior to the occurrence hence, question of false implication does not arise. Learned AAG submitted that all the prosecution witnesses were in depth cross-examined by the defense and surfaced with nothing material in their hands. He submitted that extreme explanations regarding each and every minute before and after the occurrence and every single movement and gesture of the PWs and investigating officer is not possible. He submitted that defense has failed to create reasonable doubt in the prosecution evidence. He submitted that it was a case of capital punishment against all the accused and learned trial court has differentiated the case of convict Shahzad Hussain with the acquitted accused Wahid Hussain and others on the basis of identical evidence. He prayed for acceptance of Cr. Appeal No. 61/ 2022 and Cr. Revision No.24/2022. He, however prayed for dismissal of Criminal Appeal No.57/ 2022.

1. We have carefully examined the case of prosecution, evidence recorded by the learned trial Court and the judgment of conviction dated 31.10.2022 recorded by the learned trial court. We have given our considerations.

Before recording our findings on the merits of evidence, we deem it appropriate to comment on the format of judgment dated 31.10.2022 handed down by the learned Additional Sessions Judge Gilgit. Judgment consists of 28 pages. From page No.3, paragraph No.9 to page No.18, paragraph No.30, learned trial court has reproduced the evidence of PWs and five (5) DWs. In the next three pages learned trial court has reproduced the arguments of both the sides. In the next six pages learned trial court has again discussed the testimony of each prosecution witness. Learned trial court has concluded the case in two paragraphs at page No. 27. By reproducing the recorded evidence in the judgment, learned trial court has un-necessarily prolonged the same. This format of the judgment is violative of the mandatory provision of section 367 Cr.P.C. The judgment in any criminal trial shall consist of three components. First, the points for determination, secondly the decision and conclusion and third the reasons for the decision. In the impugned judgment learned trial court did not frame points for determination, hence judgment dated 31.10.2022 on the particular point of its format is violative of section 367 Cr.P.C.

1. The most important point in this case is the charge as framed against the convict Shahzad Hussian and the acquitted accused Wahid Hussain, Saqib Hussain and Abid Hussain. From the perusal of the FIR Ex.PW13/ A, Ex.PW 1/A and the statement of Imran Hussain complainant, it is obvious that prior to occurrence there was no enmity or grudge between the deceased Mumtaz Hussain and his family and the accused party.

From the statement of complainant Imran Hussain it is evident that the occurrence flared up when the deceased Mumtaz Hussain teased and harassed Mst. Bina in a public passage. It is on record admitted that said Mst. Bina PW-8 is wife of accused Wahid Hussain. The attempt to outrage the modesty of Mst. Bina PW 8, by the deceased Mumtaz Hussain is conceded by the complainant Imran Hussain in his application Ex.PW-1/ A and in his statement dated 16/ 09/ 2019. On this material fact, statement of Mst. Bina PW-8 is very much important wherein she has sufficiently explained the alleged attempt on her person by the deceased Mumtaz Hussain. PW-2 Iqtidar Hussain in his statement dated 16/ 09/ 2019 also stated about this attempt and the subsequent apology tendered by the deceased Mumtaz Hussain. This is the motive behind the occurrence and same is sufficiently explained by Mst. Bina PW.8 and in view of the document Ex.PW-1/ A read with statement of complainant Imran Hussain and Iqtidar Hussain PW-2 this fact is proved on record.

According to the complainant Imran Hussain, after failure of his mediation attempt between the family of Mst. Bina and deceased Mumtaz Hussain, the second part of the occurrence happened when the accused party consisting of twenty persons assaulted the deceased Mumtaz Hussain at the place of occurrence. Complainant Imran Hussain has claimed his presence at the place of occurrence at the relevant time. Complainant Imran Hussain in his statement before the Court has explained the fine details of the occurrence. In his statement he has alleged that all the accused were duly armed with weapons, the presence of mob consisting of hundreds of people, how the accused party intercepted the deceased Mumtaz Hussain, how the deceased Mumtaz Hussain escaped from the hands of accused, how the mob/ crowd remained as silent spectator, how he was restrained by the mob/ crowd from interfering in the violent episode, how the deceased Mumtaz Hussain tried to escape from the clutches of accused party, how he failed in his attempt and how the accused party finished their task at the outer entrance of the house of Mir Afzal PW-5. Complainant Imran Hussain has verified his application (fard bayan Ex. PW-1/ A and has verified the contents and his signature over the FIR Ex.Pw-1 3/ A. In his statement complainant Imran Hussain has categorically charged the convict Shehzad Hussain and Afraz Hussain (deceased now) for conducting the fatal shots at the deceased Mumtaz Hussain at the place of occurrence the outer entrance of house of PW-5 Mir Afzal. He has verified the presence of convict Shehzad Hussain, Abid Hussain and Afraz Hussain (deceased) by specifically mentioning their names, however he did not name the accused Saqib Hussain and Wahid Hussain. During cross-examination he stood consistent and there is no material contradiction. Defense has failed to shatter the statement of complainant Imran Hussain on material points i.e, his presence on the spot of occurrence, his specific allegation against the accused Shehzad Hussain and Abid Hussain, motive behind the occurrence, names of eye-witnesses given by him, time and place of occurrence. Rather complainant Imran Hussain verified his presence at the spot of occurrence with the exact mark of distance. (page 3 cross-examination).

PW 2 Iqtidar Hussain who is cousin of deceased Mumtaz Hussain is the resident of same locality and has verified the motive behind the occurrence. PW-2 Iqtidar Hussain has stated about his presence at the place of occurrence and has verified the presence of deceased Mumtaz Hussain in the shop of tailor Jamati PW-4, when the accused party assaulted deceased Mumtaz Hussain. PW-2 Iqtidar Hussain has verified the place of occurrence and has named the incumbents of accused party. During cross-examination PW-2 Iqtidar Hussain has verified the presence of complainant Imran Hussain and PW Touseef Haider PW-3 at the place of occurrence. PW-2 Iqtidar Hussain is not specific on the particular fact that out of the five accused who conducted the fatal shot at the deceased Mumtaz Hussain despite the fact that he was present on the spot.

PW-3 Touseef Haider who is the resident of same locality identified all the five accused during his court statement on 16/ 09/ 2019. This Pw has categorically stated that when the mob/ crowd tried to save the deceased Mumtaz Husain convict Shehzad Hussain pointed his weapon towards the crowd. PW-3 Touseef Haider has categorically charged the convict Shehzad Hussain and Afraz Hussain (deceased) for actually committing the murder of deceased Mumtaz Hussain. This PW has categorically charged all the accused Wahid Hussain, Shehzad Hussain , Abid Hussain, Saqib Hussain and Afraz Hussain regarding their presence and their active participation during the occurrence. PW-3 Touseef Haider during cross-examination has verified his presence and the presence of complainant Imran Hussain and PW-2 Iqtidar Hussain at the place of occurrence. Except some minor and un-important discrepancies PW-3 Touseef Haider has furnished the exact picture of the occurrence as narrated by the complainant and PW-2 Iqtidar Hussain.

PW-4 Jamati son of Lal as resident of Mastaj Chitral is the tailor. It is in the evidence of eye-witnesses that from the shop of PW.4 the accused party intercepted deceased Mumtaz Husain. PW.4 in his statement has verified the occurrence. During cross-examination PW-4 Jamati has verified the arrival of convict Shehzad Hussain alias Boto at the place of occurrence and his inquiry about the presence of deceased Mumtaz Hussain. PW-4 Jamati has verified the occurrence committed at the said place and the fire shots. However, PW-4 Jamat did not charge any person categorically for actual commission of murder of deceased Mumtaz Hussain.

PW-5 Haji Mir Afzal a retired police officer of the same locality has with specific reference to the place of occurrence has verified the presence of deceased Mumtaz Hussain at the mercy of accused party, the presence of convict Shehzad Hussain at the place of occurrence and his direction to him to stay out of the matter, presence of an irresistible mob at the place of occurrence, half hearted attempt of complainant Imran Hussain to save his brother deceased Mumtaz Hussain, taking away the deceased Mumtaz Hussain from market area by the accused party towards the residential area and thereafter the murder of deceased Mumtaz Hussain at the place of occurrence. PW-5 Mir Afzal in his statement has stated regarding the actual participation of convict Shehzad Hussain during the occurrence. PW-5 Haji Mir Afzal has verified the presence of complainant Imran Hussain at the place of occurrence and his ineffective effort to save his brother deceased Mumtaz Hussain. PW-5 Haji Mir Afzal has verified the presence of PW-3 Touseef Haider and Tufail Abbas at the place of occurrence. This PW has also verified the presence of deceased Mumtaz Hussain prior to the occurrence in the room of PW-4 Jamati.

1. Post mortem report Ex.PW-11/ A reveals five gunshot wounds over the dead body of deceased Mumtaz Hussain. Two gunshots are on the vital parts that is right posterior occipital area of head and the second wound at anterior side of left ear and exit from later side of mouth. Rest of three wounds are on non-vital parts. Cause of death according to the document Ex.PW-11/ A is damage to vital organs including brain, lungs and major vessels of thorax due to firearm injury. Autopsy report Ex.PW-11/ A and injury sheet Ex.PW-6/ M prepared by I.O soon after the occurrence supports each other and there is no difference in the conclusion drawn. The other corroboratory evidence is recovery of weapons from convict Shehzad Husain vide the document seizure memo Ex.PW-7/ A and the other from the deceased accused Afraz Hussain. According to the document Ex.PW-7/A a thirty bore pistol with number was recovered at the pointation of convict Shehzad Husain from his residential house. I.O Mr. Tehzeeb ul Hassan PW-13 has verified the document. The evidence worth consideration is the FSL report Ex.PW-10/C. The opinion of fire arm expert is reproduced here for ready reference: -

OPINION

1. The two 30 bore crime empties marked C1 and C2 were fired from 30 bore pistol No. Nil marked A in question in view of the following major points, i.e, strike pin marks, breach face marks and ejector marks etc are similar.

A similar opinion is recorded against the weapon 30 bore pistol No.320, which was recovered from the deceased Afraz Hussain.

1. Motive behind the occurrence is sufficiently explained in the document Ex.PW-1/ A coupled with the statement of complainant Imran Hussain and PW-2 Iqtidar Hussain. On this particular point statement of Mst. Bina PW-8 wife of accused Wahid Hussain is very much important. She has categorically mentioned the incident took place prior to the occurrence. She has categorically named the deceased Mumtaz Hussain for the said assault on her person. She has stated about the subsequent events took place after the said incident. Therefore, the motive behind the occurrence is proved.

2. Credibility of prosecution evidence.

It is on record that all the eye witnesses in this case are close relatives of the deceased Mumtaz Hussain. Complainant Imran Hussain is real brother of deceased Mumtaz Hussain. Iqtidar Hussain PW-2 is cousin of deceased Mumtaz Hussain. Touseef Haider PW-3 in his statement has accepted his close relationship with the deceased Mumtaz Hussain. PW-5 Haji Mir Afzal also accepted his relationship with both the parties. After a careful examination of evidence rendered by the above said eye-witnesses it is evident that although the above said witnesses are close relatives of the deceased Mumtaz Hussain but from their statement, it does not appear that eye witnesses have falsely testified against the accused. There is no previous enmity between the two parties and the occurrence of 20/ 06/2018 was an immediate reaction of incident took place between the deceased Mumtaz Hussian and Mst. Bina PW No.8.

Interestedness of a witness had to be judged on the touchstone of a motive connected to a previous enmity or grudge. In this case there is nothing on record that prior to the occurrence parties were involved in any kind of enmity or grudge. The evidence rendered by the complainant Imran Hussain, PW Iqtidar Hussain and Tauseef Haider PW3 are corroborated by the independent witness Haji Mir Afzal PW5 and Jamati PW4. Mere relationship of complaiant Imran Hussain, Iqtidar Hussain PW2 and Tauseef Haider PW3 with the, deceased Mumtaz Hussain is not sufficient to reject their evidence. It is settled principle of law that mere relationship of witness with the complainant party is no ground to reject the evidence of witness who otherwise furnishes a credible and trustworthy account of the occurrence. In the case cited, "Khadim Hussain v. The State" (2010 SCMR 1092) a full bench of hon'ble Supreme Court of Pakistan has held that "if the eye-witnesses are trustworthy and reliable and have highlighted each and every aspect of the occurrence without making any glaring contradiction, dishonest exaggeration, omission or concealment in their statements mere relationship of eye witnesses is no ground to discard their evidence."

In another case cited, "Hasil Khan v. the State and others" (2012 SCMR 1936) a full bench of hon'ble Supreme Court of Pakistan on the particular point of evidentiary value of witnesses related to complainant has held as under:

"Mere relationship would not make a witness unworthy of reliance if his testimony was corroborated by any independent evidence or circumstantial evidence appearing on record."

Citation B, 1940

The presence of complainant Imran Hussain at the place of occurrence is fully established through the evidence of PW5 Haji Mir Afzal and Iqtidar Hussain PW2. The statements of all the eye witnesses are consistent with each other and there is no material contradiction, hence accepted.

1. Learned counsel appearing on behalf of convict Shahazad Hussian, mainly pointed out the minor differences regarding the time of report of the occurrence, arrival of police party at the place of occurrence removal of dead body from the place of occurrence to the hospital and distance between the place of occurrence and eye witnesses and identification by the eye-witnesses from a distance of 150 feet and delay in between the occurrence and post mortem examination and non citing the officials of Rescue 1122 as witnesses. He has also emphasized that there is difference between the statement of I.O and complainant Imran Hussain on the particular point of time of report. He also pointed out that at the place of occurrence number of people were present but no independent witnesses came forward to testify and on the particular point of guilt the prosecution evidence is not specific.

We are not inclined to subscribe the points agitated by Mr. Shahbaz Ali advocate. Prosecution's evidence on the particular point of motive behind the occurrence, the intention of accused party in view of their threats to the deceased Mumtaz Hussain at the place of occurrence, dragging the deceased from the Akbar Market to the place of occurrence, the interference by the complainant Imran Hussain and PW5 Haji Mir Afzal to rescue the deceased Mumtaz Hussain from the clutches of accused party, identification of accused party by the complainant Imran Hussain, Iqtidar Husain, Touseef Hussain, Haji Mir Afzal and Jamati at the place of occurrence and fatal shots fired by the convict Shahzad Hussain and Afraz Hussain. The story narrated by the above cited witnesses is fully corroborated through the other evidence i.e, autopsy report Ex.PW 11/ A, injury report prepared by I.O Ex.PW 6/M.

Minor differences as pointed out by the learned counsel are not worth consideration. A discrepancy/ contradiction in a testimony will be given importance when the said discrepancy or contradiction leads to the existence or non-existence of a material fact. Minor contradictions or differences and even improvements made by witnesses can safely be ignored if the substantial evidence leads to a definite conclusion.

In the case cited, "Anwar Shamim and others v. The State" (2010 SCMR 179) hon'ble Apex Court has held as under:

"Minor contradictions or improvement in statement of witnesses to be overlooked, however only material contradictions are to be considered." Citation B 1795.

Therefore the argument of learned counsel Mr. Shahbaz Ali advocate is hereby rejected wherein the learned counsel has pointed out insignificant and un-important rather immaterial discrepancies in the testimony of eye-witnesses and the I.O PW-13 .

1. Order of acquittal. Coming to the case of acquitted accused/ respondents Wahild Husain, Abid Hussain and Saqib Hussain. It is admitted on record that accused Wahid Hussain is the husband of victim lady Mst. Bina PW-8 as such he is the immediate affectee of the earlier incident happened to his wife. PW2 Iqtidar Hussain in his statement has categorically charged the accused Wahid Hussain, Abid Hussain and Saqib Hussain for their actual participation in the occurrence. PW-2 Iqtidar Hussain in his statement before the Court has stated a relevant statement which is reproduced here for ready reference:

"Prior to the occurrence accused Shehzad Hussain had intimidated and threatened my deceased brother Mumtaz Hussain on phone and accused Wahid Hussain has also accorded that if I would even pardon the deceased Mumtaz Hussain my nephew Shehzad Hussain would never spare him and will probably kill him"

PW-2 Touseef Haider during his Court statement has directly charged all the accused by identifying them before the Court. This PW has categorically charged the acquitted accused for their active participation in the tragic incident. All the acquitted accused are closely related to the each other and they all were aggrieved with the incident happened to PW-8 Mst. Bina. Learned trial court has failed to appreciate the evidence available on record against the accused Wahid Hussain, Abid Hussain and Saqib Hussain.

1. Conclusion. From the perusal of record, it is evident that it was a day light occurrence directly connected with the motive behind the occurrence as unfolded by the complainant Imran Hussain and corroborated by Mst. Bina PW 8. Occurrence was promptly reported within half an hour and eye-witnesses of the occurrence are named in the document Ex.PW 1/ A. Motive behind the occurrence is very well explained in the document Ex.PW 1/A by the complainant Imran Hussain and defense has not contested the same. Complainant Imran Hussain, all the eye witnesses and the accused party are residents of same locality therefore, question of false identification does not arise. Ocular account furnished by the complainant Imran Hussain is fully corroborated by the other witnesses on record and there are no material contradictions in their statements. It is on record proved that fatal shots were fired by the convict Shehzad Hussain and Afraz Hussain (deceased). The presence of acquitted accused at the place of occurrence and their actual participation during the occurrence is fully established on record. All the acquitted accused are the direct affectees of the motive and their presence coupled with actual participation during the occurrence leads to the inference that they all shared the common intention to commit murder of deceased Mumtaz Hussain. The plea of Alibi raised by the convict Shehzad Hussain is an afterthought and all the defense witnesses examined are his friends and their evidence is not specific and confidence inspiring. Convict Shehzad Hussain has failed to furnish any reliable evidence in support of his defense. On the other hand his presence on the spot of occurrence at the relevant time with his specific role is fully established through impartial evidence.

2. All the case laws referred on behalf of convict Shehzad Hussain are squarely not applicable to the facts of this case hence, cannot be relied upon.

3. Order. In view of the above, Criminal Appeal No. 57/2022 being meritless is hereby dismissed. The conviction and sentence by the learned trial court vide the impugned judgment dated 31-10-2022 passed in Sessions Trial No. 51/ 2022 vide para No. 55 is hereby maintained.

2024 P Cr. LJ 1959

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

Liaqat---Appellant

Versus

The State through Police Station Fatehpur Thakyala and 2 others---Respondents

Criminal Appeal No. 14 of 2019, decided on 2nd April, 2024.

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

----Ss. 337-F(i) & 34---Azad Jammu and Kashmir Offences Against Property (Enforcement of Hudood) Act (XII of 1985), S. 20---Ghayr-jaifah-mudihah, common intention, haraabah---Appreciation of evidence---Delay in lodging FIR---Consequential---Record showed that the incident took place on 25.09.2013 at 9:30 pm (night time), while the report/FIR was lodged on next day at 10:45 am---No plausible reason of such delay had been given by the prosecution, which created a doubt upon the truthfulness of the prosecution's story---Factum of causing delay in lodging FIR must be explained by the complainant plausibly, and if he failed to furnish the circumstances beyond his control with sound justification in that regard, the allegations levelled in FIR would be presumed as a result of deliberation, negotiation, discussion and afterthought with sole drive and ulterior motive to get the used convicted---Thus, such deliberate delay could not be ignored by the Court in a routine manner---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

2014 PCr.LJ 1123; PLD 2008 SC 859; 1997 MLD 260; 1995 PCr.LJ 248; PLD 1996 SC 574; 1994 PCr.LJ 1516; 2014 and PCr.LJ 1123 ref.

Akhtar Ali v. State 2008 SCMR 6 rel.

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

----Ss. 337-F(i) & 34---Azad Jammu and Kashmir Offences Against Property (Enforcement of Hudood) Act (XII of 1985), S. 20---Criminal Procedure Code (V of 1898), S.103---Ghayr-jaifah-mudihah, common intention, haraabah---Appreciation of evidence---Recovery of money from the accused---Recoveries were stated to be made from the house of the accused and co-accused while they were in police custody---During recovery proceedings, no independent civil witness from the locality had been associated by the police---Witnesses of recoveries were close relatives of the complainant and were interested witnesses, thus, police had violated the very purpose of S.103, Cr.P.C.---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Aqil v. The State 2023 SCMR 831 rel.

(c) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance creats doubt in the mind of prudent person, its benefit is necessarily to be given to the accused not as a matter of grace but as a matter of right.

Abdul Majeed v. State 2023 PCr.LJ 331 rel.

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

----Ss. 337-F(i) & 34---Azad Jammu and Kashmir Offences Against Property (Enforcement of Hudood) Act (XII of 1985), S. 20---Ghayr-jaifah-mudihah, common intention, haraabah---Appreciation of evidence---Night time occurrence---Source of light not established---Occurrence allegedly took place at night i.e. 9:30 pm, but no source of light had been mentioned by the prosecution through which the complainant recognized the accused persons---Neither the source of light was confiscated and taken into custody nor was it produced in the evidence---A prudent mind could not believe such like story that someone dared to commit robbery or theft particularly in an area from where he himself belonged and make such an attempt with bare face without wearing any mask---Complainant could not establish any source of light to prove how he chased the accused at late night---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Arshad Mahmood v. Raja Muhammad Asghar 2008 SCR 345 rel.

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

----Ss. 337-F(i) & 34---Azad Jammu and Kashmir Offences Against Property (Enforcement of Hudood) Act (XII of 1985), S. 20---Ghayr-jaifah-mudihah, common intention, haraabah---Appreciation of evidence---Sole statement of complainant not reliable---Evidence disbelieved qua co-accused relied upon to convict accused---Legality---Solitary statement/narrative of the complainant was not corroborated by evidence---First Appellate Court disbelieved the same set of evidence against one accused and on the other hand relied upon the same qua awarding sentence to the accused---Sole evidence of the complainant was neither reliable nor trustworthy---Rest of the evidence was hearsay evidence which could not corroborate the sole statement of the complainant---Credibility of the witnesses could not be treated as defensible and acceptable against one and rejected against the other---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Sardar Ghulam Mustafa Khan for the Convict-Appellant.

Abdul Qayum Sabri, A.A.G for the State.

Mirza Tariq Mahmood for Respondent No. 2.

Judgment

Syed Shahid Bahar, J.---Ratio

It is better that ten guilty persons escape than that one innocent suffer.

1. The rule of giving benefit of doubt to an accused is essentially a rule of caution and prudence and is deep rooted in jurisprudence qua safe administration of justice, which is based upon the above maxim.

2. In Islamic Criminal Law, concept of extending benefit of doubt to an accused takes breath from the sayings of Holy Prophet of Islam (PBUH).

3. Avert punishments (Hudood) when there are doubts and drive off the ordained crimes from the Muslims as for as you can. If there is any place of refuge for him (accused) let him have his way, because the leaders mistake in pardon is better than his mistake in punishment.

4. Both the judgments passed by the Subordinate Courts are not maintainable. Occurrence allegedly took place at night. Story teller of the alleged occurrence is only complainant. Circumstantial hearsay evidence that too given by the close relatives as well as violation of Section 103, Cr.P.C are circumstances arising out from the case suffice to disbelieve the prosecution's story.

FACTS IN BREVITY:

1. An FIR bearing No.68/13 under Sections 337/F1, 34, APC and Section 20 of The Offences against Property (Enforcement of Hudood) Act, 1985 was registered against the appellant and another. After completion of investigation, the challan was submitted against the appellant/convict before Tehsil Criminal Court Fathepur Thakyala (hereinafter shall be referred as trial Court). The appellant was examined under section 242,Cr.P.C who pleaded not guilty and claimed trial, therefore, the prosecution was ordered to produce evidence. Seven P.Ws. got recorded their statements before the trial Court. After completion of evidence, the appellant/convict was examined under section 342,Cr.P.C. The appellant/convict once again negated the allegations levelled by the prosecution.

ENSUING PROCEEDINGS

1. The learned trial Court after hearing the arguments of the counsel for the parties, awarded the sentence of three years rigorous imprisonment under Section 20 EHA and 382, APC along with fine of Rs.5,000/- while in offence under Sections 34, 337/F-1 APC he was awarded the sentence of "Daman" Rs. 10,000/- along with 6 months simple imprisonment while benefit of Section 382-B,Cr.P.C was also granted to the appellant-convict vide judgment dated 18.05.2017. Feeling aggrieved, the convict-appellant filed an appeal before District Court of Criminal Jurisdiction Kotli, which was made over to the learned Additional District Criminal Court, Kotli. The learned Court below after hearing parties, set-aside the sentence to the extent of offence under Section 337/F-1/APC while the sentence awarded under Section 382 of the APC in view of 20 EHA, was maintained vide impugned judgment dated 22.01.2019 and benefit of Section 382-B, Cr.P.C was also extended to the appellant.

APPELLANT'S ARGUMENTS

1. Sardar Ghulam Mustafa Khan, learned counsel for the convict/appellant contended that the learned trial Court has not appreciated the evidence produced by the prosecution in its true perspective and did not apply its judicial mind and reached at wrong conclusion while passing the impugned judgment by awarding sentence to the appellant. Learned counsel argued that there are major contradictions in the statements of prosecution witnesses and the same create doubts upon the truthfulness of the prosecution's story as well as requirement of Section 103, Cr.P.C has not been complied with. Learned counsel finally prayed that by accepting the appeal, the impugned judgment dated 22.01.2019 to the extent of awarding punishment under Sections 20, EHA and 382, APC may be set-aside; thus, appellant may be acquitted from the charges. He placed reliance upon the following authorities:-

i. 2014 PCr.LJ 1123.

ii. PLD 2008 SC 859.

iii. 1997 MLD 260

iv. 1995 PCr.LJ 248.

v. PLD 1996 Supreme Court 574.

vi. 1994 PCr.LJ 1516.

vii. 2014 PCr.LJ 1123.

RESPONDENTS' ARGUMENTS

1. Au contraire, learned counsel for the respondent No.2 as well as the learned A.A.G while controverting the arguments advanced by the learned counsel for the appellant contended that the impugned conviction order passed by the learned Court below is just and proper which needs no indulgence by this Court. They contended that the prosecution has proved its case through cogent and convincing evidence and the Court below has rightly convicted the appellant. They vehemently contended that the statements of the P.Ws are supporting the version of the prosecution. They defended the impugned judgment on all counts and prayed for dismissal of the instant appeal.

2. I have heard the learned counsel for the parties and taken stock of the instant case's record with due care.

DETERMINATION OF THE COURT

1. Perusal of record reflects that in the case in hand, the learned trial Court (Tehsil Criminal Court, Fatehpur Thakyala) after due procedure of law and hearing arguments of the parties, awarded the punishment to the convict-appellant i.e. three years rigorous imprisonment under Sections 20 EHA and 382, APC along with fine of Rs.5,000/- while in offence under Sections 34, 337/F-1 APC he was awarded the sentence of "Daman" Rs. 10,000/- along with 6 months simple imprisonment while benefit of Section 382-B,Cr.P.C was also extended to the appellant-convict vide judgment dated 18.05.2017, whereas, the learned Additional District Court of Criminal Jurisdiction, Kotli, vide impugned judgment dated 22.01.2019, acquitted the appellant from the offence under Section 337/F-1, APC along with Daman and 6 months imprisonment, whereas the sentence of 3 years rigorous imprisonment along with fine of Rs.5,000/- awarded by the learned trial Court to the appellant under Sections 20 EHA, 382, APC was maintained by the learned Additional District Court of Criminal Jurisdiction, Kotli.

Delay in lodging an FIR

1. According to complainant, the incident took place on 25.09.2013 at 9:30 pm (night time), while on the other hand the report/FIR was lodged on next day at 10:45 am and no plausible reason of such delay has been given by the prosecution, which creates a doubt upon the truthfulness of the prosecution's story. It is well settled that the factum of causing delay in lodging of an FIR must be explained by the complainant plausibly, if he has failed to furnish the circumstance beyond his control of sound justification in this regard, the allegations levelled in FIR would be presumed as the result of deliberation, negotiation, discussion and afterthought with sole drive and ulterior motive to get the accused convicted, therefore, such deliberate delay cannot be ignored by the court in routine manner.

Requirement of Section 103, Cr.P.C is not complied with

1. As far as the matter with regard to the alleged recoveries of total Rs.25,000/- from the appellant as well as other co-accused is concerned, in this regard, it may be mentioned here that the recoveries were stated to be made from the house of the accused/appellant and co-accused Tazeem by the police in their custody. During recovery proceedings, no independent civil witness from the locality had been associated by the police. The witnesses of recoveries are close relatives of the complainant and are interested witnesses, thus, police has violated the very purpose of Section 103, Cr.P.C. A glance perusal of Section 103, Cr.P.C shows that subsection (1) of 103 Cr.P.C enjoins that before making a search under this Chapter, the officer of other person who is about to make search, shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situated to attend and witness the search and may issue an order in writing to them or any of them. The search shall be made in the presence of the above respectable inhabitants and a list of all the things seized in the course of such search and of the places in which they respectively found shall be prepared by such officer or other person and signed by such witnesses. It further provides that no person witnessing a search under the above section shall be required to attend the Court as a witness of the search unless specially summoned by it. Subsections (3) and (4) give a right to the occupant of the place to be searched to attend the above search and to obtain a list prepared under subsection (2) thereof. While subsection (5) of Section 103, Cr.P.C provides that if any person refuses to become a witness to the search, he shall be deemed to have committed an offence under section 187 of the P.P.C., which entails punishment with simple imprisonment for a term which may extend to one month or with fine, which may extend to Rs.200 or above.

2. Section 103, Cr.P.C requires that officer or the other person about to make the search should call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them and if no independent witness is associated in the process of recovery by the police officials, the requirement of law would be defeated as the provisions of Section 103, Cr.P.C are mandatory in nature.

3. Any circumstance shrouded with a slightest doubt appearing on the Radar of law is always to be read and counted in favour of the accused.

4. It is settled and trite proposition of law that prosecution is burdened with heavy responsibility to prove its case against accused without any shadow of doubt, if a single circumstance appears therein which creates doubt in the mind of prudent person its benefit is necessarily to be given to the accused not as a matter of grace but as a matter of right.

5. It is a celebrated principle of law that the benefit of doubt always goes to the accused. It is the legal duty of the prosecution to prove the case beyond any reasonable doubt.

6. I have scrutinized the whole evidence produced by the prosecution. The learned Courts below have not properly analyzed the evidence brought on record by the prosecution and failed to adhere the relevant provisions of the law.

No source of light mentioned

1. As the occurrence allegedly took place at night i.e. 9:30 pm, but no source of light has been mentioned by the prosecution through which the complainant recognized them neither the same was confiscated and taken into custody nor was produced in the evidence. Prudent mind cannot believe such like story that someone dared to commit robbery or theft particularly in area where he himself belongs to make such attempt with bare face without wearing any mask, that too, without mentioning and establishing any source of light how the complainant chased the appellant at late night.

2. Hon'ble Supreme Court of Pakistan in the case titled Khalil v. The State:-

3. Solitary statement/narrative of the complainant is not corroborated by evidence.

4. The 1st Appellate Court disbelieved the same set of evidence against the one accused and on the other hand, relied upon the same qua awarding sentence to the accused appellant. In the circumstances sole evidence of the complainant is neither reliable nor trustworthy.

Falsus in uno falsus in omnibus

1. Complainant P.W. Muhammad Adeel Jarral during the course of cross-examination stated:

2. While his statement and story narrated by him is seemingly concocted or at least not the same as narrated by him, it is appropriate and useful to reproduce the same as infra:-

3. The question is again how he witnessed the above scene at midnight without light? Source of light is missing in the prosecution's case. While rest of the evidence is hearsay evidence which cannot corroborate the sole statement of the complainant (as the same itself cannot be believed without establishing the source of light). Witnesses besides closely related to the complainant were also chance witnesses (as no iota of evidence is on record to establish their presence at night) thus, their presence at the scene of occurrence was highly doubtful. Identification of the accused at night without establishing source of light is not worthy of consideration.

4. Let's have a bird's eye view of the doctrine of appreciation of evidence i.e. falsus in uno doctrine. Falsus in uno doctrine is defined in Black's Law Dictionary, 11th Edition as infra;

Latin; falsus in uno, falsus in omnibus. False in one thing false in all. The principle that if the fact trier believes that a witness's testimony on a material issue is intentionally deceitful the fact-trier is permitted to disregard all of that witness's testimony.

1. Two parallel doctrines have developed in Criminal law of Jurisprudence, i.e. Falsus in uno doctrine and to sift the grain from the chaff. The anatomy of the parallel principles requires to be x-rayed at the outset.

2. So far as the applicability and following of the falsus in uno doctrine in the Courts of law in Pakistan as well as in AJK is concerned, since long above doctrine is not being followed, even in sub-continent or for that matter over all in the world the said doctrine receives lesser acceptability in the dispensation of Criminal Justice System.

3. Reasoning to take refuge from the above doctrine was almost expounded "social conditions of the country".

4. At present the previous view has been changed by the Hon'ble Supreme Court of Pakistan and doctrine of falsus in uno falsus in omnibus has been adopted in the case titled Notice to Police Constable Khizar Hayat PLD 2019 SC 527. In operative part of the above judgment, it was held as infra:-

"We may observe in the end that a judicial system which tolerates is destined to self-destruct. Truth is the foundation of justice and justice is the core and bedrock of a civilized society and, thus, any compromise on truth amounts to a compromise on a society's future as a just, fair and civilized society. Our judicial system has suffered a lot as a consequence of the above mentioned permissible deviation from the truth and it is about time that such a colossal wrong may be rectified in all earnestness. Therefore, in light of the discussion made above, we declare that the rule falsus in uno, falsus in omnibus shall henceforth be an integral part of our jurisprudence in criminal cases and the same shall be given effect to, followed and applied by all the courts in the country in its letter and spirit. It is also directed that a witness found by a court to have resorted to a deliberate falsehood on a material aspect shall, without any latitude, invariably be proceeded against for committing perjury."

1. It is useful to reproduce rational of some of the judgments of the Superior Courts in this regard as under:

i. The State v. Mushtaq Ahmed.

1. It has been ruled by this Court in a number of recent judgments, that having regard to the social conditions obtaining in this country the principle of falsus in uno, falsus in omnibus cannot be made applicable to the administration of Criminal Justice and therefore, Court are under a duty to sift "chaff from the grain".

2. The above rule was for the very first time held by the Supreme Court of Pakistan in the case titled "Ghulam Muhammad v. Crown PLD 1951 Lahore 66" and the judgment was authored by M. Monir, the then CJ of Lahore High Court.

3. The Criminal law of the Country according to which deposing falsely in a Court and commission of perjury entail serious criminal consequences.

4. Trite that false evidence cannot be corroborated thus, evidentiary value of a statement (piece of evidence) which is partly discarded and partially taken into consideration is zero as zero added to a quantity adds nothing to that quantity and that whatever quantity be multiplied by zero as the result must remain zero.

(emphasis supplied)

1. Credibility of the witnesses cannot be treated as defensible and acceptable against one and rejected against the other.

2. Speaking with due respect that doctrine falsus in uno doctrine is purely justice based doctrine while sifting the grain from chaff is necessity based doctrine providing oxygen tent to the prosecution's case.

3. While attending to this matter, I have felt that the deeper issue involved in the matter relates to the fact the rule falsus in uno falsus in omnibus had in the past been held by the Superior Courts of the Country to be inapplicable to criminal cases in Pakistan which had gradually encouraged and emboldened witnesses appearing in the trials of criminal cases to indulge in falsehood and lies making it more and more difficult for the courts to discover truth and dispense justice.

4. Seemingly after survey of the relevant law, Islamic law of criminal dispensation of justice, previously the doctrine Falsus in uno falsus in omnibus was not followed and applied to criminal cases in Pakistan on account of extraneous and practical consideration rather than legal and jurisprudential consideration.

5. Just for academic purpose, how a statement of a liar can be believed in piece-meal by putting reliance to some part of his statement and simultaneously discarding a certain portion? By applying said formula, presumption of innocence initially acquired by the accused as a fiction of law seems to be destroyed on the basis of which he was called a favourite child of law who deserves to get the benefits of dents found in prosecution' s case.

(underlining is mine)

1. As previous view was changed by the Apex Court of Pakistan in the case titled Notice to the Police Constable Khizar Hayat PLD 2019 SC 527, thus, resultantly the doctrine of falsus in uno falsus in omnibus is in field.

2. Judges with vast and intimate experience of the administration of criminal justice in the country have often felt that where falsehood has been intentionaly mixed with truth, they are under no obligation to winnow the grain of truth from the chaff of falsehood.

3. In order to reach truth grain has to be shifted from the chaff in each case in the light of its own particular facts.

4. Chapter IV of the Qanun-e-Shahadat Order, 1984 deals with the oral evidence. Article 70 of the above order corresponds to Section 59 of Evidence Act, 1872.

Evidentary value of oral evidence

1. In all civilized systems of jurisprudence there is presumption against perjury. The correct rule is to judge the oral evidence with reference to the conduct of the parties and the presumptions and probabilities legitimately arising in the case.

2. Another test is to see whether the evidence is consistent with the common experience of mankind, with the useful course of nature and human conduct and the will know principles of human action?

3. Oral testimony can be classified into three categories namely (i) wholly reliable (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. In case of wholly reliable testimony of a single witness, conviction can be founded without corroboration. This principle applies with greater vigour in case the nature of offence is such that it is committed in seclusion.

4. In case prosecution is based on wholly unreliable testimony of a single witness, the Court has no option than to acquit the accused.

5. The maxim falsus in uno falsus omnibus which means false in one particular, false in all, this principle is somewhat dangerous maxim. There is also fringe of embroidery to a story however true in the main and so when the falsehood is merely an embroidery, that would not be enough to discredit the whole of the witnesses evidence, where on the other hand the falsehood relates to a major or material point that is enough to discredit the witness.

6. The real test for accepting or rejecting the evidence is; how consistent is the story in itself, how does it stand the test of cross- examination and how for does it fit in with the rest of the evidence and the circumstances of the case?

7. As per law of evidence, oral evidence must be direct. In English law, direct evidence signifies evidence relating to the fact in issue (factum probandum) whereas the term circumstantial evidence, presumptive evidence and indirect evidence signifies evidence relating only to relevant facts (facta probantia), thus, direct evidence means original evidence as distinguished from hearsay evidence.

8. Standard of proof generally required in criminal cases is that it should be beyond all reasonable doubt while in civil cases proof would be on balance of probabilities.

9. Under the Qanun-e-Shahadat Order, 1984, the facts alleged by the prosecution are to be proved by evidence on oath in Court and the evidence provides a base for the proof of such facts which consequently results in the conviction of the accused.

10. The graver the offence the stronger and the inspiring evidence is the essential ingredient for the administration of criminal justice. Conjectures, surmises and impressions of a witness kept in his mind with regard to the action of an accused which consequently falls in the mischief of a crime is to be proved through cogent, tangible and strong evidence in Court. It is a cardinal principle of criminal justice that a person is innocent in the eyes of law and it is the burdened duty of the prosecution to prove accused's guilt to hilt. The evidence brought on the record should be unambiguous and inspiring confidence in such a manner that a prudent man comes to an irresistible conclusion about the guilt of the accused.

2024 P Cr. L J 30

[Islamabad]

Before Aamer Farooq, C.J.

KAMAL KUMAR---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 1144-PB of 2023, decided on 2nd August, 2023.

Criminal Procedure Code (V of 1898)---

----S. 498-A---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Protective bail, refusal of---Petitioner/accused approached Islamabad High Court a second time to get protective bail qua a case having been registered in Quetta---Plea of the petitioner was that due to Eid vacations he could not approach the Court of competent jurisdiction after availing protective bail for the first time---Validity---Concept of protective bail finds its roots from S. 498-A of the Criminal Procedure Code, 1898, but has no definitive provision under which remedy could be sought---It is a concept developed primarily by the Courts to protect the liberty of the person and to facilitate him to approach the competent Court or authority to surrender and seek remedy---It is akin to the right of any person to have access to justice---Said remedy is purely based on the discretion of the Court and no crystallized principles or Rules exist regarding its scope and application---Petitioner/accused has to satisfy the conscious of the Court that under the umbrella of access to justice, he has to approach the competent Court or forum and be protected by way of an order preventing his arrest---Where the petitioner does not follow the orders of the Court and flouts the same without any plausible justification and seeks protection repeatedly there is no compulsion on the court to grant remedy or protection---In the present case, conduct of the petitioner was not aboveboard inasmuch as earlier he was granted protective bail for almost 12 days and had approached only now in the second protective bail---Explanation for not approaching the Court of first instance (in Quetta) and filing present second protective bail after lapse of almost three months did not satisfy the conscious of the Court in exercise of discretion in favour of the petitioner---High Court was not inclined to extend the discretionary relief to the petitioner---Petition for grant of protective bail was dismissed, in circumstances.

Mir Badshah Qaisrani v. State 2007 PCr.LJ 604 ref.

2024 P Cr. L J 62

[Islamabad]

Before Tariq Mehmood Jahangiri, J

MUHAMMAD ILYAS---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 111 and Criminal Revision No. 61 of 2021, decided on 17th August, 2022.

Emigration Ordinance (XVIII of 1979)---

----Ss. 18 & 22---Illegal immigration services---Appreciation of evidence---Benefit of doubt---Transaction of money---Proof---Accused was alleged to have received money from intending immigrant for getting him visa for Italy but instead he got visa of Malaysia---Trial Court convicted the accused and sentenced him for imprisonment for 4 years---Validity---Accused allegedly obtained money for sending prosecution witness to Italy but obtained visa for Malaysia---There was no allegation that visa of Malaysia was fake---Passport of prosecution witness containing visa of Malaysia was not taken into possession by investigating officer and was not produced as evidence during trial---In absence of passport, visa or related document it could not be concluded that prosecution established any case of offence under Emigration Ordinance, 1979---No source/money trail of amount allegedly paid to accused was produced in evidence; that from where prosecution witness obtained such huge amount; whether he obtained the amount from some private person or withdrew from bank etc.---No independent evidence of transaction was produced---Prosecution failed to prove its case against accused beyond reasonable doubt---High Court extended benefit of doubt to accused as a matter of right as there were many defects and contradictions in prosecution case/evidence---High Court acquitted accused of the charge--- Appeal was allowed, in circumstances.

Muhammad Zamn v. The State and others 2014 SCMR 749; Muhammad Aslam v. The State 2011 SCMR 820 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

Malik Asif Taufeeq Awan for Appellant.

Hafiz Ali Asghar, Safeer Khadim and Muhammad Javed Bhatti for Respondent No. 2/Complainant.

Fayyaz Hussain, A.A.G. and Muhammad Mushtaq, S.I., FIA for the State.

2024 P Cr. L J 113

[Islamabad]

Before Miangul Hassan Aurangzeb and Arbab Muhammad Tahir, JJ

Sheikh RASHEED AHMED---Appellant

Versus

SHO POLICE STATION KOHSAR, ISLAMABAD and 2 others---Respondents

I.C.A. No. 236 of 2023, decided on 30th August, 2023.

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

----S. 516-A--- Case property--- Necessary ingredients--- Scope---Expressions "interim custody", "interim disposal" and "Superdari" are interchangeably used in criminal procedural law---Essential features of term "case property" are that (i) it should have been used in commission of offence, (ii) offence appears to have been committed in respect of such property, (iii) it is the property which was stolen and then recovered from accused persons, and (iv) it itself is evidence of commission of offence.

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

----Ss. 516-A & 550---Constitution of Pakistan, Art. 199--- Case property---Custody of vehicles---Constitutional jurisdiction of High Court---Alternate remedy---Principle---Appellant/accused was aggrieved of seizing of his vehicles by police as case property---Validity---Public functionaries cannot be allowed to manipulate lawful process through deliberate illegal actions and strangulate the constitutional jurisdiction of High Court under the garb of availability of alternate remedies and ultimately put victims of such illegal actions to face rigors of cumbersome legal process before various other forums---Illegal and unlawful acts of public functionaries cannot be allowed to perpetuate merely on the ground of availability of alternative remedies---Respondent/Incharge Police Station was aware that there was no order of attachment of property of appellant/accused under S. 88, Cr.P.C. and the property was not used in commission of offence---Respondent/ Incharge Police Station initially seized vehicles under S. 550, Cr.P.C. and later after realizing legal complications, managed to make vehicles as case property---Such action of respondent/Incharge Police Station was not backed by any valid reason---High Court declared that seizure of vehicles by respondent/Incharge Police Station was without lawful authority and the same was struck down---Division Bench of High Court directed respondent/Incharge Police Station to return vehicles to the premises from where they were seized and order passed by Judge in Chambers of High Court was set aside---Intra Court Appeal was allowed accordingly.

The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1971 SC 279; Farzand Raza Naqvi and 5 others v. Muhammad Din and others 2004 SCMR 400; Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455; Town Committee, Ghakkar Mandi v. Authority under the Payment of Wages Act Gujranwala and 57 others PLD 2002 SC 452; Chief Engineer, A.E.B. v. Commissioner for Workman's Compensation Authority 2000 PLC (C.S.) 1082 and FIA through Director General, FIA and others v. Syed Hamid Ali Shah and others PLD 2023 SC 265 rel.

Sardar Abdul Raziq Khan, Irfan Javed Abbasi, Sh. Moazin Rashid, Sardar Shahbaz Khan and Umair Shafiq Mughal for Appellant.

Hazrat Younus, State Counsel for Respondents.

Tahir Kazmi, Head Law Officer, for ICT Police.

Shafqat Faiz, SHO P.S. Kohsar and Talha ASI/I.O. with record.

2024 P Cr. L J 300

[Islamabad]

Before Miangul Hassan Aurangzeb and Tariq Mehmood Jehangiri, JJ

RASHID MEHMOOD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 233 of 2021, decided on 24th August, 2022.

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

----S. 9(c)--- Recovery of narcotic substance---Appreciation of evidence---Sentence, reduction in---First offender---Charas weighing 1375 grams was recovered from accused who was convicted by Trial Court and sentenced to imprisonment for 4-½ years---Validity---Accused was apprehended by police red-handed in broad-daylight and report of recovered contraband was also positive---Accused failed to show any mala fide/enmity on behalf of police regarding falsely involving him in the case---There were minor discrepancies in statements of witnesses but prosecution case was further strengthened from positive report of Laboratory---High Court maintained conviction awarded to accused but sentence of imprisonment was reduced to one undergone while considering nature of the substance recovered which was less harmful and dangerous as compared to other narcotic substances like heroin etc.; considering quantity of recovered substance; and considering accused was first offender who remained behind bars for about eight months---Appeal was dismissed accordingly.

Khuda Bakhsh v. The State 2015 SCMR 733; The State through Deputy Director (Law) Regional Directorate, Anti-Narcotics Force v. Mujahid Naseem Lodhi PLD 2017 SC 671; Naseem Khan v. The State 2021 SCMR 1771; Zulfiqar alias Zulfa v. The State 2021 SCMR 531; Mst. Sughran and another v. The State 2021 SCMR 109; Shaukat Ali alias Billa v. The State 2015 SCMR 308 and Gulshan Ara v. The State 2010 SCMR 1162 rel.

Shanzeb Khan for Appellant/Accused.

Makhdoom Syed Fakhar Imam Ali Shah, State Counsel.

2024 P Cr. L J 868

[Islamabad]

Before Miangul Hassan Aurangzeb and Arbab Muhammad Tahir, JJ

MUHAMMAD NASEER---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 1225-B of 2023, decided on 28th August, 2023.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S. 9 [as substituted vide Control of Narcotic Substances (Amendment) Act, 2022]---Possession of 1080 grams of heroin---Post-arrest bail, grant of---Bail stage---Lesser punishment of sentence to be considered---Boarder-line case---Control of Narcotic Substances Act, 1997, had been amended through the Control of Narcotic Substances (Amendment) Act, 2022 ('the 2022 Amendment') whereby S. 9 had been amended; which amendment laid down separate sentences for the recovery of each kind of narcotic substance---While deciding a bail application, lesser punishment of sentence was to be taken into consideration---In the present case, as per recovery memo, the heroin wrapped in blue colour shopping bag was recovered which on weighing was found to be 1080 grams----According to prosecution's own version, the contraband was wrapped in blue colour shopping bag but it was nowhere mentioned, either in the recovery memo or in the complaint, that the contraband was weighed without wrapping material---Said aspect warranted further probe as to whether the quantity allegedly recovered from the possession of the petitioner/accused attracted S.9 of Control of Narcotic Substances Act, 1997, as amended by the 2022 Amendment---Record (Docket) revealed that the sample parcel was sent to office of NFSA, Islamabad, after about three days of the contraband allegedly having been recovered from the petitioner/accused, but the report of the Chemical Examiner was still awaited---Case of the petitioner/accused, by not exceeding the limit between 900 to 1500 grams, was on boarder-line between clauses (b) and (c) of S.9 of the Control of Narcotic Substances Act, 1997---Petitioner was neither a previous convict nor retained any criminal record and was a first time offender---Investigation had already been completed and his further incarnation would serve no useful purpose---Petitioner had made out his case for grant of post-arrest bail.

Aya Khan and another v. The State 2020 SCMR 350; Saeed Ahmed v. The State and others PLJ 2018 SC 812 and Naimatullah and another v. The State 2017 MLD 1097 ref.

Raja Zafarullah Dhanial for Petitioner.

2024 P Cr. L J 909

[Islamabad]

Before Arbab Muhammad Tahir, J

Ghazala Ali---Appellant

Versus

Sikandar Ramzan Chaudhry and 2 others---Respondents

Criminal Appeal No. 172 of 2021, decided on 5th December, 2023.

Penal Code (XLV of 1860)---

----Ss. 420, 468 & 471---Criminal Procedure Code (V of 1898), S. 249-A---Cheating and dishonestly inducing delivery of property, using as genuine a forged document, forgery---Accused moved an application under S. 249-A, Cr.P.C., before the Trial Court for his acquittal claiming that the charge against him was groundless and there was no probability of him being convicted of any offence---Said application was allowed---Validity---Record showed that the alleged transaction of transfer of allotment in the name of two brothers i.e. respondent No.1 and husband of respondent No.2 was made in the year 1991 while subject FIR was registered by the appellant in the year 2018 i.e. after twenty-seven years of alleged transaction and after about twenty years of the first agreement wherein she had also been a signatory---Before the registration of instant FIR, the appellant had already filed a suit on 09.01.2018 for cancellation of agreement dated 17.01.1998 with a delay of more than twenty years---As there were two reports of Handwriting Expert of even date, filed before the Trial Court along with reports under S.173, Cr.P.C, one allegedly contained fake signatures of the official concerned while the other, filed with supplementary report under S.173, Cr.P.C, testified as genuine---In order to verify the veracity of the report, on the direction of the Court, FIA filed comprehensive report on 24.10.2022---As per said report, made part of file, signatures of late husband of respondent No. 2 were similar in characteristics with his routine signatures---Thus, report negated allegation of forgery, as alleged by the appellant in her F.I.R and pressed to seek full-length inquiry on the basis of reports containing fake signatures of the official concerned, which, of course, deserved stern departmental action against the delinquent/s, after tracing them out by the FIA and the police as well---Apart from fake Handwriting Expert Report, rest of incriminating material made basis to indict the respondents for the offence alleged, comprised of documents mentioned in the recovery memo---None of those documents even remotely suggested that any fraud, as alleged, had been played by the respondents---Neither the CDA nor the investigation agency alleged any forgery in preparation of said documents---Thus, entire prosecution evidence did not implicate the respondents for commission of alleged fraud and forgery---Charge against respondents, on examination of incriminating material, appeared to be groundless and there was no probability of the respondents being convicted of any offence, in case prosecution was allowed to lead entire prosecution evidence---Circumstances established that charge against the respondents was baseless and there was no remote probability of their conviction in case the prosecution was allowed to produce entire evidence---Appeal was accordingly dismissed.

Manzoor Hussain (deceased) through LRs v. Misri Khan (C.A. No. 1698 of 2014) ref.

Qazi Naveed ul Islam v. District Judge, Gujrat and other C.P. 3127 of 2020; Province of Balochistan v. Murree Brewery Company PLD 2007 SC 386; Edwin Coe LLP v. Naseem Ahmad Sarfraz Khan 2022 CLC 1064 and Tariq Ramzan Chaudhry v. Sikander Ramzan and others Criminal Appeal No. 199 of 2021. rel.

Raja Iftikhar Ahmad for Appellant.

Mudassar Hussain Malik for Respondents.

Hazrat Younas with Anwar SI for the State.

2024 P Cr. L J 944

[Islamabad]

Before Aamer Farooq, C.J. and Tariq Mehmood Jahangiri, J.

Imran Ahmad Khan Niazi---Petitioner

Versus

Federation of Pakistan through Secretary Ministry of Law and Justice, Islamabad and 7 others---Respondents

Writ Petitions Nos. 198 and 199 of 2024, decided on 24 January, 2024.

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

----S. 16 (b)---Place of trial---Determination---Jurisdiction---Petitioner was aggrieved of notification issued by Federal Government directing trial of petitioner in jail premises---Validity---Federal Government exercised its power to notify trials of petitioner at Central Jail Adyala under S.16 (b) of National Accountability Ordinance, 1999---Federal Government was empowered to notify place or places of sitting of Accountability Court by applying the principle that "general" included the "special" therefore, such power was not only with respect to general sitting of Courts but also applied to holding trial of a 'particular case' at a 'particular place'---High Court declined to interfere in the notification issued by Federal Government regarding trial of petitioner in Jail, as the same did not suffer from any illegality---Constitutional petition was dismissed, in circumstances.

I.C.A. No.367 of 2023; Shaukat Hayat v. Government of Sindh and another 1987 MLD 2783; Shaukat Hayat v. Government of Sindh and another 1989 SCMR 774; Kehar Singh and others v. The State (Dehli Admn) AIR 1988 SC 1883; In the Reference made by Sessions Judge, Larkana for transfer of cases 1990 PCr.LJ 1687; Husnain Raza and another v. Lahore High Court, Lahore and others (in both cases) PLD 2022 SC 7; Waqar Zafar Bakhtawari and 6 others v. Haji Mazhar Hussain Shah and others PLD 2018 SC 81; Emperor v. Lakshman Chavji Narangikhar and 46 others AIR 1931 Madras 313; Chairman, National Accountability Bureau, Islamabad through Prosecutor General, Accountability Bureau, Islamabad v. Mian Muhammad Abbas Sharif and 7 others PLD 2001 Lah. 157; Dr. Ahmed Javed Khawaja and another v. The State and 2 others PLD 2003 Lah. 450; Muhammad Ashfaq Chief v Government of Sindh and others PLD 1996 Karachi 326; Mustoo alias Ghulam Mustafa Kalhoro v. The State 1990 MLD 1994; Mrs. Ahmed Riaz Shaikh v. Chairman, NAB and others PLD 2002 Lah. 1; Makhdoom Muhammad Javed Hashmi v. Chief Commissioner, Islamabad 2004 PCr.LJ 1089; Gul Muhammad Hajano v. Province of Sindh, through the Secretary, Government of Sindh and 2 others 2011 PCr.LJ 302; Zulfiqar Ali Bhutto v. The State PLD 1979 SC 53; Dr. Abdul Basit, Advocate v. Sher Zaman Khan, Deputy Attorney General (W.P. No. 6734 of 2000; Mohd. Shahabuddin v. State of Bihar and others [(2010) 4 Supreme Court Cases 653; Dr. Abdul Nabi,Professor, Department of Chemistry, University of Baluchistan, Sariab Road, Quetta v. Executive Officer, Cantonment Board, Quetta 2023 SCMR 1267 and Begum B.H. Syed v. Mst. Afzal Jahan Begum and another PLD 1970 SC 29 ref.

Asif Ali Zardari v. Special Judge (Offences in Banks) and 10 others PLD 1992 Karachi 437 distinguished.

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

----S. 352---Place of trial---Determination---Jurisdiction or power of Trial Court is concomitant with that of the Executive---If the Executive in any particular case does not issue order for holding cases or case at a place other than normal Court house, power to do so vests with Trial Court under S. 352, Cr.P.C.---If decision has already been taken by the Executive for conducting trial at a particular place or set of cases at a place other than normal place of sitting of Court, the Trial Court has to follow that administrative order.

AIR 1931 Bombay 313 rel.

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

----Ss. 5 (j) & 5A---Word "deem"---Scope---All judges exercising power and jurisdiction prior to Amendment of 2022, are deemed to be so appointed under S.5A of National Accountability Ordinance, 1999---There is no need for fresh appointment by Federal Government which has become competent authority for appointment of a Judge of Accountability Court under S.5A of National Accountability Ordinance, 1999---If any fresh appointment of a Judge of Accountability Court is to be made, same has to be done in accordance with S.5A of National Accountability Ordinance, 1999, for which competent authority is the Federal Government.

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

----S. 537-- Reversing or altering a finding---Principle---Basic concern of Court should be and always is that whether due to any error or omission, there is a failure of justice.

The State v. Muhammad Hussain PLD 1968 SC 265; M. Younas Habib v. The State PLD 2006 SC 153; Zafar Iqbal v. The State PLD 2015 SC 307; Sastay Khan Masood v. The State 2004 SCMR 1766; Mst. Salma Shahida v. The State 2008 SCMR 787 and Sohail Ahmed and 6 others v. The State and another 1995 PCr.LJ 2036 rel.

Muhammad Shoaib Shaheen, Niaz Ullah Niazi, Mirza Asim Baig, Sardar Masroof Abid, Jam Matee Ullah, Ms. Suzain Jahan Khan and Ansar Mehmood Kayani for Petitioner.

Mansoor Usman Awan, Attorney General for Pakistan, Munawar Iqbal Duggal, Additional Attorney General and Azmat Bashir Tarar, Assistant Attorney General for Respondents.

Amjad Pervaiz, for Nab with Ehtisham Qaidir, Prosecutor General, NAB, M. Rafay Maqsood Special Prosecutor, NAB and Awaid Arshad, Special Prosecutor, NAB.

Judgment

AAMER FAROOQ C.J.---This judgment shall decide instant writ petition as well as W.P. No.199-2024, as common questions of law are involved.

1. The petitioner, in both the petitions, has challenged notifications issued by respondent No.1 with respect to conducting trial in jail in two separate References filed by National Accountability Bureau (NAB) against him.

2. Mr. Muhammad Shoaib Shaheen, Advocate Supreme Court, appearing on behalf of petitioner, contended that this Court has already settled the issue in its decision 19.12.2023 in I.C.A. No.367-2023. Learned counsel took the Court through various paragraphs of the referred judgment to submit that under section 352 of Code of Criminal Procedure, 1898 (Cr.P.C.), it is the prerogative of the trial court to order the proceedings to be conducted at a 'place' different from the court house, notified by the competent government/authority, through a judicial order after hearing the accused. It was submitted that in the instant matter, no such order was passed by the trial court rather the notifications were issued even prior to filing of References by NAB. It was argued that the Federal Government has no say in altering the place of trial of an accused and it is the sole prerogative of the trial court. Reference was made to Asif Ali Zardari v. Special Judge (Offences in Banks) and 10-others (PLD 1992 Karachi 437). Learned counsel took the Court through the judgment in order to highlight his stance that open trial is the essence of 'fair trial' and is the fundamental right of the accused/petitioner under Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution). It was submitted that denial of this fundamental right on part of the government vitiates the trial and the proceedings conducted so far inasmuch as there exists no order by trial court under section 352 Cr.P.C. It was also reiterated that any notification issued, prior to filing of the Reference, is not valid. Mr. Muhammad Shoaib Shaheen, Advocate Supreme Court further submitted that wordings of section 16 (b) of the Ordinance are para materia with section 9(2) of Cr.P.C. It was contended that while interpreting section 9(2) ibid, this Court, in its decision, has categorically held that trial other than the court house can only be conducted in a place where the court so decides, but that place is to be accessible to public, however, same can only be done through a judicial order. It was also submitted that dictum of this Court in I.C.A. No.367-2023 is binding on this Bench hence impugned notifications need to be set aside. It was also submitted that even-otherwise, the trial court is not competent to proceed with the matter inasmuch as it has not been validly constituted. In this regard, reference was made to amendments in the Ordinance through various statutes. Learned counsel drew attention of the Court towards section 5A ibid, which was incorporated in the Ordinance through National Accountability Amendment Act, 2022 and by virtue of same, appointing authority of Presiding Officer of Accountability Court has been changed. Learned counsel submitted that under the amended law, it is the Federal Government, which now can appoint a Judge of the Accountability Court after consultation with Chief Justice of the concerned High Court. It was submitted that all the amendments made in the Ordinance have been given retrospective effect hence it is deemed to be the part of the statute since 1999 accordingly; after the amendment through Act of 2022, all the Presiding Officers of the Accountability Courts were to be reappointed by the Federal Government, including the Presiding Officer conducting trial of the petitioner, hence proceedings before trial court, are not valid.

3. Mr. Niaz Ullah Khan Niazi, Advocate, also appearing for the petitioner, added that this Court, while deciding bail application of the petitioner in Criminal Miscellaneous No.1354-B-2023, has held that open trial is the hallmark of any modern judicial system. It was contended that trial in jail does not qualify and/or even if it does, the proceedings are not being conducted in open in letter and spirit.

4. Learned Attorney General for Pakistan, appearing for respondent No. 1, defended the impugned notifications and submitted that under section 16 (b) of the Ordinance, the Federal Government has the prerogative to decide about the place or places, where Accountability Courts shall have sitting. It was submitted that in exercise of powers under section 16 (b) ibid, the impugned notifications were issued. Learned Attorney General contended that on receipt of letter from NAB, the Ministry of Law and Justice floated a summary before the Cabinet and approval was obtained for conducting trial of the petitioner in Central Jail Adyala, Rawalpindi, where he is presently confined. It was submitted that reason provided by NAB was law and order situation in the country and security of the petitioner; it was the said dictates which led the Federal Government to accede to the request of NAB and notifications were accordingly issued. Learned Attorney General for Pakistan contended that the case of Asif Ali Zardari v. Special Judge (Offences in Banks) and 10-others (PLD 1992 Karachi 437) supra is distinguishable inasmuch as in the said case, the statute concerned only empowered the relevant government to issue notification for holding the sitting of a court at a 'place' and not 'places'. It was contended that even-otherwise, it has wrongly been assumed in the judgment of the Division Bench referred above that the view earlier taken in case reported as Shaukat Hayat v. Government of Sindh and another (1987 MLD 2783) stands set aside. It was contended that the matter in Shaukat Hayat's case went up to the Supreme Court and in the case reported as Shaukat Hayat v. Government of Sindh and another (1989 SCMR 774), it has categorically been held that notification is being set aside for reasons other than the reasons that prevailed with Sindh High Court. It was further submitted that Federal Government is the competent authority to provide for the place of sitting for the Accountability Court in a particular case under section 16 (b) of the Ordinance. Reference was placed on cases reported as Kehar Singh and others v. The State (Dehli Admn) (AIR 1988 Supreme Court 1883) and Shaukat Hayat v. Government of Sindh and another (1987 MLD 2783). Reliance was also placed on case reported as In the Reference made by Sessions Judge, Larkana for transfer of cases (1990 PCr.LJ 1687). It was contended that in case of Husnain Raza and another v. Lahore High Court, Lahore and others (in both cases) (PLD 2022 Supreme Court 7), a High Court generally adhere to horizontal precedents, its own earlier decisions, but it may depart from or overrule any of its decisions by sitting in a larger bench if there was a compelling justification to do so. It was submitted that even-otherwise, there has to be purposive and harmonious construction with respect to section 16 (b) of the Ordinance and section 352, Cr.P.C. Reference was made to case reported as Waqar Zafar Bakhtawari and 6 others v. Haji Mazhar Hussain Shah and others (PLD 2018 Supreme Court 81).

5. Mr. Muhammad Amjad Pervaiz, Advocate Supreme Court, appearing for NAB, gave the Court a summary of events which led to issuance of impugned notifications. It was contended that notifications were issued prior to filing of References solely because ancillary and initial proceedings, pertaining to the decision of bail before arrest and upon arrest of the petitioner with respect to physical remand and judicial custody, had to be conducted in jail due to security threats to the petitioner. He gave brief timeline leading to issuance of impugned notifications. Mr. Amjad Pervaiz, Advocate Supreme Court submitted that seminal judgment on the competency of the relevant Government to issue notification with respect to a 'place of sitting' for a particular case for a particular accused was Emperor v. Lakshman Chavji Narangikhar and 46 others (AIR 1931 Madras 313). It was submitted that since then, courts in India as well as in Pakistan have acknowledged the competence of the Federal or Provincial Governments to issue such notifications. Reliance was placed on cases reported as Shaukat Hayat v. Government of Sindh and another (1987 MLD 2783) and Shaukat Hayat v. Government of Sindh and another (1989 SCMR 774). Reference was also made on cases reported as Chairman, National Accountability Bureau, Islamabad through Prosecutor General, Accountability Bureau, Islamabad v. Mian Muhammad Abbas Sharif and 7 others (PLD 2001 Lahore 157), Dr. Ahmed Javed Khawaja and another v. The State and 2 others (PLD 2003 Lahore 450), Muhammad Ashfaq Chief v Government of Sindh and others (PLD 1996 Karachi 326), Mustoo alias Ghulam Mustafa Kalhoro v. The State (1990 MLD 1994), Mrs. Ahmed Riaz Shaikh v. Chairman, NAB and others (PLD 2002 Lahore 1), Makhdoom Muhammad Javed Hashmi v. Chief Commissioner, Islamabad (2004 PCr.LJ 1089), Gul Muhammad Hajano v. Province of Sindh, through the Secretary, Government of Sindh and 2 others (2011 PCr.LJ 302), Zulfiqar Ali Bhutto v. The State (PLD 1979 Supreme Court 53), Kehar Singh and others v. The State (Dehli Admn) (AIR 1988 Supreme Court 1883), decision of Larger Bench of Lahore High Court in case titled Dr. Abdul Basit, Advocate v. Sher Zaman Khan, Deputy Attorney General (W.P. No.6734 of 2000) and Mohd. Shahabuddin v. State of Bihar and others [(2010) 4 Supreme Court Cases 653].

6. Submissions made by the parties have been heard and the documents, placed on record, examined with their able assistance.

7. As noted above, the petitioner is facing trial in two References filed by NAB (Reference No.19 of 2023 and Reference No.20 of 2023) filed on 04.12.2023 and 20.12.2023 respectively. With respect to Reference No.19, which was filed on 04.12.2023 known as Al-Qadir Trust Reference, the petitioner was arrested on 09.05.2023 and was produced before the Accountability Court with request for physical remand on 10.05.2023, which was duly allowed and proceedings were conducted in Police Lines, Islamabad pursuant to the notification of the Federal Government; the petitioner was set at liberty on 11.05.2023 and appeared before this Court on 12.05.2023, when he was granted ad-interim bail till 31.05.2023; on 31.05.2023, application was allowed and the petitioner was ordered to appear before the court of competent jurisdiction. On 05.08.2023, the petitioner was taken in custody pursuant to execution of warrants of arrest in the conviction awarded to him in a complaint filed by Election Commission of Pakistan. On 10.08.2023, application for bail before arrest filed by the petitioner was dismissed by trial court, but this Court set aside the referred order and remanded the case back to trial court for decision afresh vide order dated 14.11.2023 (Crl. Rev. No.149-2023). It was contended that in the referred backdrop, NAB wrote a letter to Ministry of Law and Justice on 13.11.2023 for conducting proceedings against the petitioner in jail. The reason cited in the referred request was prevalent law and order situation and security threat to the petitioner. On the letter of NAB, the relevant Ministry sent summary for the Cabinet, which was approved on 14.11.2023 under section 16(b) of the Ordinance and pursuant thereto, notification was issued on 14.11.2023 (Notification No.F.3(2)/2017-A.V.). Likewise, in another matter, pertaining to Tosha Khana, a summary was moved for proceeding against the petitioner in the matter before the Cabinet for conducting the same at Central Jail Adyala Rawalpindi, where he is confined with the same reasoning as mentioned above. The Cabinet on the receipt of the summary from Ministry of Law and Justice accorded approval on 28.11.2023 and notification in this regard was issued on the same date bearing No.F.8.(127)/2023/A.V. In the referred background, the impugned notifications were issued, but have been challenged by the petitioner on the touchstone of the earlier judgment of this Court in I.C.A. No.367-2023.

8. Before embarking upon examination of the judgment of this Court in I.C.A. No.367-2023 and case law cited at bar by the respondents, it would be appropriate that the relevant law be reproduced for the ease of convenience. The impugned notifications have been issued by the Federal Government under section 16 (b) of the Ordinance, which is reproduced below:-

"16. (b) The Court shall sit at such place or places as the Federal Government may, by order, specify in this behalf".

The comparison of section 16 (b) ibid was drawn with section 9 of Cr.P.C. by both the sides. The said provision of law is reproduced below:-

"9 (2) The Provincial Government may, by general or special order in the official Gazette, direct at what place or places the Court of Session shall hold its sitting, but until such order is made, the Courts of Sessions shall hold their sittings as heretofore".

1. Mr. Amjad Pervaiz, learned counsel for NAB, during course of arguments, produced a chart indicating various provisions in various statutes, including the one in India regarding the power of the Federal or Provincial Government to issue notification with respect to place or places of sitting of any court. The said chart is reproduced below:-

| | | | | | | --- | --- | --- | --- | --- | | The Code of Criminal Procedure, 1898 | The National Accountability Ordinance, 1999 | The code of Criminal Procedure, 1898 (India) | The Code of Criminal Procedure 1973 (India) | The Code of Criminal Procedure, 1973. (Uttar Pradesh Amendments 1975, (India) | | S.9 Court of Session.(1) [\] (2) The Provincial government may, by general or special order in the official Gazette, direct at what place or places the Court of Session shall hold its sitting; but, until such order is made, the courts of Session shall hold their sittings as heretofore. S. 177 Ordinary place of inquiry and trial. Every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed. S.178. Power to order cases to be tried in different sessions divisions. Notwithstanding anything contained in section 177, the Provincial Government may direct that any cases or class of cases in any district sent for trial to a Court of Session may be tried in any sessions Division. Provided that such direction is not repugnant to any direction previously issued by the High Court under section 526 of this Code or any other law for the time being in force. | S. 16 Case management and trial of offences.- (a) [\] (b) The Court shall sit at such place or places as the Federal Government may, by order, specify in this behalf. | S. 9 Court of Session.- (1) [\] (2) The Local Government may, by general or special order in the official Gazette, direct at what place or places the Court of Session shall hold its sitting; but, until such order be made, the courts of Sessions shall hold their sittings as heretofore. | S. 9 Court of Session. -(1,2,3,4,5) [\] (6) The Court of Session shall ordinarily hold its sitting at such place or places as the High Court may, by notification, specify; but, if, in any particular case, the Court of Session is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sittings at any other place in the sessions division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein. | The following amendments were made by U.P. Act, 16 of 1976, section .2 (w.e.f 28.11.1975) In section 9 in subsection (6) insert following proviso:- "Provided that the Court of Session may hold or the High Court may direct the Court of Session to hold, its sitting in any particular case at any place in the sessions division, where it appears expedient to do so for considerations of internal security or public order, and in such cases, the consent of the prosecution and the accused shall not be necessary." |

| | | | | | --- | --- | --- | --- | | The Anti-Terrorism Act, 1997 | The Control of Narcotic Substances Act, 1997 | The Offences in Respect of Banks (Special Courts) Ordinance, 1984. (As Reproduced in PLD 1992 Karachi 437) | Suppression of Terrorist Activities (Special Courts) Act, 1975, (As Reproduced in PLD 1992 Karachi 437) | | S. 15 Place of sitting.- (1) Subject to sub-sections (2) and (3), an Anti-terrorism Court shall ordinarily sit at such place or places including Cantonment area or jail premises as the Government may, by order, specify in that behalf. | S.46. Establishment of Special Courts.- The Federal Government and, if so directed by the Federal Government, the Provincial Government shall, by notification in the official Gazette, establish as many Special Courts as it considers necessary and appoint a Judge for each of such Courts and where it establishes more than one Special Court, it shall specify in the notification the place of sitting of each Special court and the territorial limits within which it shall exercise jurisdiction under this Act. | S.3 Constitution of Special Courts. (1) [\] (2) A Special Court shall sit at such place as the Federal Government may or by notification in the official Gazette, specify in this behalf. | S.3 Constitution of Special Courts. (1, 2) [\] (3) A Special court shall sit at such place as the Government constituting it may, by notification in the official Gazette, specify in this behalf. |

1. The reading of section 9(2) shows that it generally empowers the provincial government to notify 'place ' or 'places' of sitting of the courts of Sessions, but the referred government also has the power to do so, with respect to a particular case or cases at a particular place or places other than the general court house, which has already been notified. Perhaps for the first time, this question came up for consideration in the subcontinent before the Bombay High Court in case reported as Emperor v Lakshman Chavji Narangikhar and 46 others (AIR 1931 Madras 313), where the question posed before the court was with respect to a notification for conducting a particular case at a place which was different from the normal place of sitting of the court of Sessions. The question as framed before the court was, whether the notification of February, 1931 which names a judge to try a particular case at a particular place is ultra vires and illegal under section 9 of the Code of Criminal Procedure. The contention before the Bombay High Court was that local government has already issued a notification directing the Court of Session to be held at Ali Bagh in certain months and in presence thereof, a special notification for a particular case at a particular place was not possible. In responding the referred query, Bombay High Court held and observed that the previous orders of the local government were general orders under section 9(2), and there is nothing in section 9(2) to prevent a special order being passed directing at what place a Court of Sessions should hold its sitting. By way of example, the Court went on to observe that if by reason of an outbreak of plague or any other cause it becomes necessary or expedient that a Court of Sessions should hold its sitting in respect of all the cases at a different place or should try a particular case at a particular place, the words of section 9(2) are wide enough to cover such an order. It was also observed that order passed under section 9(2) is an administrative order passed by the local government and the special order of the local government in the present case directing the Additional Sessions Judge to try this particular case at Alibagh does not appear to contravene the provisions of section 9(2). It was also observed that the word 'special' must include an order relating to a class of cases for trial and on the principle that the greater necessarily connotes the lesser, cannot be held to stop short prior to the limit of a single case. This line of reasoning has been followed across the border and even in Pakistan; in case reported as Shaukat Hayat v. Government of Sindh and another (1987 MLD 2783), notification dated 16.04.1987 issued by the Provincial Government under subsection (2) of section 9 of Cr.P.C. was the subject matter of challenge. The Division Bench of Sindh High Court observed that section 9 read with section 178 Cr.P.C. contains requisite power in favour of the provincial government to appoint an Additional Sessions Judge for more than one sessions division and to authorize him to hold sitting at such place or places which it may notify. The court observed that the words 'place or places' includes central prison. The said judgment of Sindh High Court was set aside by the Supreme Court in case reported as Shaukat Hayat v. Government of Sindh and another (1989 SCMR 774), but not on the reasoning mentioned above, but on different grounds, however, while parting, the Supreme Court observed that government may issue another notification in accordance with law, if it considers expedient.

2. In case reported as In the Reference made by Sessions Judge, Larkana for transfer of cases (1990 PCr.LJ 1687), reference was sent by the Sessions Judge to the High Court. The Sindh High Court opined that it is within competence of the provincial government to set up venue for the trial of cases of a particular accused and also nominate any Sessions Judge or Additional Sessions Judge to try those cases, which are to be specified by the said Government in notification/notifications.

3. In case reported as Chairman, National Accountability Bureau, Islamabad through Prosecutor General, Accountability Bureau, Islamabad v. Mian Muhammad Abbas Sharif and 7 others (PLD 2001 Lahore 157), the Division Bench of Lahore High Court allowed the transfer of accountability reference in Attock Fort for the reason that it is in the interest of justice to hold fair, impartial trial in a calm, peaceful environment, however, it was observed that it is for the Presiding Officer to ensure attendance by the witnesses, lawyers and other persons interested in watching the proceedings including the visitors through regulated entry by the court after security check-up.

4. In case reported as Dr. Ahmed Javed Khawaja and another v. The State and 2 others (PLD 2003 Lahore 450), where a notification was issued under Anti-Terrorism Act, 1997 for conducting trial in jail was challenged, the Division Bench of Lahore High Court observed and concluded that it is within the domain of the appropriate government to issue notification for conducting trial at any place other than the normal place of sitting of the special courts. It was observed as follows:-

"The omission to spell out reasons in the afore-referred circumstances by itself would not make the order of the Home Secretary unlawful in absence of any apparent mala fides. There is, therefore, no jurisdictional defect to warrant interference under Article 199 of the Constitution. The precedent case-law to which reference has been made by the petitioners' learned counsel would not be of much avail to him, firstly, because in Asif Ali Zardari's case (supra), issue before the learned Court was the trial of a case in jail premises under the Suppression of Terrorist Activities (Special Courts) Act, 1975 and the ratio laid down by the Court, in the said judgment, was that under section 3 of the afore-referred Act, the Government did not have such a power. The provisions of the Anti-Terrorism Act, 1997, as discussed in the preceding paragraphs, are all together different and they specifically empower the Government as also the trial Court to specify the place of trial. The judgment of the august Supreme Court in Mehram Ali's case (supra) dilated in detail on the vires of the Anti-Terrorism Act, 1997 and admittedly section 15 of the said Act has not been declared ultra vires of the Constitution. The ratio in Sharaf Faridis's case (supra) indeed lays down important principles of independence of judiciary and uphold the mandate of Article 175 of the Constitution of Islamic Republic of Pakistan, 1973 but we are of the considered view that the provision of a power with the executive to decide the place of trial does not, by itself, impinge on independence of judiciary or conscience of a Court. The trial continues to be an open trial and is to be regulated by the learned trial Court with due regard to security of the parties, witnesses and the Court itself. The rights of an accused and principles of appreciation of evidence continue to remain the same. The apprehensions expressed by the petitioners learned counsel therefore are misconceived".

1. In case reported as Muhammad Ashfaq Chief v. Government of Sindh and others (PLD 1996 Karachi 326), the question was with respect to notification issued under section 3(3) of Suppression of Terrorist Activities (Special Courts) Act, 1975. The court, after analyzing section 352 Cr.P.C. observed that an accused is to be tried under the provisions of Suppression of Terrorist Activities (Special Courts) Act, 1975; it was stated as follows:-

"We would like to point out that, no doubt, according to section 352 of the Code of Criminal Procedure, trial of an accused is to be held in an open Court. An exception to the rule can be found only in the form of the proviso to the said section, according to which the Presiding Officer of the Court may order trial of a case in camera. But the petitioners are to be tried by a Special Court constitution under Suppression of Terrorist Activities (Special Courts) Act, and they are, therefore, to, be governed by the provisions of the said Act. Such provisions by virtue of section 10 thereof, must prevail, over the general provisions of the Criminal Procedure Code. By virtue of section 3(3) of the said Act, such has been vested in the Government to specify a place where a Special Court shall hold its sittings. No restrictions have been placed on the power of the Government while specifying a place of trial for the accused. Consequently under exceptional circumstances, a place for trial specified by the Government under section 3(3) of the Act can even be within a prison' depending upon the circumstances of each case. The word "place" in section 3(3) can also include its plural. Although, we are in respectful agreement with the view earlier taken by the Division Bench of this Court in the case of Asif Ali Zardari, v. Special Court (Offences in Banks), but the rule enunciated by the Division Bench is not an absolute rule and departure, can be made there from under exceptional circumstances. Although, no reasons have been assigned in the notifications impugned in these petitions, but we cannot be oblivious of the fact that the notifications were issued at time when law and order situation in the city of Karachi was at its worst and almost every day several incidents of lawlessness were reported in the city. We are, therefore, of a considered view that, the trial of the accused in jail can be ordered by the Government under the provisions of section 3(3) of the Suppression of Terrorist Activities (Special Courts) Act under exceptional circumstances.

In the result, the petitions are dismissed. However, as has been conceded by the learned Additional Advocate-General some of the relatives and friends of the petitioners can be permitted to attend their trial inside jail we have no doubt, will be considered by the Government".

1. In case reported as Mustoo alias Ghulam Mustafa Kalhoro v. The State (1990 MLD 1994), Sindh High Court observed as follows:-

"So far the correct legal position is concerned, there is no dispute about the fact that High Court is empowered under section 526, Cr.P.C., to transfer cases from one subordinate Court to other or to withdraw the case from such Court for trial before the High Court on the grounds or any one of them mentioned under that section and further procedure is also prescribed for making such transfer application. At the same time there are other provisions in Cr.P.C. which empower the Provincial Government to allow remedies of the nature sought by applicant in this case. Provincial Government is competent under sections 9, 193 and 178, Cr.P.C., to order that case, against one particular accused or cases in particular class be taken up for hearing at a particular place, which can be a prison. Provincial Government under the provisions mentioned above is also competent to appoint any Sessions Judge or Additional Sessions Judge to hear those cases as mentioned above as Ex Officio Additional Sessions Judge in jail. For the purpose stated above, Provincial Government has to issue Notification/Notifications to specify the details as well as number of cases which are intended to be tried in that manner. The view stated above finds full support from the case of Shaukat Hayat v. Government of Sindh and another 1989 SCMR 774".

1. In case reported as Makhdoom Muhammad Javed Hashmi v. Chief Commissioner, Islamabad (2004 PCr.LJ 1089), where order dated 13.12.2003 by the Chief Commissioner, Islamabad for holding trial of the petitioner at Central Jail Adyala Rawalpindi was challenged, it was held as follows:-

"the Administrator (Chief Commissioner) to exercise all the powers and duties conferred or imposed on the Provincial Government under any law for the time being in force in the Islamabad Capital Territory. In view of the aforesaid notification, the respondent/Chief Commissioner is a Provincial Government and under subsection (2) of section 9 of the Criminal Procedure Code is empowered to direct holding of trial of a case in the Jail premises. Therefore, the first contention of the learned counsel for the petitioner is devoid of any force".

It was concluded in the said case that provincial government in particular cases can pass order for trial of a case at a particular place, if reasons are bona fide.

1. In case reported as Gul Muhammad Hajano v. Province of Sindh, through the Secretary, Government of Sindh and 2 others (2011 PCr.LJ 302), notification of jail trial of the petitioner came up for challenge before Sindh High Court and after referring to the relevant case law, the jail trial was upheld. In coming to this conclusion, it was remarked as follows:-

"20. The assumed mala fide is alleged to have led to issuance of the impugned notification. This plea has however been based on a motley of allegations having no proximal relation with the reported commission of crimes; such mala fide even otherwise cannot be enquired into in exercise of writ jurisdiction. All such allegations appear to be prima facie illusory. No justification has been pleaded for giving rise to the motive to punish the son of the petitioner for the acts of his father which allegedly offended the Institution of the police as a whole. The allegations are derogatory and self incriminating inasmuch as it has been stated that though the petitioner bribed a police official yet he submitted the challan against him. The trial has not commenced even in a single case, the comments of the learned trial Court as to subjective conditions obtaining at the commencement of the trial might need to be called for. The impugned notification under the circumstances cannot be struck down in undue haste merely on the ground that it has just been issued by the Government of Sindh without the same having been supported or opposed by the trial Court. There is a possibility that the trial Court may itself ask for holding of inside Jail Trial for good reasons after hearing all the parties whose interest might be found at stake. The trial Court has ample power to take steps to secure the ends of justice, whenever the trial begins after framing of the charge(s) and to apply its judicial mind and pass such orders as may be found appropriate inter alia proposing inside jail trial or otherwise of the UTP Muhammad Ali after examining all the factor".

1. In an unreported decision of Larger Bench of Lahore High Court in case titled Dr. Abdul Basit, Advocate v. Sher Zaman Khan, Deputy Attorney General (W.P. No.6734 of 2000), it was observed that even under section 16(b) of the Ordinance, the court may sit at any place specified by the government. This observation was made in the background that trial of the petitioner was ordered at Attock Fort; the court went on to observe that environmental condition/suitability of the Attock Fort for holding of the trial is concerned, there is no doubt that this place has been selected for the safety and well being of all those who are being tried as well as others who intend to attend the proceedings. It was reiterated that section 16(b) of the Ordinance provides specifically that a court shall sit at such a place or places as the government may by order specify in this behalf and the same is in accordance with law.

2. In case reported as Zulfiqar Ali Bhutto v. The State (PLD 1979 Supreme Court 53), there was an issue regarding hearing of certain applications for transfer in chambers/in-camera, the Supreme Court of Pakistan observed as follows:-

"350. I may pause here to mention that according to section 352, Cr.P.C. the place in which any Criminal Court is held for the purpose of "inquiring into or trying any offence" shall be deemed to be an open Court. Strictly speaking therefore, the Court is open only for the purpose of "inquiring into or trying any offence" and not for any collateral purpose, or while dealing with something which is strictly speaking outside the cause itself. In this category would fall a transfer application which is not germane to the proper trial as such. In this view of the matter also section 353 of the Code did not debar the learned trial Bench from hearing the transfer application in limine "in chambers" and not in Court open to the public. Indeed the Bench in its impugned order has itself specifically observed that it was decided by them to take up the transfer application "in chambers" in accordance with the usual practice of the Court. The objection as to the hearing of the transfer application in chambers is, therefore, without merit"

It was further observed as follows:-

"360. Let me now advert to the propriety of the orders passed by the learned trial Bench in holding this part of the proceedings in camera, The matter is governed by section 352 of the Criminal Procedure Code, 1898, which lays down that;----

"The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed an open Court, to which the public generally may have access, so far as the same can conveniently contain them;

Provided that the Presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court."

1. The operative part of this section embodies the general rule that ordinarily criminal trials should be open to the public, as publicity is the authentic hallmark of judicial proceedings. In cases decided under the Common Law of England as well as in the United State of America, there is a traditional distrust of secret trials and the right to public trial of a person accused of a crime is generally recognised. As stated by Black, J. In re William Oliver (1);

"Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our Courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power."

1. However, as stated in Corpus Juris Seeundum, Volume 23, section 963 ((1947) 333 U S 257). pages 849 to 853, the „public trial concept has never been viewed as imposing a rigid, inflexible straight jacket on the Courts, and it is generally conceded that the right to have the general public present at A trial is subject to some limitations. The trial Judge has discretion to close to the public, even without the consent of accused where there is good cause for such action. In exercising control over the trial proceedings, the Judge may exclude those whose conduct is of disturbing nature, or whose presence is likely to interfere with the administration of justice. It is usually held that unless accused is thereby prejudiced for want of aid, or counsel of any person whose presence might be of advantage to him, it is within the discretion of the Court to exclude persons from the Court room where it deems necessary so to do in order to preserve decorum, to secure the administration of justice, or to facilitate the proper conduct of the trial.

2. These principles underlie the judgments cited as Scott and another v. Scott (1913 A C 417), King v. Governor of Lewes Prison ((1917)2KBD 254), Cora Lillian McPherson v. Cora Lillian McPherson (AIR 1936 PC 246), Naresh Shridhar Mirajkar and others v. State of Maharashtra and others (AIR 1967 SC 1= (1966) 3 SCR 744 ), W. E. Gardner v. U. Kha (AIR 1936 Rang. 471), In re: M.R. Yenkalaraman (AIR 1950 Mad. 441), Mst. Shirin Nazir v. Badruddin Karamah Nazir and another (PLD 1963 Kar. 440), Mairaj Muhammad Khan v. The State (PLD 1978 Kar. 308), Abdul Rashid Chaudhry and others v. The State (PLD 1966 Lab. (sick) 562) and The Province of West Punjab v. Khan Iftikhar Hussain Khan of Mamdot (PLD 1949 Lab.(sick) 572).

3. According to Halsbury's Laws of England (4th Edn.), Volume It, para. 280, in general all persons, except children have a right to be present in Court, provided there is sufficient accommodation and no disturbance of the proceedings. There is, however, an inherent jurisdiction in the Court to exclude the public if it becomes necessary so as to do so for the due administration of justice:

"In general, all cases, both civil and criminal, must be heard in open Court, but in certain exceptional cases, where the administration of justice would be rendered impracticable by the presence of the public, the Court may sit in camera. Thus the Court may sit in camera, either throughout the whole or part of the hearing, where it is necessary for the public safety, or where the subject-matter of the suit would otherwise be destroyed, for example by the disclosure of a secret process or of a secret document, or where the Court is of opinion that witnesses are hindered in, or prevented from, giving evidence by the presence of the public. In addition the Court is directed or has been given power by statute or statutory rules to exclude the public in particular proceedings and is empowered to do so in any proceedings for an offence against morality or decency when evidence is given by children or young persons."

The Court concluded in paragraph-365 as follows:-

"365. It will thus be seen that it is an essential and salutary principle of administration of justice that it must not only be done but should also appear to be done. This necessarily carries with it the right to an open trial in the full gaze of the public, including the Press. This in turn leads to a healthy, fair and objective administration of justice calculated to promote public confidence in the Court and is conducive to dispel all misgivings about it. There can be no two opinions about it. But this rule, on al accounts, is not a rigid and inflexible one, and must not be pressed to its breaking point in defeating the very ends of justice. It admits of exceptions and cases may arise whereby following this rule for an open trial justice may itself be defeated. A Court of law exists for the administration of justice. The primary function and the ultimate goal before a Court is to do justice between the parties. However, as seen, above, there is no dearth of cases in which the very requirement of the administration of justice in itself demands that a trial may be held in private or in camera and an open public trial is likely to result in the stultification of justice".

1. In case reported as Kehar Singh and others v. The State (Dehli Admn) (AIR 1988 Supreme Court 1883), where the trial of accused charged with assassination of Indra Gandhi was held in jail and in this regard notification was issued under section 9 of Indian Code of Criminal Procedure; the Supreme Court of India concluded that view taken in AIR 1931 Bombay 313 is the correct view having regard to the scheme and object of section 9(2) of the old Code.

2. Finally, in case reported as Mohd. Shahabuddin v. State of Bihar and others [(2010) 4 Supreme Court Cases 653], another jail trial was questioned. In paragraph-211, it was concluded as under:-

"211. Expeditious disposal of cases is also a factor and a necessary concomitant to administration of justice and the hallmark of fair administrative of justice. Since the venue of the trial of a group or a class of cases was shifted by establishing and constituting a court within District Jail, Siwan, the same cannot be said to be void or invalid in any manner. The aforesaid issue, therefore, stands answered accordingly along with the issue which was argued by the learned Senior Counsel appearing for the appellant that reason for issuance of notification being only the expeditious disposal of the cases pending against the appellant which is even otherwise a necessary concomitant of the administration of justice, the notification was void as no special reason to exercise such power under section 9(6) Cr.P.C. is spelt out and also particularly when the said power is exercised in the cases of only one individual. I have dealt with the aforesaid issue as well and have given my reasons for rejecting the aforesaid submission for, according to me, the said submissions is devoid of any merit.

1. The careful reading of the above case law clearly shows that either under section 9(2) Cr.P.C. or some special statute, which empowers the provincial or federal government to issue notification regarding 'place' or 'places' of sitting of a court, the courts in Pakistan as well as in India have consistently held that executive does have the power to order trial of a particular accused at a particular place and such an order is administrative in nature. Both sides have agreed that section 9(2) ibid is almost the same as section 16(b) of the Ordinance, as both provisions allow relevant government (provincial government under Cr.P.C. and federal government under the Ordinance) to decide the place or places of sitting of a court. In the instant case, the relevant court is the Accountability Court, hence Federal Government, on the touchstone of above case law, was competent to issue notifications impugned before us regarding holding trial of the petitioner in above two References in Central Jail Adyala Rawalpindi. Much emphasis was laid by learned counsel for the petitioner that in light of judgment of this Court in I.C.A. No.367-2023 dated 19.12.2023, the same is not possible, as this Court has already held by taking a view that where trial of a person is to be conducted at a place other than normal court house, it can only be done through a judicial order and the accused has the right of audience in such determination. This Court, in the said judgment, has given elaborate reasons and cited ample case law on the subject. There is no cavil with the reasoning taken by this Court in the afore-noted case and case law cited therein. It is admittedly the position that it is within the judicial power of a court trying any case to either conduct the hearing at its usual place of sitting, or can pass an order for holding proceedings of the same at some other place which is conveniently accessible to public and also can pass order for excluding the public; the justification or reasoning embraced by this Court in I.C.A. No.367-2023, is without doubt correct, but that does not mean that because of it, power of the executive to issue administrative order for determining place of sitting of a court other than the usual place of sitting, is taken away. The executive, in the instant case, being the Federal Government, has exercised this power to notify trials of the petitioner at Central Jail Adyala, Rawalpindi under section 16(b) of the Ordinance. The meticulous reading of the said provision of law clearly empowers the Federal Government to notify the place or places of sitting of the Accountability Court by applying the principle that the 'general' includes the 'special', this power is not only with respect to general sitting of the courts but also applies to holding trial of a 'particular case' at a 'particular place'. The referred reasoning is not contradictory to the view taken in I.C.A. No.367-2023 supra. The jurisdiction of the court to pass an order to conduct a trial at a place other than normal court house, co-exists with the executive power to specify a place of sitting other than normal court premises including the jail. The Division Bench of this Court, hearing appeal of the petitioner in I.C.A. No.367-2023, was confronted with the notifications issued by the Federal Government for his trial under Official Secrets Act, 1923. There is no provision in the referred Act of 1923 qua administrative authority of provincial or federal government to issue notification for jail trial and the procedure under Cr.P.C. had to be followed. The Court, in such circumstances, held that it is only under section 352 Cr.P.C. that an order for conducting proceedings in jail, can be passed by trial court and also the provisions of High Court Rules and Orders are to be adhered to. This Court, in the said decision (I.C.A. NO.367-2023), had no occasion to discuss section 9 ibid or other similar provisions hence did not advert to the power of the executive to issue notification or pass an order regarding place or places of sitting in a particular case or set of cases. Where the relevant government either under section 9(2) of Cr.P.C. or section 16(b) of the Ordinance decides to notify a place of sitting of a court, other than its routine place of sitting, there must be compelling circumstances for that, as exception is being created. In the instant case, the NAB, in its letters to the Federal Government, quoted threat to life of the petitioner as a reason for conducting proceedings at Central Jail Adyala, Rawalpindi and the Federal Government acceded to the request. The decision, it seems, was not taken in routine for some ulterior motive but solely to minimize risk to the petitioner's life. The executive does have the power to decide about the place or places of sitting, in other words, it does have the general power to take decision about places of sitting of Accountability Court and by implication, it also has the power to decide special cases viz take decision regarding place of sitting of Accountability Court for a particular case or set of cases. This decision of the Federal Government does not impinge upon the right of the petitioner to a 'fair trial' as provided in Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973, as he has the protection of all procedural and substantive guarantees available to him under the Constitution and the law. The trials are open and the public, including the media, has access to the court room at Central Jail Adyala. It is also to be kept in mind that under section 17 of the Ordinance, Code of Criminal Procedure, 1898 is excluded to the extent that it is in contradiction to the provisions of the Ordinance; hence the Federal Government has, under section 16(b) of the Ordinance, rightly exercised this power, as section 9(2) of the Code is excluded.

2. The legal issue confronting us in the instant case is different from one in I.C.A. No.367-2023 in as much as here, the administrative order has been passed by the executive for conducting trial of the petitioner in jail and the reasoning adopted by us in upholding it, is not averse to the reasoning which prevailed with this Court in the afore-noted case (I.C.A. No.367-2023). It is reiterated that jurisdiction or power of trial court is concomitant with that of the executive, if executive in any particular case, does not issue an order for holding cases or case at a place other than normal court house; power to do so vests with trial court under section 352 Cr.P.C., however, if decision has already been taken by the executive for conducting trial at a particular case or set of cases at a place other than normal place of sitting of the court, the trial court has to follow that administrative order and in light of reasons rendered in case reported as AIR 1931 Bombay 331 supra, this Court does not have any jurisdiction under section 526 Cr.P.C. to order transfer of a case. The nuance in reasoning in the instant case and I.C.A. No.367-2023 is due to the different sets of statutes and the legal questions involved. We are in agreement with the decision of this Court in I.C.A. No.367-2023 that where the court/the trial court decides to hold sitting at a place other than normal court house, a judicial order is required and High Court Rules and Orders are to be followed.

3. Mala fide was attributed to the Federation on part of petitioner for conducting trial in jail and issuance of impugned notifications, in this regard, learned Special Prosecutor NAB drew attention of the Court with respect to reasoning for doing so. He drew our attention to decision of this Court dated 02.10.2023 in case titled Imran Ahmad Khan Niazi v. The State etc. (Crl. Rev. No.127-2023). In paragraph-9 of the referred decision, this Court observed as follows:-

"9. In a fairly recent judgment, Lahore High Court in case reported as Farhan Masood Khan v. State etc. [PLJ 2021 Cr.C. (Lahore) 550], has observed that in an appropriate case, production order can also be passed by the courts hearing bail before arrest application. This is another option that was available before the courts, however, perhaps not plausible one for the reason that petitioner being an ex-Prime Minister and Chairman of a prominent Political Party, carries security risks and his transportation and security arrangements was a cumbersome task".

1. The examination of letter by NAB as well as summary before the Cabinet shows that it is only because of the security reasons that trial of the petitioner is being conducted at a place other than court house. Even, Division Bench of this Court in I.C.A. No.367-2023, has observed that the court cannot sit over judgment by the decision of the competent authority regarding security risks.

2. Another objection, taken to the impugned notifications, is that same have been issued prior to filing of References by NAB. The contention of learned counsel for the petitioner is absolutely correct that the notifications impugned were issued prior to filing of References, however, as was pointed out by learned counsel for NAB that same was done, as the proceedings before filing of References were being conducted in the form of bails/remand, hence need for notifications.

3. The petitioner also placed reliance on a judgment of Sindh High Court wherein it was held that jurisdiction vests solely with the court ordering the trial of a case at a place other than normal court house. Reference was made to case of Asif Ali Zardari reported as PLD 1992 Karachi 437 supra. The facts, in the case reported as PLD 1992 Karachi 437 supra, were different, as they were different in I.C.A. No.367-2023 in as much as relevant statute did not empower the relevant government to order holding of courts at places, rather under the referred statute, the relevant government could only order holding of the court at a place hence, since the relevant government was not competent to issue the notification, the court was held to be the 'appropriate forum' to decide the issue under section 352 Cr.P.C.

4. Learned counsel for the petitioner also argued that under section 5A of the Ordinance, it is only the Federal Government which is competent to appoint the Presiding Officer and since same has not been done, proceedings are invalid. In order to appreciate said argument, section 5A is reproduced below:-

"5A. Establishment of Courts and appointment of Judges.- (1) The Federal Government shall establish as many Courts as it may deem necessary to try offences under this Ordinance.

(2) A Judge shall be appointed by the Federal Government after consultation with the Chief Justice of the High Court concerned and shall hold office for a term of three years from the date of his initial appointment as such Judge.

(3) No person shall be appointed as Judge unless he is a serving District and Sessions Judge or Additional District and Sessions Judge.

(4) A Judge shall not ordinarily be removed or transferred by the Federal Government from his office before completion of his term, except after consultation with the Chief Justice of the High Court concerned".

In the definition clause of the Ordinance, as amended time and again, the definition of a 'Judge' means a Judge appointed or deemed to have been appointed under section 5A of the Ordinance (5(j) of the Ordinance). The word used by the legislature is that a Judge appointed or deemed to have been appointed. The word 'deem' or a 'deeming clause' in a statute has been incorporated by the legislature quite after to create fiction for the purposes of granting legitimacy to any transaction or act. The effect of deeming clause of a statute came up for consideration in case reported as Dr. Abdul Nabi,Professor, Department of Chemistry, University of Baluchistan, Sariab Road, Quetta v. Executive Officer, Cantonment Board, Quetta (2023 SCMR 1267). The court concluded that legal fictions give rise to explicit objectives restricted to the purpose which should be construed contextually but should not be elongated further than the legislative wisdom for which it has been created. In another case reported as Begum B.H. Syed v. Mst. Afzal Jahan Begum and another (PLD 1970 Supreme Court 29). While interpreting the scope and purpose of a deeming clause, it was observed as under:-

"It is true no doubt that where the statute says that you must imagine the state of affairs; it does not say that having done so you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs. But at the same time it cannot be denied that the Court has to determine the limits within which and the purposes for which the Legislature has created the fiction".

The above case law makes it abundantly clear that through fiction of law, something is to be accepted, which actually does not exist and it is to be seen from the words of statute, the purpose of fiction. In the instant case, the words used in section 5(j) are that the Judge is deemed to be appointed under section 5A meaning thereby that all the judges exercising power and jurisdiction prior to the amendment of 2022, shall be deemed to be appointed under section 5A and there is no need for fresh appointment by the Federal Government now the competent authority for appointment of a Judge of Accountability Court under section 5A ibid, however, if any fresh appointment of a Judge of an Accountability Court is to be made today, same is to be done in accordance with section 5A ibid and competent authority is the Federal Government. The holding of jail trial is not a trial in-camera, however, due to jail regulations and other security restraints, perhaps, members of public do not have that kind of access, which they have in an open court or a normal court house. The said aspect of the matter is to be regulated by the trial court to ensure compliance of section 352 Cr.P.C. that the public can conveniently attend the court along with witnesses and members of the press, however, it is needless to observe that while regulating this affair, trial court has to keep in mind issues of security and the prevalent law and order situation in the country. The trial court, while doing so, should not be oblivious of the status of the petitioner, as he is a leading political figure of the country. As to the openness of a trial and public access, this Court in case titled Imran Ahmad Khan Niazi v. The State and another (Crl. Misc. No.1354-B-2023), vide order dated 02.10.2023, observed as followed:-

"8. The lynchpin of any justice system is its transparency and criminal justice system in particular advocates transparency by including public in the proceedings as envisaged in section 352 Cr.P.C. Though reading of the said section shows that it pertains to trial only, but by way of analogy, it can be observed that it also applies to other kinds of proceedings and in the said provision, in-camera proceedings can be held where the Court so deems appropriate. In the present times, access to justice and transparency are the two key factors for commanding public confidence in the judicial system. In other words, the hallmark of any modern judicial system is its accessibility and transparency and the courts all over the world, including Pakistan, are contemplating live streaming of the proceedings (recently Supreme Court of Pakistan live streamed a case of public importance, whereby challenge had been made to Practice and Procedure Act, 2023 in the Supreme Court)".

2024 P Cr. L J 1196

[Islamabad]

Before Mohsin Akhtar Kayani and Babar Sattar, JJ.

Al-Baraka Bank (Pvt.) Ltd. through Authorized Representative---Appellant

Versus

The STATE---Respondent

Criminal Criminal Appeal No. 300 of 2023, decided on 22nd January, 2024.

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

----Ss. 9, 33, 48 & 74---Criminal Procedure Code (V of 1898), S.516A---Recovery of narcotic substance---Possession of vehicle---Bank, claim of--- Appellant bank sought recovery of possession of vehicle in question which was seized by authorities as case property---Validity---Appellant bank was legal title holder of vehicle in question pursuant to provisions of Musharakah Agreement or loan agreement---Purpose of repossession by bank was not to put the vehicle to ordinary use but to sell the vehicle to recover funds involved in purchase of the vehicle and/or that were due and payable by the person who had leased / rented the vehicle from the bank---Such purpose could not be achieved during pendency of trial as vehicle could not be disposed of when it was released on Superdari---Provisions of Ss.33 & 74 of Control of Narcotic Substances Act, 1997, when read together with S.516A, Cr.P.C., did not contemplate release of a vehicle on Superdari during pendency of trial to enable a financial institution to effect recovery of funds through the sale of such vehicle--- Trial Court rightly denied release of vehicle on Superdari to appellant-bank as the vehicle was yet to be exhibited as case property in a pending trial---Appeal was dismissed, in circumstances.

Niazullah v. The State 2002 PCr.LJ 97; Abdul Hamid v. The State 2002 PCr.LJ 666; State v. Rashid PLD 2003 Pesh. 87; Haji Abdul Razzak v. Pakistan PLD 1974 SC 5 and Amjad Ali Khan v. The State and others PLD 2020 SC 299 ref.

Abdul Salam v. The State 2003 SCMR 246 and Allah Ditta v. The State 2010 SCMR 1181 rel.

Haseeb Hassan for Appellant.

Rana Zulfiqar Ali, Special Prosecutor, ANF and Mohammad Bashir Khan, P.S. ANF, I.C.T for the State.

Date of hearing: 11th January, 2024.

Judgment

Babar Sattar, J.---The appellant has impugned order dated 20.07.2023 pursuant to which his application for grant of superdari of a vehicle seized by Anti-Narcotics Force (ANF) in relation to FIR No.141/2022 registered Police Station ANF, Islamabad, was dismissed.

1. Learned counsel for the appellant submitted that the appellant bank was the real owner of the vehicle-in-question pursuant to a Higher Purchase Lease Agreement ("Musharakah Agreement") between Al-Baraka Bank and Mohammad Usman. He submitted that Mohammad Usman had defaulted on his obligation to pay the installment and rental in lieu of the Musharakah Agreement and the appellant bank therefore had a right to take control of the vehicle-in-question. He submitted that the appellant bank had filed an application for superdari pending conclusion of the trial and it was an innocent owner that was not aware of the offence committed by the accused charged pursuant FIR No. 141/2022. The Judge Special Court had however not appreciated the facts of the case and had dismissed the application.

2. The learned Special Prosecutor, ANF, submitted that the vehicle registration was in the name of Mohammad Usman who was also the last possessor of the vehicle and it was seized by ANF for being involved in an offence under the Control of Narcotic Substances Act, 1997 ("CNSA"). The vehicle was yet to be exhibited before the trial Court and could therefore not be released on superdari.

3. The questions that arise for our consideration are twofold. One, whether a vehicle seized in relation to an offence under CNSA can be released on superdari even prior to it having been exhibited as case property before the trial court? And two, can a bank that has a loan over a vehicle under any instrument, such as a Musharakah Agreement, but is not in possession of such vehicle when an offence is committed be treated as the owner of the vehicle to be granted superdari pending conclusion of the trial pursuant to section 74 read together with section 33 of CNSA.

4. The law laid down with regard to grant of temporary custody does not fully discuss the second proviso to section 33 of CNSA read with proviso to section 74. It is therefore, essential to track the evolution of jurisprudence in relation to grant of temporary custody to an owner of the vehicle pending a trial under CNSA.

5. In Niazullah v. The State (2002 PCr.LJ 97), section 74 of CNSA came under discussion before the Lahore High Court. The said section was reproduced in the judgment but did not include an addition made to the proviso of section 74 that was added by Control of Narcotic Substances (Amendment) Ordinance, 2000 (Ordinance LXVI of 2000) dated 23.12.2000 ("CNSA Amendment Ordinance"), which makes a reference to the second proviso to subsection (2) of section 33. The Lahore High Court held that an innocent owner fell in the category of private person mentioned in section 74 of CNSA to whom grant of custody was not prohibited. Consequently, custody was granted to the owner with the direction that the vehicle be produced by such owner whenever required by the trial court.

6. In Abdul Hamid v. The State (2002 PCr.LJ 666), Peshawar High Court observed that section 74 of CNSA created a prohibition against release of vehicle on temporary custody but such prohibition did not extend to an owner who had no involvement in the crime in relation to which the vehicle had been seized. In State v. Rashid (PLD 2003 Peshawar 87), Peshawar High Court again interpreted section 74 of CNSA as placing no embargo on release of vehicle in temporary custody of a bona fide owner who was not associated with the accused or with the commission of the offence. Peshawar High Court held that if an embargo was to be created the proviso to section 74 creating such embargo should have used the word 'person' in place of 'private individual'. It further held that if the vehicle was to be ultimately released to the owner it would serve no purpose to keep it in custody of the detaining agency pending trial.

7. In Abdul Salam v. The State (2003 SCMR 246), the Supreme Court relied on a judgment rendered in Haji Abdul Razzak v. Pakistan (PLD 1974 SC 5). In Haji Abdul Razzak while interpreting sections 167 and 168 of Sea Customs Act, 1878, the Supreme Court had held that the words "liable to confiscation" in section 168 vested power to confiscate. But such power could not be exercised to deprive an owner of such property who was in no way responsible for commission of the offence as "no innocent person could be unjustly punished or deprived of his act". Relying on this precedent the Supreme Court held in Abdul Salam that a court granting final relief could grant temporary relief as well. It held that where an owner had no knowledge of an offence and he was entitled to acquire possession of the vehicle after trial in view of section 32 of CNSA, there was no absolute bar prohibiting release of a vehicle pending trial. In Abdul Salam the Court did not refer to the amendment to the proviso of section 74 through the CNSA Amendment Ordinance, or to the second proviso of section 33(2) of CNSA, also added through the CNSA Amendment Ordinance.

8. The question of temporary custody next came before the Supreme Court in Allah Ditta v. The State (2010 SCMR 1181). Here too the Supreme Court cited sections 32 and 74 of CNSA but did not discuss the import of the proviso to section 74 as amended through the CNSA Amendment Ordinance, or the second proviso to section 33 of CNSA. It was held that section 32 of CNSA deals with final disposal of a conveyance while section 74 regulates temporary custody. The Supreme Court observed that section 74 was not "happily worded" and the prohibition, which was in negative terms, was "neither absolute nor all embracing". It held that "private individual" as mentioned in the proviso to section 74 was to be read ejusdem generis with "accused or any of his associate or relative". Consequently, private individual was interpreted as an individual "who has some nexus with the offender or the offence" and thus an innocent owner was excluded from the limitation provided in the proviso to section 74. The Supreme Court noted that section 32 of CNSA does not allow confiscation of a vehicle unless it is proved that the owner was aware that his vehicle was being used in the offence and burden of proving so was on the prosecution. It was therefore held in view of the law laid down in Allah Ditta that in the absence of express statutory prohibition, an innocent owner "shall also have a right to obtain and retain its temporary custody pending trial" in the following words:

"We, thus, conclude that the proviso of section 74 does not prohibit the release of the vehicle involved in the trafficking of narcotics to its owner, who is not connected in any way with the commission of the crime or the accused and was unaware that his vehicle was being used for the crime."

1. In Allah Ditta there was no discussion re the effect of the release of a vehicle on superdari pending trial on such trial itself, and there was no discussion with regard to the amendment to the proviso of section 74 or the addition of the second proviso to section 33 as added by the CNSA Amendment Ordinance. It was, however, evident from Allah Ditta that the release of a vehicle to the owner is not unconditional, but subject to the owner establishing prima-facie that he/she is innocent and not involved in any manner with the offence in relation to which the vehicle has been seized.

2. The law in relation to grant of temporary custody to the owner was once again considered by the Supreme Court in Amjad Ali Khan v. The State and others (PLD 2020 SC 299). Here the question before the Court was whether a seized vehicle could be released to a person who claimed to be the owner of the vehicle on the basis of an open transfer letter. Here too, the Court referred to sections 516A and 523 of Cr.P.C. as well as sections 32(2) and 74 of CNSA. The Court observed that the proviso to section 32 excluded certain vehicles from the scope of vehicles that were liable to confiscation, including a vehicle that belonged to an owner who did not know that the offence was being committed or was to be committed. While enumerating the import of section 74 of CNSA the Supreme Court held that:

"Under the proviso to section 74 of Control of Narcotic Substances Act, 1997 ('the 1997 Act'), the provisions of Cr.P.C to the extent of custody and disposal of a conveyance under general law were not applicable under the 1997 Act. Vehicle used in the commission of an offence under the 1997 Act could not be released or given on custody (superdari) to the accused or any of his associate or relative or any private individual till the conclusion of the case."

1. The term "associate" and "relative" had been defined in clauses (c) and (z-b) of section 2 of CNSA and the expression "any private individual" used in the proviso to section 74 has been explained in Allah Ditta to be an individual who has some nexus with the offender or the offence. The Supreme Court in Amjad Ali Khan upheld the judgment of the High Court whereby the release of a vehicle to the person holding an open transfer letter was denied. It was further held that, "in fact there was a freeze on the legal title of the owner of the vehicle till the conclusion of the trial. The rationale behind this being that any transfer or change in the title of the vehicle (case property) would undermine the safe administration of criminal justice system, as any such transfer (registration of the vehicle in the name of a third party) would amount to interference in the powers of the criminal court and in eroding the sanctity and security of the evidence in an ongoing criminal trial." The Supreme Court therefore directed that where a vehicle was seized in relation to an offence under CNSA there could be no change brought in relation to its title in the interest of safe administration of criminal justice and preserving evidence in an ongoing criminal trial.

2. Let us reproduce here the relevant provisions of CNSA:

32. Articles connected with narcotics. (1) Whenever an offense has been committed which is punishable under this Act, the narcotic drug, psychotropic substance or controlled substance, materials, apparatus and utensils in respect of which, or by means of which, such offense has been committed shall be liable to confiscation.

(2) Any narcotic drug, psychotropic substance or controlled substance law-fully imported, transported, manufactured, possessed, or sold along with, or in addition to, any narcotic drug, psychotropic substance' or controlled substance which is liable to confiscation under subsection (1) and the receptacles or packages, and the vehicles, vessels and other conveyances used in carrying such drugs and substances shall likewise be liable to confiscation.

Provided that no vehicle, vessel or other conveyance shall be liable to confiscation unless it is proved that the owner thereof knew that the offense was being, or was to be or was likely to be, committed.

33. Procedure for making confiscation. (1) In the trial of offenses under this Act, whether the accused is convicted or acquitted, the Special Court shall decide whether any article frozen or seized in connection with such offense is liable to confiscation.

(2) Where any article seized under this Act appears to be liable to confiscation under section 32, but the person who committed the offense in connection therewith is not known or cannot be found, the Special Court may inquire into and decide such liability and may order confiscation accordingly.

Provided that no order of confiscation of an article shall be made until the expiry of one month from the date of freezing or seizure, or without hearing any person who may claim any right thereto and the evidence, if any, which he produces in respect of his claim:

Provided further that if any such article, other than a narcotic drug, psycho-tropic substance or controlled substance is liable to speedy and natural decay, or if the Special Court is of opinion that its sale would be for the benefit of its owner, he may at any time direct it to be sold and the provisions of this subsection shall, as nearly as may be practicable, apply to the net proceeds of the sale.

(3) Any person who is not convicted under this Act and claims any right to property which has been confiscated under subsection (2) may, within thirty days, apply to the Special Court for setting aside the order of confiscation.

Provided that the period of thirty days may be extended for such further period as may be deemed appropriate by the Court in the event of the said person not having knowledge of the confiscation.

(4) A narcotic drug, Psychotropic substance or controlled substance seized under this Act shall be disposed of under section 516A of the Code of Criminal Procedure, 1898 (Act V of 1898).

74. Application of other laws. If an offence punishable under this Act, is also an offence in any other law for the time being in force, nothing in that law shall prevent the offender from being punished under this Act.

Provided mat noting contained in section 523 of the Code of Criminal Procedure, 1898 (Act V of 1898), or any other provision of the said Code or any other law for the time being in force, the custody of narcotic drugs, psychotropic substances, controlled substances, any material utensils used for production or manufacture of such drugs or substances or any conveyance used in import, export, transport or transshipment thereof or for commission of an offense under this Act, shall not be given on custody to the accused or any of his associate or relative or any private individual till the conclusion of the case.

1. Let us also reproduce section 516A of Cr.P.C. that has been referred in section 33(4) of CNSA:

Order for custody and disposal of property pending trial in certain case. When any property regarding which any offence appears to have been committed or which appears to have been used for the commission of any offence, is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, If the property is subject to speedy or natural decay, may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

Provided that, if the property consists of explosives substance, the Court shall not order it to be sold or handed lover to any person other than a Government Department or office dealing with, or to an authorized dealer in such substances:

Provided further that if the property is a dangerous drug, intoxicant, intoxicating, liquor or any; other narcotic substance seized or taken into custody under the Dangerous Drugs Act, 1930 (II of 1930), the Customs Act, 1969 (IV of 1969), the Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979), or any other law for the time being in force, the Court may, either on an application or of its own motion and under its supervision and control, obtain and prepare such number of samples of the property as it may deem fit for safe custody and production before it or any other Court and cause destruction of the remaining portion of the property under a certificate issued by it in that behalf:

Provided also that such samples shall be deemed to be whole of the property in an inquiry or proceeding in relation to such offence before any authority or Court.

1. There are two points to note with regard to the provisions cited above. One, that section 516A refers to disposal of property pending the conclusion of trial which is subject to speedy or natural decay and empowers the trial court to order the disposal or sale of such property "after recording such evidence as it thinks necessary". Sections 32 and 33 of CNSA cited above relate to the confiscation or disposal of articles seized in connection with an offence under CNSA after the conclusion of the trial. Section 516A of Cr.P.C, to the extent that it permits the Court to dispose of or order the sale of property that is subject to speedy or natural decay, is similar in import through the second proviso to section 33(2) of CNSA, which also allows Director General, ANF, or an officer authorized by the Federal Government to sell a vehicle if such sale is for the benefit of its owner. The proviso to section 74 ousts the application of section 523 of Cr.P.C. as well as other provisions of Cr.P.C. for purposes of grant of custody "to the accused or any of his associate or relative or any private individual till the conclusion of the case except as provided in the second proviso to subsection (2) of section 33".

2. The words, "except as provided in the second proviso to sub-section (2) of section 33" were added by the CNSA Amendment Ordinance, and link the release of a vehicle on temporary custody prior to the conclusion of the case upon satisfaction of conditions prescribed in the second proviso to section 33(2) of CNSA, which was also added through the CNSA Amendment Ordinance. The second proviso to section 33(2) of CNSA explicitly deals with sale of a vehicle for the benefit of its owner. It is therefore hard to contemplate that while drafting the proviso to section 74 or at least while amending it through the CNSA Amendment Ordinance, the legislature did not have in its contemplation the owner of a vehicle or the sale of a vehicle for the benefit of the owner. One interpretation of section 74 read together with section 33(2) as amended by the CNSA Amendment Ordinance, 2000, could have been that an innocent owner of the vehicle who did not know that the vehicle was used or was to be used for an offence fell within the scope of "private individual" as used in the proviso of section 74. And it was thus that an amendment had been introduced in the proviso to section 74 to incorporate, for purposes of release of a vehicle prior to the conclusion of a case, the second proviso to section 33(2) of CNSA, which prescribed the condition for sale of a vehicle for the benefit of the owner, if it was vulnerable to speedy or natural decay (if supported by the opinion of DG, ANF or an officer authorized by the Federal Government for such purpose and the trial court approved of such opinion).

3. It appears from the law as laid down in Abdul Salam and Allah Ditta that the Supreme Court did not consider the argument that the proviso to section 74 as amended through CNSA Amendment Ordinance, 2000, was to be read with the second proviso to section 33(2) of CNSA added through CNSA Amendment Ordinance, 2000, to define "private individual" as used in proviso to section 74, and to read the conditions prescribed in the second proviso to section 33(2) of CNSA as prerequisites for sale of a vehicle for the benefit of an innocent owner pending trial. Merely because there is no discussion on the aforementioned provisions by the Supreme Court, while holding that an innocent owner of a vehicle does not fall within the scope of "private individual" for purposes of the proviso to section 74 of CNSA, this Court cannot presume that the Supreme Court was not aware of the amendments introduced to the proviso to section 74 as well as the second proviso of section 33(2) of CNSA, introduced by the CNSA Amendment Ordinance, 2000. The law laid down by Abdul Salam and Allah Ditta is binding on this Court, wherein it has been held that there is no absolute bar on release of a vehicle pending trial to the extent that lack of the involvement of the owner in the offence is made out on a prima facie basis.

4. Notwithstanding the above, two questions remain. One, given that the finding of the Supreme Court that a vehicle can be released into the temporary custody of an innocent owner is partly based on section 516A of Cr.P.C., can such vehicle that forms part of case property be released prior to it being produced in evidence? And two, even if the answer to question No.1 is in the affirmative, can a vehicle which has peculiar features, such as a secret cavity etc., which features are not those of the originally manufactured vehicle but have been added subsequently and preserving which is essential for purposes of proving the prosecution version in the facts and circumstances of the case, can also be released during the pendency of the trial prior to having been exhibited in evidence?

2024 P Cr. L J 1241

[Islamabad]

Before Mohsin Akhtar Kayani and Sardar Ejaz Ishaq Khan, JJ

Bangal Khan and another---Appellants

Versus

The State---Respondent

Criminal Appeals Nos. 198 and 204 of 2023, decided on 4th April, 2024.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Benefit of doubt---Prosecution case was that 1780 grams heroin powder was recovered from the vehicle driven by accused---No document was available on record which confirmed that departure and entry in the police station had been entered in the record---Admitted by complainant in cross examination that when he along with other Police Officials reached at bus stand the car was parked and the accused was sitting on the driving seat---During the course of cross-examination, complainant confirmed that the substance was recovered from beneath the cavity between the dashboard and screen tap and in that regard he was confronted with a picture, thereafter, he acknowledged three cavities existed and also confirmed that it was correct that beneath the screen tap no cavity existed---Recovery witness also narrated the same story as of the complainant and also additionally explained the personal search of the accused in which two Mobile Phones, driving license, wallet with different cards and Rs.3100/- were recovered which were taken into possession by Investigating Officer---Both the star witnesses had not uttered a single word qua the disclosure and subsequently the recovery of narcotics on the pointation of the accused which was the key factor---As per stance of the prosecution the narcotics had been recovered from the secret cavity of the dashboard beneath the screen tap and such recovery had been effected by the Investigating Officer himself without any disclosure made by the accused, therefore, it was incumbent upon the State to demonstrate that accused had some connection with the vehicle except that he was sitting on the driving seat in a parked car at the place of occurrence i.e. the bus stand---No person from the public had been associated with the recovery proceedings---Such lapse on the part of the Investigating Officer would go against the prosecution---Appeal against conviction was allowed, in circumstances.

Mst. Shahzadi vs. State 2022 PCr.LJ Note 102; Hidayatullah alias Gudoo v. State, 2022 YLR Note 46 and Shahid Dada v. State 2017 MLD 2822 rel.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Conscious knowledge of accused about the availability of narcotics in the vehicle---Not proved---Prosecution case was that 1780 grams heroin powder was recovered from the vehicle driven by accused---Record showed that the Investigating Officer had not put any serious effort to demonstrate from the record in respect of the ownership of the vehicle nor it was the case of the prosecution that the accused owned the subject vehicle---In such scenario, it was the duty of the prosecution to demonstrate from the record firstly, that the accused knew about the existence of the cavity in the body of the vehicle, and if yes the same should have been demonstrated from some evidence---Secondly, the accused had the requisite knowledge about the availability of narcotic substance in such cavity of the vehicle, but entire evidence of Investigating Officer suggested that no evidence worth its nature had been brought on the record to establish that accused had conscious knowledge about the availability of the narcotic substance in the secret cavity of the relevant vehicle in which he was sitting---Investigating Officer had not put any serious effort to verify the registration number of the vehicle from the Excise and Taxation Office nor any report was called in that regard, and even the recovery memo of personal search was silent qua availability of registration book on record---All such aspects lacked the ingredients of exclusive knowledge of the accused as no connection had been made by the Investigating Officer in the investigation to the extent of accused with the vehicle in question---Appeal against conviction was allowed, in circumstances.

Hussain Shah and another v. State PLD 2020 SC 132 and Amanat Ali v. State 2008 SCMR 991 rel.

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

----Ss. 9(c) & 21---Possession of narcotics---Appreciation of evidence---Power of entry, search, seizure and arrest without warrant---Scope---Prosecution case was that 1780 grams heroin powder was recovered from the vehicle driven by accused---Complainant who initially made a search and arrested the accused was Assistant Sub-Inspector (ASI) who was not authorized by any stretch of imagination to effectively made a search under the law---Such search and recovery had lost its significance and legal worth, which was in violation of the law at the very initial process of the case---Moreover, the search and arrest of the accused was conducted by CIA officials at the initial stage---Such aspect reflected that the very foundation of the case was defective as CIA had no legal justification to proceed in such type of cases unless they had specifically been notified in that regard by the Superintendent of Police (SP), CIA---Initially the complaint was lodged by ASI of CIA who had not been assigned with any special duty in terms of the Police Rules, 1934---In the present case, the CIA staff directly proceeded with the recovery, arrested and searched the accused, though CIA officers were not covered under S.156 Cr.P.C to investigate any cognizable case which could only be conducted by Officer-in-Charge of the police station, therefore, very basis of present case was against the law---Appeal against conviction was allowed, in circumstances.

Muhammad Younas v. State 2008 YLR 1562; Muhammad Yaseen v. The State 2004 YLR 1303; Siraj ud Din v. The State 2018 MLD 1917; The State v. Bashir PLD 1997 SC 408; Dodo v. The State 2009 YLR 249; Rafaqat Ali v. The State 1999 PCr.LJ 924 and Siraj ud Din v. State 2018 MLD 1917 rel.

Ch. Abdul Rehman Hur Bajwa, Sanaulah Bugti, Afrasiab Ahmed Rana and Gohram Gichki Baloch for Appellants.

Makhdoom Syed Fakhar Imam Ali Shah, State Counsel.

Tahir Kazim, Law Officer, on behalf of I.G Police, ICT.

Inam, S.I.

Date of hearing: 28th March, 2024.

jUDGMENT

MOHSIN AKHTAR KAYANI, J.---By way of this common judgment, we intend to decide captioned criminal appeals arisen out of one and same judgment dated 29.05.2023, passed by learned Special Judge CNSA (West), Islamabad, whereby appellant Bangal Khan was convicted in case FIR No.647, dated 26.07.2022, offence under section 9 (c) CNSA 1997, P.S Karachi Company, Islamabad and sentenced six years R.I with fine of Rs.30,000/-, in default of fine payment he shall further undergo six months S.I. Benefit of Section 382-B Cr.P.C. was also extended to the appellant/accused. Learned trial court has also ordered for confiscation of vehicle No.AZP-853 [Sindh] Toyota Corolla, which was involved in this case, in favour of state, which has been challenged by the appellant Muhammad Murad through Criminal Appeal No.204 of 2023.

1. Brief facts referred in the instant case are that complainant Sudheer Abbasi, ASI/PW-2 was posted at PS CIA on 26.07.2022. He received spy information that vehicle AZP-853 [Sindh] silver colour was standing in Karachi Company Bus stand wherein huge quantity of narcotics is present. Upon receiving such information PW-2/complainant along with other police officials at about 07:00 p.m. reached at the pointed place and on pointation of spy vehicle AZP-853 was checked in which present appellant was sitting on driving seat, who disclosed his name as Bangal Khan and got recovered two packets wrapped in yellow solution tape from cabin containing heroin powder 870 grams each, total 1740 grams, which was taken into possession through recovery memo Ex.PB. Samples were prepared and complaint Ex.PC was drafted, which was transmitted to PS through Umar Arbab, constable and after registration of FIR, all the record and documents were handed over to Inam Ullah, S.I/I.O of the case who prepared site plan and recorded statements of witnesses under section 161 Cr.P.C. Samples were transmitted to the NFSA, who issued report Ex.PF and confirmed the status of narcotics as of heroin. Challan under section 173 Cr.P.C. was submitted in the trial court, where-after trial court framed the charge on 07.02.2023 and recorded testimony of six PWs as well as statement of accused under section 342 Cr.P.C., convicted the appellant accordingly.

2. Learned counsel for the appellants contends that CIA officer has no authority to investigate the crime, even the very basis of the FIR is against the police rules where Section 21 of the CNSA put restriction on police officer not below the rank of Sub-Inspector shall proceed in the case of narcotics and there is no authorization available on record to subscribe the investigation; that scribe of FIR was not produced, even recovered contraband was deposited with Moharrar Malkhana of CIA, who has no legal authority to kept the narcotics; that appellant Muhammad Murad being owner of vehicle in question was not served with notice under section 33 of CNSA, 1997 prior to passing the confiscation order by the trial court, therefore, same be set-aside and vehicle be released in favour of appellant Muhammad Murad.

3. Conversely, learned State counsel has opposed these appeals and contends that due authorization was obtained from SP (Investigation) for the purpose of investigation by CIA, which covers the legal aspect of this case; that learned trial court has rightly convicted the appellant/ accused as well as passed the order of confiscation of vehicle in question which was used for transportation of huge quantity of narcotics.

4. Arguments heard, record perused.

5. Perusal of record reveals that appellant Bangal Khan has been arrested in the above mentioned case on 26.07.2022 by Sudhair Abbasi, ASI/CIA (PW-2) who received a spy information that vehicle No.AZP-853/Sind was parked in the Karachi Company bus stand with huge quantity of narcotics. A raid was conducted and the appellant was apprehended whereby on inspection of vehicle two packets wrapped in yellow solution tape placed in a cabin present under the screen tap. 'Off white' heroin powder was recovered on unwrapping the packets. Each packet contained 870 grams heroin weight on digital scale and total containing 1740 grams. PW-2 also confirmed the vehicle Ex.P1 from where such heroin was recovered. He had prepared the sample parcel 10 grams each of heroin packets at spot and recovered heroin Ex.P2 was entered into recovery memo Ex.PB duly attested by Aamir Zaman 7229/C (PW-6) and Azhar Mehmood 935/C. PW-2 referred the complaint Ex.PC and sent the same for registration of FIR through Umar Arbab (PW-5). After registration of FIR Inam Ullah SI (PW-4) came on spot and started investigation, site plan was prepared. The star witness of this case (PW-2) and the other recovery witness (PW-6) have been cross-examined at length. However, there is no document on record which confirms that departure and entry in the police station has been entered in the record. It has been admitted by (PW-2) in cross-examination that when he along with other police officials reached at Karachi Company bus stand the car was parked and the appellant was sitting on the driving seat. During the course of cross-examination (PW-2) confirms that recovered substance is recovered beneath the cavity between the dashboard and screen tap and in this regard picture Ex.DA was confronted to him, thereafter, he acknowledges three cavities were existed on record and also confirmed that it is correct that beneath the screen tap no cavity is existed.

6. The second star witness Aamir Zaman 7229/C (Pw-6) also narrated the same story as of (PW-2) and also additionally explained the personal search of the appellant in which Mobile Phone Ex.P2, mobile phone Nokia Ex.P3, CNIC, Ex.P4, driving license Ex.P5, wallet brown color with different cards Ex.P6 & Rs.3100/- Ex.P7 were recovered which were taken into possession by Muhammad Inam Ullah, S.I vide recovery memo Ex.PE but the last astonishing factor in the evidence of (PW-2) and (PW-6) is that both the star witnesses have not uttered a single word qua the disclosure and subsequently the recovery of narcotics on the pointation of the appellant which is the key factor. Ordinarily Article 40 of the Qanun-e-Shahdat Order, 1984 plays a significant role in such type of cases to connect the accused with the subsequent discovery in consequence of information received qua any fact deposed by the accused at the relevant time before the Police Officer, however, if no such discovery has been made consequent to the information it would be presumed that the Investigating Officer is well aware qua the presence of narcotics which is visibly seen or could no excluded from the vision but that is not the case in hand. As per stance of the prosecution the narcotics has been recovered from the secret cavity of the dashboard beneath the screen tap and such recovery has been effected by the I.O himself without any disclosure made by the appellant, therefore, it is incumbent upon the State to demonstrate that appellant has some connection with the vehicle except that he was sitting on the driving seat in a parked car at the place of occurrence i.e. the bus stand G-9 Markaz, Islamabad but no person from the public has been associated with the recovery proceedings. Such lapse on the part of the I.O goes against the prosecution as held in 2022 PCr.LJ Notes102 Sindh titled 'Mst. Shahzadi v. State', 2022 YLR Notes 46 Sindh titled 'Hidayatullah alias Gudoo v. State', 2017 MLD 288 Baluchistan titled 'Shahid Dada v. State'.

7. In the light of above principles we attended the proposition in the light of Section 25 of the CNSA, 1997 whereby Code of Criminal Procedure 1898 except those of section 103 shall, mutatis mutandis, apply to all searches and arrests in so far as they are not inconsistent with the provisions of sections 20, 21, 22 and 23, therefore, the application of Section 103 Cr.P.C is excluded from its application under this law, even though the private witnesses have not been associated despite the fact that alleged recovery has been effected at the bus stand.

8. The next important factor is as to whether the recovered heroin from the vehicle Ex.P1 if not recovered on discovery and pointation of the appellant then what would be the affect and how the prosecution has to discharge the burden to demonstrate that the appellant has a conscious knowledge qua the presence of the narcotics in the secrete cavity and the appellant has some relationship with the vehicle. In this regard the I.O Muhammad Inam Ullah, S.I (PW-4) has not put any serious effort to demonstrate from the record in respect of the ownership of the vehicle nor it is the case of the prosecution that the appellant owns the subject vehicle. In such scenario, it is the duty of the prosecution to demonstrate from the record firstly, that the accused knew about the existence of the cavity in the body of the vehicle if yes the same should have been demonstrated from some evidence secondly, the accused appellant has a requisite knowledge about the availability of narcotics substance in such cavity of the vehicle but entire evidence of I.O suggest that no evidence worth its name had been brought on the record to establish that accused was conscious about the availability of the narcotics substance in the secret cavity of the relevant vehicle in which he was sitting such aspect has been appreciated in PLD 2020 SC 132 'Hussain Shah and another v. State' and accused in this regard has been acquitted. Even the I.O has not put any serious effort to verify the registration number of the vehicle from the Excise and Taxation Office nor any report was called in this regard even the recovery memo of personal search Ex.PE is silent qua availability of registration book on record. All these aspects lack the ingredients of exclusive knowledge of the appellant as no connection has been made by the I.O in the investigation to the extent of appellant with the vehicle in question. Such aspect has been appreciated in 2008 SCMR 991 titled 'Amanat Ali v. State'.

9. Now adverting towards the violation of Section 21 of CNSA, 1997, made by (PW-2) Sudhair Abbasi, ASI of CIA whereby, an officer, not below the rank of Sub-Inspector of police or equivalent authorized in this behalf by the Federal Government or the Provincial Government, who from his personal knowledge or from information given to him by any person is of opinion that any narcotic drug, psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed is kept or concealed in any building, place, premises or conveyance, and a warrant for arrest or search cannot be obtained against such person without affording him an opportunity for the concealment of evidence or facility for his escape, such officer may a) enter into any such building, place, premises or conveyance and even can cease any narcotics drugs and arrest any person. But (PW-2) who initially made a search and arrested the appellant is ASI who is not authorized by any stretch of imagination to effectively made a search under the law. Such search and recovery has lost its significance and legal worth, which is in violation of the law at the very initial process of the case in the light of principles settled in 2008 YLR 1562 Lahore titled 'Muhammad Younas v. State', 2004 YLR 1303 Lahore titled 'Muhammad Yaseen v. The State' 2018 MLD 1917 titled 'Siraj ud Din v. The State'.

10. Another important aspect of conducting search and arrest of the appellant is made by CIA official (PW-2) at the initial stage. Such aspect reflects that the very foundation of this case is defective as CIA has no legal jurisdiction to proceed in such type of cases unless they have specifically been notified in this regard by the SP (CIA). The facts narrated above confirm that initially the complaint was lodged by Sudhair Abbasi A.S.I / PW.2 of CIA who has not been assigned with any special duty in terms of the Police Rules, 1934. The role of Central Intelligence Agencies has been explained in Rule 21.35 of the Police Rules 1934, which only caters to assist the Superintendent of Police and his Supervising staff in coordinating the preventive and detective work of the District Police and in order to act as clearing house for criminal intelligence for the use of investigating officers in the district and in other districts. This body shall be formed from the establishment sanctioned for the district for the prevention and detection of crime and their functions are as under:

"(a) The preparation of crime maps relating to offences against property classified under the methods employed by the criminals.

(b) The receipt, consideration and filing according to classification, of information received from investigating officers.

(c) The comparing of the data collected under (a) and (b) and the communication of any deduction there from to the investigating officers concerned.

(d) The preparation of a crime index of cases from the materials collected under (a) and (b) classified according to; (1) methods employed by the criminals and (2) various clues provided by the criminals such as nicknames used, special clothing worn; peculiarities of the culprits noticed by witnesses; special weapons used; special signals used, etc.

(e) The preparation of a crime index of criminals. This shall normally be in two parts:-

(i) an index of names of known criminals classified according to their methods of operating:

(ii) an index of known criminals classified according to their peculiarities of appearances, gait, speech, nicknames, etc.

(f) The provision of information by means of which the Superintendent of Police may be assisted in controlling the crime of his district, forestalling outbreaks of crime and directing preventive operations.

(g) The publication of weekly Criminal Intelligence Gazette.

(h) To co-ordinate and guide the efforts of police station staff throughout the district in securing the arrest of absconders and proclaimed offenders and in locating absentee bad characters, and other untraced persons and to maintain close co-operations with the Central Intelligence Agencies of other districts in this work.

(i) When information received from records or otherwise indicates that a series of cases, whether in the jurisdiction of one or of several police stations, is the work of the same criminal or of a gang, to co-ordinate or, under the orders of the Superintendent of Police, direct the investigation of such cases."

1. If we consider the above functions read in conjunction with CNSA Act, 1997, it appears that the CIA officials could not perform any other duty except the functions enumerated above and duly assigned by the Superintendent of Police in this regard, however, they are not debarred from being part to resist any crime if happened in their presence, but certain functions in this regard are to be observed as explained in Rule 25.3 of the Police Rules, 1934 that:

"The occurrence of cognizable offence in other police station jurisdiction is reported, the fact shall be recorded in the daily diary and information shall be sent to the officer-in charge of the police station in the jurisdiction of which the offence was committed. Meanwhile, all possible lawful measures shall be taken to secure the arrest of the offender and the detection of the offence."

Similarly, in terms of Rule 25.4, which caters another eventuality:

"If a police officer after registering a case and commencing investigation discovers that the offence was committed in the jurisdiction of another police station he shall at once send information to the officer-in charge of such police station.

(2) upon receipt of information such officer shall proceed without delay to the place where the investigation is being held and undertake the investigation. "

But, surprisingly, in the present case the CIA staff directly proceeded with the recovery, arrested, searched the accused, though CIA officers were not covered in terms of section 156 Cr.P.C. to investigate any cognizable case which could only be conducted by officer-in charge of the police station, therefore, very basis of this case is against law as explained in the basic judgment of PLD 1997 [SC] 408 (The State v. Bashir), though the exception has been referred in the Bashir case supra, that any violation committed by CIA personnel may not vitiate trial if no serious prejudice has been caused to the accused person resulting in miscarriage of justice, and if we go through this concept the investigation report in the present case is silent qua any permission of investigation. When confronted the Investigation Officer of this case has placed a copy of letter dated 26.07.2022, issued from the office of Superintendent of Police Investigation, but it refers the FIR No.647 of Police Station Industrial Area which is entirely different and even otherwise, the SSP Investigation allowed the same on 30.07.2022, but surprisingly, the I.O has not referred a single daily diary nor incorporated the authorization in daily diary which reflects that the letter submitted by the I.O is an afterthought and even there is no ex post facto approval from the SSP Investigation. Such concept negates the entire working of CIA staff.

1. Another important angle which place a key role is that initially complainant PW.2 / Sudhair Abbasi ASI of CIA performed all the functions including search, recovery and arrest of the accused / appellant and investigated the matter at the initial stage which was later on handed over to PW.4 / Muhammad Inam Ullah S.I, even he was not authorized to investigate the matter, therefore, basic test laid down in Bashir case supra has been violated. We have also attended judgment reported as 2009 YLR [Karachi] 249 (Dodo v. The State), and 1999 PCr.LJ [Lahore] 924 (Rafaqat Ali v. The State). Similarly, PW.2 / Sudhair Abbasi A.S.I, was also not authorized to conduct investigation at the initial stage which is in violation of section 21 of CNSA, 1997 as held in 2018 MLD [Peshawar] 1917 (Siraj ud Din v. State). We have also attended the evidence of the Investigation Officer Muhammad Inam Ullah S.I / PW.4 who is unable to explain as to why complainant of this case Sudhair Abbasi A.S.I of CIA / PW.2 handed over the complaint along with recovery memos and case property / recovered narcotics substance to him and on his pointation he inspected the place of occurrence as well as prepared un-scaled site plan, conducted personal search of accused, interrogated the accused and after receiving formal copy of FIR and original complaint completed all the proceedings, even proceeded to CIA Staff and detained the accused in lockup and handed over case property to Moharrar mallkhana. All these actions are without any authorization as to why he could exercise his suo-moto powers considering him investigation officer. No evidence to that effect has been brought on record in his affirmative evidence. In cases where CIA staff officer has conducted any investigation and submitted report under section 173 Cr.P.C. in the court it is mandatory upon such officer to place the copy of the authorization along with challan under section 173 Cr.P.C., failing which the effect should have been considered in terms of Article 129 (g) of Qanun-e-Shahadat Order, 1984, that the primary authorization has been withheld and adverse presumption comes on record, therefore, any superstructure raised in this regard is also illegal.

2. Another glaring violation is the handing over of all the recovered contraband and personal search articles as well as vehicle in question to the moharrar mallkhana of CIA / PW.3 / Tariq Ali, Head Constable who in his affirmative evidence has not stated on oath that he entered all the recovered narcotics as well as the vehicle to be enlisted in register No.19, nor any copy of register No.19 has been appended with the final challan. There is no justification on record as if the complaint / Exh.PC was transmitted by Sudhair Abbasi A.S.I / PW.2 for registration of case in Police Station Karachi Company, but the recovered narcotics, vehicle, as well as personal search of the accused appellant was taken to CIA and why those articles were not submitted to the Moharrar mallkhana of police station Karachi Company, Islamabad? The absence of any logical explanation of these important questions created a technical knockout of the prosecution case and all these aspects were not looked into by the trial court in proper manner.

2024 P Cr. L J 1409

[Islamabad]

Before Arbab Muhammad Tahir, J

Khush Bakht Mirza---Petitioner

Versus

The State through S.H.O Islamabad and another---Respondents

Writ Petition No. 4200/Q of 2022, decided on 28th February, 2024.

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

----S. 154--- Police Rules, 1934, R. 25--- Constitution of Pakistan, Art. 199---Quashing of FIR---Registration of second FIR.---Effect---Petitioner / accused was aggrieved of registration of second FIR. against her on the same subject and cause of action---Validity---Even if second FIR was registered and Investigating Officer was informed by accused regarding earlier registered FIR, then it was bounden duty of subsequent Investigating Officer to requisition attested copy of earlier FIR, examine its contents, and if allegations were in respect of one occurrence or the offence related to one and the same transaction, then Investigating Officer of subsequent FIR was to process a case for its cancellation under Police Rules, 1934---Registration of second FIR was in flagrant violation of principles and law laid down by Supreme Court in Sughran Bibi's case reported as PLD 2018 SC 595---High Court quashed second FIR registered by police against petitioner---Constitutional petition was allowed accordingly.

Sughran Bibi v. The State PLD 2018 SC 595 fol.

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

---- S. 154--- Police Rules, 1934, R. 25---Constitution of Pakistan, Art. 199---Quashing of FIR---Subsequent FIR, registration of--- Absence of complainant---Effect---Petitioner assailed registration of two FIR's against her at place "I" when earlier FIR on same subject was already registered at place "L"--- Validity--- Incharge Police Officer at place "I" had no authority or jurisdiction to register criminal case to investigate contents of FIR's registered at place "L"--- Act of registration of FIR's at place "I" was unlawful---First Information Report registered at place "I" were cancelled during proceedings before High Court and matter was referred to Federal Investigating Agency, where the proceedings were closed on technical ground of "non-pursuance", failure on part of complainant to verify contents of the complaint--- Registration of FIR's at place "I" were unlawful, therefore, it would be deemed that the matter had never been referred to Federal Investigating Agency--- High Court declared that FIR's in question were registered unlawfully and in excess of jurisdiction by Incharge Police Station, at place "I" and were quashed--- At the time of filing of application and registration of FIR., complainant was abroad--- High Court directed Inspector General of Police to hold detailed inquiry against Incharge Police Station and other officials in the matter of registration of FIRs by incorporating false statement regarding presence of complainant at the police station---Constitutional petition was allowed accordingly.

F.I.A. through its Director General v. Syed Hamid Ali Shah and others PLD 2023 SC 265; Muhammad Akram v. DCO Rahim Yar Khan and others 2017 SCMR 56; Shamsul Haq and others v. Mst. Ghoti and 8others 1991 SCMR 1135; Capital Development Authority, Islamabad through its Chairman v. Khuda Bakhsh and 5 others 1994 SCMR 771; Sughran Bibi v. The State PLD 2018 SC 595; Samiullah Khan Marwat v. Government of Pakistan through Secretary, Establishment, Islamabad and another 2003 SCMR 1140 and Federation of Pakistan and another v. E-Movers (Pvt) Ltd and another 2022 SCMR 1021 rel.

Muhammad Bilal and Ch. Wajahat Elahi for Petitioners (in connected Petitions)

Petitioner in Person (in W.P No. 4200 of 2022) through video link.

Khalid Mehmood Dhoon, Asstt. Attorney General and Malik Awais Haider State Counsel for the state.

Muhammad Asif, SI.

Kashif Awan, SI/FIA.

Date of hearing: 14th February, 2024.

Order

Arbab Muhammad Tahir, J.---Through this consolidated judgment, I shall decide the instant petition along with Crl. Misc. No.987/2023 titled "Syed Ali Mardan Shah v. The State and others" and Crl. Misc. No.1546/2022 titled "Syed Ali Mardan Shah v. The State and others."

1. The petitioner (Khush Bakht Mirza) through W.P. No.4200/2022 filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter the "Constitution") has sought quashment of FIR No.465/2022, dated 22.10.2022, registered under sections 420, 467, 468, 471, 34, 409, 109 of Pakistan Penal Code, 1860 (hereinafter "P.P.C.") at Police Station Secretariat, Islamabad, whereas, the petitioner (Syed Ali Mardan Shah) through Crl. Misc. No.987/2023 and Crl. Misc. No.1546/2022 filed under section 561-A of the Code of Criminal Procedure, 1898 (hereinafter "Cr.P.C.") has sought quashment of FIR No.156/2023, dated 17.05.2023 registered under sections 420, 468, 471, 385, 386, 389, 500, 506 P.P.C,, at Police Station Secretariat, Islamabad.

2. The facts relevant for adjudication of the petitions in hand are that W.P. No.4200/2022 and Crl. Misc. No.1546/2022 have been filed seeking quashment of FIR No.465/2022, P.S. Secretariat, Islamabad. It has been alleged in the FIR (sought to be quashed) that the accused persons in connivance with each other had got registered two FIRs.36/2020 and 40/2020 with the Federal Investigation Agency (FIA) on the basis of forged documents against Umar Farooq Zahoor (respondent No.2). Through Crl. Misc. No.987/2023, the petitioner seeks quashment of FIR No.156/2023, P.S. Secretariat, wherein the allegations levelled through FIR No.465/2022 (sought to be quashed through W.P. No.4200/2022) have been repeated. It is pertinent to note that the petitioner in W.P. No.4200/2022, through C.M. No.2815/2023 have also placed on record copy of FIR No.156/2023. Through the impugned FIRs, Umar Farooq Zahoor has implicated the petitioners and every official of FIA who had either investigated the criminal cases i.e. FIRs No.36/2020 and 40/2020 or was part of the hierarchy.

3. It was mainly argued on behalf of the petitioners that; the complainant of FIRs is a proclaimed offender; the allegations levelled in the impugned FIRs is subject matter of FIRs Nos.36/2020 and 40/2020 registered with FIA; the allegations contained in the impugned FIRs can be used as defence by the complainant/Umar Farooq Zahoor but the same cannot constitute offence; if the allegations in FIRs Nos.36/2020 and 40/2020 are proved false, the complainant can initiate proceedings under section 182 P.P.C.; even if the petitions have been filed under an irrelevant provision of law, this Court has jurisdiction to convert the same into a writ petition and grant the relief.

4. On the other hand, learned counsel for respondents have argued that; the petitioners had forged documents for registration of FIRs Nos.36 and 40 of 2020; the FIRs were registered to defame and blackmail respondent No.2; although respondent No.2 will prove his innocence during trial in FIRs Nos.36 and 40 of 2020, still he has right to file complaint and get a criminal case registered for preparation of forged documents; the petition under section 561-A Cr.P.C. is not competent for seeking quashment of FIR.

5. Heard. Record perused.

DEVELOPMENTS DURING PROCEEDINGS

1. Before adverting to merits of the case, it is pertinent to highlight the developments made during proceedings of W.P. No.4200/2022. This petition has been filed seeking quashment of FIR No.465/2022, P.S. Secretariat, Islamabad. During proceedings, the petitioner through C.M. No.4325/2022 sought impleadment of Federal Investigation Agency on the ground that the FIR No.465/2022 was transferred from P.S. Secretariat to FIA. Consequently, the application was allowed on 23.11.2022. On 15.12.2022, the S.H.O. P.S. Aabpara (who was earlier posted as S.H.O. P.S. Secretariat) tendered appearance and informed the Court that he is still investigating the case as the investigations were transferred from one police station to the other under the special instructions of Deputy Inspector General of Police (Operations), Islamabad Capital Territory. He also informed that due to jurisdictional issues, the matter was referred to FIA vide letter, dated 15.11.2022 for further investigations. However, the Deputy Director (Law), FIA informed the Court that the FIA had returned the file back to ICT Police as under Rule 25.7 of the Police Rules, 1934, ICT Police had to cancel the FIR before transferring the same to FIA. Accordingly, on 30.01.2023 this Court was informed by the State Counsel that a report under Rule 25.7 of the Police Rules, 1934 for cancellation of the FIR was prepared. On 26.09.2023, the representative of FIA informed that FIR No.465/2022, P.S. Secretariat stood cancelled under Rule 25.7 of Police Rules, 1934 as the matter was transferred to FIA for investigations. Subsequently, the petitioner filed C.M. No.2815/2023 for placing additional documents on record. The petitioner placed on record copy of FIR No.156/2022 registered at Police Station Secretariat. Perusal of the said FIR shows that it is repetition of the earlier FIR (i.e. FIR No.465/2022, which was transferred to FIA and cancelled under Rule 25.7 of Police Rules, 1934). After cancellation of FIR No.465/2022, the FIA started inquiry by treating the reference from ICT Police as complaint. The Inquiry Officer of FIA started verification process of the complaint under the Federal Investigation Agency (Inquiries and Investigations) Rules, 2002. The Inquiry Officer made attempts to contact the complainant of impugned FIRs-Umar Farooq Zahoor to verify the contents of complaint, however, he did not respond. Therefore, the inquiry officer closed the said complaint with the following observations.-

"During the course of verification and upon receipt of the PS Secretariat Islamabad FIR No.465/2022, Umer Farooq Zahoor (the Complainant) was contacted on his given email address, sheikhumerfarooq@gmail.com on dated 22.02.2023 and 28.02.2023 to ascertain the contents and ownership of the complaint (the PS Secretariat Islamabad's FIR) since it was pointed out in the aforementioned Criminal Petition No.1546 dated 03.12.2022 (instituted) that the Complainant was abroad when the aforementioned police FIR was got registered by him. Despite repeated call-ups, the Complainant did not respond and approach this Agency to ascertain and certify the contents of the complaint and its ownership, in circumspection, the available record of this Agency was scrutinized, and relevant officials of the FIA Lahore were telephonically interviewed to ascertain the veracity of the allegations levelled in the complaint. Consequently, it transpired that the complainant [Umar Farooq Zahoor] is wanted in multiple FIRs of the FIA Lahore viz FIR Nos 343/2020 [PS FIA AHTC Lahore] and 36/2020 and 40/2020 [PS FIA CCC Lahore] etc. The Non-bailable arrest warrants and Proclamation Orders were duly issued against him by the competent courts, and the same are part of the FIA and the Court records. Moreover, he had been subject to INTERPOL Red Notice twice, and Exit Control List (ECL). The IBMS transpires that the complainant was abroad at the time of filing his complaint and registration of FIR No.465/2022 of PS Secretariat Islamabad Police against the ex-DG FIA, the officials of FIA Lahore, and others. Moreover, the order dated 04.06.2022 of Judicial Magistrate Lahore negating issuance of Non-bailable Arrest Warrnats against Umer Farooq Zahoor in the FIA CCC Lahore's Fir 36/2020 and 40/2020, which is agitated by Umer Farooq Zahoor in PS Secretariat Islamabad's FIR 465/2022, has been withdrawn/rectified by the same learned Judicial Magistrate Lahore vide his orders dated 05.11.2022. In view of the limited scope of the instant verification, the copies of aforesaid non-bailable arrest warrants, proclamation orders, court orders, and miscellaneous documents were electronically obtained from relevant officials of the FIA Lahore which controvert the contents of the instant complaint. In view of the aforementioned, it is recommended that the instant complaint be closed on the grounds, inter alia, that the complainant could not associate himself with the complaint despite repeated call-ups and the contents of the complaint are controverted by the FIA and the court record, subject to the approval of the competent authority, please." (These recommendations were subsequently approved by the competent authority on 11.04.2023 and the case was closed).

BACKGROUND OF FIRs.36 and 40 OF 2020, P.S. CCC, FIA, LAHORE.

1. First Information Report Nos.36 and 40 of 2020 were registered against Umer Farooq Zahoor under sections 408, 409, 419, 420, 467, 471, 108-A, 3 P.P.C. read with sections 3 and 4 of the Anti-Money Laundering Act, 2010 at the Police Station, FIA-CCC, Lahore. In these criminal cases, Umar Farooq Zahoor, who is complainant in FIRs No.465/2022 and 156/2023 registered at Police Station Secretariat, has been declared as "Proclaimed Offender" under section 87 Cr.P.C. vide order, dated 28.05.2021, by learned Judicial Magistrate Section-30, Lahore. As per the above reproduced closure report of FIA, Red Notices through INTERPOL were twice issued against Umar Farooq Zahoor. The referred two criminal cases i.e. FIRs Nos.36 and 40 of 2020 were registered by "State through Federal Investigation Agency (FIA) based on 'source report' under section 3 FIA Inquiry and Investigation Rules, 2022". These criminal cases were investigated by "Syed Ali Mardan" Inspector FIA, Anti-Corruption Circle (petitioner in Crl. Misc. No.987/2023 and Crl. Misc. No.1546/2022).

CONVERSION OF PETITIONS UNDER SECTION 561-A CR.P.C. TO PETITIONS UNDER ARTICLE 199 OF THE CONSTITUTION.

1. Vide order, dated 01.02.2024, this Court had fixed the petitions for rehearing as the connected two petitions i.e. Crl. Misc. No.987/2023 and Crl. Misc. No.1546/2022 have been filed by Syed Ali Mardan under section 561-A Cr.P.C., therefore, the counsel for the petitioner was asked to satisfy this Court regarding maintainability of petitions under section 561-A Cr.P.C. in matters relating to quashment of FIR in light of the judgment rendered by the Supreme Court in the case titled "F.I.A. through its Director General v. Syed Hamid Ali Shah and others" [PLD 2023 SC 265]. Learned counsel for the petitioner has argued that this Court is vested with power to convert the Criminal Miscellaneous Petitions into constitutional petitions. He, therefore, made request that the petitions under section 561-A Cr.P.C. be converted and treated as constitutional petitions filed under Article 199 of the Constitution.

2. The august Supreme Court in the case of 'Muhammad Akram v. DCO Rahim Yar Khan and others' [2017 SCMR 56] has held that "Courts are sanctuaries of justice, and in exercise of authority to do ex debito justitiae, that is to say remedy a wrong and to suppress a mischief to which a litigant is entitled. No fetters or bar could be placed on the High Court and or this court to convert and treat one type of proceeding into another and proceed to decide the matter either itself provided it has jurisdiction over the lis before it in exercise of another jurisdiction vested in the very court or may remit the lis to the competent authority/forum or court for decision on merits. Courts have been treating and or converting appeal into revisions and vice versa and Constitution Petitions into appeal or revision and vice versa. Even time consumed pursuing remedy before a wrong forum in appropriate cases could always be condoned (see Shamsul Haq and others v. Mst. Ghoti and 8 others (1991 SCMR 1135)." Reliance in this regard is also placed on the cases titled "Muhammad Akram v. DCO, Rahim Yar Khan and others" [2017 SCMR 56] and "Capital Development Authority, Islamabad through its Chairman v. Khuda Bakhsh and 5 others" [1994 SCMR 771].

3. In light of above principles and law laid down by the Supreme Court and in order to secure the ends of justice, the petitions i.e. Crl. Misc. No.987/2023 and Crl. Misc. No.1546/2022 are converted into constitutional petitions filed under Article 199 of the Constitution and shall be decided accordingly.

FINDINGS ON MERIT.-

1. Keeping in view the peculiar facts and circumstances of the case, the questions which need consideration are as follows.-

(i) Whether the allegations in one FIR can be refuted through registration of another FIR by the accused person against the complainant?

(ii) Whether a second FIR can be registered in respect of offences committed in one transaction or the same occurrence?

(iii) What is duty of the Investigating Officer if he is informed by the accused person that other FIRs have already been registered in respect of offences committed in one transaction or the same occurrence wherein investigations are in progress?

1. Perusal of the FIRs (sought to be quashed) shows that the complainant (Umar Farooq Zahoor) has levelled allegations that the accused persons, in connivance with each other, have managed registration of FIRs Nos.36 and 40 of 2020 with FIA on the basis of forged documents. Umar Farooq Zahoor is accused and has been declared as proclaimed offender in FIRs Nos. 36 and 40 of 2020. He can join investigations, which he has so far not joined. Till date he failed to approach the investigating officer or the court to seek his remedies under the law in FIRs Nos. 36 and 40 of 2020. Instead of surrendering before the process of law, he preferred to file application before Incharge Police Station Secretariat, Islamabad against complainant/investigating officer of FIR Nos. 36 and 40 of 2020, whereupon the impugned FIRs (465/2022 and 156/2023 P.S. Secretariat, Islamabad) were registered. It is true that the officer incharge of a Police station is bound under section 154 Cr.P.C. to register a criminal case whenever he receives information of the commission of cognizable offence, however, at the same time other provisions of Cr.P.C. cannot be disregarded. The Incharge Police Station continued with the investigations in the FIRs (sought to be quashed), ignoring the fact that he lacked jurisdiction to interfere with investigations of FIRs Nos. 36 and 40 of 2020. Rather, the Incharge Police Station attempted to maneuver and manipulate the lawful process pending against Umar Farooq Zahoor so as to extend undue favour. He skipped to consider that the matter relating to FIRs Nos. 36 and 40 of 2020 was pending before a competent court at Lahore and before registration of a criminal case with respect to any alleged forged documents stated to be part of record in those criminal cases, order of that court under section 195 Cr.P.C. (prosecution for certain offences relating to documents given in evidence) was mandatory. It was also not considered by the Incharge Police Station Secretariat that the allegations levelled in the FIRs (sought to be quashed) could only have been used as defence by Umar Farooq Zahoor in FIRs Nos. 36 and 40 of 2020. Furthermore, Umar Farooq Zahoor was at liberty to join investigations in FIRs Nos. 36 and 40 of 2020 and inform the investigating officer that certain documents forming basis of those criminal cases are forged. However, it is beyond comprehension as to why Umar Farooq Zahoor did not join investigations in FIRs Nos. 36 and 40 of 2020 and as an alternative attempted to hijack the said investigations through the FIRs (sought to be quashed).

2. It is made clear that the manner in which the Incharge Police Station Secretariat, Islamabad has registered a criminal case would open a flood gate of registering frivolous criminal cases. In every criminal case the accused person, instead of surrendering before the process of law, would get a criminal case registered against the complainant. Resultantly, the complainant of one FIR would be accused in second FIR lodged by the offender. Such a practice would allow the Investigating Officer to exercise power and authority of the judicature and would be passing declarations of the guilt or innocence of citizens. Simultaneously, the police hierarchy dealing with the earlier FIR would be accused of connivance with the complainant and made to face criminal proceedings. The act of registering the impugned FIRs is so bad, that one cannot imagine of the ultimate result it will produce.

3. It is alarming that in both the FIRs, officials of Police Station Secretariat have record that Despite the fact that the complainant (Umar Farooq Zahoor) is a proclaimed offender, neither officials of Police Station Secretariat nor the Investigating Officer attempted to arrest him so as to face legal process in FIRs Nos. 36 and 40 of 2020 registered with FIA. The Incharge Police Station Secretariat and other officials failed to perform their duty under sections 54 and 59 of Cr.P.C. There is yet another aspect of the matter. The personal attendance of the complainant (Umar Farooq Zahoor) as recorded in the impugned FIRs stands falsified by the report of FIA, which says that "the IBMS (Integrated Boarder Management System) transpires that the complainant (Umar Farooq Zahoor) was abroad at the time of filing his complaint and registration of FIR No.465/2022". It is beyond comprehension as to why the Incharge Police Station Secretariat was so interested in registering the criminal cases that he allowed false statements on his behalf to be recorded in the impugned FIRs.

4. Criminal Procedure Code provides a complete mechanism from registration of FIR till the acquittal, conviction and execution of sentence. Once an FIR is registered under section 154 Cr.P.C., the offence is investigated. In case the accused has any defence or evidence that the allegations in the FIR are false, he is at liberty to submit such evidence before the investigating officer or before the court. Even upon conviction, the law provides the convict a right of appeal. The accused person cannot carve out a novel path, deviate from the express provisions of law and make mockery of the law. Similarly, the Incharge Police Station cannot be allowed to exercise power of a court of law and decide fate of a criminal case.

5. In 2018, the Supreme Court of Pakistan in the case titled "Sughran Bibi v. The State" [PLD 2018 SC 595] considered the question of registration of second FIR in respect of one occurrence. In the referred case it was observed that the power to investigate is relatable to the offence and is not confined to the circumstances reported to the police through the first information reduced to writing as an FIR. The first information only sets the ball rolling and the investigations are conducted about "the facts and circumstances of the case", not just those reported by the first informant but including any other information received through any other informant or source. Furthermore, the investigation of a case is not restricted to the version of the incident narrated in the FIR or the allegations levelled therein. Once an FIR is registered then the investigating officer embarking upon investigation may not restrict himself to the story narrated or the allegations levelled in the FIR and he may entertain any fresh information becoming available from any other source regarding how the offence was committed and by whom it was committed and he may arrive at his own conclusions in that regard. The final report to be submitted under section 173, Cr.P.C. is to be based upon his final opinion and such opinion is not to be guided by what the first informant had stated or alleged in the FIR. The Supreme Court after discussing in detail its earlier judgments conclusively settled the law that only one criminal case shall be registered in respect of one occurrences/offences committed in one transaction.

6. In the case in hand, FIR No.465/2022 was already registered on 22.10.2022. This FIR was cancelled on 26.09.2023 under Rule 25.7 of Police Rules, 1934 so as to transfer the investigations to FIA. Yet another FIR No.156/2023 on the same allegations was registered on 17.05.2023 by the same complainant against the same accused persons in respect of the same occurrence. This case is a classic example of misuse of authority by the Incharge Police Station Secretariat, Islamabad.

7. The Supreme Court of Pakistan in the case titled "Samiullah Khan Marwat v. Government of Pakistan through Secretary, Establishment, Islamabad and another" [2003 SCMR 1140] has held that "the exercise of powers by the public functionaries in derogation to the direction of law would amount to disobey the command of law and the Constitution. The concept of administration of justice is not confined only to the judicial system rather every person discharging the functions in relation to the rights of people is bound to act fairly, justly and in accordance with law and if a person holding a public office is found to have proceeded in violation of law or his acts and conduct amounted to misuse his official authority, he should be made answerable to law and should be proceeded against for an appropriate action by his superiors". The rule of law constitutes the bedrock of governance. When the law stipulates that something has to be done in a particular manner that is how it should be done. And any person who exercises authority must do so in accordance with law. Reliance is placed on the case titled "Federation of Pakistan and another v. E-Movers (Pvt) Ltd and another" [2022 SCMR 1021]. Furthermore, Section 24A of the General Clauses Act, 1897 provides that "where by or under any enactment, a power to make any order to give any direction is conferred on any authority, office or person such power shall be exercised reasonably, fairly, justly and for the advancement of the purpose of the enactment".

8. Registration of FIR is an exercise of statutory authority. Rule 25.1(7) of the Police Rules, 1934 provides that it is the duty of an investigating officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person. Under rule 25.2 if the occurrence of a cognizable offence in another police station's jurisdiction is reported, information shall be sent to the officer in charge of the police station in the jurisdiction of which the offence was committed after recording the same in the daily diary. Furthermore, Rule 25.3 provides that if a police officer after registering a case and commencing investigation, discovers that the offence was committed in the jurisdiction of another police station, he shall at once send information to the officer in charge of such police station. Rule 25.7 provides that when a case is transferred from one police station to another, the offence registered in the original police station shall be cancelled by the Superintendent and a first information report shall be submitted from the police station in the jurisdiction of which the case occurred. Therefore, even if a second FIR is registered (registration whereof is prohibited in light of Sughran Bibi's case) and the Investigating Officer is informed by the accused person regarding the earlier registered FIR, then it shall be the bounden duty of the subsequent Investigating Officer to requisition attested copy of the earlier FIR, examine its contents, and if the allegations are in respect of one occurrence or the offence relates to one and the same transaction, then the Investigating Officer of the subsequent FIR shall process a case for its cancellation under the Police Rules, 1934 and in light of Sughran Bibi's case. In the case in hand, the Investigating Officer was aware that FIR No.465/2022, relating to the same transaction has already been registered by the complainant, even then he continued investigations in the subsequent FIR No.156/2023. A person cannot be allowed to register multiple FIRs against a citizen or use proxy complainants for registration of multiple FIRs in respect of one occurrence or offences committed in one transactions. Even if on account of lack of coordination among various police stations or absence of integrated management system, multiple FIRs are registered, then police authorities shall not vex the accused person to join investigations in more than one FIR, as doing so is against the spirit of law and the Constitution. The Incharge Police Station on being informed by the accused person that another FIR relating to the same occurrence or offences committed in one transaction has already been registered, he shall requisition such record, prepare cancellation report and refer the matter to the police station where the FIR was registered prior in time. The Incharge Police Station cannot act blindfolded, mechanically and arbitrarily by refusing to consider the version of accused regarding any earlier registered FIR. Once an FIR relating to an occurrence has already been registered and investigations are initiated, then it is useless to ask the accused person to join investigation in all subsequent FIRs relating to the same occurrence. The law is very clear. An accused person cannot be tried and convicted more than once for one offence, therefore, all subsequent investigations (initiated pursuant to registration of multiple FIRs relating one and the same occurrence) are exercise in futility and would serve injustice as far as the accused person is concerned.

9. The nutshell of the above discussion is that the impugned FIRs cannot stand as the allegations mentioned therein are the subject matter of FIRs Nos. 36 and 40 of 2020, P.S. CCC-FIA, Lahore, wherein the Umar Farooq Zahoor himself has been declared as proclaimed offender. An FIR cannot be lodged by an accused person against the complainant to subvert the process of law already initiated against him. FIR No.156/2023, P.S. Secretariat, Islamabad was registered on the same allegations and relating to the offence committed in one transaction, subject matter of FIR No.465/2022, P.S. Secretariat, Islamabad, in violation of Sughran Bibi's case supra. The Incharge Police Station Secretariat, Islamabad while proceeding with investigation of subsequent FIR (No.156/2023) committed illegality. Instead of vexing the accused person in two FIRs registered in respect of one occurrence, the Incharge Police Station should have initiated process for cancellation of the subsequent FIR(s) immediately after receipt of information in respect thereof. Here in this case, registration of the earlier FIR No.465/2022 too was without lawful authority and jurisdiction.

10. For what has been discussed above, the instant petition and the connected petitions i.e. Crl. Misc. No.987/2023 and Crl. Misc. No.1546/2022 (deemed to have been filed under Article 199 of the Constitution) are allowed in the following terms:-

(i) Incharge Police Officer Secretariat, Islamabad had no authority or jurisdiction to register a criminal case to investigate the contents of FIRs Nos. 36 and 40 of 2020, registered at P.S. CCC-FIA, Lahore. The act of registration of FIR Nos. 465/2022 and 156/2023 at P.S. Secretariat, Islamabad is, therefore, held to be unlawful.

(ii) FIR No.465/2022, dated 22.10.2022, registered under sections 420, 467, 468, 471, 34, 409, 109 P.P.C. at Police Station Secretariat, Islamabad had been cancelled during proceedings of this petition so as to refer the same to FIA. The FIA has closed its proceedings on technical ground i.e. "non-pursuance", failure on part of Umar Farooq Zahoor to verify contents of the complaint. Since the act of registration of the impugned FIRs has been declared unlawful, therefore, it shall be deemed that the matter had never been referred to FIA and FIR No.465/2022 shall be deemed to have been quashed, being registered unlawfully and in excess of jurisdiction by the Incharge Police Station, Secretariat, Islamabad.

2024 P Cr. L J 1462

[Islamabad]

Before Tariq Mehmood Jahangiri, J

Muhammad Haseeb---Petitioner

Versus

The State and another---Respondents

Criminal Misc. Application No. 321-B of 2024, decided on 27th February, 2024.

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

----S. 497---Prevention of Electronic Crimes Act (XL of 2016), Ss. 21 & 24---Offences against modesty of a natural person or minor, cyber stalking---Bail , refusal of---Heinous crime---Allegation against the petitioner / accused was that he unauthorizedly captured / recorded objectionable pictures of complainant/ lady and further transmitted / disseminated / publicly projected her said pictures by using WhatsApp accounts to her near /dear ones---Petitioner had committed a heinous crime by sending sexually explicit pictures of the complainant to her father, husband, friends etc. as well as by posting the same on Facebook---Investigation Agency (Federal Investigation Agency) collected sufficient incriminating evidence against the petitioner---Technical analysis expert report was available on record which showed that the petitioner had committed said crime---Said offence had become very common in the society---When boys and girls are in a relation with each other, girls send their objectionable pictures to boys / friends but when there is breakup, boys share those objectionable pictures with the family members/friends etc. of the girls, post them on Facebook etc. which is very heinous crime, as these pictures become a stigma throughout the life of girls and in many cases their family life is destroyed; and on occasions girls have also committed suicide, hence the accused committing such offences are not entitled for any leniency---Petitioner had failed to make out his case for grant of bail on the ground of further inquiry as envisaged under S. 497(2), Cr.P.C---Bail was declined to the petitioner / accused , in circumstances.

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

----S. 497---Prevention of Electronic Crimes Act (XL of 2016),Ss. 21 & 24---Offences against modesty of a natural person or minor, cyber stalking---Bail, refusal of---Offence not falling under prohibitory clause of S. 497 Cr.P.C.---Entitlement of bail---Scope---Allegation against the petitioner / accused was that he unauthorizedly captured / recorded objectionable pictures of complainant/ lady and further transmitted / disseminated / publicly projected her said pictures by using WhatsApp accounts to her near /dear ones---Contention of the petitioner was that the offences did not fall under the prohibitory clause of S.497, Cr.P.C.---Validity---Argument of the petitioner regarding grant of bail in cases not falling under the prohibitory clause was mis-conceived---In cases like present one under the Prevention of Electronic Crimes Act, 2016, where the offences does not fall under prohibitory clause of S .497, Cr.P.C, bail after arrest can be rejected---Petitioner had failed to make out his case for grant of bail on the ground of further inquiry as envisaged under S.497(2) Cr.P.C---Bail was declined to the petitioner / accused , in circumstances.

Irfan Sarwar v. The State 2022 PCr.LJ 71; Afzaal Ahmed v. The State 2003 SCMR 573; Muhammad Siddique v. Imtiaz Begum and others 2002 SCMR 442; Haji Muhammad Nazir and others v. The State 2008 SCMR 807; 2020 PCr.LJ 1652; 2018 PCr.LJ 408; 2018 PCr.LJ 1667 and 2018 YLR 329 ref.

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

----S. 497---Prevention of Electronic Crimes Act (XL of 2016),Ss. 21 & 24---Offences against modesty of a natural person or minor, cyber stalking---Bail , refusal of---Trial of the case in progress---Allegation against the petitioner / accused was that he unauthorizedly captured / recorded objectionable pictures of complainant/ lady and further transmitted / disseminated / publicly projected her said pictures by using WhatsApp accounts to her near /dear ones---Sufficient evidence was available against the petitioner / accused and challan has been submitted in the Trial Court---Court should not grant or cancel bail when the trial is in progress---Bail was declined to the petitioner / accused , in circumstances.

Rehmat Ullah v. State 2011 SCMR 1332 ref.

Ghulam Qasim Bhatti for the Petitioner.

Malik Muhammad Iqbal Kallue, AAG.

Ayaz Khan, Director, FIA.

Misbah Batool, S.I, FIA.

Abdul Qayyum / father of respondent No. 2 in person.

Order

Tariq Mehmood Jahangiri, J.---Through the instant petition, the petitioner / accused seeks bail after arrest in case FIR No.256, dated 28.12.2023, offence under sections 21 and 24 of Prevention of Electronic Crimes Act, 2016, registered at Police Station FIA Cybercrime Reporting Centre, Islamabad.

1. It is alleged that the petitioner / accused with mala fide intentions and ulterior motives illegally and unauthorizedly, captured / recorded objectionable pictures of complainant Noor-e-Hira and further transmitted / disseminated / publicly projected the alleged objectionable pictures of the complainant by using WhatsApp accounts to her father and husband, thus disgraced and destroyed the modesty of the complainant among her family members and relatives, hence the instant FIR.

2. Learned counsel for the petitioner, inter alia, contends that the petitioner is innocent; no evidence is available against him; case has been registered with mala fide intentions and ulterior motives by the complainant; the offences do not fall under the prohibitory clause of section 497, Cr.P.C.; investigation in the case has been completed; he is no more required by the police for investigation, hence is entitled for grant of post arrest bail.

3. On the other hand, learned Assistant Attorney General states that sufficient evidence is available against the petitioner / accused; he has committed a heinous crime which is against the society; he is nominated in the FIR, hence is not entitled for grant of bail after arrest.

4. Arguments advanced by learned counsel for the petitioner, learned AAG have been heard and record has been perused with their able assistance.

5. The petitioner has committed a heinous crime by sending the sexually explicit pictures of the complainant to her father, husband, friends etc. as well as by posting the same on the Facebook; FIA collected sufficient incriminating evidence against him. Technical analysis expert is available on record which shows that the petitioner has committed aforementioned crime.

6. This offence has become very common in the society where the boys and girls while they are in relation with each other, girls sent their objectionable pictures to boys / friends but when there is breakup, boys share those objectionable pictures to the family members / friends etc of the girls, post on Facebook etc. which is very heinous crime, as these pictures become stigma throughout the life of girls and in many cases their family life has destroyed; the girls have also committed suicide, hence the accused committing such offences are not entitled for any leniency.

7. As far as the argument regarding grant of bail in the cases not falling under the prohibitory clause is concerned, it is held by this Court in a case titled as "Irfan Sarwar v. The State" (2022 PCr.LJ Note 71), that:

"with regard to the contention that the bail should always be granted in cases not falling within the domain of prohibition clause of proviso to section 497, Cr.P.C. it is observed that it is not a rule of universal application. Each case has to be seen through its own facts and circumstances".

The same principle has been laid down in a case titled as "Afzaal Ahmed v. The State", 2003 SCMR 573 which states that:

"The mere fact that an offence did not fall within the prohibitory clause of section 497(1) of the Cr.P.C. did not mean that such an offence had become a bailable offence. The discretion still remained with the competent Court to consider whether a person accused of such an offence did or did not deserve the grant of bail in accordance with established norms governing the exercise of such a power.

It has also been held by the Hon'ble Supreme Court of Pakistan in a case titled as "Muhammad Siddique v. Imtiaz Begum and others", 2002 SCMR 442 that:

"none can claim bail as of right in non-bailable offences even though the same do not fall under the prohibitory clause 497 Cr.P.C".

On the same subject the guidance has also been taken from the law laid down in a case titled as "Haji Muhammad Nazir and others v. The State", 2008 SCMR 807 wherein, it has been held that:

"It is true that offences for which petitioners have been charged entails punishment not more than five years, which also falls within the category of non-bailable offence, therefore, they are not entitled as a matter of right for release on bail, notwithstanding the fact that their case is covered under the non-prohibitory clause as defined under section 497, Cr.P.C. as it has been held in the case of Muhammad Siddique (ibid). As far as principle of law being relied upon by the learned counsel from the judgment in the case of Tariq Bashir (ibid) that the grant of bail in offence punishable with imprisonment for less than ten years is a rule and refusal is exception would not help to the petitioners in view of exceptional and extraordinary circumstances of the case".

In different cases under the Prevention of Electronic Crimes Act, 2016 where the offences not falling under prohibitory clause of section 497 Cr.P.C, bail after arrest has been rejected by this Court vide judgment reported as 2020 PCr.LJ 1652 as well as by the Hon'ble Lahore High Court, Lahore in cases reported as 2018 PCr.LJ 408 and 2018 PCr.LJ 1667 and the Hon'ble Sindh High Court in a case reported as 2018 YLR 329.

2024 P Cr. L J 1651

[Islamabad]

Before Arbab Muhammad Tahir, J

Syed Baqir Raza Naqvi and 2 others----Petitioners

Versus

The State----Respondent

Crl. Misc. No. 666-B of 2024, decided on 12th June, 2024.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(1)4(d)---Cannabis Control and Regulatory Authority Ordinance (IV of 2024), Ss. 2(d) & 26---Possession of CBD oil---Bail, grant of---Further inquiry---Hemp Oil/CBD extracted from cannabis seeds, is expressly excluded from the definition of "cannabis" in S.2(d)(ii) of the Act of 1997---Nominal value of THC derived out of cannabis, a prohibited substance under the Act of 1997, may be present due to adhesion of plant matter to the surface of seed---In the case in hand, the Laboratory Report confirmed the oil to be CBD, however, quantitative assessment of the substance had not been conducted by the Lab to confirm the percentage of "tetrahydrocannabinol (THC)" present in the said oil---Cannabidoil (CBD) has neither been defined in S.2 of the Act of 1997 nor included in the Schedule or Tables provided thereunder---Whether the whole liquid recovered from the petitioners was THC, included in clause 83 of Schedule-I as psychoactive substance or THC existed in nominal range, had not been explained in the Laboratory report---Fresh analysis of representative samples conducted by the Laboratory regarding the existence of percentage of THC in the liquid would explain the applicability of provisions of the Act of 1997 i.e. S.9 or S.16 thereof---At present two laws governed the subject---Section 9(1) of the Act of 1997, prima facie, does not provide punishment for possessing "cannabidoil (CBD)"--- On the other hand, under S.2(d) of the Cannabis Control and Regulatory Authority Ordinance, 2024 ("Ordinance"), cannabinoids have been defined to include canabidoil, development/sale whereof has been made subject to a licence, default or breach whereof is an offence under S.26 of the Ordinance---There was no determination on record regarding the percentage/value of THC present in the CBD---Laboratory in its report had merely suggested that CBD was a Narcotic Drug defined in S.2 of the Act of 1997, but the law spoke otherwise---Question whether express punishment has been provided under S.9 of the Act of 1997 for possessing CBD, or it is to be dealt with under S.16 thereof was also yet to be decided by the trial Court after considering report of the Laboratory---Furthermore, the question, whether the matter fell within the ambit of the Ordinance and was punishable under S.26 thereof had also yet to be considered while framing charge by the Trial Court---Incomplete laboratory report; the question that in presence of two laws i.e. Act of 1997 and the Ordinance on the subject, which one would be applicable in the case in hand; whether the petitioners were liable to imposition of fine under the Ordinance or punishment of imprisonment under the Act of 1997; and, the question that if it was concluded that provisions of the Ordinance were applicable in the case in hand, then what would be the fate of instant criminal case registered and investigated by the Anti-Narcotic Force; were questions which rendered the case of the petitioners as that of further inquiry---Bail petition was allowed, in circumstances.

Muhammad Nadeem v. The State and another 2023 SCMR 184 rel.

Muhammad Nazir Sultan Maken for the Petitioners.

Rana Zulfiqar Ali, Special Public Prosecutor, ANF.

Dr. Tanvir Ahmed Khan, Incharge Federal Narcotics Testing Laboratory, Amicus curiae.

Tahir Kazim, Director (Law), Central Police Office, Islamabad, Amicus curiae.

Afzal Inspector, ANF.

Date of hearing: 24th April, 2024.

Order

Arbab Muhammad Tahir, J.--- The petitioners (Syed Baqir Raza Naqvi, Syed Jaun Elia Mehdi and Syed Talmeez Ul Hassan), through the instant petition have sought post arrest bail in FIR No. 40/2024, dated 14.02.2024, under Sections 6, 9(1)4(d), 14, 15 of the Control of Narcotic Substances Act, 1997 ("Act of 1997"), registered at Police Station ANF RD North, Rawalpindi.

1. The facts as narrated in the FIR are that on 13.02.2024, Afzal Nazir Inspector received spy information that the petitioners are engaged in online sale of CBD/Hemp Oil/THC in House No.65, Street No.1, Sector C, Media Town, Islamabad. When raid was conducted on the said house, the three petitioners were found present, upon cursory interrogation Jaun Elia revealed that he is engaged in online marketing of the THC-Hemp Oil prepared by Baqir Mehdi Raza, whereas, Talmiz ul Hassan disclosed that he is engaged in packing and dispatch of the parcels. Upon pointation of Baqir Raza Mehdi, CBD/Hemp oil of the following discretion was recovered.-

· 1 carton containing four blue coloured shopping bags.

· Shopping bag # 1: 54 bottles 30 ml each, 15 bottles 10 ml each, 6 bottles 11 ml each, total 7.056 Kgs.

· Shopping bag # 2: 34 bottles 7 grams each, total weighing 238 grams

· Shopping bag # 3 : 11 bottles 30 ml each, 5 bottles 130 grams each - total weighing 2.090 Kgs

· 03 large plastic bottles each weighing 830 grams, total weighing 2.490 Kgs

As per contents of the FIR, the recovered material was weighed along with plastic bottles. Representative samples were prepared for chemical examination. The Investigating Officer also recovered tools / machinery used for packing purposes from the spot, hence this FIR.

1. Learned counsel contends that the petitioners are innocent and have falsely been involved in the instant case; that the story narrated in the FIR is concocted; that case of the petitioners calls for further inquiry; that investigation has since been completed and the petitioners are no more required for further probe; that petitioners do not retain any criminal record; the report of chemical examiner is vague; the Act of 1997 does not criminalize preparation/possession of hemp oil; hemp oil is extracted from cannabis seed; seed has been excluded from the definition of cannabis; even if for the sake of argument it is admitted that hemp oil is produce of cannabis, then in absence of any express penalty under section 9, the offence will be punishable under section 16 of the Act of 1997; the maximum punishment provided for section 16 of the Act of 1997 is three years, which does not fall within the prohibitory clause of section 497 Cr.P.C.; in the absence of any express provision in the Act of 1997, the offence shall be dealt with under Cannabis Control and Regulatory Authority Ordinance, 2024 which only prescribes imposition of fine and does not provided for punishment of imprisonment under section 26 thereof.

2. Conversely, learned Special Prosecutor, ANF has vehemently opposed the bail application of the petitioners and argued that huge quantity of narcotic substance was recovered from the possession of the petitioners; the petitioners are connected with the commission of offence; the petitioners were arrested at the spot and there is no confusion as to their identification; sufficient incriminating material is available on record; that the offence alleged in the FIR is not bailable; THC is included in Schedule-I of the Act of 1997 as psychoactive substance; the offence entail capital punishment; the Cannabis Control and Regulatory Authority Ordinance, 2024 is not applicable in the case in hand.

3. Heard. Record perused.

4. The petitioners have been charged with the offence under section under Sections 9(1)4(d) (i.e. possessing Hashish Oil and liquid hashish) of the Act of 1997. As per the Certificate of Analysis, the recovered substance is "CBD Oil" (Canabidoil).

5. In order to determine the proper classification of the recovered substance and its criminal effect under the Act of 1997, this Court appointed Dr Tanvir Ahmed Khan, Incharge Federal narcotics Testing Laboratory and Mr Tahir Kazim, Director (Law), Central Police Office, Islamabad, as amici curiae. Both the learned amici curiae submitted their respective briefs.

6. The question for determination is whether Cannabidoil is a substance, prohibited by the provisions of the Act of 1997? Section 2 (d) of the Act of 1997 defines the expression "cannabis (hemp)" as follows.-

"d) "cannabis (hemp)" means,-

(i). cannabis resin (charas) that is, the separated resin, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;

(ii). the flowering or fruiting tops of the cannabis plant (excluding the seed and leaves when not accompanied by the tops) from which the resin has not been extracted, by whatever name they may be designated or known and include all forms known as bhang, siddhi or ganja; and

(iii). any mixture with or without neutral materials of any of the above forms of cannabis or any drink prepared therefrom."

A plain reading of the above definition clause reveals that "seed and leaves" are excluded from the above definition if they are not accompanied by the fruiting tops from which resin has not been collected. This definition clause is in line with Article 1 of the Single Convention on Narcotic Drugs, 1961. The expression "psychotropic substance" has been defined in section 2(za) of the Act of 1997 as meaning "the substances, specified in the Schedule-I to the Act of 1997 and such substances as the Federal Government may, by notification in the official Gazette, declare to be psychotropic substance." "Tetrahydrocannabinol" has been mentioned in clause 83 of Schedule-I to the Act of 1997 as psychotropic substance, which is usually referred to as "THC." Section 9 of the Act of 1997 provides multiples penalties for breach of sections 6, 7 and 8 of the Act of 1997. Subsection (1) provides punishments for possessing (1) Bhang, (2) Post or poppy straw, (3) charas, (4) Hashish oil and liquid hashish, (5) opium, (6) heroin and morphine and (7) cocaine. Subsection (2) deals with punishment for possessing psychotropic substances as per column (3) of the Table given thereunder, whereas, subsection (3) of section 9 deals with punishment for possessing controlled substances in violation of the Act of 1997. Section 16 of the Act of 1997 provides that whoever contravenes any provision of this Act or any rule or order made, or any licence, permit or authorization issued hereunder, for which no punishment is separately provided in this Chapter, shall be punishable with imprisonment for a term which may extend to three years and fine.

1. The prosecution has dealt with the recovered material as "hashish oil or liquid hashish." Dr Ikram ul Haq, Chief Drug Control and Traditional Medicine Division/Incharge Federal Narcotics Testing Lab has submitted his amicus brief, wherein "hash oil" has been distinguished from "hemp oil - canabidoil (CBD)" as follow.-

Hash Oil

Hash oil, also known as honey oil or cannabis oil, is an olcoresin obtained by extraction of cannabis or hashish. It is a cannabis concentrate containing many of its resins and terpenes in particular, tetrahydrocannabinol (THC), cannabidoil (CBD), and other cannabinoids. There are various extraction methods, most involving a solvent, such as butane or ethanol. Hash oil is usually consumed by smoking, vaporizing or eating. Hash oil may be sold in cartridges used with pen vaporizers. Preparations of hash oil may be solid or colloidal depending on both production method and temperature and are usually identified by their appearance or characteristics. Color most commonly ranges from transparent golden or light brown, to tan or black. Cannabis retailers in California have reported about 40% of their sales are from cannabis oils. Hash oil is an extracted cannabis product that may use any part of the plant, with minimal or no residual solvent. It is generally thought to be indistinct from traditional hashish, according to the 1961 UN Single Convention on Narcotic Drugs (Schedule I and IV), as it is "the separated resin, whether crude or purified, obtained from cannabis plant."

Hemp Oil/Cannabidoil (CBD).

Hemp oil (hemp seed oil) is oil obtained by pressing hemp seeds, cold pressed, unrefined hemp oil is dark to clear light green in color, with a nutty flavor. The darker the color, the grassier the flavour. It should not be confused with hash oil, a tetrahydrocannabinol containing oil made from cannabis flower.

Description: Refined hemp seed oil is clear and colorless, with little flavor. It is primarily used in body care products. Industrial hemp seed oil is used in lubricants, paints, inks, fuel and plastic. Hemp seed oil is used in production of soaps, shampoos and detergents. The oil has a 3:1 ratio of omega-6 to omega-3 essential fatty acids. It may also be used as feedstock for the large-scale production of biodiesel.

Manufacture: Hemp seed oil is manufactured from varieties of Cannabis sativa and that do not contain significant amount of tetrahydrocannabinol (THC), the principal psychoactive element present in the cannabis plant. This manufacturing process typically includes cleaning the seeds to 99.99% before pressing the oil. There is no THC within the hemp seed, although trace amounts of THC may be found in hemp seed oil when plant matter adheres to the seed surface during manufacturing. The modern production of hemp seed oil, particularly in Canada, has successfully lowered THC values since 1998. Regular accredited sampling of THC in Canadian hemp seed oil shows THC levels usually below detection limit of 4 ppm (parts per million, or 4 mg/kg). Legal limit for THC content in foodstuffs in Canada is 10 ppm. Some European countries have limits of 5 ppm or non-detected, some EU countries do not have such limits at all.

It is obvious from the above, that Hemp Oil/CBD is extracted from cannabis seeds, expressly excluded from the definition "cannabis" in section 2(d)(ii) of the Act of 1997. A nominal value of THC derived out of cannabis, a prohibited substance under the Act of 1997, may be present due to adhesion of plant matter to the surface of seed.

1. In line with its obligation under Article 23 of the Single Convention on Narcotic Drugs, 1961, being signatory to the said Convention, the Cannabis Control and Regulatory Authority Ordinance, 2024 (hereinafter the "Ordinance") has been promulgated by the President on the advice of the Prime Minister in terms of Article 48(1) read with Article 89 of the Constitution of the Islamic Republic of Pakistan, 1973, duly notified in the official gazette on 16.02.2024. Section 3 of the Ordinance provides for establishment of the Cannabis Control and Regulatory Authority, to be controlled and administered through the Board of Governors under section 4 thereof. Section 13 of the Ordinance empowers the Federal Government to formulate policies for grant of license for cultivation of cannabis. Clauses (d) and (e) of subsection (2) of section 13 of the Ordinance deals with two different situations, i.e. (i) formulation of policies for cultivation of cannabis with THC content of 0.3 percent and (ii) formulation of policies for cultivation of cannabis with THC content of 0.3 percent and with THC content of more than 0.3 percent. This law has, therefore, distinguished cannabis with THC level of less than 0.3 percent. Different countries like United State, Canada, China and the European Union, hemp is legally defined as having THC level below 0.3 percent. Section 20 of the Ordinance prohibits cultivation, production, manufacture, product development and sale of and from cannabis plant derivatives or any other related activity as may be prescribed, except under a licence issued by the Cannabis Control and Regulatory Authority. Section 26 of the Ordinance penalizes the contravention of the provisions of the Ordinance by imposition of fine, variable in cases of an individual and a company. The order/decision of the Cannabis Control and Regulatory Authority imposing fine is appealable under section 27 of the Ordinance before the High Court.

2. The Ordinance is a special law, promulgated later in time. The legislature is presumed to be cognizant of the existing laws i.e. the Act of 1997. Cannabidoil has been expressly included in the definition of cannabis plant in section 2(d) of the Ordinance and its production/sale has been made subject to a licence issued under section 20 read with section 21 of the Ordinance. The development of canabidoil and its sale in contravention of the provisions of the Ordinance is a penal offence under section 26 thereof. Such penalty is in the shape of imposition of fine by the Authority, appealable before the High Court.

3. In the case in hand, the Laboratory report confirms the oil to be CBD, however, quantitative assessment of the substance has not been conducted by the Lab, to confirm the percentage of "tetrahydrocannabinol (THC)" present in the said oil. Cannabidoil (CBD) has neither been defined in section 2 of the Act of 1997 nor included in the Schedule or Tables provided thereunder. Whether the whole liquid recovered from the petitioners is TCH, included in clause 83 of Schedule-I as psychoactive substance or TCH exists in nominal range, has not been explained in the report of Laboratory. The fresh analysis of representative samples to be conducted by the Laboratory regarding the existence of percentage of THC in the liquid would explain the applicability of provisions of the Act of 1997 i.e. section 9 or section 16 thereof.

4. At present two laws govern the subject. Section 9(1) of the Act of 1997, prima facie, does not provide punishment for possessing "cannabidoil (CBD)." CBD is extracted from cannabis seed, which is excluded from the definition of cannabis under section 2(d)(ii) of the Act of 1997. On the other hand, under section 2(d) of the Ordinance, cannabinoids has been defined to include canabidoil, development/sale whereof has been made subject to a licence, default or breach whereof is an offence under section 26 thereof. Furthermore, there is no determination on record regarding the percentage/value of THC present in the CBD. The Laboratory in its report has merely suggested that CBD is a Narcotic Drug defined in section 2 of the Act of 1997, but the law speaks otherwise. The question whether express punishment has been provided under section 9 of the Act of 1997 for possessing CBD, or it shall be dealt with under section 16 thereof is also yet to be decided by the trial court after considering report of the Laboratory. Furthermore, the question, whether the matter falls within the ambit of the Ordinance and punishable under section 26 thereof has also yet to be considered while framing charge by the trial court.

5. The incomplete laboratory report; the question that in presence of two laws i.e. Act of 1997 and the Ordinance on the subject, which one would be applicable in the case in hand; whether the petitioners are liable to imposition of fine under the Ordinance or punishment of imprisonment under the Act of 1997; and, the question that if it is concluded that provisions of the Ordinance are applicable in the case in hand, then what would be the fate of instant criminal case registered and investigated by the Anti-Narcotic Force; are questions which renders the case of the petitioners as that of further inquiry. The Supreme Court in the case titled "Muhammad Nadeem v. The State and another" [2023 SCMR 184] has held as follows.-

"The case of further inquiry pre-supposes the tentative assessment which may create doubt with respect to the involvement of accused in the crime. It is well settled that the object of a trial is to make an accused face the trial, and not to punish an under trial prisoner. The basic idea is to enable the accused to answer criminal prosecution against him rather than let him rot behind bars. The accused is entitled to expeditious access to justice, which includes a right to a fair and expeditious trial without any unreasonable and inordinate delay. In the case of Zaigham Ashraf v. State and others (2016 SCMR 18), this Court held that the words "reasonable grounds" as contained in Section 497, Cr.P.C., required the prosecution to show to the court that it was in possession of sufficient material/ evidence, constituting 'reasonable grounds' that accused had committed an offence falling within the prohibitory limb of Section 497, Cr.P.C. For getting the relief of bail accused only had to show that the evidence/material collected by the prosecution and/or the defence plea taken by him created reasonable doubt/suspicion in the prosecution case and he was entitled to avail the benefit of it.

1. For what has been discussed above, it is hereby directed as follows.-

(i). The instant petition is allowed. The petitioners are admitted to post-arrest bail subject to their furnishing bail bonds to the tune of Rs.200,000/- (Rupees two hundred thousand only) each with one surety each in the like amount to the satisfaction of the learned Trial Court.

(ii). The Investigating Officer is directed to collect representative samples from the liquid recovered from possession of the petitioners and send it again to the Laboratory.

(iii). The Laboratory shall conduct quantitative assessment and give findings, inter alia, on the following aspects.-

(a) The value/percentage of TCH present in the liquid.

(b) Whether the TCH level in the recovered oil is of such a level, that it can be misused as psychoactive substance.

(c) To identify the exact clause of section 2 of the Act of 1997, which is attracted in the case in hand.

2024 P Cr. LJ 1746

[Islamabad]

Before Tariq Mehmood Jahangiri, J

Hamayun Ashraf Awan----Petitioner

Versus

Bilal Faisal Amin and others----Respondents

Writ Petition No. 2563 of 2021, decided on 7th May, 2024.

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

----Ss.249-A, 435 & 439-A---Penal Code (XLV of 1860 ) , S. 182---Acquittal order , assailing of ---Revision ---Maintainability ---Police, while concluding that the application filed by complainant was not based on facts, started proceedings under S.182, P.P.C., by chalking out a Qalandra against him, however, during the proceedings before the Trial Court his application under S.249-A, Cr.P.C, was accepted---Petitioner (accused of the complaint) filed present constitutional petition as his revision petition filed against the acquittal order was dismissed by Sessions Court---Petitioner, instead of filing appeal against said acquittal order, filed criminal revision under Ss.435 and 439-A, Cr.P.C, which was rightly dismissed by the Sessions Court---Petitioner had failed to point out as to how the concurrent findings of the Courts below were the consequence of error of law or without jurisdiction or in excess of jurisdiction---Constitutional petition , being meritless , was dismissed in limine.

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

----S.294-A---Penal Code (XLV of 1860), S.182---Constitution of Pakistan, Art.199---Acquittal order, assailing of---Constitutional petition---Maintainability ---Police concluded that the application filed by complainant was not based on facts and started proceedings under S.182, P.P.C., by chalking out a Qalandra against him, however, during the proceedings before the Trial Court his application under S.249-A Cr.P.C, was accepted---Petitioner (accused of the complaint) filed present constitutional petition as his revision petition filed against the acquittal order was dismissed by Sessions Court---Validity---As respondent had been acquitted by the Trial Court under S.249-A, Cr.P. C, the present constitutional petition against the said acquittal order was not maintainable under the law ---Constitutional petition , being non-maintainable , was dismissed in limine.

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

----S. 195(1) ---Penal Code ( XLV of 1860 ) , S. 182---Qalandra , filing of ---Authority to file---Concerned public servant---Validity ---For filing Qalandra under S.182, P.P.C, S.195(1), Cr.P.C, gives concerned public servantthe power ( to file Qalandra ) ; it does not give any power to a private person to file Qalandra against whom frivolous application/proceedings are initiated.

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

---- S.249-A---Penal Code (XLV of 1860), S.182---Constitution of Pakistan, Art. 199---Acquittal order , assailing of---Concurrent findings---Constitutional petition---Maintainability---Police concluded that the application filed by complainant was not based on facts and started proceedings under S.182, P.P.C. by chalking out a Qalandra against him, however, during the proceedings before the Trial Court his application under S.249-A, Cr.P.C, was accepted---Petitioner /accused filed present constitutional petition as his revision petition filed against the acquittal order was dismissed by Sessions Court---Validity ---There were concurrent findings of both the Courts below against the petitioner---In case of concurrent findings of the Courts below, scope of the constitutional petition becomes very limited ---Petitioner failed to point out any misreading or nonreading of the evidence---Petitioner failed to point out as to how the concurrent findings of the Courts below were the consequence of error of law or were without jurisdiction or in excess of jurisdiction---Constitutional petition, being meritless , was dismissed in limine.

Syed Arif Ali Sabri v. Abdul Samad through L.Rs. and 2 others 2008 YLR 2309; Sadruddin v. Aslam Madad Ali and others PLD 2008 Karachi 2005 and Khuda Baksh v. Muhammad Sharif and anoher 1974 SCMR 279 ref.

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

----S.249-A---Penal Code (XLV of 1860), S.182---Constitution of Pakistan, Art. 199---Acquittal order, assailing of---Writ of certiorari---Scope---Police concluded that the application filed by complainant was not based on facts, and started proceedings under S.182 P.P.C. by chalking out a Qalandra against him, however, during the proceedings before the Trial Court his application under S.249-A, Cr.P.C, was accepted---Petitioner /accused filed present constitutional petition as his revision petition filed against the acquittal order was dismissed by Sessions Court---Validity---Writ of certiorari is only available to quash a decision for an error of law---It will 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 constitutional jurisdiction will not review the findings of facts reached by the inferior Court or a tribunal---Petitioner hasfailed to point out as to how the concurrent findings of the Courts below were the consequence of error of law or were without jurisdiction or in excess of jurisdiction---Constitutional petition , being meritless , was dismissed in limine.

Amjad Khan v. Muhammad Irshad (Deceased) through LRs, 2020 SCMR 2155; President All Pakistan Women Association, Peshawar Cantt v. Muhammad Akbar Awan and others 2020 SCMR 260; Chief Executive MEPCO and others v. Muhammad Fazil and others 2019 SCMR 919; Chairman, NAB v. Muhammad Usman and others PLD 2018 SC 28 and Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45 ref.

Khawaja Shahid Rasool Siddiqui for the Petitioner.

Order

Tariq Mehmood Jahangiri, J.---Instant writ petition has filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayer:-

"In the circumstances, it is, therefore, most humbly prayed that the instant writ may kindly be accepted, the impugned orders dated 19.05.2021 passed by Additional Sessions East Islamabad and Order dated 23.09.2020 passed by learned Judicial Magistrate-30 Islamabad-East may be set aside, the petition under section 249-A Cr.P.C of the respondent No. 1 may be rejected and the case be remanded back to the trial Court to carry the summary trial according to law in the interest of justice and equity.

Any other relief, which this Honourable Court may deem fit and proper, may also be awarded".

1. Succinctly stated facts mentioned in the writ petition are that respondent No. 1 filed an application against the petitioner at Police Station Bhara Kahu, Islamabad. Thereafter the police carried out thorough investigation in the matter and reached on the conclusion that the application filed by respondent No. 1 is not based on facts, therefore, the police started proceedings under section 182 P.P.C. against respondent No. 1 and chalked out a Qalandra against him. Thereafter, respondent No. 1, during the proceedings before learned trial Court appeared before the Court and filed an application under section 249-A Cr.P.C, which was accepted by learned Judicial Magistrate Section-30, East-Islamabad vide order dated 23.09.2020. Being aggrieved, the petitioner filed revision petition against the said order, which was dismissed by learned Additional Sessions Judge-II, East-Islamabad vide order dated 19.05.2021, hence the instant petition.

2. Learned counsel for the petitioner, inter-alia, contends that both the orders passed by learned lower Courts are erroneous, not tenable under the law; learned trial Courts have failed to apply their conscious judicial mind while deciding the impugned orders; the impugned orders are against the law and facts of the case; learned trial Courts have committed material irregularity while passing the impugned orders and has prayed to accept the instant writ petition.

3. Arguments heard, record perused.

4. Respondent No. 1 filed an application before S.H.O, Police Station Bhara Kahu, Islamabad, against the petitioner and unknown person alleging therein that the accused person has tried to dispossess the complainant on his land and issued threats of life and dire consequences.

5. Upon the application, S.H.O concerned called the petitioner who provided sufficient evidence in his favour, so the application/complaint filed by respondent No. 1 was closed.

6. By invoking the provision under section 182 P.P.C., S.H.O P/S Bhara Kahu, Islamabad, filed Qalandra against respondent No. 1/complainant. Respondent No. 1/complainant filed application under section 249-A, Cr.P.C, which was allowed and he was acquitted by learned Judicial Magistrate, Section-30, East-Islamabad vide order dated 23.09.2020.

7. The petitioner instead of filing appeal against said acquittal order, filed criminal revision under sections 435 and 439-A, Cr.P.C, which was also dismissed by Court of learned Additional Sessions Judge-II, East-Islamabad vide order dated 19.05.2021.

8. As respondent No. 1 has acquitted by learned trial Court under section 249-A, Cr.P.C, the instant writ petition against the said acquittal order is not maintainable under the law.

9. For the convenience, section 182 P.P.C is reproduced herein under;

182. False information with intent to cause public servant to use his lawful power to the injury of another person: Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant :-

(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or

(b) to use the lawful power of such public servant to the injury or annoyance of any person.

Shall be punished with imprisonment of either description for a term which may extend to:-

(a) seven years in case the offence in which false information is given is punishable with death;

(b) five years in case the offence in which false information is given is punishable with imprisonment for life; or

(c) one-fourth of the longest term of imprisonment or with fine as is provided for the offence in which false information is given and such offence is not covered under clause (a) or clause (b).

1. Further, section 195(1), Cr.P.C, provides that:

195(1) No Court shall take cognizance:--Prosecution for contempt of lawful authority of public servants. (a) of any offence punishable under sections 172 to 188 of the Pakistan Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate.

Which gives the power to file Qalandra by the concerned public servant; it does not give any power to private person to file Qalandra against whom frivolous application/proceedings are initiated.

1. Further, there are concurrent findings of both the learned Courts below against the petitioner. In case of concurrent findings of the Courts below, scope of the constitutional petition becomes very limited. The petitioner has failed to point out any misreading or non-reading of the evidence. It has been laid down in a case titled as Syed Arif Ali Sabri v. Abdul Samad through L.Rs. and 2 others (2008 YLR 2309) that:

"When there are concurrent findings of Courts below, the scope of the constitutional petition for interference is very limited and it can only be interfered when the orders of the Courts below are fanciful or based on misreading or non-reading of the evidence".

The same view has also been taken in the cases titled as Sadruddin v. Aslam Madad Ali and others (PLD 2008 Karachi 2005) and Khuda Baksh v. Muhammad Sharif and another (1974 SCMR 279).

1. It is well settled that certiorari is only available to quash a decision for an error of law. It will 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. The High Court while issuing a writ of certiorari acts in exercise of supervisory and not appellate jurisdiction. The High Court in exercise of its writ jurisdiction will not review the findings of facts reached by the inferior Court or a tribunal. Reliance may be made to the following case laws:

(i) Amjad Khan v. Muhammad Irshad (Deceased) through LRs, (2020 SCMR 2155).

(ii) President All Pakistan Women Association, Peshawar Cantt v. Muhammad Akbar Awan and others (2020 SCMR 260).

2024 P Cr. LJ 1852

[Islamabad]

Before Mohsin Akhtar Kayani, J

Dr. Saiqa Yousaf----Petitioner

Versus

The State and 2 others----Respondents

W.P. No. 3144 of 2023, decided on 1st July, 2024.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss. 322 & 34---Constitution of Pakistan, Art. 199---Quashing of FIR---No expert opinion available---Qatl-bis-sabab, common intention---Complainant alleged that his wife was under care of petitioner during her high-risk pregnancy with monochorionic diamniotic twins, a condition requiring extra attention and care; however, the negligence and professional misconduct of petitioner resulted in the death of their twins, hence the FIR was lodged---Petitioner sought quashing of FIR lodged against him on the grounds that there was no direct evidence available on record to constitute the requirements of offence under S.322, P.P.C, and even matter was of technical nature which could only be resolved by filing a complaint before Healthcare Regulatory Authority under S.33 of the Healthcare Regulation Act, 2018, thus the FIR be quashed---Held, that there was no cavil to the proposition that offence of medical negligence in terms of S.319, P.P.C, or S.322, P.P.C, as the case may be is difficult to prove without evidence of technical expert opinion which was a missing link in the case, even Investigating Officer had not put any serious effort to conclude such a matter except referring two letters to PM&DC and MIRA, which were answered by the respective officers by referring the remedies provided under their special laws, which explained the intent of the Legislature and no criminal case could be registered directly by any stretch of imagination---In the present scenario, when private complaint had also been filed, it appeared that complainant had taken the entire onus upon his own shoulder to discharge the burden of proving the case of medical negligence in terms of S.319, P.P.C, with the claim of qatl-i-khata where he had to prove the mistake of act or mistake of fact committed by the doctors while treating the wife of complainant but surprisingly Judicial Magistrate, had issued the process for summoning of accused persons on the basis of tentative assessment of private complaint as well as by considering the statements of witnesses without obtaining expert evidence of any doctor---In this backdrop, from any angle no offence had been demonstrated by the complainant, nor by Investigating Officer as there was no underlying technical expert report or evidence to prosecute the professional doctors before the registration of FIR---This aspect persuaded the Court to exercise the powers under S.561-A, Cr.P.C., which could only be exercised in extra-ordinary or in exceptional circumstances like the case in hand---Constitutional petition was allowed by quashing the FIR lodged against the petitioner.

Col. Shah Sadiq v. Muhammad Ashiq 2006 SCMR 276; Rana Shahid Ahmad Khan v. Tanveer Ahmed 2011 SCMR 1937; Miraj Khan v. Gul Ahmed 2000 SCMR 122; Director General FIA v. Kamran Iqbal 2016 SCMR 447; Pervez Ellahi v. Federation of Pakistan 1995 MLD 615; Mian Muhammad Abbas Sharif v. Federation of Pakistan 1995 PCr.LJ 1224; Muhammad Aslam v. DPO, Rawalpindi 2009 SCMR 141; Zulfiqar Ali v. SHO PS Model Town Gujranwala 2014 PCr.LJ 487 and Muhammad Nawaz v. SHO, P.S. Sabzi Mandi, Islamabad 2017 PCr.LJ 133 rel.

Malik Ghulam Mustafa Kandwal and Malik Adeel Kandwal for the Petitioner.

Ms Saadia Shahzadi, State Counsel.

Shahzad Javed Panni for Respondent No. 3.

Ashiq Shah, Inspector.

Date of hearing: 20th May, 2024.

Judgment

Mohsin Akhtar Kayani, J.--- Through this writ petition the petitioner Dr. Saiqa Yousaf has prayed for quashing of FIR No.823/23, dated 16.09.2023, under section 322/34 P.P.C, registered in Police Station Kohsar, Islamabad.

1. Brief facts referred in the instant writ petition are that complainant/respondent No.3 / Zain Ali Raza, lodged an FIR against Dr. Saiqa Yousaf/appellant, Dr. Nudrat Ahsan, and Dr. Mehwish of Medicsi Hospital Islamabad for medical malpractice, professional misconduct, and criminal negligence. The complainant alleged that his wife Hoor Kamal Khan, was under their care during her high-risk pregnancy with monochorionic diamniotic twins, a condition requiring extra attention and care. Despite numerous visits to the hospital and severe symptoms such as abdominal pain and decreased fetal movements, the doctors repeatedly failed to provide appropriate and timely medical intervention. On September 3, 2023, despite experiencing severe pain, however, his wife was sent home after a cursory examination. The following day, her condition worsened, and she visited the hospital multiple times. Each time, she was inadequately treated, with vital signs and symptoms largely ignored. Critical procedures, such as emergency blood tests and obstetrical ultrasounds, were not performed. The complainant further alleged that his wife was left waiting in distress, and it wasn't until late in the evening that Dr. Saiqa finally performed an emergency C-section, but by then, it was too late, and their twins had died due to severe placental abruption.

2. Throughout this period, Dr. Saiqa, who claimed MRCOG (Member Royal College of Obstetricians and Gynecologists) qualifications (though only registered as an MBBS with the PMDC), failed to attend the wife of the complainant personally or assign another competent consultant. The lack of proper medical care not only resulted in the death of their twins but also put his wife's life at extreme risk, evidenced by her critically low hemoglobin levels and significant blood loss during the delayed surgery. Their actions represent a severe dereliction of duty, professional misconduct, and criminal negligence.

3. Learned counsel for the petitioner contends that there is no direct evidence available on record to constitute the requirements of offence under section 322, P.P.C and even matter is of technical nature which could only be resolved by filing a complaint before Islamabad Healthcare Regulatory Authority under section 33, of the Islamabad Healthcare Regulation Act, 2018 subject to condition that if the allegation of mal-administration, malpractice on the part of healthcare professional or healthcare establishment are referred, however, if it is a case of professional negligence on the part of doctor, the appropriate forum of investigation is PM&DC under section 44, of the Pakistan Medical and Dental Council Act, 2022 which has an overriding effect, therefore, instant criminal case should have been quashed, even otherwise, complainant has filed a private complaint with the allegation of offence under section 319, P.P.C, which is qatl-i-khata, therefore, prosecution itself is confused as to which of the offence is made out, even otherwise without final opinion of competent medical authority, criminal case is not proceed-able.

4. Conversely, learned counsel for the complainant as well as learned State Counsel have opposed the maintainability of instant writ petition on the ground that investigation has been completed and petitioner has alternate remedy in terms of Section 249-A Cr.P.C. or 265-K Cr.P.C. as the case may be, therefore, instant quashing petition is not maintainable.

5. Argument heard, record perused.

6. Perusal of record reveals that complainant has initially lodged criminal case FIR No.823, dated 16.09.2023, under section 322/34, P.P.C, PS Kohsar, Islamabad with the allegation that petitioner as well as two other doctors have not handled complainant's wife Hoor Kamal Khan under their care during high risk pregnancy with monochorionic diamniotic twins a condition which requires extra attention and care but despite numerous visits to hospital and severe symptoms such as abdominal pain and decreased fetal movements, the doctors have not taken care of patient and not treated her including Dr. Saiqa Yousaf (present petitioner), Dr. Nudrat Ahsan and Dr. Mehvish, resultantly, both the babies died. On the plain reading of FIR, it appears that patient i.e. wife of complainant was treated by the respective doctors in the hospital but question arises as to whether the acts and actions taken by all three doctors are to be called and treated in terms of qatl-bis-sabab under section 322, P.P.C, which requires that any death has been caused or any harm has been caused to any person due to unlawful act without intention is to be called qatl-bis-sabab in terms of Section 322 P.P.C, therefore, the requirement of unlawful act is to be concluded only after technical experts advise or report if taken in this case, therefore, I.O has been confronted with this aspect, whereby he has drawn the attention of this court towards a letter dated 02.11.2023 calling for an expert opinion in this case from PM&DC which reflects that PM&DC Act, 2022 only allows a complaint addressed to Disciplinary Committee in a prescribed manner referred by the Assistant Manager (Disciplinary) PM&DC to the SSP (Investigation), Islamabad.

7. Similarly, I.O has also referred another correspondence dated 04.10.2023 on the subject of constitution of Medical Board in this case addressed to the Islamabad Healthcare Regulatory Authority (IHRA), which replied by the Deputy Director (Complaint) IHRA, highlighting the process and procedure for filing of complaint under section 33, of the Islamabad Healthcare Regulation Act, 2018 and finally there is no such medical report available on record to confirm that there was any criminal negligence duly verified by any Medical Board, PM&DC experts or by the IHRA, therefore, in this backdrop, I.O is not in position to confirm whether any charge under section 322, P.P.C is made out and this aspect has also been reflected from his incomplete report under section 173, Cr.P.C. submitted in the trial court.

8. On the other hand, complainant has filed a private complaint under section 319, P.P.C against the present petitioner Dr. Saiqa Yousaf and two other doctors with the similar allegations and claims that all three doctors be prosecuted in terms of Section 319 P.P.C for qatl-i-khata, which is only applicable when any person without any intention to cause death of, or cause harm to, a person causes death of such person, either by mistake of act or by mistake of fact, is said to commit qatl-i-khata. The complaint was entertained by Judicial Magistrate, who has issued notice to summon the accused persons to face trial. In such divergent allegation, especially with reference to allegation under section 319, P.P.C v. under section 322, P.P.C, the primary charge could only be demonstrated subject to expert report of health professional which is missing link in this case.

9. In order to understand the proposition the question of medical negligence is to be seen in concept of definition provided in Section 2(xxiv) of IHRA, 2018:-

"Medical negligence" means any negligence by an act or omission of a healthcare professional in performing his duty. In medical negligence cases it has to be established that-

(a) there was a duty which the healthcare professional owed to the patient;

(b) there was a breach of duty:

(c) the breach resulted in injury to the patient; and

(d) the injury resulted in causing damage or death;

1. However, under the IHRA 2018, medical negligence has not been criminalized and declared an offence. Any person who is aggrieved under IHRA 2018 for the violation of any of its provisions by a healthcare establishment or healthcare professional, the aggrieved may lodge a complaint to the Authority. Whereas, medical negligence is not an offence, the offences are defined under section 30 as:-

1. Operating Without a License: Up to 5 years imprisonment, fine up to 1 million Rupees, or both.

2. Obstructing Inspection: Up to 6 months imprisonment, fine up to 50,000 Rupees, or both.

3. Quackery: Non-bailable, up to 7 years imprisonment, fine up to 2 million Rupees, or both.

Under section 1 it has been clearly defined that IHRA is applicable to all the healthcare establishments in Islamabad. And medical negligence is not a crime under the said special law, therefore, a person who is accused of medical negligence under IHRA cannot be criminally prosecuted rather the matter will be placed before IHRA to determine whether medical negligence was actually there or not. Under criminal proceedings, police through investigation cannot determine whether the healthcare professional was medically negligent or not. Moreover, it is also difficult for the court to determine that the professional practice rules and reasonable care was taken into consideration or not. A team of professional experts and supervisors can better reach to this conclusion.

1. Under the IHRA 2018 any person, within 60 days from the accrual of cause of action, aggrieved by the any healthcare establishment, healthcare professional, healthcare services or medical negligence shall file a complaint before the Authority under section 33. It defines complaint as;-

33. Complaints.-

(1) The Authority shall investigate the complaints relating to healthcare establishment, healthcare professional, healthcare services and medical negligence.

(2) The Authority shall define-

(a) kinds of complaints;

(b) categories or different kinds of medical negligence; and

(c) mal-administration, malpractice and failure in provision of healthcare services.

(3) The recognized and known complications of a medical or surgical treatment are not considered as medical negligence.

The Authority will investigate the matter in hand under section 34 and pass an order accordingly whether the accused was medically negligent or not. Section 31 extends a right to appeal to the aggrieved party. If the order passed by the Board the appeal lies before the authority and if the original order passed by the Authority, appeal lies before the Secretary of Ministry of National Health Services, Regulations and Coordination within 30 days from the date if communication of order.

1. In view of the law laid down in the case of Shifa International Hospitals Ltd. Through Chairman and C.E.O. v. Pakistan Medical and Dental Council (PMDC) and 3 others (2011 CLC 463), it was held that special enactment always prevails over the general law and in presence of the special law to deal with the negligence of the practitioners being available, without exhausting the remedy, no criminal proceedings could be initiated. Once it was held by the Pakistan Medical and Dental Council that practitioner was guilty of negligence and professional misconduct, criminal law as well as civil law could be set into motion against them by forwarding a complaint to the Council for proper legal action under the law without being prejudiced by any observation made by the police or the Court. Similar view has also been endorsed in 2022 PCr.LJ 1067 (Riaz Ahmed v. ADJ/EX-officio Justice of Peace Rojhan District Rajanpur and 3 others).

2. Another question that requires attention and needs to be admitted is in the presence of two special laws i.e. PM&DC Act and IHRA, which one would prevail. It is settled law that the Pakistan Medical and Dental Council is a statutory regulatory authority responsible for maintaining the official register of medical practitioners in Pakistan. Its primary role is to set and uphold uniform minimum standards for basic and advanced qualifications in medicine and dentistry across the country. PMDC Act also provides a mechanism to deal professional negligence situation against the medical practitioner, who would be dealt under disciplinary proceedings, even otherwise PMDC Authorities have expert, who after adopting their own procedure of inquiry, if comes to the opinion may cancel the license of the doctor, who is guilty of medical negligence. No such mechanism of canceling license to practice of a medical practitioner is given under IHRA. Under section 9 (k) of PM&DC Act 2022 the council has the power to hear and decide complaints against licences of professional negligence and misconduct in accordance with regulations prescribed by the Council. Moreover, section 44 describes that the Council in terms of Professional negligence of any medical or dental practitioner, their names can be removed from the register of medical practitioners. It reads as follows;

44. Removal of names from the register.-

(1) The Council, in its discretion, may direct the registrar to remove altogether or for a specified period from the register the name of any registered medical practitioner or registered dentist who has been convicted by the disciplinary committee or by any other court of law of any such offence as implies in the opinion of the Council a defect of character defined in the code of ethics of practice or who, after an inquiry at which opportunity has been given to such person to be heard in person or through a pleader, has been convicted by the disciplinary committee of the Council as guilty of professional negligence or incompetence in a patient doctor scenario in clinical setting or who has shown himself to be unfit to continue in practice or on account of mental ill health or other grounds as prescribed in the code of ethics of practice regulations and the complaint and matter shall finish if the complainant withdraws his complaint.

(2) The Council may also direct that any name removed from the register under subsection (1) shall be restored.

(3) For the purpose of an inquiry under subsection (1), the disciplinary committee of the Council shall exercise all the powers of a civil court under the Code of Civil Procedure, 1908 (Act V of 1908) for summoning the witnesses, for compelling the production of documents and for issuing commissions with the help of law enforcing authorities.

4) The claim of professional negligence shall initially be established before the disciplinary committee of the Council before any other proceedings.

Subsection (4) of section 44 made it clear that disciplinary committee of PM&DC is the first forum to initiate the proceedings against a medical practitioner in case of professional negligence.

1. Before going further with this judgment to answer the question that which one of the two special laws will prevail, it is necessary to define what is professional negligence. A few definitions given below:-

1. Professional negligence is also termed malpractice. It occurs when a professional breaches a duty to a client.

1. The definition of professional negligence is when a professional fails to perform their responsibilities to the required standard or breaches a duty of care. This poor conduct subsequently results in a financial loss, physical damage or injury of their client or customer.

2. The definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs because damage is a necessary ingredient of this tort.

3. When two laws are in conflict, the general principle of interpretation of a statute is that the special law shall have precedence over the general law and when two special laws are inconsistent of any provision/situation, then one which is later in time shall prevail over the earlier one. Reliance is placed upon 2002 PCr.LJ 216 (Muhammad Saleem v. The State and another). Similarly, while interpreting two special laws, the Courts have to see other factors including the object, purpose and policy of both the statutes as well as intention of the legislature in order to determine, which of the two special laws will prevail and applicable. Reliance is placed upon 2017 CLD 1198 (Syed Mushahid Shah and others v. Federal Investment Agency and others).

4. Thus, from the text of section 33 of IHRA the Authority is made in Islamabad to deal with the issues of medical negligence, mal-practice, maladministration and failure of health service providers. Whereas, PMDC is more like a regulatory and supervisory body that keeps the record of licenses of institutions and medical and dental practitioners across the country and maintain a minimum standard of basic and advanced qualification in medicine and dental studies. Moreover, health is a provincial subject and all provinces have their respective healthcare commissions to deal with such like situations, therefore, in Islamabad IHRA is the competent authority to deal with the matter in hand.

5. In both these eventualities, overriding effect is available in Islamabad Healthcare Regulation Act, 2018, though the offences which were provided in that special law, are entirely different and for that matter Pakistan Penal Code is a general law with bodily injuries or hurt, therefore, while interpreting these two situations, in which special law versus general law is to be considered in juxtaposition, it appears that Pakistan Penal Code does not exclusively cater for the medical negligence, rather covers. In generalized hurt caused by negligence without referring to any medical concept or with reference to any patient, however, actus reus or mensrea are the key factors in the P.P.C, especially the entire criminal law, but in order to determine the offence, in this scenario, it requires the evidence and report of the expert, especially when proposed accused are professional doctors or Healthcare providers or incident took place in the Healthcare Institution. Unlike, Punjab Healthcare Commission Act, 2010, there is no explicit immunity clause provided in Islamabad Healthcare Regulation Act, 2018 that no suit, prosecution or other legal proceedings related to healthcare services shall lie against a healthcare service provider, except under PHCA, 2010. Since, IHRA Act has overriding effect thus before lodging an FIR and to determine offence, the concerned Police Station shall write a letter of request to IHRA for their expert report/opinion as laid down in Regulation No.54 in the Islamabad Healthcare Regulation, 2023 and submit the final/signed report to Police Station, whereafter the concerned S.H.O shall act accordingly. Additionally, by virtue of section 44 of PMDC Act, the police shall also send a copy of letter of request to PMDC as well but only when the matter is related to medical negligence of a healthcare professional.

2024 P Cr. LJ 2072

[Islamabad]

Before Arbab Muhammad Tahir, J

Fazal Noman Sabir---Petitioner

Versus

Haji Abdul Khaliq Awan and 2 others---Respondents

Criminal Revision No. 104 of 2023, decided on 22nd April, 2024.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 4---Criminal Procedure Code (V of 1898), S. 512---Prevention of illegal possession of property---Trial in absentia---Scope---Application of petitioner for abatement of entire proceedings in the case due to death of his father, (one of the accused) and on account of declaration of two other accused persons as proclaimed offenders, was dismissed---Validity---Section 512, Cr.P.C., provided that if an accused person had absconded and there was no immediate prospect of arresting him, the Court competent to try such person for the offence complained of may, in his absence, examined the witnesses (if any) produced on behalf of the prosecution and record their depositions---Any such depositions may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he was charged---Said provision was self-explanatory whereunder trial Court was vested with authority to record evidence in absence of absconding accused---Even otherwise, trial/proceedings in complaint under the Act of 2005 were to be conducted in letter and spirit of the provisions particularly Ss.3, 7 and 8 of the Act of 2005, which entailed in-built mechanism to conduct proceedings and to conclude the same in due course---In view of above, impugned order appeared to be in accordance with law on the subject---Petition being devoid of merits was dismissed with the directions that matter to the extent of conviction of petitioner's father had been over on account of his death and proceedings to the extent of absconding accused shall be carried out in accordance with the provisions on the subject.

2006 SCMR 1287 and 2019 PCr.LJ 131 ref.

Mst. Itrat Zahida and others v. President ABL and others 2006 SCMR 1287; Bondada Gajapathi Rao v. The State of Andhra Pradesh AIR 1964 SC 1645 and Muhammad Sharif and another v. Muhammad Sadiq and another 2019 PCr.LJ 131 rel.

Adil Aziz Qazi and Nasir Mahmood for Appellant.

Mudussar Khalid Abbasi for Respondents.

Sardar Khan, State Counsel.

Date of hearing: 11th March, 2024.

Judgment

Arbab Muhammad Tahir, J.--- Through the listed revision petition in terms of Section 435 read with Section 439 Cr.P.C, petitioner namely Fazal Noman Sabir (son of Fazal Inam Sabir-accused since died) impugns order dated 06.07.2023, passed by the learned Additional Sessions Judge-Islamabad- (East), whereby his application for abatement of entire proceedings of the case due to death of his father, one of the accused and on account of declaration of two other accused persons as proclaimed offender, was dismissed, by observing that "evidence of the complainant is to be recorded in absentia of proclaimed accused persons to preserve the same for using in case of their arrest and they will also be provided right of cross-examination." It was further observed in paragraph No.14 that:-

"Nevertheless, the applicant while continuously watching the proceedings of the complaint himself filed an application to afford him an opportunity of cross-examination to the PWs showing his interest in the disputed property, therefore, his application was allowed vide order dated 09.06.2023 with addition of implicating him as respondent into the petition for two reasons firstly in case of success of the complainant into the complaint, the order for restoration of the possession be passed against him as per dictum laid down in the case of Muhammad Sharif (ibid), secondly he has not denied to be in possession of the disputed property rather shown his keen interest, and his unalienable right with property, therefrom implicated as respondent vide order dated 09.06.2023, against which no relief given by Hon'ble Islamabad High Court, Islamabad. Additionally, his conduct also depicts his overwhelming interest in the complaint while filing multiple applications to rebut the stance of the complainant and strive hard to bring at end the proceedings of the complaint without its logical and despite his father was blamed to be illegal and unauthorized possession of the disputed property, which the petitioner has succeeded."

1. Precisely, subject matter of the lis is "land/house measuring 17 Marla, bearing Khewat No.780, Khatooni Nos.1384 to 1448/22, Khasra Nos. 3237, 4411, 4437, 4452, situated in Mauza Hamak, Zone V, Islamabad" ('subject property'). As per documents available on file, on 19.10.2015, respondent No.1 namely Haji Abdul Khaliq Awan ('complainant') filed complaint under Sections 3 and 4 of the Illegal Dispossession Act, 2005 ('Act of 2005') against respondents 2 and 3 namely Muhammad Aslam Malik and Malik Touqeer (proclaimed offender) and Fazal Inaam Sabir, father of the petitioner. Initially, proclaimed offenders and father of the petitioner Fazal Inaam Sabir were acquitted in terms of Section 265-K Cr.P.C by the Trial court vide order dated 18.03.2016. The complainant assailed the said order before this Court through W.P. No.1658 of 2016 which, along with connected W.P. No.3853 of 2014 was allowed vide order dated 10.06.2022 and pursuant thereto by setting aside the impugned order, matter was remanded to the Trial Court for decision afresh in accordance with law on the subject after giving due opportunity of hearing to the parties.

2. In post-remand proceedings, respondents 2 and 3 Muhammad Aslam Malik and Malik Tauqeer absconded and after completing codal formalities, declared proclaimed offenders vide order dated 27.03.2023. Vide the same order, proceedings to the extent of Fazal Inaam Sabir, father of the petitioner were abated due to death of said accused person. Vide order dated 26.05.2023, learned Trial Court proceeded to record evidence in terms of Section 512 Cr.P.C in view of the law laid down in case law reported as 2006 SCMR 1287 and 2019 PCr.LJ 131. Thereafter, on 06.06.2023 petitioner filed application praying to allow him to appear and participate in the proceedings. The Trial Court allowed the said application vide order dated 09.06.2023. The petitioner then joined the proceedings and was formally charge sheeted on 21.06.2023. Subsequently, on 04.07.2023, petitioner filed another application with title "application for abatement of entire proceedings in the case on behalf of Fazal Noman Sabir", with prayer "that the entire proceedings may kindly be dropped due to death of the accused Fazal Inaam Sabir (deceased), the file may kindly be consigned till the proclaimed offenders are arrested and brought before this court in the interest of justice". The said application of the petitioner was dismissed by the Trial Court vide order dated 06.07.2023, being impugned through the instant petition.

3. Learned counsel argued that since one of the accused, father of the petitioner, had died and rest of the two had been declared proclaimed offenders, Trial Court cannot proceed with the complaint as proceedings to the extent of father of the petitioner already stood abated due to his death whereas under the law, trial in absentia cannot be held against absconder accused; that petitioner, in no way is connected with the commission of alleged offence and only joined the proceedings in order to protect his rights; that petitioner cannot be held guilty for the alleged offence; that under the law, provisions of Code of Criminal Procedure are applicable upon proceedings under the Act of 2005 where under in case of death of an accused, appeal shall stand abated in terms of Section 431 Cr.P.C as appeal is always considered continuation of trial, therefore, proceedings in trial would also be abated on the death of the accused. Lastly, learned counsel prays for setting aside of the impugned order.

4. Conversely, learned counsel for the complainant while reiterating the proceedings highlighted in the impugned order prayed for dismissal of the instant petition, whereas the learned State Counsel support the impugned order.

5. Heard, record perused.

6. The Act of 2005 is a special law, promulgated "to curb the activities of the property grabbers" and "to protect the lawful owners and occupiers of immovable properties from their illegal or forceful dispossession therefrom by the property grabbers". In terms of Section 9 of the Act of 2005 "Unless otherwise provided in this Act, the provisions of the Code of Criminal Procedure 1898 (V of 1898) shall apply to proceedings under this Act." The provisions in the Act 2005 which has overriding effect include:-

3. Prevention of illegal possession of property, etc._(1) No one shall enter into or upon any property to dispossess, grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owners or occupier of such property.

(2) Whoever contravenes the provisions of the sub-section (1) shall, without prejudice to any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of the offence shall also be compensated in accordance with the provision of section 544-A of the Code.

(3) Whoever forcibly and wrongfully dispossesses any owner or occupier of any property and his act does not fall within sub-section (1), shall be punished with imprisonment which may extend to three years or with fine or with both, in addition to any other punishment to which he may be liable under any other law for the time being in force. The person dispossessed shall also be compensated in accordance with provisions of section 544-A of the Code.

7. Eviction and mode of recovery as an interim relief._(1) If during trial the Court is satisfied that a person is found prima facie to be not in lawful possession, the Court shall, as an interim relief direct him to put the owner or occupier, as the case may be, in possession.

(2) Where the person against whom any such order is passed under subsection (1) fails to comply with the same, the Court shall, notwithstanding any other law for the time being in force, take such steps and pass such order as may be necessary to put the owner or occupier in possession.

(3) The Court may authorize any official or officer to take possession for securing compliance with its orders under sub-section (1). The person so authorized may use or cause to be used such force as may be necessary.

(4) If any person, authorized by the Court, under sub-section (3), requires police assistance in the exercise of his power under this Act, he may send a requisition to the officer-in-charge of a police station who shall on such requisition render such assistance as may be required.

(5) The failure of the officer-in-charge of police station to render assistance under subsection (4) shall amount to misconduct for which the Court may direct departmental action against him.

8. Delivery of possession of property to owner, etc._(1) On conclusion of trial, if the Court finds that an owner or occupier of the property was illegally dispossessed or property was grabbed in contravention of section 3, the Court may, at the time of passing order under subsections (2) and (3) of that section, direct the accused or any person claiming through him for restoration of the possession of the property to the owner or, as the case may be, the occupier, if not already restored to him under section 7.

(2) For the purpose of subsection (1), the Court may, where it is required, direct the officer-in-charge of the police station for such assistance as may be required for restoration of the possession of the property to the owner or, as the case may be, the occupier.

1. Section 3(1) ibid stipulates that no one shall enter into or upon any property to dispossess, grab, control or occupy it without having lawful authority to do so with intention to dispossess, grab, control or occupy the property from lawful owner or occupier of such property. The provision, as evident from its plain reading deals with all eventualities of taking control by someone of someone's property, either owner or occupier i.e. dispossess, grab, control or occupy and not only the act of dispossession or grabbing. The first part of the provision is directly connected with the person against whom there was allegation of dispossession or grabbing of property without lawful authority whereas the second limb of the provision stipulates that no one shall enter into or upon any property to control or occupy it without lawful authority to do so with intention to control or occupy the property from owner or occupier of such property. Thus, to the extent of first limb of the provision, in case of death of any person against whom alleged act of dispossession or grabbing had been alleged, complaint would abate, as was done by the trial court vide order dated 27.03.2023. However, to the extent of second limb, complaint would continue as the provision also deals with the situation where anyone enters into or upon any property to control or occupy it without lawful authority with intention to control or occupy the property from owner or occupier of such property.

2. Section 7 of the Act 2005 provides that if during trial the Court is satisfied that a person is found prima facie to be not in lawful possession, the Court shall as an interim relief direct him to put the owner or occupier, as the case may be, in possession. As per Section 8 of the Act, 2005 order for restoration of possession is not confined to the accused but includes "any person claiming through him". Under the said provision, at the conclusion of trial, a direction for restoration of possession may be issued either to accused or any person claiming through him, for the restoration of the possession of the property to the owner or occupier, as the case may be, if not already restored to him under Section 7 of the Act of 2005.

3. The above provisions clearly lay down procedure not only to convict an accused person but also to restore possession of the property to its lawful owner and occupier. The provisions contain in built mechanism to deal with all types of cases of dispossession of immovable property without lawful authority and retain overriding effect in terms of Section 9 of the Act of 2005.

4. The subject matter in offence under the provisions is related to immovable property and whoever found in control or occupation of said property without lawful authority, may be ordered to restore its possession to the lawful owner or occupier, as the case may be. Not only this, but any person claiming possession through accused may be ordered to restore possession of the property to its lawful owner or occupier in terms of Section 8 of the Act of 2005. It can, therefore, be safely held that under the provisions ibid, petitioner cannot escape to face the proceedings on the pretext that as the provisions of Cr.P.C are applicable upon proceedings under the Act of 2005, after the death of accused-his father, it has to abate for the reason that the provisions ibid provide for specific procedure to deal with any person, found in possession of the property without lawful authority and said provisions retain overriding effect in terms of Section 9 of the Act of 2005. To accept the plea of the petitioner would mean to render in-built mechanism of the above provisions redundant.

5. The petitioner in paragraph 7 of his application for permission to appear and participate in proceedings, has taken a specific stance regarding subject property in terms that "the petitioner being an interested and necessary party to the disputed land has an inalienable right to cross-examine any deposition made again him or his property". This specific stance of the petitioner ostensibly reflects his implied control over the property as he claimed it "his property", falling within the ambit of Section 3(1) of the Act of 2005 and also falls within the ambit of "any person claiming through him" contained in Section 8 of the Act of 2005. Above all, the Constitution of the Islamic Republic of Pakistan, 1973 is the supreme law of the land. Fundamental rights enshrined in Part-II, Chapter-I of the Constitution include "protection of property rights" in terms:-

24. Protection of property rights.- (1) No person shall be deprived of his property save in accordance with law.

1. Adverting to ground contained in paragraph 11 of the memo. of instant petition that "proceedings being conducted by the trial court are in contravention of right of fair trial", Article 10A of the Constitution stipulates that "for the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process." Fair trial and due process is fundamental right of every citizen facing criminal charge. Perusal of record reveals that petitioner was not only allowed to join the proceedings on his own application but also provided with right to cross-examine the witnesses and adduce his version. Not only this, but his application for exemption from appearance was allowed by the Trial Court vide order dated 24.06.2023 subject to appearance of his counsel namely Mr. Haseeb Hassan Advocate. In such circumstances, when the petitioner has every right to contest the proceedings, as he had been doing so up till now, there arises no question of infringement of right of fair trial envisaged in Article 10A of the Constitution.

2. The question left to be determined isthat in the given circumstances what course has to be adopted by the Trial Court. In terms of Section 3(1) of the Act of 2005, no one shall enter into or upon any property to dispossess, grab, control or occupy it without having lawful authority to do so with intention to dispossess or grab the property from owner or occupier of said property. The first part of the provision is directly connected with the person against whom there was allegation of dispossession or grabbing of property without lawful authority whereas the second limb stipulates that no one shall enter into or upon any property to control or occupy it without lawful authority to do so with intention to control or occupy the property from owner or occupier of such property. Thus, to the extent of first limb of the provision, in case of death of an accused against whom alleged act of dispossession or grabbing had been alleged, the complaint would abate, as was done by the trial court vide order dated 27.03.2023. However, to the extent of second limb, complaint would continue as the provision also deals with the situation where anyone enters into or upon any property to control or occupy it without lawful authority to do so with intention to control or occupy the property from owner or occupier of such property. Moreover, procedure to be followed at the conclusion of trial envisaged in Section 8 of the Act of 2005 stipulates that at the conclusion of trial, a direction for restoration of possession may be issued either to accused or any person claiming through him, for the restoration of the possession of the property to the owner or occupier, as the case may be, if not already restored to him under Section 7 of the Act of 2005.

3. Furthermore, irrespective of the nature of proceedings whether criminal or civil, it is the nature of cause of action which determines its survivability. Reliance is placed upon case of "Mst. Itrat Zahida and others v. President ABL and others" (2006 SCMR 1287). In the case of "Bondada Gajapathi Rao v. State of Andhra Pradesh" (AIR 1964 SC 1645), the Supreme Court of India held that:-

"But where the appeal is against sentence of fine, the appeal may be permitted to be continued by the legal representatives of deceased appellant accused. The principle on which the hearing of a proceeding may be continued after the death of an accused would appear to be effect of the sentence on his property in the hands of his legal representatives. If the sentence affects that property, the legal representatives can be said to be interested in the proceedings and allowed it to continue."

2024 P Cr. L J 33

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

MUHAMMAD ISHAQUE alias BOBI alias HUSSAIN---Appellant

Versus

The STATE---Respondent

Special Criminal A.T. Appeal No. 10 of 2021 and Conf. Case No. 4 of 2021, decided on 12th September, 2022.

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

----Ss. 302(b), 324 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Statement of sole eye-witness doubtful---Accused was charged that he along with his co-accused committed murder of the father of complainant along with two others by firing---Prosecution's case rested exclusively on the evidence of the sole eye-witness to the incident---Timing of statement of the eye-witness under S. 161, Cr.P.C., appeared to be in some doubt---First responder stated in his evidence that the eye-witness approached him at the crime scene and told him that he had seen the incident but he did not record his statement---First Investigating Officer apparently recorded the S. 161, Cr.P.C. statement of the eye-witness a day after the incident and then sent him off to the Counter Terrorism Department (CTD) to draw up sketches of the accused---Second Investigating Officer in his evidence however stated that there was no eye-witness in the police file handed over to him and that there was no statement of eye-witness in the file---Said Investigating Officer did not get the sketches of the accused drawn by the eye-witness---Third Investigating Officer who took up the investigation two years after the incident came to know of eye-witness and tracked him down who then recorded his S. 161, Cr.P.C statement wherein he stated that he could recognize the accused if he saw them again---Admittedly, it was a day time incident but the eye-witness would only have got a fleeting glance of the accused especially during the chaotic firing at the deceased and on him which led him to flee the scene and he had never seen either of the accused before that day---Said witness conceded during cross-examination that in his S. 161, Cr.P.C. statement he did not mention whether or not he saw the accused firing on the deceased---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Test identification parade---Infirmities---Accused was charged that he along with his co-accused committed murder of the father of complainant along with two others by firing---In the case the correct identification of the accused by the eye-witness could not be safely relied upon for the reason that he gave no description of the accused in his statement recorded under S. 161, Cr.P.C, and thus he had no bench mark to correctly identify the accused at an identification parade---According to the evidence of eye-witness, he drew the sketches of the accused one day after the incident through the police which would be exceedingly compelling to lead to a correct identification of the accused at a later identification parade---However, according to the evidence of the last Investigating Officer the sketches drawn by the eye-witness did not match the accused in police custody---Eye-witness in his own evidence stated that the accused was shown to him in police custody before the identification parade, as was also claimed by the accused in his S. 342, Cr.P.C. statement, which made the identification parade of no significance---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

Shafqat Mehmood and others v. The State 2011 SCMR 537; Gulfam and another v. The State 2017 SCMR 1189; Muhammad Akram v. The State 2009 SCMR 230; Noor Islam v. Ghani-ur-Rehman and another 2020 SCMR 310; Patoo and another v. The State 2012 MLD 1358; Tariq Pervez v. The State 1995 SCMR 1345; Ashiq Hussain v. The State 1993 SCMR 417; Hafiz Muhammad Arshad v. The State PLD 2007 Lah. 324; Noor Ahmed and others v. The State PLD 2005 Kar. 177; Niaz-ud-Din and another v. The State and another 2011 SCMR 725; Muhammad Nadeem alias Deemi v. The State 2011 SCMR 872; Muhammad Akram Rahi and others v. The State and others 2011 SCMR 877; The State/ANF v. Muhammad Arshad 2017 SCMR 283; Solat Ali Khan v. The State 2002 SCMR 820; Ghazanfar Ali alias Pappu and another v. The State 2012 SCMR 215; Ghulam Abbas v. The State 2022 SCMR 1102; Muhammad Zaman v. The State 2007 SCMR 813 and Muhammad Waris v. The State 2008 SCMR 784 ref.

Javed Khan v. State 2017 SCMR 524 rel.

(c) Criminal trial---

----Medical evidence---Scope---Medical evidence could only reveal what kind of weapon/device was used and the seat of the injuries of the dead and injured---Medical evidence could not identify the person who inflicted the injuries.

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

----Ss. 302(b), 324 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Confession before police---Accused was charged that he along with his co-accused committed murder of the father of complainant along with two others by firing---Accused confessed to the offence whilst in police custody, however he was not produced before a Magistrate to record his confession under S. 164, Cr.P.C., despite being produced before a Magistrate for an identification parade---Thus, no reliance on his confession allegedly made before the police could be placed---Moreso, it did not appeal to logic, reason or common sense that the accused would confess to such a serious crime which carried the death penalty whilst in police custody when there was no evidence against him at the time of his arrest---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of reasonable doubt---Appeal against conviction was allowed.

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

----Ss. 302(b), 324 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Recovery of crime empties from the spot---Reliance---Accused was charged that he along with his co-accused committed murder of the father of complainant along with two others by firing---In the present case, no recovery was made from the accused such as a pistol and hence the empties recovered at the crime scene could not be linked to him---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of reasonable doubt---Appeal against conviction was allowed.

Hashmat Khalid for Appellant.

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

2024 P Cr. L J 68

[Sindh (Larkana Bench)]

Before Naimatullah Phulpoto, J

RUSTAM ALI SHAR---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeals Nos. S-83 and S-79 of 2016, decided on 29th September, 2022.

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

----S. 302(b)---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, possession of illicit arms---Appreciation of evidence---Benefit of doubt---Withholding material evidence---Scope---Accused was charged for committing murder of his wife on the pretext of kari---From the perusal of evidence it appeared that it was a case of spy information and incident occurred in day time---Police (ASI) had failed to associate with him independent persons of the locality---Moreover, it had come on record that some ladies were present at the time of incident, but they were not examined by the prosecution at trial---Presumption would be drawn, if said persons would have been examined, they might have not supported the case of prosecution---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.

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

----S. 302(b)---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qatl-i-amd, possession of illicit arms---Appreciation of evidence---Benefit of doubt---Infirmities---Accused was charged for committing murder of his wife on the pretext of kari---It was not believable that the accused was waiting for the police to kill his wife---Prosecution story, on close scrutiny, appeared to be unnatural---As per prosecution case police party had left police station vide Roznamcha entry No.2 at 07.10 a.m., but there was overwriting in the entry number---Prosecution failed to furnish any explanation---Police (ASI), who was head of the police party, had deposed that accused was previously known to him, but he had been contradicted by Police Constable, who stated that ASI had enquired name from the accused after the incident---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.

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

----S. 302(b)---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qatl-i-amd, possession of illicit arms---Appreciation of evidence---Benefit of doubt---Police Officials as witnesses---Scope---Accused was charged for committing murder of his wife on the pretext of kari---Defence objected that only Police Officials were produced as witnesses---No doubt, evidence of the Police Officials cannot be discarded simply because they belong to the police force, but where the fate of an accused hinges upon the testimony of the Police Officials alone, particularly in the case of capital punishment, it is necessary to find out if there is any possibility of securing independent persons at that time---In the present case, the fate of the accused hinged upon the testimony of Police Officials alone---Judicial approach has to be cautious in dealing with such evidence---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.

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

----S. 302(b)---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qatl-i-amd, possession of illicit arms---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence and crime empties---Safe custody and safe transmission of the weapon not established---Accused was charged for committing murder of his wife on the pretext of kari---Record reflected that the accused soon after the incident was arrested by ASI and mashirs and gun was recovered from his possession on 27.05.2014---One empty cartridge was collected from the place of incident and 03 live cartridges were also recovered from the possession of the accused, but case property was dispatched to the Ballistic Expert on 03.6.2014---Blood-stained earth was sent to the Chemical Examiner on 02.6.2014---From the re-examination of entire prosecution evidence, it was clear that ASI and mashirs no-where had deposed that after recovery of the crime weapons the same were deposited with the Incharge of the Malkhana---Entry of the Malkhana had not been produced---Incharge of the Malkhana had also not been examined---Case property was taken to the Ballistic Expert and to the Chemical Examiner---Police Officials, who had taken the same to the Expert, had also not been examined---Thus, it was clear that safe custody and safe transmission of the weapons were not established by prosecution at trial---When prosecution fails to produce the evidence before the Trial Court regarding safe custody and safe transmission of the weapons, then the same cannot be used against the accused for conviction---Appeal against conviction was accordingly allowed.

Kamal Din v. The State 2018 SCMR 577 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---For giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt in the prosecution case---If there is single circumstance creating reasonable doubt in a prudent mind about the guilt of the accused, then accused will be entitled for benefit of such doubt, not as a matter of grace and concession, but as a matter of right.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

Ghulam Akbar Soomro for Appellant.

Ali Anwar Kandhro, Additional Prosecutor General for the State.

2024 P Cr. L J 121

[Sindh]

Before Mohammad Karim Khan Agha and Irshad Ali Shah, JJ

RAHEEL---Appellant

Versus

The STATE---Respondent

Special Criminal A.T. Appeals Nos. 257, 258 and Confirmation Case No. 13 of 2019, decided on 17th August, 2021.

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

----Ss. 302(b), 324, 353, 186 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, attempt to commit qatl-i-amd, assault and criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, common intention, possession of unlicensed arms, act of terrorism---Appreciation of evidence---Benefit of doubt---Test identification parade---Scope---Accused being suspected persons were signalled to stop by the police, but they made firing upon the police with the intention to commit their murder, due to which a Police Constable died while an ASI sustained injuries on his body---Record showed that prior to the incident the sole eye-witness/injured did not know the accused---Said witness only got a fleeting glance at the accused from at least 5 meters away in poor light under the stressful circumstances of being under attack therefore identification parade was necessary which was carried out in accordance with law---Complainant, injured by the firing, gave his FIR with promptitude on the same day of the incident, however it did not provide any meaningful hulia/description of any of the persons who made fire at him and the deceased, except to describe them all as wearing Shalwar Qameez, being of young age and looking Baloch from their faces along with the catch all phrase that he could identify them again---Identification parade was held three months after the incident and as such the incident would not have been fresh in the eye-witnesses mind---Identification parade was conducted five days after the arrest of the accused during which period he was detained in police custody and could have been shown to the eye-witness during that period as claimed by the accused---Accused was the only one of the dummies at the identification parade with a bandaged leg and clutches and thus that was a clear pointer to the identifier whom, he was meant to pick out at the identification parade---No details were taken of any of the dummies---Identification of the accused by a sole eye-witness could not be safely relied upon, the case of the prosecution against the accused collapsed---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.

Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231; Kanwar Anwaar Ali's case PLD 2019 SC 488 and Abdul Wahab Afghani alias Khalid alias Jameel v. The State 2007 PCr.LJ 860 ref.

Javed Khan v. State 2017 SCMR 524; Mian Sohail Ahmed v. State 2019 SCMR 956; Kanwar Anwaar Ali's case PLD 2019 SC 488; Muhammed Yaqoob and another v. State 1989 PCr.LJ 2227; Muhammad Bashir v. The State PLD 1958 SC (Pak) 1; Muhammad Afzal and another v. The State 1982 SCMR 129; Sudhindranath v. The State AIR 1952 Cal. 423; Ismail and another v. The State 1974 SCMR 175; Satya Narain v. The State AIR 1953 All. 385 and Kind v. Christie 1914 AC 545 rel.

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

----Ss. 302(b), 324, 353, 186 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, assault and criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, common intention, possession of unlicensed arms, act of terrorism---Appreciation of evidence---Benefit of doubt---Withholding material witness---Effect---Accused being suspected persons were signalled to stop by the police, but they made firing upon the police with the intention to commit their murder, due to which a Police Constable died while an ASI sustained injuries---Private eye-witnesses were listed in the prosecution's calendar of witnesses but none of those eye-witnesses who might have fortified the complainants identification of the accused were called as prosecution witnesses or even to the identification parade and as such an adverse inference might be drawn against them that they would not have supported the prosecution case under Art. 129(g), Qanun-e-Shahadat, 1984---Arresting Officer did not give any evidence without any reason---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), 324, 353, 186 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault and criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, common intention, possession of unlicensed arms, act of terrorism---Appreciation of evidence---Benefit of doubt---Recovery of pistol from the possession of the accused---Reliance---Scope---Accused being suspected persons were signalled to stop by the police, but they made firing upon the police with the intention to commit their murder, due to which a Police Constable died while an ASI sustained injuries---Recovery of the pistol from the accused could have easily been foisted on him by the police as claimed by the accused especially as he was not arrested on the spot and there was no independent mashir---High Court observed that it did not appeal to logic, common sense and reason that a person who had shot dead a police man and injured another by firearm or had been involved in the firing in such incident would have retained the pistol and kept it on his person for three months---Being such a cold bloodied killer despite having an unlicensed firearm on him he would stop at the police's signal and allowed himself to be searched rather than opened fire on the police or at least attempted to make his escape good on his motor bike---Recovery of the pistol from the accused on his arrest was doubtful and as such the recovered empties and Forensic Science Laboratory Report were of no relevance---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), 324, 353, 186 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault and criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, common intention, possession of unlicensed arms, act of terrorism---Appreciation of evidence---Benefit of doubt---Admission of the accused before the police---Scope---Accused being suspected persons were signalled to stop by the police, but they made firing upon the police with the intention to commit their murder, due to which a Police Constable died while an ASI sustained injuries on his body part---Accused was arrested when he was stopped by the police three months after the incident in an unlicensed arms case so once again it did not appeal to logic, common sense or reason that he would then freely admit his being involved in the murder of a policemen which carried the death penalty---Said admission before the police was inadmissible in evidence and if it was true it beg the question as to why the confession of accused was not recorded before a Judicial Magistrate---Prior to the alleged admission of accused before the police, the police had no suspect in the murder case and no other evidence to link the accused to the murder---Accused was therefore, a convenient escape goat---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt--- Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324, 353, 186 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault and criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, common intention, possession of unlicensed arms, act of terrorism---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Scope---Accused being suspected persons were signalled to stop by the police, but they made firing upon the police with the intention to commit their murder, due to which a Police Constable died while an ASI sustained injuries---Complainant stated in his evidence that he took the seriously injured deceased and wounded self to hospital by rickshaw---Yet the Medico-Legal Officer stated that the deceased was brought by police mobile which based on the particular facts and circumstances of the case was quite a significant contradiction---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324, 353, 186 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault and criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, common intention, possession of unlicensed arms, act of terrorism---Appreciation of evidence---Benefit of doubt---Defence plea---Scope---Accused being suspected persons were signalled to stop by the police, but they made firing upon the police with the intention to commit their murder, due to which a Police constable died while an ASI sustained injuries on his body part---Consistent defence of the accused was that he was falsely implicated in the case and was not present and that he was arrested from hospital where he had been admitted which was supported by a medical report which stated that he was in hospital after falling from a roof---Father of the accused had even written letters to the concerned authorities that his son/accused had been implicated in a false case---Defence when placed in juxta position with the prosecution case found to be worthy of being given some weight and could not be ignored---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt-Appeal against conviction was allowed, in circumstances.

Muhammad Farooq for Appellant.

Mohammad Iqbal Awan, Additional Prosecutor General Sindh for the State.

2024 P Cr. L J 196

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

NASEER AHMED alias MULLAN---Appellant

Versus

The STATE---Respondent

Special Criminal A.T. Appeal No. 39 of 2021, decided on 13th October, 2022.

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

----S. 7---Penal Code (XLV of 1860), S. 302(b)---Qanun-e-Shahadat (10 of 1984), Arts. 38 & 39---Qatl-i-amd and terrorism---Appreciation of evidence---Admission in police custody---Effect---Benefit of doubt---Incriminating evidence, absence of---During investigation of some other case accused admitted his involvement in present crime---Accused was convicted by Trial Court for committing murder and was sentenced to imprisonment for life---Validity---Despite having information, investigation officer did not visit and search torture cell where deceased was killed---Such confession reflected that accused was not the person who kidnapped deceased nor murdered him---Any confession before police while in custody was inadmissible in evidence as per Arts. 38 & 39 of Qanun-e-Shahadat, 1984---After arrest of accused, statement under S. 161, Cr.P.C. and evidence of one prosecution witness was managed to book accused falsely in the offence---There were serious doubts in prosecution case regarding involvement of accused in alleged crimes---Rule of benefit of doubt was a golden rule which could not be ignored while dispensing justice---High Court set aside conviction and sentence awarded to accused by Trial Court and acquitted him of the charge as prosecution failed to bring home the guilt of accused beyond reasonable shadow of doubt---Appeal was allowed, in circumstances.

Saifullah v. The State 1985 SCMR 410; Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Alim v. The State PLD 1967 SC 307; Lal Pasand v. The State PLD 1981 SC 142; Mian Sohail Ahmed and others v. The State and others 2019 SCMR 956; Tahir Javed v. The State 2009 SCMR 166; Abid Mehmood v. The State 2009 PCr.LJ 894; Wazir Muhammad and another v. The State 2005 SCMR 277; Rehmatullah v. The State 2006 PCr.LJ 358; Imran Ashraf and 7 others v. The State 2001 SCMR 424; Naveed Asghar and 2 others v. The State PLD 2021 SC 600; Tariq Pervez v. The State 1995 SCMR 1345; Ramzan and others v. Emperor AIR 1929 Sindh 149; Muhammad Umar and others v. The State 2015 SD 181; Siraj ul Haq and another v. The State 2008 SCMR 302; Ameer Bux and another v. The State 2012 PCr.LJ 500; Shamoon alias Shamma v. The State 1995 SCMR 1377; Wazir Muhammad v. The State 1992 SCMR 1134; Muhammad Mansha v. The State 2001 SCMR 199; Dadullah and another v. The State 2015 SCMR 856; Khalid Mehmood v. The State 2017 SCMR 201; Ijaz Ahmad v. The State 2009 SCMR 99; Muhammad Nadeem alias Deemi v. The State 2011 SCMR 872; Niaz ud Din and another v. The State and another 2011 SCMR 725 and Kanwar Anwar Ali's case PLD 2019 SC 488 ref.

Zahoor Ahmed for Appellant.

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

2024 P Cr. L J 223

[Sindh]

Before Salahuddin Panhwar, J

ABDUL REHMAN alias REHMAN---Applicant

Versus

The STATE and another---Respondents

Criminal Miscellaneous Application No. 496 of 2019, decided on 24th February, 2021.

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

----Ss. 265-K, 249-A & 561-A---Provision(s) of S. 249-A or 265-K of the Criminal Procedure Code, 1898 ('Cr.P.C., 1898')---Ingredients---Exceptional circumstances---Application under S. 265-K of the Cr.P.C., 1898 filed by the petitioner/accused was declined by the Trial Court; he assailed said dismissal order by moving the High Court under S. 561-A of the Cr.P.C., 1898---Contention of the respondent/ complainant was that similar application moved by other accused was also dismissed---Validity---Provision(s) of S. 249-A or 265-K of the Cr.P.C, 1898, were provided by the Criminal Procedure Code, 1898, itself, therefore, the same could not be legally brushed aside as 'non-existent'---However, said provisions, being in departure to normal course, would only be exercised when exceptional circumstances justifying the charge to be groundless were present or that there was no probability of the accused being guilty of any offence even if trial was concluded ---Dismissal of an application of co-accused would not be a sufficient ground for dismissal of such like application by other accused of the same case, rather criterion of dismissal of such application must always be non-existent of required ingredients i.e. 'charge being groundless' and 'non-existent of possibility of accused being guilty of any offence even if case was taken as correct'---Petition under S. 561-A of the Cr.P.C, 1898, was allowed, in circumstances.

The State through Advocate-General v. Raja Abdul Rehman 2005 SCMR 1544 ref.

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

----Ss. 265-K, 249-A & 561-A---Penal Code (XLV of 1860), S. 395---Dacoity---Provision(s) of S. 249-A or 265-K of the Criminal Procedure Code, 1898---Scope---Extra-ordinary circumstances---Prosecution case was that the petitioner/accused, along with co-accused duly armed with weapons entered into the house (house-in-question) and looted away valuable articles---Application under S. 265-K of the Criminal Procedure Code, 1898, filed by the petitioner/accused was declined by the Trial Court; he assailed said dismissal order before the High Court---Complainant asserted himself as a tenant at house-in-question(place of alleged occurrence) on behalf of a person with whom the petitioner/accused had civil/criminal litigations since long while he (accused) claimed himself to be the owner of house-in-question---Validity---Allegation(s) had been that of house-trespass and that of stealing away household articles etc.---Normally such allegations would require due trial but if the alleged accused, on the other hand, had been involved in litigation in respect of same premises (house-in-question) since purchase, then such case would be an exception because no offence of trespass could be made against occupant, claimed purchaser or tenant, even if such claim was under litigation; as such alleged occurrence could not constitute an act of trespass on the part of the accused---Even the complainant himself while recording his evidence adduced/suggested that accused persons had committed the occurrence directing the co-accused to vacate their house---Record revealed that as independent witnesses (Chowkidar etc.) had not supported the complainant's version so the report under S. 173, Cr.P.C, 1898, was submitted in A-Class (discharge of nominated accused)---Though the Court of Magistrate was competent to take cognizance on even a negative report (under S. 173, Cr.P.C, 1898), but said act never absolved the Court, while deciding an application under S. 249-A or 265-K of Cr.P.C, 1898, from examining the undeniable or undisputed documents/facts like one(s) relating to previous civil as well as criminal litigation amongst the parties---Court was also to weigh the possibility that prosecution would not be able to prove charge for any offence against the petitioner/accused even if the trial would have been allowed to continue---Present case was one of extraordinary circumstances, hence High Court quashed the proceedings of Trial Court against the petitioner/accused---Petition moved by the petitioner/accused under S. 561-A of the Cr.P.C, 1898, was allowed, in circumstances.

Muhammad Ayub Chanhio for Applicant.

Tariq Mehmood A. Khan for Respondent.

Hussain Bukhsh Baloch, A.P.G. for the State.

2024 P Cr. L J 284

[Sindh]

Before Mohammad Karim Khan Agha and Arshad Hussain Khan, JJ

Syed MUHAMMAD ASIF RAEES---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 27 and 28 of 2021, decided on 29th November, 2022.

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

----Ss. 302(b), 109 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, abetment, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---First Information Report against unknown persons---Accused was charged for committing murder of the father-in-law of the complainant by firing---Although there was no delay in lodging the FIR for murder, however, it was lodged by complainant who was not an eye-witness to the incident and it was lodged against unknown persons---In the FIR, complainant simply stated the time, date and location of the murder of the deceased---Moreover, the FIR was flimsy and against unknown persons---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

State v. Ahmed Omar Sheikh 2021 SCMR 873 rel.

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

----Ss. 302(b), 109 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, abetment, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Presence of eye-witness at the spot not proved---Chance witnesses---Accused was charged for committing murder of the father-in-law of the complainant by firing---Ocular account of the incident had been furnished by two eye-witnesses---Record showed that the eye-witness was not from the area and might be regarded as a chance witness---Although reason of witness for being there might be because he came to play an indoor game although that begged the question whether there were any clubs for such game in his own area and why he needed to travel out of his way to the club in question---Said aspect of the case casted some doubt on the presence of said eye-witness at the time of the incident---Number of other aspects however also went against believing that witness was present at the time of the incident and even if he was present his ability to correctly identify the accused as one of the persons who made firing on the deceased was doubtful---Evidence of other eye-witness was on the same lines as of first eye-witness and indeed corroborated/supported it---However, the same considerations applied to that eye-witness as to first eye-witness---Thus, no reliance could be placed on the evidence of that eye-witness in terms of correctly identifying the accused as one of the persons who fired on the deceased---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

Sajid Mehmood v. The State 2022 SCMR 1882; Muhammad Saleem v. The State 2005 PCr.LJ 644; Muhammad Mansha v. The State 2001 SCMR 199; Bashirullah and another v. The State 2002 PCr.LJ 1183; Mubasher and another v. The State PLD 2015 Lah. 426; Dadullah and another v. The State 2015 SCMR 856; Ijaz Ahmad v. The State 2009 SCMR 99 and Niaz-ud-­Din and another v. The State 2011 SCMR 725 ref.

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

----Ss. 302(b), 109 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, abetment, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Delay of three months in recording statement of eye-witness---Accused was charged for committing murder of the father-in-law of the complainant by firing---Eye-witness came to the Police Station to introduce himself as an eye-witness three months after the incident without giving any reason at all as to why he did not come forward on day one---Thus, such unexplained delay of three months in recording the eye-witness's statement was fatal to the prosecution case---Despite keeping quiet as an eye-witness immediately after the incident the eye-witness miraculously decided to come forward three months after the arrest of the accused---Up to that time there was no evidence of the accused being involved in the murder of the deceased and the case had even been disposed of in "A" class with no eye-witness named---Said eye-witness showing up out of the blue three months after the arrest of the accused was not believable---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

Muhammed Asif v. State 2017 SCMR 486 rel.

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

----Ss. 302(b), 109 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, abetment, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Test identification parade---Accused was charged for committing murder of the father-in-law of the complainant by firing---Record showed that there was no evidence that eye-witness gave any hulia/description or drew any sketch of any of the culprits and it had not even come in evidence that he had claimed in his S. 161, Cr.P.C. statement that he could recognize the culprits if he saw them again---On that count as well any identification made of the accused by the eye-witness at the identification parade could not be safely relied upon on account of a lack of hulia prior to the identification parade especially as the accused had claimed that he was shown to the eye-witnesses at the Police Station whilst in police custody prior to the identification parade---Even otherwise, the Magistrate who carried out the identification parade did not give evidence---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

Javed Khan v. State 2017 SCMR 524 rel.

(e) Criminal trial---

----Medical evidence---Scope---Medical evidence can only reveal what kind of weapon/device was used and the seat of the injuries of the dead and injured---Medical evidence cannot identify the person who inflicted the injuries.

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

----Ss. 302(b), 109 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, abetment, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Confession of accused before the police---Accused was charged for committing murder of the father-in-law of the complainant by firing---According to the evidence of Police Constable when the three accused were arrested in an illegal arms case, about three months after the murder of the deceased, one of the accused confessed (no particular accused was named) to the murder of the deceased at the time of his arrest in the arms case at the time when the memo of arrest and recovery was being prepared---Thus, it did not appeal to logic, reason or common sense that the accused would confess to such a serious crime as the present one which carried the death penalty on the spot whilst being arrested in an arms case without even waiting to be interrogated when he reached the police station---Question was as to why the accused was in such a hurry to confess to a capital offence when he was only being booked in an arms case which carried a much lesser sentence when at that time there was no evidence against him in the murder case---In any event a confession before a Police Officer or a Ranger's Official was inadmissible in evidence and was of no legal value---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 109 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, abetment, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Recovery of weapon of offence from the possession of accused and crime empties from the spot---Inconsequential---Accused was charged for committing murder of the father-in-law of the complainant by firing---Prosecution claimed that the pistol recovered from the accused at the time of his arrest in the arms case matched the empties found at the crime scene and thus linked the accused to the murder of the deceased---Case of accused was that the pistol was foisted on him---Considering the fact that the accused confessed to the murder case whilst he was being arrested in the arms case to be unbelievable also led to the conclusion that the pistol recovered from him was most likely foisted on him---Because one day after the pistol was allegedly recovered from accused it was sent to Forensic Science Laboratory along with the empties in the murder case which produced a positive Forensic Science Laboratory Report which linked the accused to the crime---Once it was found that the accused never made such a confession before the Rangers at the time of his arrest it became apparent that the police had no reason to send the murder case empties along with the allegedly recovered pistol in the arms case to the Forensic Science Laboratory as at that time there was no reason to link the recovered pistol to the empties---As such it could not be ruled out that the recovered pistol was foisted on the accused which was already matched for the recovered empties---Moreover, it did not appear that the accused took the police to the place of occurrence, but even if he did that was of no relevance as the police already knew where the place of occurrence was---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

(h) 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.

Waqar Ahmed for Appellant.

Ali Haider Saleem, Additional Prosecutor General Sindh and Chaudhry Mehmood Anwar, Special Prosecutor Rangers for the State.

2024 P Cr. L J 326

[Sindh (Hyderabad Bench)]

Before Muhammad Saleem Jessar, J

MUHAMMAD UMAR---Appellant

Versus

VIIITH ADDITIONAL DISTRICT AND SESSIONS JUDGE, HYDERABAD and another---Respondents

Criminal Appeal No. S-175 of 2020, decided on 21st May, 2021.

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

----S. 489-B--- Using counterfeit currency notes as genuine---Appreciation of evidence---Benefit of doubt---Prosecution case was that two fake prize bonds and fake 100 currency notes of Rs. 5000/- denomination each and 100 currency notes of Rs. 1000/- denomination each were recovered from the possession of the accused---Evidence adduced by prosecution before the Trial Court, showed that none of the prosecution witnesses had said a single word that the accused had knowledge or reason to believe that the currency notes possessed by him were forged or counterfeit---Complainant, who allegedly effected recovery of the said currency notes etc., and the mashir had said that they found the currency notes to be fake/forged---What was the criteria of their finding such currency notes to be fake/forged, particularly when they had not deposed a single word that the accused himself stated that he had knowledge or reason to believe that such currency notes were fake---Accused had pleaded in clear terms that he did not hand over any such notes to the complainant---Important ingredient for constituting offence under S. 489-B, P.P.C. was lacking in the present case---Circumstances established that the prosecution had not succeeded in proving its case against the accused beyond any shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

Mohammad Saleem v. The State 1995 PCr.LJ 662; Tariq Pervez v. The State 1995 SCMR 1345; Abrar Ahmed alias Abrar v. The State PLD 2008 Kar. 325; Ismail and 2 others v. The State 2016 PCr.LJ 584; Asmat Khan v. The State 2000 PCr.LJ 1461 and Peeral v. The State 2020 PCr.LJ 1147 ref.

Ali Asghar v. The State 1992 PCr.LJ 1913; Bur Sing v. The Crown AIR 1931 Lah. 34; Salvator Belvisi v. The State PLD 1961 Kar. 342; Abrar Ahmed alias Abrar v. The State PLD 2008 Kar. 325 and Hamid Yousif v. The State 2011 PCr.LJ 172 ref.

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

----S. 489-B---Using counterfeit currency notes as genuine---Appreciation of evidence---Benefit of doubt---Delay in sending the recovered currency notes for verification---Scope---Prosecution case was that two fake prize bonds and fake 100 currency notes of Rs. 5000/- denomination each and 100 currency notes of Rs. 1000/- denomination each were recovered from the possession of the accused---Investigating Officer, in his evidence, deposed that he received along with mashirnama of arrest and recovery including case property in sealed condition for the purpose of conducting investigation---Investigating Officer further deposed that he sent currency notes allegedly recovered from the possession of accused to State Bank of Pakistan for verification through letter which had been shown to have received in the Office of Chief Manager, State Bank of Pakistan and the certificate was issued---In said circumstances, if counted from the date of receipt of the letter sent by Investigating Officer for verification, it seemed that there was delay of about eleven days in sending the alleged fake currency notes to the State Bank---If the period was counted even from the date of the letter through which such currency notes etc. were sent to State Bank, even then there was unexplained delay of at least three days---Investigating Officer had not said a single word that during the intervening period the alleged recovered currency notes and prize bonds were kept in safe custody---Certificate of State Bank had lost its evidentiary value---Circumstances established that the prosecution had not succeeded in proving its case against the accused beyond any shadow of reasonable doubt---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

Mohammad Saleem v. The State 1995 PCr.LJ 662 and Azmat Khan v. The State 2000 PCr.LJ 1461 rel.

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

----S. 489-B---Criminal Procedure Code (V of 1898), S. 342---Using counterfeit currency notes as genuine---Appreciation of evidence---Incriminating evidence was not put to accused during his statement under S. 342, Cr.P.C---Scope---Prosecution case was that two fake prize bonds and fake 100 currency notes of Rs. 5000/- denomination each and 100 currency notes of Rs. 1000/- denomination each were recovered from the possession of the accused---Admittedly, description/ denomination of currency notes and that of prize bonds were not mentioned in the charge---Besides, the same were also not confronted to the accused while recoding his statement under S. 342, Cr.P.C.---Said fact put dent in the prosecution case, which was fatal to the prosecution case---Circumstances established that the prosecution had not succeeded in proving its case against the accused beyond any shadow of reasonable doubt---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

Peeral v. The State 2020 PCr.LJ 1147 rel.

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

----S. 489-B---Criminal Procedure Code (V of 1898), S. 103---Using counterfeit currency notes as genuine---Appreciation of evidence---Non-association of private witnesses---Scope---Prosecution case was that two fake prize bonds and fake 100 currency notes of Rs. 5000/- denomination each and 100 currency notes of Rs. 1000/- denomination each were recovered from the possession of the accused---There was violation of the provision of S. 103, Cr.P.C., as all the witnesses/ mashirs were Police Officials---No independent person of the locality from where the accused was allegedly arrested and fake currency notes etc. were recovered from the accused, had been associated as witness/mashir---Nothing on the record to show as to whether complainant asked any person driving motorcycle or car plying on the road near the place of incident to act as mashir and despite that nobody was prepared to become witness/mashir---On the other hand, complainant himself admitted, that he did not make any effort to procure the private person as witness---Likewise, mashiralso admitted in his cross-examination that the place of incident was thickly populated area---Said witness contradicted/belied the admission made by complainant to the effect that he did not make any effort to procure the private person as witness by admitting in his cross-examination that complainant tried to procure witness from the public but they refused---Question arose as to whose statement was taken to be true and correct---If the statement of the complainant was said to be correct then apparently there was lack of any explanation given by him as to why he did not make any effort when admittedly motorcycles and cars were plying on the road near the place of incident and the place of incident was also admittedly a thickly populated area---Again, on the other hand, if the statement of mashir was considered to be true then question arose as to whether in such an eventuality, complainant issued any notice and took any steps against the person(s) who refused to become witness/mashir, as provided under the relevant law---No such indication was available on the record---Such was clear violation of the provisions of S. 103, Cr.P.C.---Circumstances established that the prosecution had not succeeded in proving its case against the accused beyond any shadow of reasonable doubt---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

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

(e) Criminal trial---

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

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

(f) Criminal trial---

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

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Qambar Ali Jamali for Appellant.

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

2024 P Cr. L J 370

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Zulfiqar Ahmad Khan, JJ

MIR MUHAMMAD and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. D-74, D-83 and Criminal Jail Appeal No. D-84 of 2020, decided on 31st May, 2022.

(a) 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---Search and arrest, mode of---Non-association of private witnesses---Effect---Twenty eight kilograms charas was recovered from the vehicle of the accused persons---Contention of the accused was that no private person was joined in recovery proceedings except Police Officials, which was a violation of S. 103, Cr.P.C.---Validity---As per FIR the complainant party was available at police station where spy appeared and gave information about the offence and when the police party reached near a petrol pump they saw the present accused persons coming in a car; they got it stopped and apprehended the accused and recovered 28 kilograms of charas from their possession---However, it had come in evidence that the accused were arrested from near a petrol pump leading road, which was a thickly populated area and the complainant had sufficient time to call the 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 being subordinates to him were made as mashirs of arrest and recovery proceedings---Admittedly, judicial approach had to be conscious in dealing with cases in which entire testimony hinged upon the evidence of Police Officials alone---Provisions of S. 103, Cr.P.C., were not attracted to 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), omission to secure independent mashirs, particularly, in police case could not be brushed aside lightly by the court---No explanation on record was available as to why no independent person either from the place where they received spy information or from the place of incident had been joined to witness the recovery proceedings though it was a day time incident---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

2019 SCMR 326; 2019 SCMR 1102; SBLR 2018 Sindh 1286; SBLR 2019 Sindh 119; 2014 SCMR 862; PLD 2020 SC 57; 2019 SCMR 2004; PLD 2009 Kar. 191; 2020 YLR 503; 2018 SCMR 1425; PLD 2012 SC 369 and 2007 PCr.LJ 483 ref.

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

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

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

----S. 9---Narcotic cases---Testimony of official/police witnesses---No doubt police witnesses were as good as other independent witnesses and conviction could be recorded on their evidence, but their testimony should be reliable, dependable, trustworthy and confidence worthy and if such qualities were missing in their evidence, no conviction could be passed on the basis of evidence of police witnesses.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Discrepancies in the prosecution case---Effect---Twenty eight kilograms charas was recovered from the vehicle of the accused persons---Record showed that there were a number of contradictions between the evidence of prosecution witnesses 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---Apart from above, there were also discrepancies and flaws in the evidence of prosecution witnesses---Complainant in his cross-examination had deposed that at the time of filing charge sheet report, property was not deposited in court malkhana---Size of charas slabs and colour of charas were not mentioned in the memo of arrest and recovery---Complainant admitted as correct that he did not produce roznamcha entry about handing over the case property to malkhana incharge---Complainant did not record the statement of malkhana incharge on same date---In memo of arrest and recovery, car colour, engine number, chasis number, model and manufacturing company name and word 'Cultus' were not written---Complainant did not disclose the ANF team's vehicle registration number, make and model and also the colour---Wife of one of the accused persons filed application against complainant regarding harassment and illegal demand to high ups of complainant---Complainant did not note the time of memo of arrest and recovery preparation---Said witness had not specifically disclosed the sealing of articles in the case---Total narcotic which allegedly was recovered from the accused persons was of 28 kilograms but only 560 grams as sample was sent to the Chemical Examiner---No mention was made of the time of depositing of case property in malkhana and when it was removed---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

2019 SCMR 326 and 2015 PCr.LJ 235 ref.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Recovery of vehicle---Inconsequential---Twenty eight kilograms charas was recovered from the vehicle of the accused persons---Record showed that no customer was found around place of occurrence for the purpose of purchasing charas---Police had also failed to trace out the original owner of the car---As per record, the car of accused had come through a police picket but no receipt of Toll Plaza had been produced---Description of the vehicle in which police party had left the police station had also not been given---Prosecution also failed to prove that the car in question belonged to the accused---Owner of the car was neither made as an accused nor witness in the case---If the owner of the car was not an accused, then he must have been associated as witness in the case to clarify how the car went into the hands of the accused and under what capacity the possession of such vehicle was with claimed possessor of said vehicle---Non-associating the owner of the vehicle/car in the case, in any capacity created a serious doubt regarding the prosecution case that the accused persons were in exclusive possession of such vehicle, hence it would be not safe to saddle them with the claimed recovery---No log book was produced by the police---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)---Criminal Procedure Code (V of 1898), S. 342---Possession of narcotic---Appreciation of evidence---Defence pleas not considered by Trial Court---Twenty eight kilograms charas was recovered from the vehicle of the accused persons---Accused persons in their statements recorded under S. 342, Cr.P.C., had also taken defence pleas---Accused stated that he had been falsely implicated in the case at hand at the instance of his uncle with whom he had property dispute---Similarly, other accused took the plea that he had some business transaction with one Mr. "F" and on demand of his outstanding amount of Rs.7,00,000/- he had been involved in the case---Another accused also stated that he contracted love marriage with Mst. "Z" hence his in-laws being antagonized of such marriage had falsely implicated him in this case---Number of documents had been annexed with their respective statements to prove their innocence but the same were not considered by the Trial Court---If the specific allegation of animosity was leveled against the complainant, the prosecution should be more careful in respect of establishing the case and some private and independent witness ought to have been examined---Non-examination of private and independent witness had thrown thick clouds of doubt on the entire prosecution case---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

SBLR 2019 Sindh 119 rel.

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

----S. 9(c)--- Possession of narcotic---Appreciation of evidence---Chemical analysis---Delay of three days in sending samples of contraband for analysis---Consequential---Twenty eight kilograms charas was recovered from the vehicle of the accused persons---As per available record, the narcotic was recovered from accused on 08.11.2019 and the memo of arrest and recovery was prepared and the narcotic was deposited in Malkhana---Report of Director Laboratories and Chemical Examiner revealed that the charas was received by hand in the office on 11.11.2019 through Police Constable after a delay of three days but evidence on the record was silent that where the same remained for three days from 08.11.2019 to 11.11.2019---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Safe custody and safe transmission of samples to the Forensic Science Laboratory not established---Effect---Twenty eight kilograms charas was recovered from the vehicle of the accused persons---Evidence regarding safe transmission of alleged recovered narcotic to the laboratory for chemical analysis was missing---If safe custody of narcotic and its transmission through safe hands was not established on the record, same could not be used against the accused---Chain of custody or safe custody and safe transmission of narcotic 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---Said chain of custody must be safe and secure---This was because, the Report of Chemical Examiner enjoyed very critical and pivotal importance under the 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 doubtful to justify conviction of the accused---Moreover, it was a matter of record that the charas was recovered from possession of accused on 08.11.2019 and was kept in Malkhana but it had not been proved that it was a safe transit case---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.

(i) Criminal trial---

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

Tariq Parvez v. The State 1995 SCMR 1345 rel.

Ghulamullah Chang for Appellant (in Criminal Appeal No.D-74 of 2020).

Sahib Khan Panhwar for Appellant (in Criminal Appeal No.D-83 of 2020).

Mir Ali Bakhsh Talpur for Appellant (in Criminal Jail Appeal No.D-84 of 2020).

Shahnawaz Brohi, Special Prosecutor ANF for the State.

2024 P Cr. L J 405

[Sindh (Hyderabad Bench)]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

Mst. KHADEJA---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-42 and Confirmation Case No. 8 of 2014, decided on 22nd June, 2021.

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

----Ss. 302(b), 364, 201 & 34---Qatl-i-amd, kidnapping or abducting in order to murder, causing disappearance of evidence of offence, common intention--- Appreciation of evidence---Sentence, reduction in---Delay of three months in lodging the FIR---Effect---Accused was charged that she along with her co-accused committed murder of the brother of complainant after kidnapping him---Record showed that the FIR was lodged after a delay of around three months---In cases where a person went missing it was not uncommon for the FIR to be lodged belatedly as the priority of the relatives was to find the missing person and less importance was placed on lodging the FIR especially when the missing person was an adult as in that case with only the bare allegation that he had gone missing and no one was named to be responsible for his abduction---Generally, delay in lodging FIR was often fatal to the prosecution case because it gave time for the complainant to cook up a false case against the accused often in collusion with the police, however, based on the particular facts and circumstances of that case such delay was not relevant keeping in view the fact that the deceased's dead body was exhumed in front of the house in which he and the accused were living which could not possibly have been planted there by the complainant party in order to fix the accused in a false case without the accused knowing about such burial as she was living in the house from the time the deceased went missing until his body was exhumed---Based on the particular facts and circumstances of the case the delay in lodging the FIR was not fatal to the prosecution's case---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, the sentence was reduced from death to life imprisonment---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b), 364, 201 & 34---Qatl-i-amd, kidnapping or abducting in order to murder, causing disappearance of evidence of offence, common intention--- Appreciation of evidence---Sentence, reduction in---Circumstantial evidence---Scope---Accused was charged that she along with co-accused committed murder of the brother of complainant after kidnapping him---Three witnesses went to the deceased house in the evening of 5/6.10.2010 where they had seen the deceased, the accused and the co-accused/deceased with two of his relatives---Said three witnesses corroborated each other in all material respects and were not chance witnesses and as such there was no reason to disbelieve their evidence about that meeting at the house of the deceased---Said witnesses were cross-examined and there evidence was not dented---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, his sentence was reduced from death to life imprisonment---Appeal against conviction was dismissed with said modification in sentence.

Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274; Gul Muhammad and another v. The State through Prosecutor-General Balochistan 2021 SCMR 381; Muhammad Yaseen v. The State 2021 SCMR 404; The State through P.G Sindh and others v. Ahmed Omar Sheikh and others 2021 SCMR 873; Habib Ahmed v. The State 2020 YLR 238; Muslim Shah v. The State PLD 2005 SC 168; Mukhtar Alam v. Fazal Nawab and another 2020 SCMR 618 and Muhammad Abbas v. The State PLD 2020 SC 620 ref.

Fayyaz Ahmed v. State 2017 SCMR 2026 rel.

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

----Ss. 302(b), 364, 201 & 34---Qatl-i-amd, kidnapping or abducting in order to murder, causing disappearance of evidence of offence, common intention---Appreciation of evidence---Recovery of weapon of offence on the pointation of accused---Reliance---Scope---Accused was charged that she along with her co-accused committed murder of the brother of complainant after kidnapping him---Record showed that on the pointation of accused, the hammer which was used to murder the deceased and spade which was used to dig the hole in which the deceased was buried were handed over to the police---Final exhumation report opined that the deceased in effect died from injuries to vital organs i.e. brain---Such injuries were consistent with being hit over the head with the recovered hammer which was also found to be blood stained in the chemical report---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, his sentence was reduced from death to life imprisonment---Appeal against conviction was dismissed with said modification in sentence.

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

----Ss. 302(b), 364, 201 & 34---Qatl-i-amd, kidnapping or abducting in order to murder, causing disappearance of evidence of offence, common intention---Appreciation of evidence---Judicial confession---Scope---Accused was charged that she along with her co-accused committed murder of the brother of complainant after kidnapping him---Accused in her statement under S. 342, Cr.P.C did not deny making the confession---Instead accused made three main complaints that she did not know why she was brought before the Judicial Magistrate----Statement of accused was made in a hurried manner and accused was handed over to the same police who had brought her after her confession---Quite clear from the evidence of Judicial Magistrate who recorded the confession of accused that complaint had no substance, however, it was true with regard to complaint that the accused was handed back to the Investigating Officer who had brought her for her confession but it was clear from the evidence that she was handed immediately from the Investigating Officer into judicial custody---Said defect would not impinge on the voluntary and truthfulness of her confession---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, his sentence was reduced from death to life imprisonment---Appeal against conviction was dismissed with said modification in sentence.

Muhammad Amin v. The State PLD 2006 SC 219; Bahadur v. State PLD 1996 SC 336 and Manjeet Singh v. State PLD 2006 SC 30 rel.

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

----Ss. 302(b), 364, 201 & 34---Qatl-i-amd, kidnapping or abducting in order to murder, causing disappearance of evidence of offence, common intention--- Appreciation of evidence---Sentence, reduction in---Minor contradictions---Scope---Accused was charged that she along with co-accused committed murder of the brother of complainant after kidnapping him---Record showed that all the witnesses were consistent in their evidence---If there were some contradictions in their evidence, same were minor in nature and not material and certainly not of such materiality so as to effect the prosecution case and the conviction of the accused---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, his sentence was reduced from death to life imprisonment---Appeal against conviction 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.

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

----Ss. 302(b), 364, 201 & 34---Qatl-i-amd, kidnapping or abducting in order to murder, causing disappearance of evidence of offence, common intention--- Appreciation of evidence---Sentence, reduction in---Police witnesses---Scope---Accused was charged that she along with her co-accused committed murder of the brother of complainant after kidnapping him---Police witnesses had no enmity or ill will toward the accused and had no reason to falsely implicate her in the case by making up her arrest or foisting the hammer on her---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, however, his sentence was reduced from death to life imprisonment---Appeal against conviction was dismissed with said modification in sentence.

Mushtaq Ahmed v. The State 2020 SCMR 474 rel.

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

----Ss. 302(b), 364, 201 & 34---Qatl-i-amd, kidnapping or abducting in order to murder, causing disappearance of evidence of offence, common intention--- Appreciation of evidence---Sentence, reduction in---Scope---Accused was charged that she along with co-accused committed murder of the brother of complainant after kidnapping him---Case was based solely on circumstantial evidence which must be viewed with a great deal of care and caution and it was the co-accused/deceased who caused the hammer blows to the head of the deceased which caused his murder and not the accused who only provided him the hammer---High Court, by exercising judicial caution reduced the sentence of the accused from death to life imprisonment---Appeal against conviction was dismissed with said modification in sentence.

Syed Shafiq Ahmed Shah for Appellant.

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

Complainant in person.

2024 P Cr. L J 444

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Kausar Sultana Hussain, JJ

Syed MUHAMMAD IQBAL SHAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-96 and Confirmation Case No. 30 of 2013, decided on 20th May, 2021.

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

----Ss. 302(b), 377 & 201--- Qatl-i-amd, sodomy and causing disappearance of evidence---Appreciation of evidence---Sentence, reduction in---Last seen evidence---Scope---Accused was charged for murdering the minor son of complainant after committing sodomy with him---Incident took place on the day when said witness came to hire the labour for plantation of the onions and hired a person---Both went to the lands through the road, on which school was situated---At about 08:00 or 08.30 when said witnesses were on the way, they saw the minor son of complainant in school uniform along with accused going to the sugarcane crop---Said witnesses went to the lands to work---When they returned back after two days, they came to know about the murder of deceased boy---Said witnesses narrated the facts to the complainant---Investigating Officer got recorded S. 164, Cr.P.C statements of said witnesses---Both the witnesses were cross-examined at length by the defence and they denied the suggestion that they had falsely deposed against the accused at the instance of the complainant---All the pieces of evidence were interconnected/ interlinked---Witnesses had given the picture of a complete chain---Said witnesses were independent witnesses having no relationship with complainant or enmity with accused---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, due to mitigating circumstances, death sentence of the accused was converted into imprisonment for life---Appeal against conviction was dismissed with said modification in sentence.

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

----Ss. 302(b), 377 & 201---Qatl-i-amd, sodomy and causing disappearance of evidence---Appreciation of evidence---Recovery of incriminating material---Scope---Accused was charged for murdering the minor son of complainant after committing sodomy with him---Mashir had deposed that on the day of incident, accused led the police in his presence to the sugarcane cultivation of a Zamindar and near the water course produced books, slate, copies and chappals of deceased---Police prepared such mashirnama, he acted as mashir and there was a co-mashir---Said witness produced such mashirnama---Witness was also cross-examined by the defence in which, he denied the suggestion that he had deposed falsely against the accused at the instance of some other person---Prosecution had established that the information given by the accused which led to the recovery of chappal and school bag of the deceased boy, the same were in the exclusive knowledge of the accused---Such piece of evidence was admissible in evidence as provided under Art. 40 of the Qanun-e-Shahadat, 1984---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, due to mitigating circumstances, death sentence of the accused was converted into imprisonment for life---Appeal against conviction was dismissed with said modification in sentence.

Nazir Shehzad and another v. The State 2009 SCMR 1440 and Gul Muhammad v. The State 2011 SCMR 670 rel.

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

----Ss. 302(b), 377 & 201--- Qatl-i-amd, sodomy and causing disappearance of evidence--- Appreciation of evidence--- Medical evidence---Scope---Accused was charged for murdering the minor son of complainant after committing sodomy with him---Unnatural death of deceased was not disputed---Minor boy was subjected to sodomy which fact had been confirmed by Medical Officer---Said witness had stated that, he received the dead body of the minor boy at 09:30 a.m. and started post-mortem examination at 09:45 a.m. and finished at 11:50 a.m.---Time between death and injuries was instantly---Duration between death and post-mortem was about 3 to 6 hours and it was the dead body of a boy of 09 years---Medical Officer found swelling over occipital region of head---Bruise was seen over perineal area and faeces seen out from anal sphincter---All the injuries were anti mortem in nature---According to the doctor, tears were seen by him in the position on 12 O'clock and 6 O'clock, which confirmed the act of sodomy committed upon him---Human sperms were detected and chemical report was positive---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, due to mitigating circumstances, death sentence of the accused was converted into imprisonment for life---Appeal against conviction was dismissed with said modification in sentence.

(d) Criminal trial---

----Circumstantial evidence---Scope---Circumstantial evidence should form such a continuous chain that it's one end touches the dead body and other the neck of the accused.

The State v. Manzoor Ahmed PLD 1966 SC 664 rel.

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

----Ss. 302(b), 377 & 201---Qatl-i-amd, sodomy causing disappearance of evidence---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Scope---Accused was charged for murdering the minor son of complainant after committing sodomy with him---Record showed that the prosecution case was based upon circumstantial evidence---Accused as per Medical Officer was a young man aged about 23 years at the time of incident, which was a mitigating circumstance in the case---Therefore, the death sentence of the accused was converted into imprisonment for life---Appeal against conviction was dismissed with said modification in sentence.

Muhammad Abid v. The State and another PLD 2018 SC 813; Muhammad Ibrahim v. Ahmed Ali and others 2010 SCMR 637 and Muhammad Ashraf v. The State 2016 SCMR 1617 ref.

Amjad Shah v. The State PLD 2017 SC 152 and Akhtar v. The State 2020 SCMR 2020 rel.

Syed Tarique Ahmed Shah for Appellant.

Ahmed Nawaz Chang, Advocate/Associate of Ghulamullah Chang for the Complainant.

Shawak Rathore, Deputy Prosecutor General, Sindh for the State.

2024 P Cr. L J 524

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

AMIR RAHEEM and another---Appellants

Versus

The STATE through Xth ATC, Karachi---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 23, 24, 25, 89, 90 and 91 of 2022, decided on 5th September, 2022.

(a) Criminal trial---

----Facts of a case---Each criminal case is to be decided having regard to its own particular facts and circumstances---Test to be essentially applied in one case may absolutely be irrelevant in another---Crimes are seldom committed in identical situations.

Khan alias Khani and another v. The State 2006 SCMR 1744 and Imtiaz Ahmad v. The State 2001 SCMR 1334 rel.

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

----Ss. 7(1)(h) & 25 (1)---Penal Code (XLV of 1860), Ss. 395 & 397---Sindh Arms Act (V of 2013), S. 25---Terrorism, dacoity, robbery and use of firearm---Appreciation of evidence---Police witnesses, evidence of---Complainant not identifying accused---Accused persons were convicted and sentenced by Trial Court for imprisonment for seven years---Validity---Complainant being eye-witness supported the case in respect of robbery from him, receiving the robbed articles including his motorbike but was declared hostile to the extent of identity of accused at trial and of his role---Other eye-witnesses fully supported case, recovery of robbed articles including crime weapons from accused persons were proved by prosecution---If complainant's evidence was discarded and other evidence was found reliable, trustworthy and confidence-inspiring even then conviction could be maintained---Police officials supported the case being eye-witnesses of the incident---Police officials were as good as private witnesses and their testimony could not be discarded merely for the reason that they were police officials unless accused had succeeded in giving dent to the statements of prosecution witnesses and proved their mala fide or ill-will against accused which they were not able to do or show during cross-examination---Prosecution proved the charge beyond a reasonable doubt against accused persons by producing reliable, trustworthy, and confidence-inspiring oral evidence as well as recovery of robbed articles and other material belonging to complainant party, recovery of the crime weapons, receiving firearm injuries during the encounter and also the documentary evidence in support of the same---High Court declined to interfere in conviction and sentence awarded to accused persons by Trial Court--- Appeal was dismissed, in circumstances.

Abdul Khalique v. The State 2020 SCMR 178; Sher Muhammad v. The State 1968 PCr.LJ 221; Muhammad Suleman and 4 others v. The State PLD 2007 SC 223; Zafar v. The State 2008 SCMR 125 and Zakir Khan v. The State 1995 SCMR 1793 rel.

Samiullah for Appellants (in Appeals Nos. 23, 24 and 25 of 2022).

Muneer Ahmed Gilal for Appellants (in Appeals Nos.89, 90 and 91 of 2022).

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

2024 P Cr. L J 560

[Sindh (Sukkur Bench)]

Before Muhammad Saleem Jessar, J

MUHAMMAD SADIQUE and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. S-47, S-50 and S-51 of 2021, decided on 19th November, 2021.

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

----Ss. 324, 353, 399, 402, 148 & 149---Sindh Arms Act (V of 2013), S.24---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, making preparation for dacoity, assembling for purpose of committing dacoity, rioting armed with deadly weapons, unlawful assembly, possessing unlicensed weapon---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Effect---Accused were charged for stopping the police mobile for robbing purpose and made straight firing on police party with intention to commit their qatl-i-amd---Police party also fired upon the culprits in their defence and one accused was apprehended in injured condition---Record showed that there were certain contradictions in the evidence of prosecution witnesses and they also had made certain admissions which went in favour of the accused and weakened the case of prosecution---Complainant in his cross-examination admitted that they left place of incident at about 03.40 a.m. for Police Station---Time of alleged incident had been shown as 11.30 p.m. on 18.08.2020---Thus, said statement of complainant was contradictory to the time of lodging of FIR of alleged incident as mentioned in the FIR i.e. 12.40 of the night on 19.08.2020---It was not understandable that when the police party left the place of incident at 03.40 a.m. i.e. on the midnight of 19.8.2020, then as to how they got the FIR registered three hours prior to that at 12.40 a.m.---Another glaring contradiction in between the statement of complainant made in his evidence and the one made in the FIR was that in his cross-examination he admitted that three accused were not arrested on the spot and SHO along with his staff followed the escapees---On the other hand, FIR was totally silent about such fact---Moreover, there was no mention at all in the FIR that SHO along with other subordinate staff was also accompanying complainant and his subordinates in another police van at the time of alleged incident, or that after the alleged incident when other culprits except one accused made their escape good, he informed the SHO about such fact and consequently SHO followed the said accused persons---Furthermore, complainant in his cross-examination stated that on the next day of incident, they left Police Station for site inspection at 07.00 a.m. and mashirs accompanied him from Police Station---Distance between Police Station and spot was about 11 kilometers---Complainant consumed about 10/12 minutes from Police Station to place of incident for site inspection---On the other hand, mashir (Head Constable) in his cross-examination made such statement which was in contradiction with the statement of complainant---Said witness stated that there was a jungle and they consumed about 20 minutes from Police Station to place of incident on the next day of incident; and they consumed about 30 minutes on the spot on the next day---Said witness stated that they reached at the place of wardat at about 07.00 a.m.---Apart from that in the Memo of inspection, the time of its preparation had been shown as 07.00 a.m.---Taking the statement of complainant, if they left the police station at 07.00 a.m. and keeping in view the distance between Police Station and the spot i.e. 11 kilometers, as admitted by complainant, and the place of incident being located in jungle, as admitted by mashir, it should have taken at least 30 to 40 minutes to reach the place of incident---Meaning thereby they would have reached at the spot at about 07.40 a.m., but according to mashir, they reached at the spot at 07.00 am which was also the time of preparation of memo of inspection---Said glaring contradiction created doubt in the prosecution story---Besides, there was also another contradiction in the FIR and the evidence of complainant regarding the distance between the Police Station and the place of incident, inasmuch according to complainant, such distance was about 11 kilometers whereas in the FIR it had been shown as 4/5 kilometers---Circumstances established that the prosecution had failed to prove the charges against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Rasool Bux v. The State 2021 YLR 1906; Baptist v. The State 2021 YLR 1273 and Arshad through Central Prison v. The State 2021 PCr.LJ 272 ref.

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

----Ss. 324, 353, 399, 402, 148 & 149---Sindh Arms Act (V of 2013), S. 24---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, making preparation for dacoity, assembling for purpose of committing dacoity, rioting armed with deadly weapons, unlawful assembly, possessing unlicensed weapon---Appreciation of evidence---Benefit of doubt---Investigation conducted by the complainant police official himself---Propriety---Accused were charged for stopping the police mobile for robbing purpose and made straight firing on police party with intention to commit their qatl-i-amd---Police party also fired upon the culprits in their defence, and one accused was apprehended in injured condition---Admittedly, complainant was heading the police party during the encounter with the accused persons---Besides, it was complainant who lodged the FIR and had figured as complainant of the case---Despite that complainant himself conducted investigation of the entire case---Such conduct on the part of Police Officials was not appreciated being violative of Police Order (22 of 2002) and Police Rules, 1934---In fact, in such an eventuality, the Investigating Officer who himself was the complainant could not be expected to collect and preserve evidence which would go against his case and that such Investigating Officer could not perform duties like an independent and fair Investigating Officer---Circumstances established that the prosecution had failed to prove the charges against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Agha Qais v. The State 2009 PCr.LJ 1334; Nazeer Ahmed v. The State PLD 2009 Kar. 191; Mohammad Siddique v. The State 2011 YLR 2261; Mohammad Akram v. The State 1995 MLD 1532 and Zeeshan alias Shani v. The State 2012 SCMR 428 rel.

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

----Ss. 324, 353, 399, 402, 148 & 149---Sindh Arms Act (V of 2013), S. 24---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, making preparation for dacoity, assembling for purpose of committing dacoity, rioting armed with deadly weapons, unlawful assembly, possessing unlicensed weapon---Appreciation of evidence---Benefit of doubt---Night time occurrence---Identification by lights of police van doubtful---Accused were charged for stopping the police mobile for robbing purpose and made straight firing on police party with intention to commit their qatl-i-amd---Police party also fired upon the culprits in their defence and one accused was apprehended in injured condition---According to prosecution case, the police party recognized the culprits in the light of police mobile, whereas the place of incident was situated in a jungle and the time of incident was also dark hours of the night and admittedly the distance between the police party and the culprits was about 700/800 feet---Complainant in his evidence deposed that during the course of patrolling, at 11.30 p.m., they reached an area, situated at link road, and in the light of police mobile, they saw two culprits both armed with pistols, and three accused armed with Kalashnikovs---However, that was nearly impossible and seemed to be unbelievable that the police party would recognize the culprits in the light of police van when they were standing at a distance of about 700/800 feet in the darkness of the night and more particularly the place of incident was a jungle where admittedly all types of trees were available---Moreover, it was also unique on the part of the complainant that he identified each of the culprits by name and with the fire-arm they allegedly were holding at the time of incident---Said fact cast serious doubt in the prosecution story, as stated by the complainant---Circumstances established that the prosecution had failed to prove the charges against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Bengul v. The State 2019 PCr.LJ 1351 rel.

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

----Ss. 324, 353, 399, 402, 148 & 149---Sindh Arms Act (V of 2013), S. 24---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, making preparation for dacoity, assembling for purpose of committing dacoity, rioting armed with deadly weapons, unlawful assembly, possessing unlicensed weapon---Appreciation of evidence---Benefit of doubt---No damage observed on police vehicle despite cross firing---Accused were charged for stopping the police mobile for robbing purpose and made straight firing on police party with intention to commit their qatl-i-amd---Police party also fired upon the culprits in their defence, and one accused was apprehended in injured condition---According to complainant, the exchange of firing continued for about ten minutes---However, despite that none of the Police Officials sustained any injury, nor was there any scratch on the police mobile---Said fact created doubt in the prosecution version---Circumstances established that the prosecution had failed to prove the charges against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Arshad v. The State 2021 PCr.LJ 272 and Mohammad Amir and others v. The State 2020 MLD 1777 rel.

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

----Ss. 324, 353, 399, 402, 148 & 149---Sindh Arms Act (V of 2013), S. 24---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, making preparation for dacoity, assembling for purpose of committing dacoity, rioting armed with deadly weapons, unlawful assembly, possessing unlicensed weapon---Appreciation of evidence---Benefit of doubt---Delay of twelve days in sending the weapon of offence to laboratory---Consequential---Accused were charged for stopping the police mobile for robbing purpose and made straight firing on police party with intention to commit their qatl-i-amd---Police party also fired upon the culprits in their defence, and one accused was apprehended in injured condition---According to complainant, on the same day of incident i.e. 18.8.2020,while capturing accused in injured condition, he also secured one pistol with magazine lying near apprehended accused---However, as per Forensic Science Laboratory Report, the crime weapon alongwith crime empties were received in Forensic Science Laboratory, on 31.08.2020---No explanation had been furnished by the prosecution as to why the crime weapon was sent to Forensic Science Laboratory after a delay of twelve days, nor was there any indication in the prosecution evidence that after securing the crime weapon, the same was deposited in safe custody/Malkhana during the intervening period---Circumstances established that the prosecution had failed to prove the charges against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Samandar alias Qurban and others v. The State 2017 MLD 539; Yaqoob Shah v. The State 1995 SCMR 1293; Ghulam Hussain and 2 others v. State 1998 PCr.LJ 779 and Zeeshan alias Shani v. The State 2012 SCMR 428 rel.

(f) Criminal trial---

----Benefit of doubt---Principle---Prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt---In case any doubt has arisen in the prosecution case, the accused is entitled to be extended benefit of such doubt as a matter of right---Accused cannot be deprived of benefit of doubt merely because there is only one circumstance which created doubt in the prosecution story.

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Shabir Ali Bozdar for Appellant along with Appellant on bail (in Criminal Appeals Nos. S-50 and S-51 of 2021).

Wazir Ahmed Ghoto for Appellants along with Appellants on bail (in Criminal Appeal No. S-47 of 2021).

Syed Sardar Ali Rizvi, Additional Prosecutor General, Sindh for the State.

2024 P Cr. L J 592

[Sindh]

Before Yousuf Ali Sayeed and Adnan Iqbal Chaudhry, JJ

WAKEEL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 565 of 2020, decided on 16th September, 2021.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Benefit of doubt---Prosecution case was that a slab of charas weighing 1025 grams was recovered from the possession of the accused---In the report dated 09.09.2020 issued by the Chemical Examiner, the gross weight of the slab of charas was specified as being 1075 grams, and the net weight was stated to be 1071 grams which in both cases was disparate from the quantity otherwise reflected in the official record---Head of the Malkhana was also not examined by the prosecution---Contradiction/deviation in the weight of the quantity of charas casted significant doubt on whether the slab sent for analysis to the Chemical Examiner was in fact recovered from the accused, particularly when viewed in conjunction with the fact that the only persons who were witnesses to the arrest were those shown to be members of the very police party that was instrumental in that regard, and no private persons were inducted for such purpose albeit the police party ostensibly having advance information through a tip received from a confidential informant and the arrest shown to have taken place in broad daylight, at 12.30 p.m.---As such, the sanctity of the chain of custody was doubtful and the report of the Chemical Examiner was stripped of probative value---Complainant stated in his examination-in-chief that he arrested the accused on pointation of spy, however replied contrarily under cross-examination that the spy had tipped him off via telephone and that he reached at the place of incident within ten minutes from receiving such information---However, testimony of complainant was silent as to how the spy then came to accompany the police party---Other relevant prosecution witness, Police Constable also did not state during his examination-in-chief that any spy information had been received, and conceded under cross-examination that his testimony was bereft of such mention---Appeal against conviction was allowed, in circumstances.

Abdul Waqar v. The State 2018 YLR 2358 and The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 rel.

Ashraf Ali Shah for Appellant.

Muhammad Iqbal Awan, A.P.G. for the State.

2024 P Cr. L J 605

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

KIFAYATULLAH---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 160, 161 and Confirmation Case No. 8 of 2021, decided on 16th September, 2022.

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

----Ss. 302, 324 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23---Qatl-i-amd, attempt to commit qatl-i-amd and common intention, un-licensed possession of arms, act of terrorism---Appreciation of evidence---Accused was alleged to have murdered an under trial prisoner while the later was waiting for his call in front of a courtroom---Police officials, who had brought the deceased in the court premises had seen the accused making fire shots upon the deceased---Accused was arrested by them and they had recovered pistol along with live bullets---Third eye-witness was an under trial prisoner who was handcuffed with deceased and was brought with the deceased to the court for attending the case---Said eye-witnesses were independent having no relation with the deceased or having no ill-will with either of the parties and even the same had not been suggested during cross-examination---CCTV footage of the incident was also secured by the Investigating Officer wherein the accused was seen shooting on the deceased---Accused, in his statement under S. 342, Cr.P.C., had admitted the motive set forth by the prosecution that he had murdered the deceased in revenge of his son, whose murder case was pending---Prosecution had proved its case against the accused beyond a reasonable doubt by producing reliable, trustworthy and confidence-inspiring evidence---Impugned judgment was based on sound reasons and did not call for any interference---Appeals were dismissed, in circumstances.

Muhammad Din v. The State 1985 SCMR 1046 and Majhi v. The State 1970 SCMR 331 rel.

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

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

----S. 302---Qatl-i-amd---Sole witness, evidentiary value of---Scope---Sole evidence of a material witness i.e an eye-witness is always sufficient to establish the guilt of the accused if the same is confidence-inspiring and trustworthy and supported by other independent source of evidence because the law considers the quality of evidence and not its quantity to prove the charge---Accused can be convicted if the court finds the direct oral evidence of one eye-witness to be reliable, trustworthy and confidence-inspiring.

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

(c) Criminal trial---

----Evidence---Corroboration---Scope---It is always the direct evidence which is material to decide a fact (charge)---Failure of direct evidence is always sufficient to hold a criminal charge as 'not proved' but where the direct evidence holds the field and stands the test of being natural and confidence-inspiring then the requirement of independent corroboration is only a rule of abundant caution and not a mandatory rule to be applied invariably in each case.

Muhammad Ehsan v. The State 2006 SCMR 1857 rel.

(d) Criminal trial---

----Medical evidence---Scope---Medical evidence is in the nature of supporting, confirmatory or explanatory of the direct or circumstantial evidence, and is not "corroborative evidence" in the sense the term is used in legal parlance for a piece of evidence that itself also has some probative force to connect the accused person with the commission of the offence---Medical evidence by itself does not throw any light on the identity of the offender---Such evidence may confirm the available substantive evidence concerning certain facts including the seat of the injury, nature of the injury, cause of the death, kind of the weapon used in the occurrence, duration between the injuries and the death, and presence of an injured witness or the injured accused at the place of occurrence, but it does not connect the accused with the commission of the offence---It cannot constitute corroboration for proving the involvement of the accused person in the commission of the offence, as it does not establish the identity of the accused person.

Yaqoob Shah v. State PLD 1976 SC 53; Machia v. State PLD 1976 SC 695; Muhammad Iqbal v. Abid Hussain 1994 SCMR 1928; Mehmood Ahmad v. State 1995 SCMR 127; Muhammad Sharif v. State 1997 SCMR 866; Dildar Hussain v. Muhammad Afzaal PLD 2004 SC 663; Iftikhar Hussain v. State 2004 SCMR 1185; Sikandar v. State 2006 SCMR 1786; Ghulam Murtaza v. Muhammad Akram 2007 SCMR 1549; Altaf Hussain v. Fakhar Hussain 2008 SCMR 1103 and Hashim Qasim v. State 2017 SCMR 986 ref.

(e) Criminal trial---

----Interested witness---Evidence---Scope---To believe or disbelieve a witness depends upon the intrinsic value of the statement made by him---Even otherwise, there cannot be a universal principle that in every case interested witness shall be disbelieved or a disinterested witness shall be believed---It all depends upon the rule of prudence and reasonableness to hold that a particular witness was present at the scene of a crime and that he is making a true statement--- Person who is reported to be very honest, above board, and highly respectable in society, but gives a statement that is illogical and unbelievable by any prudent man, would not be believed despite his nobility.

Abid Ali and 2 others v. The State 2011SCMR 208 rel.

(f) Criminal trial---

----Motive---Scope---Motive is always a double-edged weapon.

Iftikhar Ahmed Shah for Appellant.

Ali Haider Saleem, Additional P.G. Sindh for the State.

2024 P Cr. L J 632

[Sindh (Larkana Bench)]

Before Naimatullah Phulpoto and Khadim Hussain Tunio, JJ

SADORO MIRBAHAR---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeals Nos. D-47 of 2014 and D-07 of 2016, decided on 12th October, 2022.

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

----Ss. 302(b), 324, 353, 337-F(iii), 337-H(2) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, mutalahimah, rash or negligent act endanger to human life or the personal safety of other, common intention, act of terrorism---Appreciation of evidence---Recovery of weapon of offence from the accused and crime empties from the spot---Reliance---Prosecution case was that an encounter took place between police and accused persons after the accused persons were escaping after committing the murder of father of complainant due to refusal of payment of extortion money, whereas a Police Constable also died and a Head Constable along with a passerby sustained firearm injury---Record showed that the relevant weapon was recovered from the accused had a rubbed number---Said fact was mentioned in the FIR, the memo of recovery and in the Forensic Science Laboratory Report, which suggested that the weapon originally recovered from the accused was the same later on received by the Forensic Science Laboratory---In the description of the articles received, the pistol was mentioned as one 30 bore pistol, number rubbed but recovered from accused---Circumstances established that the prosecution had succeeded in proving its case against the accused beyond shadow of doubt---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b), 324, 353, 337-F(iii), 337-H(2) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, mutalahimah, rash or negligent act endanger to human life or the personal safety of other, common intention, act of terrorism---Appreciation of evidence---Safe custody of pistol and empties and safe transmission to expert established---Prosecution case was that an encounter took place between police and accused persons after the accused persons were escaping after committing the murder of father of complainant due to refusal of payment of extortion money, whereas a Police Constable also died and a Head Constable along with a passerby sustained firearm injury---Recovered case property was sealed on the spot and that fact was reaffirmed by the Forensic Science Laboratory---Examiner who noted under general remarks in his report that the parcels received were in sealed condition---Safe custody of pistol and empties and safe transmission to expert were not disputed by defence---Circumstances established that the prosecution had succeeded in proving its case against the accused beyond shadow of doubt---Appeal against conviction was dismissed accordingly.

Zahid and another v. The State 2020 SCMR 590 rel.

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

----Ss. 302(b), 324, 353, 337-F(iii), 337-H(2) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, mutalahimah, rash or negligent act endanger to human life or the personal safety of other, common intention, act of terrorism---Appreciation of evidence---Ocular account supported by medical evidence---Prosecution case was that an encounter took place between police and accused persons after the accused persons were escaping after committing the murder of father of complainant due to refusal of payment of extortion money, whereas a Police Constable also died and a Head Constable along with a passerby sustained firearm injury---Ocular account had been furnished by complainant and two injured witnesses---Perusal of the depositions of two injured eye-witnesses when put in juxtaposition with the FIR and the version of the complainant suggested that both the eye-witnesses had fully implicated the accused while assigning him role of causing a firearm injuries to the deceased along with other assailants---Even complainant and the two eye-witnesses of the main incident of murder and demand of extortion had fully implicated the accused while assigning him the specific role of firing at the deceased---Medical Officer conducted postmortem of deceased and found similar injury on him being a lacerated punctured wound on left upper chest over the heart and the exit wound at the back---All of prosecution witnesses unequivocally stated that they were present at the place of incident and then were shot at by the assailants---All the said witnesses had fully supported the prosecution case to the effect of involvement of the present accused---During cross-examination, defence was unable to point out any major discrepancies that might be fatal to the prosecution case---All the assailants were armed---Nature and locale of injury was also supported by Medical Officer who conducted postmortem of both the deceased, finding twelve injuries with a wound of entry and exit on the person of the deceased Police Constable and two on deceased son of complainant and those were caused by the firearm of the accused---Motive behind the murder of deceased was demand of Bhatta (extortion money)---Said aspect of the case had not been denied either, nor had such assertion been placed before the prosecution witnesses at the time of cross-examination---Circumstances established that the prosecution had succeeded in proving its case against the accused beyond shadow of doubt---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b), 324, 353, 337-F(iii), 337-H(2) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, mutalahimah, rash or negligent act endanger to human life or the personal safety of other, common intention, act of terrorism---Appreciation of evidence---Presence of element of terrorism in the incident---Prosecution case was that an encounter took place between police and accused persons after the accused persons were escaping after committing the murder of son of complainant due to refusal of payment of extortion money, whereas a Police Constable also died and a Head Constable along with a passerby sustained firearm injury---Element of terrorism was present in the case as it was evident that the accused along with his accomplices was aerially firing and causing harassment in the area which, as per witness testimonies, had also caused many people to run away from the area, and not only that, he had committed the murder of a Police Constable, justifying the charges under the Anti-Terrorism Act, 1997---Circumstances established that the prosecution had succeeded in proving its case against the accused beyond shadow of doubt---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b), 324, 353, 337-F(iii), 337-H(2) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, mutalahimah, rash or negligent act endanger to human life or the personal safety of other, common intention, act of terrorism---Appreciation of evidence---Related witnesses---Reliance---Prosecution case was that an encounter took place between police and accused persons after the accused persons were escaping after committing the murder of son of complainant due to refusal of payment of extortion money, whereas a Police Constable also died and a Head Constable along with a passerby sustained firearm injury---Allegedly, eye-witnesses were related to the deceased---Eye-witnesses being related to the deceased in the case of extortion and murder was of little, if any, assistance to the accused---Despite the close relationship of the complainant with deceased and with the other eye-witnesses, the evidence of eye-witnesses after careful reconsideration was found trustworthy---Mere relationship with the deceased was no ground to discard otherwise trustworthy evidence provided that there was no ill will or enmity between the witnesses and the accused, which was not present in the present case---Moreover, the deceased was murdered in the presence of his own son---Mere relationship is not sufficient to bring a witness within meaning of category of interested witness but it would always be the motive of such an event where one agreed to involve an innocent person at cost of the real culprit---However in the present case it was extremely unlikely for the complainant to set free the real culprit and nominate innocent persons instead and that too without any justifiable rhyme or reason---Circumstances established that the prosecution had succeeded in proving its case against the accused beyond shadow of doubt---Appeal against conviction was dismissed accordingly.

Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152; Gul Zarin and others v. Kamal-ud-Din and others 2022 SCMR 1085; Farooq Khan v. The State 2008 SCMR 917; Zahoor Ahmed v. The State 2007 SCMR 1519 and Islam Sharif v. The State 2020 SCMR 690 rel.

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

----Ss. 302(b), 324, 353, 337-F(iii), 337-H(2) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, mutalahimah, rash or negligent act endanger to human life or the personal safety of other, common intention, act of terrorism---Appreciation of evidence---Minor contradictions in evidence of witnesses---Inconsequential---Prosecution case was that an encounter took place between police and accused persons after the accused persons were escaping after committing the murder of son of complainant due to refusal of payment of extortion money, whereas a Police Constable also died and a Head Constable along with a passerby sustained firearm injury---Evidence of all the prosecution witnesses was consistent on all material particulars of the case, although there were minor contradictions in the evidence of the witnesses, but the same were not material and certainly not of such materiality so as to affect the prosecution case---Such variations might well be due to lapse of memory or confusion caused in his mind by a relentless cross-examiner or due to lapse of time---Every contradiction could not take place of a material contradiction and, therefore, minor contradictions, inconsistencies or insignificant embellishments did not affect the core of the prosecution case and would not be taken to be a ground to reject the prosecution evidence---Defence could not point out any material discrepancy in the evidence of the eye-witnesses besides the few minor ones---Circumstances established that the prosecution had succeeded in proving its case against the accused beyond shadow of doubt---Appeal against conviction was dismissed accordingly.

Zakir Khan and others v. The State 1995 SCMR 1793; Khadim Hussain v. The State PLD 2010 SC 669 and Gul Zarin and others v. Kamal-ud-Din and others 2022 SCMR 1085 rel.

Ahsan Ahmed Qureshi for Appellant (in Criminal Jail Appeal No. D-47 of 2014).

Muhammad Afzal Jagirani for the Complainant (in Criminal Jail Appeal No. D-47 of 2014).

Ali Anwar Kandhro, Additional Prosecutor General Sindh for the State (in Criminal Jail Appeal No. D-47 of 2014).

Irfan Badar Abbasi for Appellant (in Criminal Jail Appeal No. D-07 of 2016).

Ali Anwar Kandhro, Additional Prosecutor General Sindh for the State (in Criminal Jail Appeal No. D-07 of 2016).

2024 P Cr. L J 693

[Sindh]

Before Ahmed Ali M. Shaikh, C.J. and Yousuf Ali Sayeed, J

AMBREEN ALI---Appellant

Versus

J.M. XXVI EAST and another---Respondents

C. P. No. D-7492 of 2022, decided on 4th May, 2023.

Domestic Violence (Prevention and Protection) Act (XX of 2013)---

----Ss. 2(1)(c), 7, 11, 12, 13, 25 & 28---Criminal Procedure Code (V of 1898), Chap. XXXII, Ss. 439 & 439-A---Constitution of Pakistan, Art. 199---Order passed by the Trial Court under the provisions of Domestic Violence (Prevention and Protection) Act, 2013, assailing of---Constitutional petition---Maintainability---Scope---Held, that by virtue of S.25 and S.2(1)(c) of Domestic Violence (Prevention and Protection) Act 2013 ('the Act 2013'), all proceedings taken and offences committed under the provisions of the Act 2013 are governed by the Criminal Procedure Code, 1898 ('the Code'), as Section 28 of the Act 2013 stipulates that "Chapter XXXII" of the Code shall apply to an order passed under Ss. 10, 11, 12 & 13---After combined reading of the said provisions of the Act 2013 and Ss. 439 & 439-A, falling under Chap. XXXII, of the Code, it is apparent that in the matter of the impugned order passed under Ss. 7, 11 & 12 of the Act 2013, a remedy by way of revision is available before the relevant Sessions Judge, hence recourse to the constitutional jurisdiction of High Court under Art. 199 is misplaced/misconceived---Petitioner would be at liberty to avail the alternate remedy provided for in the matter---Constitutional petition was dismissed, in circumstances.

Ms. Khushbakht Shah for Petitioner.

2024 P Cr. L J 713

[Sindh]

Before Adnan Iqbal Chaudhry, J

The STATE/ANTI NARCOTIC FORCE through Assistant Director, Karachi---Appellant

Versus

Agha MEHMOOD UL HASSAN HARAVI and 5 others---Respondents

Special Criminal Appeal No. 47 of 2021, decided on 19th October, 2022.

Prevention of Smuggling Act (XII of 1977)---

----Ss. 32 & 33---Notice to person holding properties suspected to be acquired by smuggling---Order of Special Judge---Scope---Application filed by Anti-Narcotics Force for forfeiture of properties/assets of respondents involved in smuggling of narcotics---Said application was dismissed by the Court---Validity---After the enactment of the Control of Narcotic Substances Act, 1997, Sections 12 and 13 stipulated that it was an offence to knowingly possess, acquire or use any assets derived or obtained by means of smuggling of prohibited narcotic, and that such assets were liable to forfeiture---Said offence was triable exclusively by the Special Court appointed under the Control of Narcotic Substances Act, 1997---As per Ss. 19 & 39 of the Control of Narcotic Substances Act, 1997, the order for forfeiting assets of the offender and persons holding assets on his behalf is also to be passed by the Special Court---Section 76 of the Control of Narcotic Substances Act, 1997, has overriding effect---Thus, after the enactment of the Control of Narcotic Substances Act, 1997, where the allegation is that an asset held by a person is the fruit of smuggling narcotics and liable to forfeiture, proceedings can only be taken under the Control of Narcotic Substances Act, 1997, and Ss. 30 & 31 of the Prevention of Smuggling Act, 1977, has no application nor the Special Judge appointed under the Prevention of Smuggling Act, 1977, has any jurisdiction---In other words, Ss. 30 & 31 of the Prevention of Smuggling Act, 1977, can only be invoked where smuggling of goods other than narcotic is alleged therefore, application moved by the Anti Narcotic Force under S. 31 of the Prevention of Smuggling Act, 1977 after the enactment of the Control of Narcotic Substances Act for forfeiting assets allegedly acquired/held by means of smuggling narcotics, was not maintainable to begin with---Entire proceedings before the Special Court being coram non judice were quashed---Appeal was disposed of accordingly.

The State/Anti-Narcotics Force v. Pervaiz Hassan Haravi PLD 2017 Sindh 140 and 2018 SCMR 1397 ref.

Mir Ali Nawaz Khan for Appellant.

Nemo for Respondents Nos. 1, 2, 4 and 6.

Muhammad Akram Sheikh, Jam Asif Mehmood and Gohar Mehmood for Respondents Nos. 3 and 5.

Mayhar Kazi, Shahbakht Pirzada and Danish Nayyer for Applicant/Objector.

2024 P Cr. L J 745

[Sindh]

Before Mohammad Karim Khan Agha and Abdul Mobeen Lakho, JJ

MUHAMMAD AZAM BROHI---Appellant

Versus

NATIONAL ACCOUNTABILITY BUREAU (THE STATE)---Respondent

Criminal Accountability Appeal No. 14 of 2017, decided on 30th April, 2021.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a), (i), (ii), (iii), (iv), (vi), (ix), (x), (xi), (xii) & 23(b)---Corruption and corrupt practices and transfer of property during proceedings---Appreciation of evidence---Caution, violation of---Sentence, quantum of---Accused was administrator of housing society, who in presence of a circular dated 14-12-2009, issued by Sindh Cooperative Housing Authority, coupled with caution of NAB, cancelled/reallotted 24 plots of old members of the Society and illegally allotted three amenity plots to three different persons out of whom two had entered into plea bargain with NAB---Accused also converted one commercial plot into 40 commercial plots with subsequent allotment to his favourites in spite of caution issued by NAB---Accused also withdrew huge amounts from society funds from resale / cancelled plots into his own personal account---Trial Court convicted the accused for committing corruption and corrupt practices and sentenced him to imprisonment for 14 years along with fine---Validity---Accused caused loss to the society as well as to national exchequer for his personal gains---High Court declined to interfere in conviction recorded by Trial Court---High Court reduced sentence of 14 years imprisonment imposed by Trial Court in view of the amount of loss caused to the society and national exchequer to one already served which was almost 7 years of imprisonment including remissions---Prosecution failed to prove beyond reasonable doubt the offence in respect of illegal award of electrical and civil works contracts---Sentence of 14 years was maximum sentence under National Accountability Ordinance, 1999, which was usually applicable to accused causing loss running into billions of rupees---Appeal was dismissed accordingly.

Farooq H. Naek for Appellant.

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

2024 P Cr. L J 790

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

ABID and 2 others---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeal No. 174 of 2021, decided on 14th November, 2022.

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

----Ss. 302(b), 363, 365-A, 376(ii) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping, kidnapping or abducting with intent to secretly and wrongfully confine person, kidnapping or abducting a person under the age of fourteen, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Improvements made by the complainant in his statement---Effect---Accused were charged for committing rape with the daughter of the complainant after kidnapping her---In the FIR registered against unknown persons, there was no mention by the complainant that anyone, let alone the accused persons, had made a ransom demand for the safe return of his daughter---Complainant had nothing to fear by adding that aspect of the case in his S.154, Cr.P.C. statement as he knew his daughter was already dead and as such he had nothing to lose by mentioning the ransom demand from three unknown persons in his S.154, Cr.P.C statement---In fact on 02.08.2015 one of the accused persons was arrested on the assertions of the original accused who was being interrogated in police custody in respect of the crime on 01.08.2015, who the accused persons claimed in their S.342, Cr.P.C. statements was the real accused but was let off after paying a bribe---After the arrest of one of the accused persons for the crime that in the further statement made by the complainant on 03.08.2015 the story of a ransom demand from three unknown persons surfaced which appeared to be based on the particular facts and circumstances of the case to be manufactured and as such little reliance could be placed on the so called eye-witness evidence of the complainant---Such a material improvement in the further statement of the complainant after arrest of one of the accused persons casted serious doubt on his entire evidence as it was a massive, significant and dishonest improvement in the context of the case---Circumstances established that the prosecution failed to prove its case against the accused persons beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

Bashir Muhammad Khan v. The State 2022 SCMR 986; Abdul Wahid v. The State and another 2022 SCMR 1954; Ziaullah alias Jajj v. The State 2008 SCMR 1210; Sh. Muhammad Amjad v. The State PLD 2003 SC 704; Sajid Mehmood v. The State 2022 SCMR 1882; Akhtar v. The State 2020 SCMR 2020 and Tariq Mehmood and another v. The State 2002 SCMR 32 ref.

Farman Ahmed v. Muhammed Inayat 2007 SCMR 1825 rel.

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

----Ss. 302(b), 363, 365-A, 376(ii) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping, kidnapping or abducting with intent to secretly and wrongfully confine person, kidnapping or abducting a person under the age of fourteen, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Last seen evidence not believable---Accused were charged for committing rape with the daughter of the complainant after kidnapping her---No eye-witness saw the abduction of the deceased or the murder or rape of the deceased---Only evidence in respect of the abduction was the last seen evidence of a witness---According to his evidence on 30.07.2015 at about 6.40 p.m. the witness was sitting in his workshop and saw three culprits taking away the deceased girl with them on a motorcycle---On 31.08.2015 the dead body of the deceased was recovered and the police came to his workshop and asked him if he could identify the persons who he had seen taking the girl away by motor bike to which he answered in the affirmative---On 06.08.2015 he came to the court for an identification parade however it could not take place and he returned for the identification parade on 08.08.2015 whereby he identified all of the accused persons as being the ones the motor bike with the deceased---From his evidence questions emerged, how did the police know that he had seen the incident as the police came to him and not vice versa---Unclear, how many days after the incident he gave his S.161, Cr.P.C statement to the police---In his S.161, Cr.P.C statement by his own admission he did not give any features, hulia, description of the accused persons or the deceased none of whom he had seen before so how could he be able to safely and correctly identify them at an identification parade---More significantly said witness stated that he saw 20/30 bikes taking babies on the same day so how did he know that it were the present accused persons, (who he had never seen before) who had kidnapped a child rather than any others person driving their bikes with a baby on board---Even if the witness was correct in his identification of the accused persons and the deceased, how did we know that the accused persons did not drop off the deceased elsewhere before her death---Circumstances established that the prosecution failed to prove its case against the accused persons beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

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

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

----Ss. 302(b), 363, 365-A, 376(ii) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping, kidnapping or abducting with intent to secretly and wrongfully confine person, kidnapping or abducting a person under the age of fourteen, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Defective investigation---Accused were charged for committing rape with the daughter of the complainant after kidnapping her---According to the evidence of first Investigating Officer in this case on 01.08.2015 he initially arrested Mr. "G" and Mr. "N" on suspicion and brought them to the Police Station---During interrogation Mr. "G" informed him that one of the present accused persons had come on motor cycle with the deceased girl at his mechanic shop to meet Mr. "I", which led him to arrest said accused on 02.08.2015 who was located through spy information---Significantly, Mr. "G" would have been the best witness for last seen evidence however he was not called as a witness to give evidence for the prosecution and nor was Mr. "I" for reasons best known to the prosecution---Surprisingly Mr. "G" did not mention that the girl was raising any objection to being with accused or was in any kind of distress---No explanation was furnished as to why the Investigating Officer found Mr. "G" to be innocent and was dropped as the main suspect although the defence claimedthat it was on account of him taking a bribe---Once accused was arrested rather conveniently a further statement was taken from the complainant introducing for the first time that a ransom demand had been made for the safe return of the deceased and accused was later conveniently identified by the complainant as one of the persons who made the demand---Evidence to be treated as reliable must appeal to logic, commonsense, reason and natural conduct---In the present case it did not appeal to logic, commonsense, reason or natural conduct that accused would go to a mechanic with many workers present with an abducted girl who would be able to identify him especially if he raped and murdered the girl within one day---Circumstances established that the prosecution failed to prove its case against the accused persons beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

Muhammed Asif v. State 2017 SCMR 486 and Mst. Rukhsana Begum v. Sajjad 2017 SCMR 596 rel.

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

----Ss. 302(b), 363, 365-A, 376(ii) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping, kidnapping or abducting with intent to secretly and wrongfully confine person, kidnapping or abducting a person under the age of fourteen, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Confession of the accused before the police---Not admissible---Accused were charged for committing rape with the daughter of the complainant after kidnapping her---Record showed that accused confessed to the crime whilst in police custody and implicated the other accused persons as his co-accused who were then arrested however no effort was made to bring said accused or any other of the accused persons to record their judicial confessions before a Magistrate despite them attending an identification parade before a Judicial Magistrate---Thus, the manner in which the accused persons were involved in the case casted doubt on the prosecution case---Circumstances established that the prosecution failed to prove its case against the accused persons beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b), 363, 365-A, 376(ii) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping, kidnapping or abducting with intent to secretly and wrongfully confine person, kidnapping or abducting a person under the age of fourteen, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Medical evidence not connecting accused with the crime---Accused were charged for committing rape with the daughter of the complainant after kidnapping her---Record showed that presence of semen on body of victim, had been proven from the medical evidence and the chemical report, however there was no evidence to link that rape or semen to any of the accused persons---Moreover, it had been proven through medical evidence that the deceased was murdered through strangulation but the only piece of evidence against the accused was that a sandal of the deceased was recovered from the place where the co-accused were arrested---However, said sandal was a common sandal and could have been purchased from any store and could have easily been planted by the police---Circumstances established that the prosecution failed to prove its case against the accused persons beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b), 363, 365-A, 376(ii) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, kidnapping, kidnapping or abducting with intent to secretly and wrongfully confine person, kidnapping or abducting a person under the age of fourteen, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Test identification parade---Infirmities---Accused were charged for committing rape with the daughter of the complainant after kidnapping her---As for the identification parade it was carried out in such a manner that no reliance could be placed on it---Firstly it was a joint identification parade which practice was deprecated by the Superior Courts---Secondly, the dummies being 27 in total were all collected by the police and even an ASI from the same Police Station which was investigating the crime was made to be a dummy---Thirdly, no CNIC's or any details of the dummies were taken and as such it was found that the identification parade was not carried out in accordance with the relevant legal procedures which greatly undermined its legal value and no reliance could be placed on it---Circumstances established that the prosecution failed to prove its case against the accused persons beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

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

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

----Ss. 302(b), 363, 365-A, 376(ii) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping, kidnapping or abducting with intent to secretly and wrongfully confine person, kidnapping or abducting a person under the age of fourteen, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Material contradictions in the statements of witnesses---Effect---Accused were charged for committing rape with the daughter of the complainant after kidnapping her---In the present case, there also seemed to be some material contradictions in the evidence of complainant and other witnesses---Complainant stated in his evidence that his friend who was a police man told him to reach at G Block immediately and when he reached there he found his daughter hanged and strangled---On the other hand said friend of complainant did not state at all in his evidence that he called the complainant and asked him to reach G Block---Instead said witness stated that an Intelligence Officer informed him about the location of the body and when he reached there the body had already been taken by ambulance to the hospital and that he saw the complainant at the hospital---So how could the complainant have reached the site where the body was before his friend who gave him the information---Circumstances established that the prosecution failed to prove its case against the accused persons beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

(h) Criminal trial---

----Benefit of doubt---Principle---Prosecution must prove its case against the accused beyond a reasonable doubt and that the benefit of doubt must go to the accused by way of right as opposed to concession.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Wazir Hussain Khoso for Appellants.

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

2024 P Cr. L J 813

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

MUHAMMAD YASIR KHAN and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 223 and Criminal Revision Application No. 89 of 2020, decided on 6th April, 2022.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular account proved---Accused were charged that they in furtherance of their common intention committed murder of the deceased who was accompanying the complainant---Ocular account of the incident was primarily furnished by three witnesses---Presence of the three eye-witnesses was not disputed by the accused persons, rather they had admitted the quarrel took place between the parties through their statements filed before the Trial Court---When the statement of complainant under S. 154, Cr.P.C., was put in juxtaposition with his depositions recorded before the trial Court and depositions of two eye-witnesses, they perfectly aligned with each other from minor details to major events such as the presence of accused---Witnesses were in comfortable unison on all the salient aspects of the incident as well as details collateral therewith---Cross-examination remained inconsequential inasmuch as nothing adverse could be solicited from the witnesses except for a volley of suggestions, vehemently denied---Circumstances established that the prosecution had proved its case against the accused persons--- Appeal against conviction was dismissed accordingly.

Hashim Raza alias Taaro v. The State 2020 PCr.LJ Note 22; Mst. Asia Bibi v. The State PLD 2019 SC 64; PLD 2019 SC 527 (notice to police constable Khizr Hayat son of Hadayat Ullah on account of his false statement; in the matter of); Waris v. The State 2019 YLR 2381; Muhammad Ibrahim and another v. The State 2019 PCr.LJ 1378; Amir Muhammad v. The State 2019 PCr.LJ 1033; Abdul Jabbar v. The State and another 2019 YLR 1073; Abdul Hassan v. The State and 6 others 2019 PCr.LJ 777; Nadeem alias Kala v. The State and others 2018 SCMR 153; Haroon Shafiq v. The State and others 2018 SCMR 2118; Muhammad Asif v. The State 2017 SCMR 486; Zahir Yousaf and another v. The State 2017 SCMR 2002; Khurram Jalali v. The State 2017 PCr.LJ Note 19; Shams-ul-Haq and 2 others v. The State 2014 MLD 1504; Ali Haider and 2 others v. The State 2014 PCr.LJ 783; Ghulam Qadir v. The State 2014 PCr.LJ 865; Shah Rukh v. The State 2013 PCr.LJ 237; Muhammad Sarfaraz v. The State through P.G. Punjab and another PLD 2013 SC 386; Muhammad Arif v. The State 2010 SCMR 1122; Muhammad Shah and another v. The State 2010 SCMR 1009; Muhammad Akram v. The State 2009 SCMR 230; Asadullah and another v. The State and another 1999 SCMR 1034; Haji Tahir Hussain v. Saqlain and others 2008 SCMR 817; Abdur Rashid v. Umid Ali and 2 others PLD 1975 SC 227; Faisal Mehmood and another v. The State and another 2010 SCMR 1025; Aftab Tasleem v. The State PLD 2010 SC 642; Abdul Majeed v. The State 2008 SCMR 1228; Muhammad Zafar and another v. Rustam Ali and others 2017 SCMR 1639; Anar Gul v. The State through Advocate General, NWFP and another 1999 SCMR 2303; Sultan and another v. The State 2000 SCMR 1818; Anwar Khatab and another v. The State 2013 PCr.LJ 1298; Muhammad Asghar alias Nannah and another v. The State 2010 SCMR 1706; Khushi Muhammad and another v. The State 1983 SCMR 697; Arshad Ali alias Achhu v. The State 2002 SCMR 1806; Sakhawat Ali and others v. The Deputy Settlement and Rehabilitation Commissioner and others 2002 SCMR 785; Niaz-ud-Din and another v. The State and another 2011 SCMR 725; Shamshad Ali v. The State 2011 SCMR 1394 and Wilayat Ali v. The State and another 2004 SCMR 477 ref.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Related and interested witnesses---Not consequential---Accused were charged that they in furtherance of their common intention committed murder of the deceased who was accompanying the complainant---Defence objected that prosecution witnesses were related inter-se and interested---However, the contention of the defence regarding the prosecution witnesses being related to the complainant inter-se and interested was of little, if any, assistance to the accused---Despite the friendship of the complainant and witnesses with the deceased, their evidence after careful consideration was found trustworthy---Mere relationship with the deceased was not a ground to discard otherwise trustworthy evidence provided that there was no ill will or enmity between the witnesses and the accused, which was not found in the present case---Even otherwise, it was quite unbelievable that the complainant, who had no previous enmity or quarrel with the accused persons, would go as far as implicating them falsely in the murder of his neighbour's son, more so his son's friend to settle a petty argument between the accused persons and his own son---Moreover, it appeared extremely unreasonable to even consider such a fact---Even if the evidence of such interested witnesses was taken out of consideration, the evidence of the complainant himself was straight forward, confidence inspiring and trustworthy and his presence at the time of incident had been explained and admitted, therefore his evidence alone was sufficient to hold the accused guilty of the charge---Circumstances established that the prosecution had proved its case against the accused persons---Appeal against conviction was dismissed accordingly.

Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152; Islam Sharif v. The State 2020 SCMR 690 and Niaz-ud-Din and another v. The State 2011 SCMR 725 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence and crime empties---Reliance---Accused were charged that they in furtherance of their common intention committed murder of the deceased who was accompanying the complainant---Record showed that the Investigating Officer had also recovered two crime empties from the place of incident on 21.05.2016 in the presence of the complainant and eye-witness---Two crime empties along with the licensed pistols recovered from the house of the accused persons were then sent to the Chemical Examiner and such report was available wherein the Forensic Examiner noted that both the pistols, one belonging to accused marked as 'A' and the other belonging to other accused marked as 'B' were in working condition and that two 30 bore crime empties marked were fired from the said 30 bore pistol marked as B---As such, expert evidence in the shape of Forensic Science Laboratory Report corroborated the ocular account of the incident---Circumstances established that the prosecution had proved its case against the accused persons---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Evidence of Forensics Expert---Reliance---Accused were charged that they in furtherance of their common intention committed murder of the deceased who was accompanying the complainant---Both the pistols possessed serial numbers, being licensed---Said serial numbers were mentioned in the letter sent to Forensic Division being one 30 bore pistol with serial No. BBA-2404 and another 30 bore pistol with serial No. BBA-593 and the same numbers were found mentioned in the Forensic Science Laboratory Report---Moreover, the Forensic Examiner also noted that each pistol was secured within a parcel and had two seals each, therefore there was no question of tampering with the same either---Circumstances established that the prosecution had proved its case against the accused persons---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Night time occurrence---Source of light established---Accused were charged that they in furtherance of their common intention committed murder of the deceased who was accompanying the complainant---With regard to the contention regarding the absence of source of light due to the incident taking place in dark hours of the day, the pictures of the place of incident showed the clear presence of a street light, as such the contention was devoid of any merit---Circumstances established that the prosecution had proved its case against the accused persons---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Vicarious liability---Common intention to murder the deceased---Accused were charged that they in furtherance of their common intention committed murder of the deceased who was accompanying the complainant---Parties were known to each other being neighbours as was admitted by both the accused persons in their statements before the Trial Court---Accused had fired from his pistol, twice, as was evident from the Forensic Science Laboratory Report and the other accused was present at the place of incident, duly armed with his licensed pistol too---Presence of second accused at the place of incident had been proven beyond reasonable doubt and all the witnesses had deposed that the second accused too had fired from his pistol and despite a volley of contrary suggestions during cross-examination, the three eye-witnesses remained firm on their stance---Thus, even though shots fired by second accused did not hit the deceased, his presence at the place of incident while being armed with a pistol made him vicariously liable for the offence committed and he too had shared common intention to take the life of the deceased---Circumstances established that the prosecution had proved its case against the accused persons---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, quantum of---Motive not proved---Accused were charged that they in furtherance of their common intention committed murder of the deceased who was accompanying the complainant---Undisputedly, prosecution failed to establish any motive behind the murder of the deceased at the hands of the accused persons---Motive, so alleged, was that a quarrel had taken place between the son of complainant, and the accused---Deceased was not present with the son of complainant during the initial occurrence, as such the accused persons had no reason to cause any harm to him---From the depositions of the witnesses, it was evident that when son of complainant restrained the accused persons from abusing his father, the accused persons opened fire at him, but missed and hit deceased instead---Alleged incident was done within a matter of seconds without any words being exchanged between the accused persons and the deceased---Said fact alone ruled out any premeditation of murder by the accused persons---Matter of record that it wasn't the accused persons who had gone to the complainant party, rather the complainant party came looking for them after the initial quarrel between the accused persons and son of complainant---Anyhow, where the prosecution failed to prove the motive behind the commission of an offence, it would justify awarding lesser punishment for the offence---Thus, the Trial Court rightly awarded life imprisonment by taking a lenient view against the accused persons and no illegality or infirmity was pointed out by defence with regard to the sentence---Appeal against conviction was dismissed accordingly.

Sarwar and another v. The State and others 2020 SCMR 1250 and Ahmad and another v. Shafiq-ur-Rehman and another 2013 SCMR 583 rel.

Merajuddin for Appellants (in Criminal Appeal No. 223 of 2020).

Siraj Ali Khan Chandio, Additional Prosecutor General, Sindh for the State (in Criminal Appeal No. 223 of 2020).

Muhammad Ilyas Khan Tanoli for Applicant (in Criminal Revision Application No. 89 of 2020).

Merajuddin for Respondents (in Criminal Revision Application No. 89 of 2020).

2024 P Cr. L J 847

[Sindh (Sukkur Bench)]

Before Yousuf Ali Sayeed and Zulfiqar Ali Sangi, JJ

GHULAM SHABIR LASHARI---Appellant

Versus

The STATE---Respondent

Special Anti-Terrorism Jail Appeal No. D-128 of 2022, decided on 5th December, 2023.

Penal Code (XLV of 1860)---

----Ss. 302 (b), 324 & 365---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to Qatl-i-amd, kidnapping and act of terrorism---Appreciation of evidence---Alibi, plea of---Documentary evidence---Accused was convicted by Trial Court for commission of offences of Qatl-i-amd, attempt to Qatl-i-amd, kidnapping and terrorism and was variously convicted with a maximum of imprisonment for life on four counts---Accused raised plea of alibi and produced official record of his travel history based on Integrated Border Management System database---Validity---Documentary evidence was largely in the form of official record, which was of particular relevance in establishing absence of accused from country as on the date of offence---Alibi of accused could not be said to be an afterthought or to have been contrived, nor could the documentary evidence produced in support of defence plea be dismissed as having been fabricated to unduly support the accused---Where alibi was not based on mere oral testimony, but was substantiated by documentary evidence, an objection that the plea was not raised at first stage was not of particular consequence---Single circumstance that had created reasonable doubt in a prudent mind as to the guilt of an accused entitled him to the benefit of such doubt, not as a matter of grace and concession but as a matter of right---High Court set aside conviction and sentence awarded to accused and acquitted him of the charge---Appeal was allowed, in circumstances.

Khadim Hussain v. The State 2010 SCMR 1720; Ali Ahmad and another v. The State and others PLD 2020 SC 201 and Naveed Asghar and 2 others v. The State PLD 2021 SC 600 ref.

Mehboob Ur Rehman v. The State 2013 SCMR 106; Aminullah v. The State PLD 1982 SC 429; Muhammad Akram v. The State 2009 SCMR 230 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

Shabbir Ali Bozdar for Appellant.

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

2024 P Cr. L J 873

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

ALI NAWAZ---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeals Nos. S-61 and S-69 of 2017, decided on 9th May, 2022.

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

----Ss. 302(b), 504 & 34---Qatl-i-amd, intentional insult with intent to invoke breach of the peace, common intention---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence---Conflict between---Accused was charged that he along with his co-accused persons committed murder of the son of complainant by firing---Perusal of the FIR showed that at the time of incident accused and his co-accused both were armed with SBBL guns however, two firearm injuries on right hand and right side of back of chest of deceased had been attributed to accused---Prosecution case was that the victim was fired upon from a distance of about 20 feet (around six yards)---Wound caused by a shot gun at such a distance would be irregular wound with satellite pallet pattern of diameter reaching five inches which obviously had not been seen on the body of deceased---Report of Forensic Science Laboratory showed that two 12 bore crime empties were not fired from the 12 bore SBBL shot gun---In view of said report, it could not be proved that victim died from a gun-shot of the present accused---Ballistic examination report showed that out of three empties, only one was found 'similar' but once again it was doubtful whether a .12 bore shot gun fired from a distance of about 20 feet would cause 0.5 cm × 0.5 cm wound or not---As such there was conflict between the ocular account and the medical evidence of the prosecution---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was accordingly allowed.

Muhammad Idrees and another v. The State and others 2021 SCMR 612 and Muhammad Bilal v. The State 2021 YLR 1252 ref.

(b) Criminal trial---

----Medical evidence---Scope---Medical evidence is a type of supporting 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 identify 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.

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

----Ss. 302(b), 504 & 34---Qatl-i-amd, intentional insult with intent to invoke breach of the peace, common intention---Appreciation of evidence---Benefit of doubt---Weapon of offence and crime empties sent together for analysis---Effect---Accused was charged that he along with his co-accused persons committed murder of the son of complainant by firing---Record showed that allegedly recovered gun and empties were sent together to the Forensic Science Laboratory for comparison, therefore, said recovery was inconsequential and report of the Forensic Science Laboratory was of no help to the case of prosecution---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was accordingly allowed.

Wazeer Hussain Khoso for Appellant.

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

2024 P Cr. L J 880

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

Syed Kazim Abbas Rizvi and others---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 206, 207 and 214 of 2020 and Criminal Revision Application No. 100 of 2021, decided on 24th May, 2022.

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

----Ss.302(b), 324 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Accused were charged for committing murder of the father of the complainant by firing---Prosecution's case was that the incident took place on 26.09.2013 and the accused was arrested on 30.09.2013 after receiving spy information---During interrogation, accused disclosed regarding the involvement of co-accused and on that basis, co-accused was arrested, however he was arrested empty handed and nothing related to the crime was recovered from him, nor could prosecution establish his connection with the incident apart from in-court identification by witnesses who pointed out the co-accused by assigning him the role of driving the motorcycle---Reasoning adopted by the Trial Court mainly revolved around the accused and not co-accused against whom no solid incriminatory evidence was available besides the word of two prosecution witnesses who identified him and that too not during an identification parade, despite having never seen him before---Correct identification of co-appellant by the said witnesses was therefore in some doubt and as such it was not safe to rely on it especially as there was no other corroborative/supportive evidence against him---Thus, co-accused was acquitted of the charge by extending him the benefit of doubt, in circumstances.

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

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

----Ss.302(b), 324 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Recovery of weapon of offence and crime empties---Reliance---Accused were charged for committing murder of the father of the complainant by firing---Record showed that 9mm pistol with five live rounds in the magazine was recovered from the accused---Said weapon then turned out to be the crime weapon which was used in the murder of deceased---Weapon was sealed on the spot by Police Official---Empties recovered at the spot of incident had an inscription on one of them being 'F-C9MMLUGER' which was also found on the bullets recovered from the 9mm pistol that was recovered from the accused---With regard to the arrest and recovery procedure, both, the Police Officials/witnesses had deposed in line with each other---Crime empties were sent to the Forensic Science Laboratory on 28.09.2013 along with the mutilated bullet recovered from the car which were then returned after determining their bore to be 9mm and then were sent again with the crime weapon to the Forensic Science Laboratory on 02.10.2013, two days after the arrest of the accused---Both the said recoveries were sent to the Forensic Science Laboratory Examiner within 72 hours and as such held great credibility as pieces of evidence---Recovered case property was sealed on the spot and that fact too was reaffirmed by the Forensic Science Laboratory Examiner who noted under General Remarks in his report that the parcels received were in sealed condition---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Zahid and another v. The State 2020 SCMR 590 rel.

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

----Ss.302(b), 324 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Recovery of car in which the complainant and deceased were attacked---Reliance---Accused were charged for committing murder of the father of the complainant by firing---Car in which the complainant and deceased were attacked was sent to the Forensic Science Laboratory for examination on 01-10-2013---Forensic Science Laboratory Examiner noted the car's registration number which, when put in juxtaposition with the FIR, was the same and as such ruled out any question of the car not being the same---Within the car, the Forensic Science Laboratory Examiner found the hole caused due to the passage of fire projectile of fire arm---Said fact also strengthened the prosecution case in that the version brought forth by the prosecution found further support---During the examination of the car, another lead bullet (sikka) and its jacket cover were recovered which were examined by the Forensic Science Laboratory Examiner on 05.10.2013 who noted that the jacket was from the same bullet recovered from within the car---Investigating Officer also got fingerprint specimen of the accused to have it matched with the weapon recovered from him--- Examiner observed that the fingerprint available on the gun matched the left thumb impression (LTI) of the accused and such pictures were also attached with the report---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

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

----Ss.302(b), 324 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Test identification parade connecting accused with the offence---Accused were charged for committing murder of the father of the complainant by firing---Accused was also identified in an identification parade by witness who was an independent labourer who had a fruit cart at the place of incident---Said witness identified the accused from a row of dummies and assigned him the role of being the one who shot at the deceased---Face of accused was muffled which was also attested by the Civil Judge responsible for conducting the identification parade---Section 164 Cr.P.C statement of a witness was also recorded and he too fully implicated the accused which further strengthened the prosecution case---Said witness had also identified the accused in an identification parade which was conducted by a court witness, who deposed that the identification parade had failed on his part as the witness admitted that the accused was shown to him---Even if the said identification parade was taken out of consideration, the one conducted through independent labourer was still sufficient to help ascertain the prosecution case---In terms of the correct identification of accused it was noteworthy that eye-witness had seen the accused for 30 minutes in good light prior to the attack on the deceased and would easily have been able to correctly identify him at an identification parade, which he did with the specific role of firing on the deceased---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

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

----Ss.302(b), 324 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Minor contradictions in the evidence of the witnesses---Inconsequential---Accused were charged for committing murder of the father of the complainant by firing---Evidence of all the witnesses was consistent on all material particulars of the case, although there were minor contradictions in the evidence of the witnesses, but the same were not material and certainly not of such materiality so as to affect the prosecution case---Said variations might well be due to mere lapse of memory or confusion caused in mind of witness by relentless cross-examiner---Every contradiction could not take place of a material contradiction and, therefore, minor contradictions, inconsistencies or insignificant embellishments did not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence---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. The State 1995 SCMR 1793 and Khadim Hussain v. The State PLD 2010 SC 669 rel.

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

----Ss.302(b), 324 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Defence plea of false implication not proved---Accused were charged for committing murder of the father of the complainant by firing---Coming to the defence plea raised by the accused, it appeared to be an afterthought, which had rightly been disbelieved by the Trial Court---Accused failed to provide any valid proof that he was in fact picked up by the Rangers---Accused did not examine any defence witness to ascertain such claims and only produced photocopies of two applications from his father to concerned authorities for his release which was insufficient in itself to prove that he was picked up and then falsely implicated---No enmity or ill will had been alleged or proved either against the prosecution witnesses or the Police Officials as such police had no reason for falsely implicating the accused in the case, nor did the two independent witnesses, all of whose evidence was believed and found to be trustworthy, confidence inspiring and reliable especially in terms of the correct identification of 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.

Javaid Ahmad Chattari along with Ms. Farah Awan and Saima Abbasi for Appellants (in Special Criminal Anti-Terrorism Appeals Nos. 206 and 207 of 2020).

Abrar Ali Khichi, Additional Prosecutor General, Sindh along with Rana Khalid Hussain, Special Prosecutor Rangers for the State (in Special Criminal Anti-Terrorism in Appeals Nos. 206 and 207 of 2020).

Muhammad Jeewani for Appellant (in Special Criminal Anti-Terrorism Appeal No. 214 of 2020).

Abrar Ali Khichi, Additional Prosecutor General, Sindh along with Rana Khalid Hussain, Special Prosecutor Rangers for the State (in Special Criminal Anti-Terrorism Appeal No. 214 of 2020).

Afaq Ahmed for Applicant (in Special Criminal Revision No. 10 of 2021).

Javaid Ahmed Chattari along with Ms. Farah Awan and Ms. Saima Abbasi, for Syed Kazim Abbas (in Criminal Revision Application No. 10 of 2021).

Muhammad Ali Jeewani for Nauman (in Criminal Revision Application No. 10 of 2021).

2024 P Cr. L J 901

[Sindh (Hyderabad Bench)]

Before Muhammad Saleem Jessar, J

Dr. Bahadur Khan and others---Petitioners

Versus

The STATE and another---Respondents

Criminal Revision Applications Nos. S-113, S-129 and S-133 of 2022, decided on 24th November, 2022.

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

----Ss. 200 & 202---Penal Code (XLV of 1860), Ss. 395, 506(2), 147, 148 & 149---Private complaint---Cognizance---Bailable warrants were issued by Trial Court against accused persons on complaint forwarded by Magistrate---Validity---Admittedly, there was dispute between the parties over piece of land---Besides the applicants had allegedly committed the offence/robbery for which the witnesses who were examined by the Magistrate during preliminary enquiry had fully supported the version of respondent/complainant thereby it was admitted---Once the complaint was brought on record the best course for the applicants would be to proceed with the trial instead of filing interlocutory applications seeking premature acquittal---Hence, the impugned order passed by Trial Court did not suffer from any illegality or infirmity---Revision was dismissed, in circumstances.

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

----Ss. 200 & 202, 204 & 265-K---Penal Code (XLV of 1860), Ss. 395, 506(2), 147, 148 & 149---Private complaint---Cognizance---Application filed under S.265-K, Cr.P.C. was dismissed---Validity---No doubt that there was no bar to file application u/s 265-K, Cr.P.C. at any stage of the trial even before framing of charge---Yet S.265-K, Cr.P.C. was not meant for a complaint case more particularly when the Trial Court had taken cognizance and matter before it (Trial Court) was at the verge of trial---Once the trial had commenced the best course for the applicants was to lead evidence instead of seeking premature acquittal---Revision petition was dismissed, in circumstances.

Maqbool Rehman v. The State and others, 2002 SCMR 1076; Zafar and others v. Umer Hayat and others SCMR 1816; Muhammad Hayat v. Rafiq and 5 others, 2017 PCrLJ 219; Mst. Naheed v. Ameer Bakh.sh and 5 others 2016 YLR 975; Abdul Razzaq Lashari and 3 others v. Government of Sindh through Chief Secretary and 3 others 2015 YLR 1082; Yasmin Gul Khanani and another v. Tariq Mehmood and 2 others 2013 YLR 2716; Ghulam Mujtaba v. The State 2009 YLR 169; Roshan Ali v. Amir Bux and another PLD 20-0-2- Kar. 115; Saleemullah Khan v. The State 2016 YLR 1344; Ayesha S. Sheikh v. VIII-Additional District and Sessions Judge, Karachi (South) 2021 MLD 1000; Mir Shakil ur Rehman v. Messrs Creek Developers (Private) Limited and another PLD 2019 Sindh 670 and Shabana Khan Advocate v. Major (Retd) Jehanzeb Aslam and 2 others 2022 MLD 1109;

The State through Advocate-General, Sindh High Court of Karachi v. Raja Abdul Rehman 2005 SCMR 1544 and Seema Fareed and others v. The State and another 2008 SCMR 839 rel.

Ishrat Ali Lohar and Hameedullah Dahri for Applicants.

Abdul Waheed Bijarani, Additional Prosecutor General, Sindh for State.

Muhammad Hashim Leghari and Roshan Ali Azeem Mallah for Respondent Ali Bux.

Order

MUHAMMAD SALEEM JESSAR, J.---By this common order, I propose to dispose of all the three Criminal Revision Applications bearing Nos.113, 129 and 133 of 2022 filed by the applicants as facts and. circumstances of all the three Criminal Revision Applications are inter connected and arise out of same incident.

1. The Criminal Revision Application No.S-113 of 2022 filed by applicant Dr. Bahadur Khan Dahri and 02 others v. Ali Bux and another has been directed against the order dated 16.08.2022 passed by 2nd Additional Sessions Judge, Shaheed Benazirabad whereby he after considering the statement of respondent/complainant as well statements of the witnesses recorded, by Magistrate under section 202 Cr.P.C brought on record the Complaint and issued BWs against the applicants in terms of his order dated 16.08.2022 which was instituted as Direct Complaint No.06/2022 vide Sessions Case No.514/2022 (Re-Ali Bux v. Raees Mithal and others).

2. In Criminal Revision Applications Nos.S-129 and 133 of 2022, the applicants Sardar Khan Muhammad and Raees Mithal have challenged the order dated 17.09.2022, whereby the Trial Court dismissed their applications filed under section 265-K Cr.P.C. Since common question of law as well facts are involved therefore, all these applications are hereby decided accordingly.

3. Facts of the Direct Complaint filed by respondent/complainant before the Trial Court are that the dispute over plot/piece of land bearing Revenue Survey No.434/2, admeasuring 01-14 acres, situated in Daulatpur, District Shaheed Benazirabad was going on between the parties, due to which Muhammad Hassan Mallah and others had filed F.C. Suit No.41/2017, Re-Muhammad Hassan v. Province of Sindh and others, for seeking declaration, cancellation and injunction before the Court of learned 2nd Senior Civil Judge, Nawabshah against the applicant/accused No.01, and others. The respondent/complainant has been acting as Special Attorney on behalf of the plaintiffs. The said suit was decreed by the Court of 22nd Senior Civil Judge, Nawabshah vide judgment and decree dated 11.08.2021. The respondent/complainant party was declared owner and in possession of the suit land. Per judgment and decree the revenue authorities were directed to cancel the mutation entry in favour of accused No.1 being result of fraud and misrepresentation. By said judgment and decree applicant/accused No.1 was directed not to interfere with title and possession of the plaintiff/complainant over the subject land. The applicants/accused being defendants in that civil suit had filed Civil Appeal No.52/2021 before the District Judge, who had assigned it to learned 4th Additional District Judge, Shaheed Benazirabad where it is still pending adjudication.

4. Messes Ishrat Ali Lohar and Hameedullah Dahri, Advocates for applicants argued that applicants are Zamindars of area besides one of them is Member Provincial Assembly Sindh and other one is also a former Member Provincial Assembly Sindh (MPAs) and the respondent/complainant is a notorious criminal of the area therefore, the respondent/complainant in order to cause damage to their honour as well dignity of the applicants had filed Direct Complaint against them which has wrongly been admitted and brought on record by the Trial Court therefore, impugned orders suffer from many infirmities and are not tenable under the eye of law. Learned counsels further stated that it is quite impossible for the applicants who being notables of the area, had committed the offence of robbery and thereby had encroached upon the alleged piece of land belonging to respondent/complainant. They further averred that respondent/complainant is not an ostensible owner of the plot in dispute rather he is an attorney of the actual owners therefore, was not competent to file Direct Complaint against the applicants. They further argued that there is no probability of the applicants to be convicted for any offence hence by granting these revision applications the impugned orders may be set aside and thereby proceedings initiated against them being arisen out of Direct Complaint No.06 of 2022 may also be quashed. In support of their contentions, learned counsels have placed reliance upon the cases reported as Maqbool Rehman v. The State and others, (2002 SCMR 1076), Zafar and others v. Urner Hayat and others (2010 SCMR 1816), Muhammad Hayat v. Rafiq and 5 others, (2017- PCr.LJ 219), Mst. Naheed v. Ameer Bakhsh and 5 others (2016 YLR 975), Abdul Razzaq Lashari and 3 others v. Government of Sindh through Chief Secretary and 3 others (2015 YLR 1082), Yasmin Gul Khanani and another v. Tariq Mehmood and 2 others (2013 YLR 2716); Ghulam Mujtaba v. The State (2009 YLR 169), Mst. Naheed v. Ameer Bakhsh and 5 others (2016 YLR 975), Roshan Ali v. Amir Bux and another (PLD 2002- Karachi 115) and an unreported order dated 06.10.2022 passed by this Court in Criminal Revision Application No.S-77 of 2022, taken on record. Learned counsel for the applicants have also annexed certain documents under the cover of their statement dated 24.11.2022, same have also been taken on record.

5. On the other hand, M/s Muhammad Hashim Leghari and Roshan Ali Azeem Mallah, Advocates for respondent / complainant opposed instant Criminal Revision Applications and stated that the Trial Court had passed a speaking order thereby has tightly rejected their applications under section 265-K Cr.P.C besides had rightly brought on record the complaint filed by respondent/complainant. They further submitted that in fact the respondent had filed Criminal Miscellaneous Application in terms of Section 22-A(6) (i) Cr.P.C before the Ex-Officio Justice of Peace which was disposed of in terms of order dated 15.04.2022 leaving the respondent at liberty to file Direct Complaint under section 200 Cr.P.C which the respondent filed and subsequently it was brought on record vide Sessions Case No.514/2022. As far as contention raised by learned counsel for the applicants that they were sitting as well former MPAs of the area, therefore had committed no offence, learned counsel for the respondent have specifically argued that they being highly influential persons of the area have illegally dispossessed the respondent from the valuable piece of plot/land as they intended either to grab or purchase it on nominal rates. They further submitted that applicants being influential persons have also got implicated the respondent under narcotic case so that he may not pursue these cases and may meet with unjustified demands of the applicants. They further submitted that it is settled principle of law that fate of criminal case may not be decided at preliminary stage unless evidence is recorded. In support of their contentions, they have placed reliance upon the cases of Saleemullah Khan v. The State (2016 YLR 1344), Ayesha S. Sheikh v. VIII-Additional District and Sessions Judge, Karachi (South) (2021 MLD 1000) and Mir Shakil ur Rehman v. Messrs Creek Developers (Private) Limited and another (PLD 2019 Sindh 670) and unreported order dated 17.11.2022 passed by this Court in Criminal Revision Application No.S-218/2022 (Re-Syed Bachal Shah Lakyari and another. v. Mumtaz Ali and others).

6. Mr. Abdul Waheed Bijarani, learned Assistant Prosecutor General, Sindh, appearing for State also opposed the revision applications and submitted that Direct Complaint filed by the respondent was rightly admitted and subsequently the Trial Court had also taken cognizance of the offence therefore, it will be appropriate for the applicants to proceed with the trial instead of pressing these criminal revision applications. In support of his contention, learned A.P.G placed reliance upon the case of Shabana Khan Advocate v. Major (Retd.) Jehanzeb Aslam and 2 others (2022 MLD 1109).

7. Heard. Record perused.

8. Admittedly, there is dispute between the parties over piece of land besides the applicants had allegedly committed the offence/robbery for which the witnesses who were examined by the Magistrate during preliminary enquiry have fully supported the version of respondent/ complainant thereby it was admitted and brought on record vide Direct Complaint No.06 of 2022 therefore, once the Complaint was brought on record the best course for the applicants would be to proceed with the trial instead of filing interlocutory applications seeking premature acquittal. Hence the impugned order dated 16.08.2022 passed by Trial Court / 2nd Additional Sessions Judge, Judge Shaheed Benazirabad in Criminal Revision Application No.S-133 of 2022 does not suffer from any illegality or infirmity. Consequently, it is hereby maintained. Moreover, the dispute over plot/piece of land bearing Revenue Survey No.434/2, admeasuring 01-14 acres, situated in Daulatpur, District Shaheed Benazirabad is the bona fide property of Muhammad Hassan and others on whose behalf the respondent / complainant had been acting as their attorney and filed F.C Suit No.41 of 2017 (Re-Muhammad Hassan v. Province of Sindh and others) seeking declaration, cancellation and injunction before the Court of 2nd Senior Civil Judge, Nawabshah against the applicants. The said suit was decreed in favour of the plaintiffs vide judgment and decree dated 11.08.2021 thereby the entry allegedly kept in the name of applicants was also directed to be cancelled. The applicants were also directed by the Trial Court in the civil suit not to disturb or cause any interference in the title and possession of the respondent/complainant. It further appears that learned Civil Court while decreeing the suit filed by respondent/complainant had specifically directed the applicants who had appeared as defendants not to disturb the peaceful possession of the land of respondent/complainant even then they had dispossessed him by committing the offence which shows the applicants had no respect for the Court orders. Such conduct on the part of applicants prove that they can indulge themselves in any criminal activity hence the contention raised by learned counsel for the applicants that they being notables of the area cannot commit such an offence carries no weight. The contention raised by learned counsel for the applicants that civil litigation is pending adjudication therefore, criminal complaint cannot be maintained is concerned, it is settled law that there is no legal bar for maintaining civil as well criminal proceedings together as both proceedings can run side by side. No doubt there is no bar to file application under section 265-K Cr.P.C at any stage of the trial even before framing of charge yet Section 265-K Cr.P.C is not meant for the complaint case more particularly when the Trial Court had taken cognizance and matter before it (Trial Court) is at the verge of trial hence once the trial has commenced the best course for the applicants is to lead evidence instead of seeking premature acquittal. Learned counsel for the respondents have also referred to an unreported order passed by this Court in Criminal Revision Application No.S-218/2022 (Re-Syed Bachal Shah Lakyari and another v. Mumtaz Ali and others) vide order dated 17. 11. 2022.

9. Bare reading of Section 265-K Cr.P.C. it appears that an application under section 265-K Cr.P.C can be pressed at any stage of trial even before framing of the charge. However, in instant case the Direct Complaint was filed by respondent/complainant which after his examination under sections 200 Cr.P.C was sent to the Judicial Magistrate for preliminary inquiry. The respondent/complainant had produced his witnesses before the Judicial Magistrate who also recorded their statements under section 202 Cr.P.C. After recording statements of complainant as well witnesses, learned Magistrate had recommended to the effect a prima facie case in terms of complaint was made out therefore, the learned 2nd Additional Sessions Judge, Shaheed Benazirabad (Trial Court) admitted the complaint and thereby instituted it vide Sessions Case No.514 of 2022 therefore, learned Trial Court took cognizance of offence and issued bailable warrants against the applicants/accused who upon service of the same had surrendered before the Trial Court. After furnishing their required surety, the applicants/accused instead of proceeding with trial had moved application under section 265-K Cr.P.C and sought their premature acquittal.

10. In case of The State through Advocate-General, Sindh High Court of Karachi v. Raja Abdul Rehman (2005 SCMR 1544), the Hon'ble Supreme Court of Pakistan while deciding identical issue has laid down in Para-13 of the judgment as under:-

"13 .......It is, however, to be noted that though there is no bar for an accused person to file application under section 249-A, Cr.P.C. at any stage of the proceedings of the case yet the facts and circumstances of the prosecution case will have to be kept in mind and considered in deciding the viability or feasibility of filing an application at any particular stage. The special or peculiar facts and circumstances of a prosecution case may not warrant filing of an application at a stage when the entire prosecution evidence had been recorded and the case was fixed for recording of statement of the accused under section 342, Cr.P.C. This Court in the cases of Bashir Ahmad v. Zafar ul Islam PLD 2004 SC 298 and Muhammad Sharif v. The State and another PLD 1999 SC 1063 (supra) did not approve decision of criminal cases on an application under section 249-A; Cr.P.C. or such allied or similar provisions of law, namely, section 265-K, Cr.P.C. and observed that usually a criminal case should be allowed to be disposed of on merits after recording of the prosecution evidence, statement of the accused under section 342, Cr.P.C. recording of statement of accused under section 340(2), Cr.P.C. if so desired by the accused persons and hearing the arguments of the counsel of the parties and that the provisions of section 249-A, section 265-K and section 561-A of the Cr.P.C should not normally be pressed into action for decision of fate of a criminal case."

1. In case of Seema Fareed and others v. The State and another (2008 SCMR 839), the Hon'ble Supreme Court has also laid down as under:-

2024 P Cr. L J 918

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

Ali Hassan Magsi alias Akbar and another---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Jail Appeal No. 72 of 2019, decided on 10th March, 2022.

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

----Ss. 302(b), 392, 397 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qatl-i-amd, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Delay of two days in lodging the FIR explained---Accused were charged for committing murder of two friends of the complainant by firing during robbery--- First Information Report was lodged after a delay of two days---Reason for the delay in lodging the FIR was that the injured had to be shifted to hospital whereupon they died, then post mortem had to be carried out before the bodies were released for burial in "G" which was at a considerable distance from "K" and after the funeral the FIR was lodged---As such the delay in lodging the FIR had been explained---Importantly the FIR was against unknown persons and as such there was no attempt to falsely implicate the accused or any other person or else the accused would have been specifically named in the FIR---Furthermore, the complainant had no enmity with the accused and had no reason to falsely implicate them and as such the delay in lodging the FIR was not fatal to the prosecution case as the delay had been explained---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt except the offences under Anti-Terrorism Act, 1997 thus the sentences under Anti-Terrorism Act were set-aside---Appeal against conviction was dismissed with modification in sentence.

Ihsan Ullah and others v. The State and others 2021 P.Cr.LJ 1470; Muhammad Imran and others v. The State 2021 YLR 95; Mian Sohail Ahmed and others v. The State and others 2019 SCMR-956; Gulfam and another v. The State 2017 SCMR 1189; Muhammad Rashid and another v. The State 2022 YLR 119; Ahmad Omar Sheikh and 3 others v. Government of Sindh and 6 others 2022 YLR 217; Abdul Majeed v. The State 2008 SCMR 1228; Muhammad Idress and others v. The State 2008, SCMR 1544; Muhammad Nadeem alias Deemi v. The State 2011 'SCMR 872; Muhammad Ashraf and others v. The State 2010 SCMR 407; Muhammad Ilyas and others v. The State 2011 SCMR 460; Muhammad Yaqoob v. The State 2021 SCMR 1387; Ali Bux and others v. The State 2018 SCMR 354; Atta-ur-Rehman and another v. The State 2018 SCMR 372; Muhammad Farhan alias Irfan v. The State 2021 SCMR 488 and Muhammad Zaman v. The State 2007 SCMR 813 ref.

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

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

----Ss. 302(b), 392, 397 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qatl-i-amd, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Sole eye-witness; evidence of---Reliance---Accused were charged for committing murder of two friends of the complainant by firing during robbery---Record showed that the prosecution's case rested on the sole eye-witness/complainant to the robbery and murder of the deceased and in particular his correct identification of the accused as the persons who robbed and murdered the deceased---Eye-witness lived close to the deceased and was a friend of the deceased and was not a chance witness as was corroborated by other two witnesses---Said eye-witness had seen the accused from close range at the time he and the deceased were robbed by the accused which would have taken a few minutes---Said witness had seen the accused when they opened fire on their car murdering the deceased which firing went on for a couple of minutes---All of this took place from close range---At least two witnesses had deposed that there were street lights at the time---Car lights would also have been on as well as light surrounding the ATM and those in their shops who locked up after the incident out of fear---Faces of accused persons were uncovered and thus the eye-witness would have been able to get a good clear unobstructed view of them over a reasonable period of time---Complainant recorded his FIR within 48 hours of the incident where he gave a brief hullia of the accused persons and stated that he could recognize them by face if he saw them again---Said witness had no enmity with the accused persons and thus had no reason to implicate them in a false case and hence he did not name them in his FIR---Other two witnesses were also named in the FIR as following the car as they were also going to have tea with them and arrived at the scene and helped in taking the deceased to hospital---Record showed that there was no material improvements in the evidence of complainant from his earlier FIR---Complainant gave his evidence in a natural and straightforward manner and was not dented despite a lengthy cross-examination---Complainant was not related to the deceased being only a friend---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt except the offences under Anti-Terrorism Act, 1997 thus the sentences under Anti-Terrorism Act were set-aside---Appeal against conviction was dismissed with modification in sentence.

Muhammad Ehsan v. The State 2006 SCMR 1857; Farooq Khan v. The State 2008 SCMR 917; Niaz-ud-Din and another v. The State and another 2011 SCMR 725 and Muhammad Warts v The State 2008 SCMR 784 rel.

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

----Ss. 302(b), 392, 397 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Delay of seven days in conducting identification parade---Not consequential---Accused were charged for committing murder of two friends of the complainant by firing during robbery---Complainant appeared before an identification parade on 05.05.20007 which was less than one month after the incident and picked out both the accused persons with a specific role seven days after their arrest---Although, it seemed that the identification parade was not carried out strictly in accordance with the law in that it was a joint identification parade---However, the slight delay (seven days) in holding the identification parade was not of much consequence---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt except the offences under Anti-Terrorism Act, 1997 thus the sentences under Anti-Terrorism Act were set-aside---Appeal against conviction was dismissed with modification in sentence.

Muhammad Zaman v. The State 2007 SCMR 813 rel.

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

----Ss. 302(b), 392, 397 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Test identification parade---Reliance---Accused were charged for committing murder of two friends of the complainant by firing during robbery---Factum of the eye witnesses picking out the accused persons at the identification parade with the specific role of shooting the deceased was corroborated by the Judicial Magistrate who carried out the identification parade alongwith his memo of identification---Appeal against conviction was dismissed with modification in sentence.

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

----Ss. 302(b), 392, 397 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qatl-i-amd, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Independent witnesses, evidence of----Reliance---Accused were charged for committing murder of two friends of the complainant by firing during robbery---Record showed that two witnesses, who were both named in the FIR as following the car of the deceased in order to have a cup of tea with the deceased at a bakery, both gave evidence to that effect as well as the fact that they saw the accused running away almost immediately after the firing incident and assisted the complainant in taking the deceased to hospital---Said witnesses gave their S.161 Cr.P.C. statements within two days of the incident which they did not improve in their evidence---Said witnesses were not related to the deceased or the complainant and they had no reason to falsely implicate the accused persons in the case whom they did not know and had no enmity with---Said witnesses had given their evidence in a straightforward and natural manner and were not dented at all during cross-examination and as such their evidence was believable in so far as it corroborated the eye witness evidence of the complainant except in respect of the actual shooting which they did not witness---Truthfulness of said witnesses was enhanced by the fact that they did not claim that they saw the shooting from close range or could recognize the accused persons which they could easily have said if they were put up witnesses---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt except the offences under Anti-Terrorism Act, 1997 thus the sentences under Anti-Terrorism Act were set-aside---Appeal against conviction was dismissed with modification in sentence.

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

----Ss. 302(b), 392, 397 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qatl-i-amd, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Medical evidence supporting evidence of witnesses---Accused were charged for committing murder of two friends of the complainant by firing during robbery---Medical evidence fully supported the eye-witness/prosecution evidence---Medical evidence confirmed that both the deceased were brought to hospital suffering from multiple firearm injuries and expired on account of those injuries---Significantly mild blackening was seen on the fore head injury of the deceased which tied in with the accused persons returning to the car and firing at close range (hence the eye witness sitting in the car was able to get a good look at them)---Fact that most of the injuries were not on the legs but other vital upper parts of the body also supported the prosecution evidence that the shots were fired whilst the deceased were sitting in the car as their legs would have been shielded by the car---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt except the offences under Anti-Terrorism Act, 1997 thus the sentences under Anti-Terrorism Act were set-aside---Appeal against conviction was dismissed with modification in sentence.

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

----Ss. 302(b), 392, 397 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qatl-i-amd, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Recovery of car from the spot---Reliance---Accused were charged for committing murder of two friends of the complainant by firing during robbery---Car was recovered from the spot which had blood stains inside which led to a positive chemical report and also had glass inside it from broken windows which also supported the prosecution case---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt except the offences under Anti-Terrorism Act, 1997 thus the sentences under Anti-Terrorism Act were set-aside---Appeal against conviction was dismissed with modification in sentence.

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

----Ss. 302(b), 392, 397 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qatl-i-amd, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Recovery of bike belonging to accused from spot---Reliance---Accused were charged for committing murder of two friends of the complainant by firing during robbery---Logically as the accused persons had been knocked off their bike they could not escape on it and had to run away on foot---Bike which was left behind was found to belong to the brother of accused who had not reported it missing---Recovery of the bike at the scene therefore provided a direct link to accused being present at the crime scene---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt except the offences under Anti-Terrorism Act, 1997 thus the sentences under Anti-Terrorism Act were set-aside---Appeal against conviction was dismissed with modification in sentence.

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

----Ss. 302(b), 392, 397 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qatl-i-amd, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Recovery of pistol on pointation of accused and crime empties from spot---Reliance---Accused were charged for committing murder of two friends of the complainant by firing during robbery---Accused led the police to the pistol on his own pointation which he had hidden in a place which the police would not know about---Notably the empties recovered at the scene were sent for Forensic Science Laboratory before the pistol was recovered, yet the Forensic Science Laboratory Report revealed that the empties recovered at the scene had been fired from the pistol which once again linked presence of accused directly to the scene of the murder and showed that the empties matching the pistol were not managed in any way---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt except the offences under Anti-Terrorism Act, 1997 thus the sentences under Anti-Terrorism Act were set-aside---Appeal against conviction was dismissed with modification in sentence.

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

----Ss. 302(b), 392, 397 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qatl-i-amd, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Recovery of stolen items on pointation of accused---Reliance---Accused were charged for committing murder of two friends of the complainant by firing during robbery---Other accused on his own pointation took the police to the place where they had hidden the items which had been stolen from the deceased including mobile phone of the deceased which provided a direct link to the presence of accusedto the robbery and murder scene---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt except the offences under Anti-Terrorism Act, 1997 thus the sentences under Anti-Terrorism Act were set-aside---Appeal against conviction was dismissed with modification in sentence.

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

----Ss. 302(b), 392, 397 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qatl-i-amd, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Police Officials as witnesses, evidence of---Reliance---Accused were charged for committing murder of two friends of the complainant by firing during robbery------Police witnesses had no enmity or ill will toward the accused and had no reason to falsely implicate them in present case for example by foisting a pistol or stolen items on them---Evidence of the police witnesses could be fully relied upon, in circumstances---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt except the offences under Anti-Terrorism Act, 1997 thus the sentences under Anti-Terrorism Act were set-aside---Appeal against conviction was dismissed with modification in sentence.

Mushtaq Ahmed v. The State 2020 SCMR 474. rel.

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

----Ss. 302(b), 392, 397 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qatl-i-amd, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Minor contradictions in evidence---Not consequential---Accused were charged for committing murder of two friends of the complainant by firing during robbery---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 any shadow of doubt except the offences under Anti-Terrorism Act, 1997 thus the sentences under Anti-Terrorism Act were set-aside---Appeal against conviction was dismissed with modification in sentence.

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

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

----Ss. 302(b), 392, 397 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qatl-i-amd, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Un-broken chain of events---Accused were charged for committing murder of two friends of the complainant by firing during robbery---Evidence of the witnesses provided a believable corroborated unbroken chain of events from the complainant and his friends and other witnesses driving to have tea at bakery, to the complainant stopping to get some cash from an ATM, to the accused persons robbing the complainant and the deceased, to the deceased driving to the accused persons' bike, to the accused persons then firing upon the car and murdering the deceased, to the deceased being taken to hospital, to the accused persons being identified by the eye-witness, to the accused persons respectively leading the police on their pointation, to the unlicensed pistol used in the murders which led to a positive Forensic Science Laboratory Report with the empties recovered at the scene, to the recovery of the robbed items on the pointation of the other accused---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt except the offences under Anti-Terrorism Act, 1997 thus the sentences under Anti-Terrorism Act were set-aside---Appeal against conviction was dismissed with modification in sentence.

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

----Ss. 302(b), 392, 397 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qatl-i-amd, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Act of terrorism not made out ---Accused were charged for committing murder of two friends of the complainant by firing during robbery---Based on the particular facts and circumstances of the case it appeared that the initial intent of the accused persons was to rob the deceased and the complainant, which they did---However after the robbery when the deceased rammed the accused persons motor bike the accused persons became furious with the deceased and opened fire on them with intent to kill them but not with the design, intent or purpose to create terror and as such all offences under the Anti-Terrorism Act, 1997 were dismissed---However, the prosecution had proved its case against the accused beyond any shadow of doubt except the offences under Anti-Terrorism Act, 1997 thus the sentences under Anti-Terrorism Act were set-aside---Appeal against conviction was dismissed with modification in sentence.

Muhammad Farooq for Appellants.

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

2024 P Cr. L J 940

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto, J.

Attaullah---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-278 of 2021, decided on 10th September, 2021.

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

----S. 498---Penal Code (XLV of 1860), Ss. 324, 337-F(v), 337-H, 447, 109, 147 & 148---Attempt to commit qatl-i-amd---Pre-arrest bail, refusal of---Injury on non-vital part of body---"Intention or knowledge" to commit qatl-i-amd---Ocular evidence corroborated by medical evidence---Absconsion of accused---Accused sought pre-arrest bail with the contention that the injured had received firearm injury on non-vital part of his body and fire shot was not repeated---Prima facie, case of accused fell within the mischief of S. 324, P.P.C. hit by statutory prohibition, in view whereof, accused could not be released on bail in the absence of any consideration within the purview of sub-section (2) of S. 497, Cr.P.C---Murderous assault as defined in S. 324, P.P.C, did not draw any anatomical distinction between vital and non-vital parts of human body---Once the trigger was pressed and the victim was effectively targeted, "intention or knowledge" as contemplated by S. 324, P.P.C, was manifested; the course of a bullet was not controlled or steered by assailant's choice nor could he claim any premium for a poor marksmanship---Ocular evidence was corroborated by the medical evidence---After commission of the offence, the accused had absconded away during investigation---Deeper appreciation of evidence/material was not permissible at bail stage, as at such stage only tentative assessment of material was to be made---Accused was not entitled for grant of pre-arrest bail---Bail application was dismissed, in circumstances.

Sheqab Muhammad v. The State and others 2020 SCMR 1486 ref.

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

----S. 498---Pre-arrest bail---Essential conditions, detailed.

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

(a) Grant of bail before arrest is an extraordinary relief to be granted only in extraordinary situation to protect innocent persons against victimization through abuse of law for ulterior motives;

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

(c) The accused must also show that his arrest was being sought for ulterior motives, particularly on the part of the Police; to cause irreparable humiliation to him, to disgrace and dishonor him;

(d) Such accused should further establish that he had not done or suffered any act which would disentitle him to a discretionary relief under equity.

Altaf Hussain Chandio for Applicant along with Applicant.

Mushtaque Hussain Khaskheli for the Complainant along with Complainant.

Shahid Ahmed Shaikh, Additional P.G for the State.

Date of hearing: 10th September, 2021.

Order

NAIMATULLAH PHULPOTO, J.---Applicant/accused Attaullah son of Abdul Qadir Katiyar seeks pre-arrest bail in Crime No.08 of 2021 registered at P.S Taluka Nawabshah for offences under Sections 324, 337-F(v), 337-H(2), 447, 109, 147, 148, P.P.C. Previously, applicant / accused applied for pre-arrest bail before learned IIrd Additional Sessions Judge, Shaheed Benazirabad, the same was rejected by him vide order dated 31.03.2021. Thereafter, applicant / accused has approached to this Court.

1. In the FIR lodged by complainant Fateh Muhammad Brohi on 31.01.2021 at 1700 hours, it is alleged that present incident occurred on 30.01.2021 at 07:30 p.m. at the plot of one Abdul Malik Brohi. It is alleged that applicant Attaullah fired from his pistol with intention to kill Jameel Ahmed, the cousin of the complainant, the fire hit him at his shoulder and he fell down. Applicant along with other accused by making aerial firing succeeded in running away. FIR of the incident was lodged as stated above. The injured was referred to the hospital. The Medical Officer certified that injured Jameel Ahmed has received firearm injury at his shoulder and it was through and through. The Investigation Officer recorded 161 Cr.P.C statement of injured Jameel Ahmed, in which he has fully implicated the applicant/accused. During investigation, co-accused joined investigation but applicant/accused shifted to some unknown place and could not be arrested. Challan was submitted by the Investigation Officer against co-accused for offences under Sections 324, 337-F(v), 337-H(2), 447, 109, 147, 148, P.P.C in which the present applicant/accused was shown as absconder. Thereafter, the applicant obtained interim pre-arrest bail from the Court of learned IIIrd Additional Sessions Judge, Shaheed Benazirabad vide order dated 10.03.2021. Subsequently, it was recalled vide order dated 31.03.2021.

2. Learned Advocate for the applicant / accused mainly contended that there was delay in lodging of the FIR for which no plausible explanation has been furnished. It is further argued that fire was not repeated, which shows that applicant / accused had no intention to kill the injured. Lastly it is submitted that the alleged offence does not fall within prohibitory clause of Section 497 Cr.P.C. In support of his submissions, he has relied upon the cases of Hayat Muhammad Khan v. The State and another (2017 PCr.LJ Note 144) and Asghar Ali v. The State and another (2018 YLR Note 110).

3. Learned Additional Prosecutor General assisted by learned Advocate for the complainant argued that the applicant/accused has been specifically named in the FIR with specific role of causing firearm injury to PW Jameel Ahmed; ocular evidence is corroborated by the medical evidence. It is further submitted that the element of mala fide which is basic requirement for grant of pre-arrest bail is missing in this case. So far the delay in lodging of FIR is concerned, it is submitted that it has been sufficiently explained by the complainant. Learned Additional P.G has opposed an application for pre-arrest bail to the applicant/accused. In support of his submissions, he has relied upon the cases reported as 2018 PCr.LJ Note 154, 2012 MLD 586, 2000 PCr.LJ 1826 and 1997 PCr.LJ 2085.

4. I have carefully heard learned Counsel for the parties and perused the FIR, 161, Cr.P.C. statements of the PWs, particularly injured Jameel Ahmed and medical certificate. So far the contentions of learned Advocate for the applicant that injured has received firearm injury on non-vital part of his body and fire was not repeated is concerned, such contentions are without merit. Prima facie, case of accused falls within the mischief of section 324 of the Pakistan Penal Code, 1860, hit by statutory prohibition, in view whereof, accused cannot be released on bail in the absence of any consideration within the purview of subsection (2) of section 497 of the Code ibid. Similarly, murderous assault as defined in the section ibid draws no anatomical distinction between vital or non-vital parts of human body. Once the trigger is pressed and the victim is effectively targeted, "intention or knowledge" as contemplated by the section ibid is manifested; the course of a bullet is not controlled or steered by assailant's choice nor can he claim any premium for a poor marksmanship as held in the case of Sheqab Muhammad v. The State and others (2020 SCMR 1486).

5. Applicant / accused is seeking pre-arrest bail in this case but learned Counsel for the applicant has failed to convince the Court regarding following ingredients, which are essential for grant of pre-arrest bail:-

i) Grant of bail before arrest is an extraordinary relief to be granted only in extraordinary situation to protect innocent persons against victimization through abuse of law for ulterior motives;

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

2024 P Cr. L J 969

[Sindh (Hyderabad Bench)]

Before Mohammad Karim Khan Agha and Kausar Sultana Hussain, JJ.

Javed and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-75 of 2020, decided on 12th January, 2023.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Safe custody of narcotics not proved---Charas weighing 90 kilograms was allegedly recovered from the car of the accused persons---In this case the accused were arrested by the police on 09.11.2018 and from each of them 4 KG's were recovered and from the boot of the car which they were allegedly driving two bags containing 42 and 40 KG's charas respectively were recovered---According to the complainant the case property was handed over to the Duty Officer at the Police Station whose name he did not remember and whose identity remained unknown---Mashir of the memo of recovery was of no assistance in that regard as in his evidence he did not mention where the narcotics were kept or who they were given to on their return to the Police Station---Malkhana entry dated 09.11.2018 showed that the case property was deposited in the malkhana however the malkhana in charge was not examined by the prosecution to prove safe custody and as such it might be that his evidence would not have supported the prosecution case---In any event there was no evidence that the narcotics were kept in the malkhana for five days without explanation before being taken to the Chemical Examiner by the police witness who did not produce any entry showing that he had taken the narcotics from the malkhana to be deposited with the Chemical Examiner and did not even produce his departure and arrival entries to this effect---Thus, based on the particular facts and circumstances of this case the prosecution had not been able to prove safe custody of the narcotic from the time when it was recovered from the accused till the time when the same was sent for chemical examination as it appeared that the narcotic was unaccounted for five days during which time it could have been tampered with---As such the Chemical Report was of no legal value to the prosecution in proving the recovered narcotic---Thus, the prosecution had not proved its case beyond a reasonable doubt against the accused persons---Appeal against conviction was allowed, in circumstances.

Qaiser and another v. The State 2022 SCMR 1641; Akhtar Gull v. The State 2022 SCMR 1627; Umar Zaman v. The State 2022 SCMR 2093; Abdul Ghani v. The State 2022 SCMR 2121; Mir Waiz v. The State 2022 SCMR 2105; Ghulam Nabi Shah v. The State 2020 YLR 2127; Agha Qais v.The State 2009 PCr.LJ 1334; Riasat Ali v. The State 2004 PCr.LJ 361; Qaiser Khan v. The State through Advocate-General, Khyber Pakhtunkliwa, Peshawar 2021 SCMR 363; Imtiaz Khan and another v. The State 2020 P Cr.L J 202 and Liaquat Ali v. State 2022 SCMR 1097 ref.

Qaisar v. State 2021 SCMR 363 rel.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Recovered substance not produced before the Court---Charas weighing 90 kilograms was allegedly recovered from the car of the accused persons---Alleged recovered narcotics were not produced in court which was an admitted position, and it was seriously damaging, if not fatal, to the prosecution case keeping in view that they were not burnt and it appeared the same could not be traced---Notable that the alleged recovery from the boot of the car was not put to either of the accused during their S.342 Cr.P.C statements but only the narcotics recovered from them personally---As such the recovery of the narcotics from the boot of the car could not be used to convict the accused in respect of that recovery---Furthermore, the car was never produced in Court and no evidence was produced that the accused had any link with it---Real owner never came forward nor was he ever traced out by the Investigating Officer---Thus, the prosecution had not proved its case beyond a reasonable doubt against the accused persons---Appeal against conviction was allowed, in circumstances.

Shahnawaz Brohi for Appellants.

Shahzado Saleem Nahiyoon, Additional Prosecutor General, Sindh, for State.

Date of hearing: 10th January, 2023.

Judgment

MOHAMMAD KARIM KHAN AGHA, J.---This criminal jail appeal is directed against the judgment dated 05.10.2020, passed by learned Sessions / Special Judge for CNS, Hyderabad, in Special Case No.249 of 2018, arising out of Crime No.127 of 2018, registered at Police Station Bhitai Nagar, Hyderabad, under section 9(c) of Control of Narcotic Substances Act, 1997, whereby the appellants have been convicted under section 9(c) of CNS Act, 1997 and sentenced to suffer imprisonment for life and to pay the fine of Rs.200,000/- each. In case of default in payment of fine they were ordered to suffer simple imprisonment for 04 months more. Benefit of Section 382-B Cr.P.C. was also extended to the accused.

1. The brief farts of the prosecution case are that on 09.11.2018 at 2000 hours, police party headed by SIP Dili Jan of CIA Centre Hyderabad, while checking the vehicles near Filter Plant Police Check-post, Hyderabad, saw and got stopped one Toyota XLI Corolla Car bearing registration No.ASB-311, coming from the side of Hyderabad city, wherein two persons were seated, who on seeing police party tried to run away; however, due to suspicion they were apprehended. On search being conducted by police party, they secured 04 kilograms of narcotic substance from the fold of shalwar of accused Javed as well as cash of Rs. 1500/- was recovered from the side pocket of his shirt. As for co-accused Muhammad Nawaz, complainant secured 04 kilograms of Narcotic Substance as well as Rs.2000/- from his side pocket of shirt. Thereafter, search of the aforementioned car was also made and further 82 kilograms of narcotic substance were found secured, wrapped in two sacks, from its trunk (dickey). Thereafter, the contraband items, as stated above, were sealed and the vehicle/car was also taken in custody. Such memo of arrest and recovery was prepared on the spot in presence of mashirs. Then accused and case property were brought at police station where FIR was lodged by complainant SIP Dili Jan on behalf of the State.

2. During investigation, Investigating Officer recorded 161 Cr.P.C. statements of the PWs. Recovered narcotic substance was sent to the chemical examiner and positive chemical report of the said contraband / sample as that of Charas was received. On the conclusion of investigation challan was submitted against the accused for offence under section 9(c) of CNS Act, 1997.

3. Trial Court framed charge against accused at Ex.3 under section 9(c) of CNS Act, 1997, to which, accused pleaded not guilty and claimed to be tried vide their pleas at Exs.4 and 5, respectively. At the trial prosecution examined PW-1 complainant SIP Dili Jan at Ex.6, who produced attested copy of entry of departure, mashirnama of arrest and recovery, roznamcha entry of arrival at Police Station and FIR at Ex.6/A to C; PW-2 ASI Mashir Ghulam Ali was examined at Ex.7, who produced mashirnama of vardat at Ex.7/A, PW-3 HC Dilshad Ali was examined at Ex.8, through whom the narcotic substance was sent to the Chemical Examiner for its examination and report; PW-4 I.O SIP Saif-ur-Rehrnan Sahto was examined at Ex.9, who produced photocopy of Register No.19 and attested copies of entries of departure, arrival and other documents under which the case was investigated at Ex.9/A to F; and, thereafter, prosecution side was closed at Ex.10.

4. Statements of accused were recorded under section 342 Cr.P.C. at Exs. 11 and 12 respectively. Accused denying prosecution allegations claimed their false implication in this case. Accused neither examined themselves on oath in disproof of the charge nor led any defense evidence.

5. It appears that at the first instance, after conclusion of trial the case was decided by learned IInd Additional Sessions/Special Judge (CNS), Hyderabad, vide judgment dated 01.02.2020, whereby both the aforementioned accused were convicted under section 9(c) of CNS Act, 1997, and were sentenced to suffer R.I for ten years with fine of Rs.300,000/- each. The said judgment was impugned before this Court through Cr. Appeal No.D-12/2020 (re: Javed and another v. The State), which was decided vide judgment dated 06.08.2020, whereby the aforementioned impugned judgment dated 01.02.2020 was set aside and the matter was remanded to the Court of Session/Special Judge, Hyderabad, with directions to pass judgment strictly in accordance with law after hearing the parties within a period of two months. Thereafter, the learned Sessions / Special Judge (CNS), Hyderabad, heard the parties and after examining the evidence available on record convicted and sentenced the appellants as stated above, by way of judgment dated 05.10.2020 (impugned herein), hence this appeal.

6. Learned trial Court in the judgment dated 05.10.2020 has already discussed the evidence in detail and there is no need to repeat the same here, so as to avoid duplication and unnecessary repetition.

7. We have carefully heard Mr. Shahnawaz Brohi, learned advocate for appellants, Mr. Shahzado Saleem Nahiyoon, Additional Prosecutor General, Sindh and scanned the entire evidence.

8. Learned advocate for appellants has mainly contended that prosecution case is highly doubtful; that despite the place of incident was located at busy spot, yet, none from public was joined as mashir to attest the arrest and recovery; there are material contradictions in prosecution evidence, hence it cannot be relied upon that as per prosecution case the narcotic substance was sent for Chemical analysis through HC Dilshad, which was received in the office of Chemical Examiner on 14.11.2018 with delay of 5 days which was unexplained and hence tampering with the case property during such period could not be ruled out. He further argued that the prosecution had failed to prove safe custody of the narcotic which was not even produced before the trial court and as such based on any or all of the following reasons the appellants should be acquitted of the charge by being extended the benefit of the doubt. In support of his contentions, learned counsel for the appellants relied upon the cases of Qaiser and another v. The State (2022 SCMR 1641), Akhtar Gull v. The State (2022 SCMR 1627), Umar Zaman v. The State (2022 SCMR 2093) Abdul Ghani v. The State (2022 SCMR 2121), Mir Waiz v. The State (2022 SCMR 2105), Ghulam Nabi Shah v. The State (2020 YLR 2127), Agha Qais v.The State (2009 PCr.LJ 1334), Riasat Ali v. The State (2004 PCr.LJ 361), Qaiser Khan v. The State through Advocate-General, Khyber Pakhtunkhwa, Peshawar (2021 SCMR 363) and Imtiaz Khan and another v. The State (2020 PCr.LJ 202).

9. On the other hand learned Additional Prosecutor General Sindh appearing on behalf of the State has fully supported the impugned judgment and contended that the prosecution had proved its case beyond a reasonable doubt based on the evidence on record and as such the appeal being without merit be dismissed. In support of his contentions he placed reliance on the case of Liaquat Ali v. State (2022 SCMR 1097).

10. We have heard the arguments of the learned counsel for the parties gone through the entire evidence and considered the relevant law including the case law cited at the bar.

11. At the very out set we note that in narcotic cases, one of the most crucial aspects of the case is that the prosecution must prove safe custody of the narcotic from the time of its recovery until the time when it is sent for chemical examination. If the prosecution fails to do so then there is a possibility that the narcotic substance had been tampered with before it was received at the chemical laboratory for its examination. In such like cases where unbroken chain of custody cannot be proved by the prosecution then the chemical report is of no legal value. It is noted that this is the view taken by the Supreme Court regardless of the amount of the recovered narcotic whether small or large as the principle remains the same. In this case the appellants were arrested by the police on 09.11.2018 and from each of them 4 KG's were recovered and from the boot of the car which they were allegedly driving 2 bags containing 42 and 40 KG Charas respectively was recovered. According to the complainant PW 1 DiIli Jan the case property was handed over to the duty officer at the PS whose name he did not remember and whose identity remains unknown. PW 2 Ghulam Ali who is the mashir of the memo of recovery is of no assistance in this regard as in his evidence he does not mention where the narcotics were kept or who they were given to on their return to the PS. There is a malkhana entry dated 09.11.2018 which shows that the case property was deposited in the malkhana however the malkhana in charge WHC Munir Mangrio was not examined by the prosecution to prove safe custody and as such it may be that his evidence would not have supported the prosecution case. In any event there is no evidence that the narcotics were kept in the malkhana for 5 days without explanation before being taken to the chemical examiner by PW 3 Dilshad Ali who did not produce any entry showing that he had taken the narcotics from the malkhana to be deposited with the chemical examiner and did not even produce his departure and arrival entries to this effect.

12. Thus, based on the particular facts and circumstances of this case we find that the prosecution has not been able to prove safe custody of the narcotic from the time when it was recovered from the appellant till the time when the same was sent for chemical examination as it appears that the narcotic was unaccounted for five days during which time it could have been tampered with and as such we find the chemical report to be of no legal value to the prosecution in proving the recovered narcotic.

13. With regard to the importance of the prosecution proving safe custody of the narcotic from the time of its recovery to the time it was sent for chemical analysis the same was stressed/emphasized by the Supreme Court in the case of Qaisar v. State (2021 SCMR 363) which held as under;

"3. We have heard the learned counsel for the petitioner as well as the learned Additional Advocate General, KPK and perused the available record along with the impugned judgment with their assistance and observed that in this case the prosecution has failed to establish the safe custody and safe transmission of sample parcels to the concerned laboratory. This court had laid down in many judgments that the representative samples of the alleged drug must be kept in safe custody and undergo safe transmission from the stage of recovery till its submission to the office of the Government analyst. Non-establishing the said facts would caste doubt and would impair and vitiate the conclusiveness and reliability of the report of the Government analyst. Thus rendering it incapable of sustaining conviction.

2024 P Cr. L J 982

[Sindh (Hyderabad Bench)]

Before Mohammad Karim Khan Agha, J.

Qadir Bakhsh alias Dau---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-139 of 2019, decided on 16th June, 2023.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Delay in lodging the FIR---Inconsequential---Accused was charged for committing murder of the cousin of complainant by hitting him with a brick---Record showed that the complainant proceeded to hospital with his injured relative who was given first aid before being sent to the Civil Hospital, where he was pronounced dead on arrival---Post-mortem of the deceased was carried out at hospital and the body was handed back to the complainant for burial---On the same day, FIR was lodged by the complainant and as such it was found that the slight delay in lodging the FIR had been fully explained and that delay was not fatal to the prosecution case based on the particular facts and circumstances of this particular case---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed, in circumstances.

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

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Related witness, evidence of---Reliance---Accused was charged for committing murder of the cousin of complainant by hitting him with a brick---From the evidence, it transpired that the complainant/eyewitness was related to the deceased who was his cousin, however, no enmity or dispute had been proven between the eyewitness and the accused although there were differences between the deceased and the accused and thus his mere relationship to the deceased was no reason to discard his evidence which had to be judged on its own worth---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed, in circumstances.

Amal Sherin v. The State PLD 2004 SC 371 and Dildar Hussain v. Muhammad Afzaal alias Chala PLD 2004 SC 663 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Natural witnesses---Presence of eye-witnesses at the time and place of occurrence proved---Accused was charged for committing murder of the cousin of complainant by hitting him with a brick---Complainant/eyewitness was not a chance witness as he lived in the area and had every reason to be where he was at the time of the incident---Complainant gave his S. 154, Cr.P.C statement with promptitude and had no time to cook up a false case against the accused who he had no enmity or ill will with any way, which might lead him to falsely implicate the accused in this case---Complainant's S. 154, Cr.P.C statement was not materially improved upon during the course of his evidence---Complainant named the accused in his FIR along with a specific role and he gave his evidence in a natural manner and was not dented at all during a lengthy cross-examination---Thus, the evidence of complainant was found to be reliable, trust worthy and confidence inspiring and had to be believed especially in respect of the identity of the accused who hit and murdered the deceased with a brick---Conviction could be made on the evidence of complainant alone though it would be of assistance by way of caution if there was some corroborative/supportive evidence---Evidence of the complainant was found to be of good quality and believable---Other eye-witness was an independent witness who was not related to either the deceased or the accused---Said witness had no enmity with the accused or any other reason to implicate the accused in a false case---Said witness knew the accused before the incident which occurred at 11.30 am in broad day light when there would have been sufficient light to easily identify the accused---Eye-witness was not a chance witness as he owned the shop in front of which the incident took place---Said witness gave his S. 161 Cr.P.C statement within a day and had no time to cook up a false case against the accused who he had no enmity or ill will with any way which might lead him to falsely implicate the accused in this case---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed, in circumstances.

Rafaat Shah v. The State 2022 PCr.LJ Note 39; Abdul Majeed alias Jawa v. The State 2022 YLR 1938; Muhammad Shafi alias Kuddoo v. The State and others 2019; SCMR 1045; Muhammad Asif v. The State 2017 SCMR 486; Muhammad Idrees and another v. The State 2021 SCMR 612; Saeedo alias Saindad v. The State 2022 YLR 1540; Muhammad Akram v. The State 2009 SCMR 230; Tariq Pervez v. The State 1995 SCMR 1345; Qasim Shahzad and another v. The State 2023 SCMR 117; Amanullah v. The State 2023 SCMR 527; Abdul Khalique v. The State 2020 SCMR 178; Ghaffar Mahesar v. The State 2022 SCMR 1280; Shamsher Ahmad and another v. The State 2022 SCMR 1931; Azhar Hussain and another v. The State 2022 SCMR 1907 and Sajid Mehmood v. The State 2022 SCMR 1822 ref.

Muhammad Ehsan v. The State 2006 SCMR 1857; Farooq Khan v. The State 2008 SCMR 917; Niaz-ud-Din and another v. The State and another 2011 SCMR 725 and Muhammad Ismail v. The State 2017 SCMR 713 rel.

(d) Criminal trial---

----Evidence---Corroboration---Scope---Corroboration is only a rule of caution and not a rule of law.

Muhammad Waris v. The State 2008 SCMR 784 rel.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Substitution---Scope---Accused was charged for committing murder of the cousin of complainant by hitting him with a brick---Record showed that it did not appeal to logic, commonsense or reason that a real relative would let the real murderer of his cousin get away scott free and falsely implicate an innocent person by way of substitution---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed, in circumstances.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Medical evidence corroborating ocular account---Accused was charged for committing murder of the cousin of complainant by hitting him with a brick---Medical evidence and medical reports fully supported the eye-witness/prosecution evidence---Medical evidence confirmed that the deceased died from a blow to his head from a hard and blunt substance---Brick would meet this description---Deceased had bleeding from nose and mouth which contained blood clots and he had lost three teeth and died from brain damage and hemorrhage---Blooded murder weapon i.e., the brick was recovered at the scene of the crime which produced a positive chemical report---Three teeth of the deceased were recovered from the scene of the crime which tied in with both the oral and medical evidence---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed, in circumstances.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Police witnesses, evidence of---Reliance---Accused was charged for committing murder of the cousin of complainant by hitting him with a brick---In this case, it had not been proven through evidence that any particular police witnesses had any enmity or ill will towards the accused and had any reason to falsely implicate him in this caseby planting the brick---Evidence of the police witnesses could be fully relied upon---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed, in circumstances.

Mushtaq Ahmed v. The State 2020 SCMR 474 rel.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Minor contradictions in evidence---Inconsequential---Accused was charged for committing murder of the cousin of complainant by hitting him with a brick---All the witnesses were consistent in their evidence and even if there were some contradictions in their evidence, the same were minor in nature and not material and certainly not of such materiality so as to effect the prosecution case and the conviction of the accused---Evidence of the witnesses provided a believable corroborated unbroken chain of events from the time the accused quarreled with the deceased to the accused hitting the deceased on the face with a brick to the deceased dying of his injuries, to the arrest of the accused, and to the brick and teeth being found at the crime scene---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed, in circumstances.

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

Wazeer Hussain Khoso for Appellant.

Syed Shafique Ahmed Shah for Complainant.

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

Date of hearing: 12th June, 2023.

Judgment

Mohammad Karim Khan Agha, J.---Through captioned appeal, appellant has impugned the judgment dated 03.06.2019, passed by learned Sessions Judge/Model Criminal Trial Court Tando Muhammad Khan (Trial Court) in Sessions Case No.05 of 2018 [The State v. Qadir Bakhsh alias Dau], arising out Crime No.151 of 2018 registered at P.S Tando Ghulam Hyder for offences punishable under Section 302, P.P.C., whereby he has been convicted under Section 265-H(2) Cr.P.C and sentenced to imprisonment for life as Ta'zir under Section 302(b) P.P.C. along with directions to pay Rs.1,00,000/- to the legal heirs of the deceased; however, he has been awarded benefit of Section 382-B Cr.P.C.

1. The brief facts of the case are that Complainant Muhammad Usman lodged the above FIR on 10.10.2018, alleging therein that on same day at about 11:30 am he along with his cousin Allah Jurio. Nooro and Dodo Chandio alias Mehro were sitting at Abadpur Stop when Dau Qadir Bakhsh (appellant) came there and first exchanged hot words with Allah Jurio (deceased) on account of dispute over government plot and then took a piece of brick from the earth and hit the same with full force at the face and head of Allah Jurio, who received injuries and became unconscious and fell down thereafter accused Dau alias Qadir Bakhsh escaped away; they took the injured Allah Jurio and went at P.S whereby police referred the injured to Taluka Hospital Tando Ghulam Hyder from where he was referred to Civil Hospital Hyderabad, however, he succumbed to the injuries and died on the away.

2. After registration of FIR, investigation was conducted and on its completion challan was submitted before the learned Judicial Magistrate concerned, who took the cognizance of the matter and sent up the R&Ps to learned trial Court, whereby copies were supplied to accused and formal charge was framed against him, to which he pleaded not guilty and claimed trial. In support of their case, prosecution examined six (06) witnesses at Ex.03 to 10, who produced and recognized certain documents at Ex.03/A to 10/G, then prosecution closed its side at Ex.11. The statement of accused, as required under Section 342, Cr.P.C, was recorded at Ex.12, wherein he denied the allegations levelled against him by the prosecution witnesses, however, neither he produced any witness in his defense nor examined himself on Oath. The learned trial Court finally, after hearing the learned Counsel for parties and assessing the evidence on record convicted and sentenced the appellant, as mentioned supra.

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

4. Learned Counsel for the appellants argued that the impugned judgment is contrary to law and facts of the case and against the principles of criminal justice; that that none of the alleged eye-witnesses were actually presence and have falsely implicated the appellant in this case; even other wise there are material contradictions in the evidence of the alleged eye-witnesses which renders their evidence unreliable; that the real facts are that the deceased was an addict and he fell down on the road and as such sustained the injuries which he later died from when reaching hospital; that the ocular evidence is not supported by the medical evidence and as such for any or all of the above reasons the appellant should be acquitted of the charge by being extended the benefit of the doubt. In support of his contentions he placed reliance on the cases of Rafaat Shah v. The State (2022 PCr.LJ Note 39), Abdul Majeed alias Jawa v The State (2022 YLR 1938), Muhammad Shafi alias Kuddoo v. The State and others (2019 SCMR 1045), Muhammad Asif v. The State (2017 SCMR 486), Muhammad Idrees and another v. The State (2021 SCMR 612), Saeedo alias Saindad v. The State (2022 YLR 1540) Muhammad Akram v. The State (2009 SCMR 230) and Tariq Pervez v. The State (1995 SCMR 1345).

5. On the other hand learned APG, duly assisted by learned Counsel for the Complainant, supported the impugned judgment and argued that prosecution has fully established its case against the appellant through two reliable eye-witnesses: that occurrence occurred in daylight and parties were known to each other as such there is no chance of misidentification; that the medical evidence corroborates/supports the ocular evidence; that the murder weapon was recovered from the scene of the crime stained in blood along with the deceased's teeth; and there are no material contradictions in the evidence of the witness and as such the same can safely be relied upon; that there is no delay in registration of FIR and as such the prosecution had proved its case the appellant beyond a reasonable doubt and the appeal be dismissed. In support of their contentions they placed reliance on the cases of (i) Qasim Shahzad and another v. The State (2023 SCMR 117), (ii) Amanullah v. The State (2023 SCMR 527), (iii) Abdul Khalique v. The State (2020 SCMR 178), (iv) Ghaffar Mahesar v. The State (2022 SCMR 1280), (v) Shamsher Ahmad and another v. The State (2022 SCMR 1931), (vi) Azhar Hussain and another v. The State (2022 SCMR 1907) and (vii) Sajid Mehmood v. The State (2022 SCMR 1822).

6. I have considered the submissions of the parties and have perused the material available on record as well as the case law cited at the bar.

7. Based on my reassessment of the evidence of the PW's especially the medical evidence and other medical reports, the blood, brick and teeth recovered at the crime scene I find that the prosecution has proved beyond a reasonable doubt that Allah Jurio (the deceased) received at least one blow to his face including nose eyes, teeth and head by a brick at Eid Pur Stop Adjacent to Talhar-Hyderabad main road Taluka Tando Ghulam Hyder on 10.10.2018 at 1130 hours which lead to his death a few hours later in hospital.

8. The only question left before me therefore is whether it was the appellant who murdered the deceased by hitting him in the face, including nose, eyes, teeth and head by a brick at the said time, date and location?

9. After my reassessment of the evidence I find that the prosecution has proved beyond a reasonable doubt the charge against the appellant keeping in view that each criminal case must be decided on its own particular facts and circumstances for the following reasons;

(a) That the complainant took his cousin immediately to the local PS in injured condition in order to get a hospital letter for his injuries. A police report proves this fact. It is true that the name of the appellant (or any other person) does not appear in the initial police report as causing the injury but the main concern of the complainant was to get his unconscious relative treated at hospital through a police letter. The complainant then proceeded to the hospital with his injured relative who was given first aid before being sent to the Civil Hospital in Hyderabad where he was pronounced dead on arrival. Thereafter the Post mortem of the deceased was carried out at Matli Hospital and the body handed back to the complainant for burial. After the burial, on the same day the FIR was lodged by the complainant and as such we find the slight delay in lodging the FIR has been fully explained and this delay is not fatal to the prosecution case based on the particular facts and circumstances of this particular case. In this respect reliance is placed on the case of Muhammad Nadeem alias Deemi v. The State (2011 SCMR 872).

(b) That the promptly lodged FIR names the appellant with the specific role of murdering his cousin by hitting him in the face and head with a brick.

(c) I find that the prosecution's case primarily rests on the evidence of the eye-witnesses to the murder of the deceased and whether I believe their evidence whose evidence I shall consider in detail below;

(i) Eye-witness PW 2 Muhammed Usman. He is the complainant and the cousin of the deceased. According to his evidence there was a dispute between the deceased and the accused over a government plot and on the fateful day (10.10.2018) he, the deceased, Nooro and Dodo Chandio alias Mehr where sitting at Abupur Stop at about 11.30am when the accused came and exchanged hot words with the deceased over the government plot. He along with Noor and Dodo Chandio alias Mehr saw the accused take out a piece of brick from the earth and hit the deceased with full force on his face and head. He saw the deceased fall down bleeding from his mouth and nose and the accused drop the piece of brick and escape. He took the unconscious deceased to PS Tando Ghulam Haider in injured condition where they received a police letter to take the deceased to hospital for treatment. This is corroborated by a police PW and the entry which he made at the PS. They took the deceased to Tando Ghulam Haider and then Civil Hospital Hyderabad where he was pronounced dead on arrival. The deceased's body was shifted back on the same day to Matli Hospital where the post mortem was carried out.

From the evidence it transpires that this witness is related to the deceased who is his cousin however no enmity or dispute has been proved between the eye-witness and the appellant although there were differences between the deceased and the appellant and thus his mere relationship to the deceased is no reason to discard his evidence which has to be judged on its own worth. In this respect reliance is placed on the cases of Amal Sherin v. The State (PLD 2004 SC 371) and Dildar Hussain v. Muhammad Afzaal alias Chala (PLD 2004 SC 663).

This eye-witness knew the appellant before the incident which occurred at 11.30 am in broad day light when there would have been sufficient light to easily identify the appellant. The incident occurred quite close to him and thus there is no case of mistaken identity and no need to hold an identification parade in order to determine the identity of the appellant who was arrested the next day.

This eye-witness was not a chance witness as he lived in the area and had every reason to be where he was at the time of the incident. He gave his S.154 Cr.P.C statement with promptitude and had no time to cook up a false case against the appellant who he had no enmity or ill will with any way which might lead him to falsely implicate the appellant in this case. His S.154 Cr.P.C statement was not materially improved upon during the course of his evidence. He named the accused in his FIR along with a specific role. He gave his evidence in a natural manner and was not dented at all during a lengthy cross-examination and as such I find his evidence to be reliable, trust worthy and confidence inspiring and believe the same especially in respect of the identity of the appellant who hit and murdered the deceased with a brick.

I can convict on the evidence of this eye-witness alone though it Would be of assistance by way of caution if there is some corroborative/ supportive evidence. In this respect reliance is placed on the case of Muhammad Ehsan v. The State (2006 SCMR 1857). As also found in the cases of Farooq Khan v. The State (2008 SCMR 917), Niaz-ud-Din and another v. The State and another (2011 SCMR 725) and Muhammad Ismail v. The State (2017 SCMR 713). That what is of significance is the quality of the evidence and not its quantity and in this case I find the evidence of this eye-witness to be of good quality and believe the same. In this case however there is more than one eye-witness.

(ii) Eye-witness PW 3 Daro alias Mehro. He is an independent witness who is not related to either the deceased or the appellant. He had no enmity with the appellant or any other reason to implicate the appellant in a false case. According to his evidence on 10.10.2018 at 11.30am he was present in his shop which is situated at Abd Pur Stop when he heard hue and cry and abuses. He came out of his shop and saw and heard an exchange of hot words between the appellant and the deceased. He saw the appellant take out a piece of brick from the earth and saw the appellant hit the deceased with the brick with full force on his face who fell down screaming. He then saw the deceased escape. The deceased was bleeding from his mouth and nose and was unconscious.

This eye-witness knew the appellant before the incident which occurred at 11.30am in broad day light when there would have been sufficient light to easily identify the appellant. The incident occurred quite close to him and thus there is no case of mistaken identity and no need to hold an identification parade in order to determine the identity of the appellant.

This eye-witness was not a chance witness as he owned the shop in front of which the incident took place. He gave his S.161, Cr.P.C statement within a day and had no time to cook up a false case against the appellant who he had no enmity or ill will with any way which might lead him to falsely implicate the appellant in this case. His S.161, Cr.P.C statement was not materially improved upon during the course of his evidence. He is named by thy accused in the FIR as being an eye-witness. He gave his evidence in a natural manner and was not dented at all during a lengthy cross-examination and as such I find his evidence to be reliable, trust worthy and confidence inspiring and believe the same especially in respect of the identity of the appellant who hit and murdered the deceased with a brick. It is true that he states that he saw the appellant throw the brick and that no one was with him. However as to throwing the brick I consider this to be only a minor contradiction. He does not name the complainant as being presence at the time of the incident however this is because as explained in his evidence he did not know what the complainant looked like at the time of the incident which accounts for this issue.

Thus, based on my believing the evidence of the 2 eye-witnesses what other supportive/corroborative material is there against the appellant? It being noted that corroboration is only a rule of caution and not a rule of law. In this respect reliance is placed on the case of Muhammad Waris v. The State (2008 SCMR 784).

(d) That it does not appeal to logic, commonsense or reason that a real relative would let the real murderer of his cousin get away scott free and falsely implicate an innocent person by way of substitution. In this respect reliance is placed on the case of Muhammed Ashraf v. State (2021 SCMR 758).

(e) That the medical evidence and medical reports as discussed above fully support the eye-witness / prosecution evidence. It confirms that the deceased died from a blow to his head from a hard and blunt substance. A brick would meet this description. He had bleeding from nose and mouth which contained blood clots. He had lost 3 teeth and died from brain damage and haemorrhage.

(f) That the blooded murder weapon being the brick was recovered at the scene of the crime which produced a positive chemical report.

(g) That the three teeth of the deceased were recovered from the scene of the crime which ties in with both the oral and medical evidence.

(h) That it has not been proved through evidence that any particular police PW's had any enmity or ill will towards the appellant and had any reason to falsely implicate him in this case, for instance, by planting the brick and in such circumstances it has been held that the evidence of the police PWs can be fully relied upon and as such we rely on the police evidence. In this respect reliance is placed on the case of Mushtaq Ahmed v. The State (2020 SCMR 474).

(i) That all the PWs are consistent in their evidence and even if there are some contradictions in their evidence I 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 the cases of Zakir Khan v. State (1995 SCMR 1793) and Khadim Hussain v. The State (PLD 2010 Supreme Court 669). The evidence of the PWs provides a believable corroborated unbroken chain of events from the time the appellant quarreled with the deceased to the appellant hitting the deceased in the face with a brick to the deceased dying of his injuries to the arrest of the appellant to the brick and teeth being found at the crime scene.

(j) It is true that an eye-witness was dropped however in a case where the prosecution has already called 2 compelling eye-witnesses based on the particular fact and circumstances of this case I do not consider the dropping of an eye-witness to be of much consequence since the prosecution was satisfied that it had proved its case through the 2 eye-witnesses which it had already called and the prosecution is not obliged to call all eye-witnesses just for the sake of it which would unnecessarily prolong the trial.

2024 P Cr. L J 1005

[Sindh]

Before Mohammad Karim Khan Agha and Arshad Hussain Khan, JJ.

Muhammad Kashif---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 440 of 2021 and Confirmation Case No. 16 of 2020, decided on 22nd December, 2021.

Penal Code (XLV of 1860)---

----S. 302 (b)---Qatl-i-amd---appreciation of evidence---Mitigating circumstances, absence of---Effect---Accused was alleged to have murdered his sister's husband in presence of minor daughter and mother of deceased---Accused was convicted by Trial Court for committing murder and was sentenced to death penalty---Validity---Evidence of prosecution witnesses, medical reports including postmortem report of deceased and recovery of empties at the scene lead to positive Forensic Science Laboratory report---Blood recovered from the scene led to a positive chemical report---Prosecution proved beyond doubt that deceased was shot and murdered by firearm outside his house--- Prosecution evidence was reliable, trustworthy and confidence inspiring---Evidence of eye-witnesses and other corroborative / supportive evidence proved that prosecution had proved its case against accused beyond a reasonable doubt for the offence for which he had been convicted---There were no mitigating circumstances which could warrant death sentence to be reduced to that of life imprisonment---It was premeditated brutal murder whereby accused fired three shots at deceased and intentionally murdered him in front of his mother and baby daughter over a petty dispute out of which a baby girl had lost her father---High Court maintained conviction and sentence awarded by Trial Court as accused was not entitled to any leniency---Appeal was dismissed, in circumstances.

Ali Sher and others v. The State 2008 SCMR 707; Muhammad Arif v. The State 2019 SCMR 631; Nazakat Ali v. The State 2019 PCr.LJ 107; Abdul Jabbar and another v. The State 2019 SCMR 129; Mumtaz Ahmad and others v. The State and others 2020 - PCr. LJ 1381; Muhammad Hussain v. The State 2011 SCMR 1127; Faisal Aleem v. The State PLD 2010 1080; Anwar Shamim and another v. The State 2010 SCMR 1791 and Muhammad Rafique alias Neela and another v. The State and others 2020 SCMR 664 ref.

Muhammad Hanif Samma for Appellant.

Mohammad Iqbal Awan, Addl. Prosecutor General, Sindh for the State.

Date of hearing: 16th December, 2021.

Judgment

MOHAMMAD KARIM KHAN AGHA, J.---The appellant namely Muhammad Kashif has assailed the impugned judgment dated 13.10.2020 passed by the Additional Sessions Judge-X, Karachi (West) in Sessions Case No. 325 of 2017 arising out of Crime No. 296 of 2016 under Section 302 P.P.C., registered at PS Saeedabad, Karachi whereby the aforesaid appellant was convicted under section. 265-H(2) Cr.P.C. for offence under section 300, P.P.C., punishable under clause (b) of Section 302, P.P.C. and accordingly sentenced him to death as Tazir subject to confirmation by this court. The Appellant/ accused was also directed to pay fine of Rs. 5,00,000/- and in case of default in payment he shall suffer S.I. for 06 months.

1. The brief facts of the prosecution case are that the complainant Muhammad Aqib son of Noor Ahmed had registered the instant FIR on 10.12.2016 at about 0350 hours, wherein he stated that he is residing with his family and running a Garment Factory with name and style of Friends Traders situated at Shershah, Karachi and his younger brother Muhammad Shehazad aged 35 years was residing with his mother at Sector 9-E/1 near Kabarri Chowk, Saeedabad, Karachi and working as a laborer. It is further narrated that 3/4 years ago his brother Muhammad Shehazad contracted court marriage with one Mst. Shakeela and after passage of some time, his brother Muhammad Shehazad used to quarrel with Mst. Shakeela due to which her sister in law (bhabi) Mst. Shakeela often went to her parents' house along with her daughter. It is further narrated by him that 15/20 days before, Mst. Shakeela again went to her parents' house along with her daughter Aiza and put demand before her husband Muhammad Shehazad to arrange a separate house for her then she would reside with him. It is further narrated that on 09.12.2016 at about 0900/1000 hours, the sister in law (saali) of his brother Muhammad Shehazad namely Mst. Samina brought baby Aiza to meet with his brother Muhammad Shehazad and went away after handing over baby Aiza to him. Thereafter, at about 1300 hours, the brother in law of his brother namely Muhammad Kashif son of Shahnawaz came to the house of his brother Muhammad Shehazad and he called his brother Muhammad Shehazad from outside the house and asked him to hand over his daughter Aiza to him for which his brother Muhammad Shehazad replied to Muhammad Kashif that he was feeding his daughter and later on, he himself will come to his house for handing over baby Aiza but Muhammad Kashif again called his brother Muhammad Shehazad and repeated his demand and when his brother Muhammad Shehazad opened the door of his house and came outside, Muhammad Kashif made straight firing upon him, resultantly; his brother Muhammad Shehazad received bullet injuries on his left shoulder, left ribs and right legs and fell to the ground. In the meantime his mother namely Zareena Bibi made hue and cry as such vicinity people reached there and Muhammad Kashif made his escape good and his brother Muhammad Shehazad succumbed to such injuries and died on the spot. It is further narrated that his mother informed him about the incident on phone and also told him that the dead body of his brother Muhammad Shehazad had been taken to Civil Hospital Karachi through ambulance. On receiving such information he reached at Civil Hospital and found the dead body of his brother Muhammad Shehazad lying in mortuary of hospital, where police officials made legal proceedings and postmortem of his brother was conducted by doctor of Civil Hospital hence he lodged the FIR.

2. After completing usual investigation charge was framed against the accused to which he pleaded not guilty and claimed trial of his case.

3. The prosecution in order to prove its case examined 12 PWs and exhibited various documents and other items. The statement of accused was recorded under Section 342 Cr.P.C in which he denied all the allegations levelled against him. He did not give evidence under oath or call any DW in support of his defence case. After appreciating the evidence on record the trial court convicted the appellant and sentenced him as set out earlier in this judgment. Hence, the appellant has filed this appeal against his conviction.

4. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment dated 13.10.2020 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 the appellant is completely innocent and has been falsely implicated in this case by the complainant party in connivance with the police; that the eye-witnesses are interested witnesses who did not see the appellant at the scene and have falsely implicated him after consultations and deliberations on account of a matrimonial dispute and hence the delay in lodging the FIR; that the pistol was foisted on the appellant and thus for any of the above reasons the appellant should be acquitted of the charge by extending him the benefit of the doubt. In support of his contentions he has placed reliance on the cases of Ali Sher and others v. The State (2008 SCMR 707), Muhammad Arif v. The State (2019 SCMR 631), Nazakat Ali v. The State (2019 PCr.LJ 107), Abdul jabbar and another v. The State (2019 SCMR 129), Mumtaz Ahmad and others v. The State and others (2020 PCr.LJ 1381) and Muhammad Hussain v. The State (2011 SCMR 1127).

6. On the other hand learned Additional Prosecutor General appearing on behalf of the State has fully supported the impugned judgment. He has contended that the evidence of the eye-witnesses is reliable, trust worthy and confidence inspiring and that they have correctly identified the appellant as the person who shot and murdered Shahazad (the deceased); that any delay in the FIR has been fully explained; that the medical evidence corroborates the eye-witness evidence; that the empties recovered at the scene lead to a positive FSL when matched with pistol recovered by the appellant on his pointation and as such the prosecution had proved its case beyond a reasonable doubt and the appeal should be dismissed and the confirmation reference answered in the affirmative. In support of his contentions, he placed reliance on the cases of Faisal Aleem v. The State (PLD 2010 Supreme Court 1080), Anwar Shamim and another v. The State (2010 SCMR 1791) and Muhammad Rafique alias Neela and another v. The State and others (2020 SCMR 664).

7. We have heard the arguments of the learned counsel for the appellant as well as learned Additional Prosecutor General and have gone through the entire evidence which has been read out by counsel for the appellant, and the impugned judgment with the able assistance of learned counsel and have considered the relevant law including the case-laws cited at the bar. At the outset we note that PW 11 Noor Ahmed who was the MLO was not cross-examined by learned defence counsel however in light of the oral and other evidence we find that this has not prejudiced the defence case and that this lapse can be ignored as being inconsequential. In this respect reliance is placed on the case of Muhammed Rafique (Supra) which held as under at P.666 Para 4;

"4. Petitioner is assigned fatal blow. According to the autopsy report, conducted at 2:30 p.m. same day, it is an incised wound of quite an extensive nature, penetrating into brain cavity; it is consistent with hatchet P-3 found stained with blood, forensically opined that of human origin, recovered pursuant his disclosure on 6.11.2019. Infliction of the fatal blow at petitioner's hand has unanimously been confirmed by the witnesses; occurrence being a broad daylight affair on a thoroughfare within the vicinity of inhabitation, inculpatory investigate conclusions, being in line therewith, have not been found by us as open to any legitimate exception. Jafar Hussain, real father of the accused, is saddled with instigation, he has rightly been acquitted by the Trial Court; whereas triviality of abrasions, swayed on the High Court to exercise caution qua Muhammad Naveed and Muhammad Saeed is an equally expedient choice. Doctrine of abundant caution is a silver lining in our jurisprudence to ensure safe administration of criminal justice and application thereof does not necessarily imply destruction of entire volume of evidence, if otherwise found sufficient to sustain the centrality of the charge. Though, the Medical Officer has not been cross-examined during the trial, nonetheless, upon analysis abrasions came about during the occurrence, admit possibilities, exculpatory in nature. The High Court has been well within remit to let off respondents; wage settled is conscionable in circumstances. Scales are in balance. Petitions fail. Leave declined."

1. Based on our reassessment of the evidence of the PWs, especially PW 2 Muhammed Shaukat and PW 3 Mst Rozina, the other prosecution witnesses especially PW 11 Noor Ahmed (MLO) and other medical reports including the post mortem report of the deceased, recovery of empties at the scene which lead to a positive FSL report, and blood recovered from the scene which lead to a positive chemical report we find that the prosecution has proved beyond a reasonable doubt that Shahazad (the deceased) was shot and murdered by firearm at about 1300 hours on 19.12.2016 outside a house situated at Sector 9/E-1 near Kabari Chowk, Saeedabad, Karachi.

2. The only question left before us is who murdered the deceased by firearm at the said time, date and location?

3. After our reassessment of the evidence we find that the prosecution has proved beyond a reasonable doubt the charge against the appellant for which he was convicted for the following reasons keeping in view that each criminal case must be decided on its own particular facts and circumstances;

(a) Admittedly the FIR was lodged after a delay of 11 hours. It is settled by now that the delay in lodging the FIR might not be fatal to the prosecution case provided that such delay has been adequately explained and the appellant has not been prejudiced by such delay in lodging the FIR. In this case the deceased was shot, and the immediate concern of the family was to send his body to civil hospital so that he might be saved and as such they arranged for the body of the deceased to be sent to civil hospital by ambulance where he was pronounced dead, thereafter the police formalities and post mortem of the dead body was carried out before it was released for burial and thus we find that based on the particular facts and circumstances of the case there has been no unexplained delay in lodging the FIR and no undue advantage has been gained by the prosecution on account of such explained delay. The appellant is named in the FIR which a specific role and the complainant had no enmity with the appellant so as to involve him in a false case. In this respect reliance is placed on the case of Muhammad Nadeem alias Deemi v. The State (2011 SCMR 872).

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

(i) Eye-witness PW 2 Muhammed Shaukat. He is the brother of the deceased. According to his evidence on 09.12.2016 he went to meet his mother (eye-witness PW 3 Ms Rozina) at her house. When the deceased came out of the house he saw the appellant make three fire shots at him. He reached his brother who was lying injured in the middle of the street and chased the appellant who was on a motor bike but did not catch him due to the narrow streets. When he returned to his deceased he found that he had died and was lying in the lap of his mother (eye-witness PW 3 Ms Rozina).He accompanied the dead body to hospital where he saw that the deceased had three firearm injuries on his shoulder, waist and knee. On 28.01.2017 he was told that the appellant had been arrested and he went and identified the appellant at the PS who had shot the deceased who was then arrested in this case. He was also present when the appellant took the police to the pistol which was recovered in a hidden place on the pointation of the appellant.

He gave his section 161 Cr.P.C statement promptly and section 164 Cr.P.C statement before the magistrate and has made no material improvements in his evidence. He was not a chance witness as he was going to visit his mother at her house when the incident occurred outside his mother's house.

He knew the appellant, it was a day light incident and he was not far away when the appellant shot the deceased so there is no case of mistaken identity and no need to hold an identification parade especially as the appellant was named with specific role in the FIR and he identified the appellant at the PS about 6 weeks after the incident. The fact that he could see the incident clearly was corroborated by the evidence of the other eye-witness PW who also saw the appellant shoot the deceased. Since it was a day light incident as mentioned earlier and the complainant and other eye-witness knew the appellant 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 appellant at the time of the shooting.

Admittedly the eye-witness was related to the deceased who was his brother 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 has not been proven in this case by any reliable evidence. Reliance is placed on Ijaz Ahmed v. The State (2009 SCMR 99), Nasir Iqbal alias Nasra and another v. The State (2016 SCMR 2152).

He is the real brother of the deceased and thus would not allow the real murderer of his brother to go scot free by substituting him with an innocent person.

We find that the eye-witness gave his evidence in a straight forward and natural manner and was not dented during cross examination.

Thus, for the reasons mentioned above we find the evidence of the eye-witness to be reliable, trustworthy and confidence inspiring and we believe the same especially with regard to the correct identification of the appellant as the person who shot and murdered the deceased and can convict on this evidence provided that there is some corroborative/ supportive evidence. In this respect reliance is placed on the case of Muhammad Ehsan v. The State (2006 SCMR 1857). As also found in the cases of Farooq Khan v. The State (2008 SCMR 917) and Niaz-ud-Din and another v. The State and another (2011 SCMR 725). That what is of significance is the quality of the evidence and not its quantity and in this case we find the evidence of this eye-witness to be of good quality.(ii) Eye-witness PW 3 Mst Rozina. She is the mother of the deceased. According to her evidence on 09.12.2016 she was present in her house along with the deceased and his baby daughter when the appellant came personally outside the house and called for the baby daughter who was told to go away by the deceased as he was feeding her and was told that at about 2 to 3pm he will drop her off. The appellant then went away and twice called the deceased threatening him. The appellant then returned and parked his motor bike in front of the door of the house and called for the deceased. The deceased went out and she was behind him when the appellant fired shots at the deceased. The deceased died in her lap while she also corroborates the presence of her other son eye-witness PW 2 Muhammed Shaukat at the time of the murder. The same considerations apply to her as for PW 2 Muhammed Shaukat however we give lesser weight to her eye witness testimony as it appears that she has improved it from the time when she made her Section 164 Cr.P.C statement where she said that she did not actually see the accused fire the shots but saw him escaping on his motor bike as she was slightly behind the deceased at the time when the firing was made on the deceased.

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

(c) PW 6 Usman Ghani who lives in the same street as the incident gave evidence that on 09.12.2016 at about 1230 hours he was standing with his friend Rizwan in the street when the appellant asked him where the deceased was and he told him that he had gone home with his daughter. He saw and heard the appellant call outside the house where the deceased was to hand over the baby girl at which he heard and saw the deceased tell the appellant that he would return the girl himself at 1500hrs after jumma prayers. The appellant then left whilst making irritating and unpleasant gestures and using bad words about the appellant. Around jumma time he heard three shots from his house which was 10 houses away from where the deceased was staying. He came out of his house where he saw the appellant speeding away on his motor bike from the place of the incident. He came to the deceased who was lying injured with bullet injuries and stayed with him and PW 2 eye-witness Muhammed Shaukat before the deceased was taken to hospital by ambulance. He is an independent witness who does not claim to be an eye-witness (which he could have done if he was a put up witness).He had no enmity with the appellant and any reason to falsely implicate him in this case. He was a natural witness as he lived a few streets away and his evidence corroborates that of PW 3 Mst Rozina in respect of the events leading up to the murder of the deceased by the appellant and the appellant making his escape good on his motor bike after murdering the deceased. He was not dented in cross-examination and we believe his evidence.

(d) PW 9 Rizwan Khan also lives in the same street only 2/3 houses away from the place of the incident and was named in PW 6 Usman Ghani's evidence as being with him when the appellant approached them inquiring about the whereabouts of the deceased. He corroborates the evidence of PW 6 Usman Ghani in all material respects and we find that the same considerations apply to him as to the evidence of PW 6 Usman Ghani which we believe.

(e) That the medical evidence and medical reports as discussed above fully support the eye-witness/ prosecution evidence. It confirms that the deceased was brought to the hospital suffering from three firearm injuries to his shoulder, waist and knee. The fact that there was blackening around the wounds also supports the prosecution case that the firing was from relatively close range from outside the house.

(f) That the appellant took the police to the secret place where he had hidden the pistol which was the murder weapon which only he could have known about and for which he did not have a license.

(g) That the pistol empties recovered at the wardat straight after the incident when matched with the pistol recovered by the appellant on his pointation lead to a positive FSL report.

(h) That all the PWs 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 the cases of Zakir Khan v. State (1995 SCMR 1793) and Khadim Hussain v. The State (PLD 2010 Supreme Court 669). The evidence of the PWs provides a believable corroborated unbroken chain of events from the deceased bringing his baby daughter home for lunch to the appellant demanding the return of the baby girl to the appellant being sent away by the deceased in an angry mood to the deceased returning and murdering the appellant by firearm to the recovery of the pistol (murder weapon) on the pointation of the appellant to the empties recovered at the scene matching with the recovered pistol when sent for FSL report.

(i) That the police PWs had no enmity or ill-will towards the appellant and had no reason to falsely implicate him in this case for example by making up his arrest or foisting the pistol on him and in such circumstances it has been held that the evidence of the PWs can be fully relied upon. In this respect reliance is placed on the case of Mushtaq Ahmed v. The State (2020 SCMR 474).

2024 P Cr. L J 1021

[Sindh]

Before Muhammad Saleem Jessar, J.

Saeed Noor---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 566 of 2018, decided on 15th October, 2021.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Minor contradictions in evidence of witnesses---Inconsequential---Accused was charged for committing murder of the husband of the complainant by firing due to personal enmity---From the evidence of prosecution witnesses examined in the present case, it appeared that they had fully implicated the accused in the commission of the alleged offence---From minute scrutiny of the evidence of witnesses, it appeared that their evidence was consistent with each other on all material aspects/points---All the witnesses were firm and unanimous on all material events and no flexibility or any material lacuna was found in their evidence which could damage/destroy the case of prosecution---Apparently, all the prosecution witnesses had made no material contradictions as far as main features/events of the incident were concerned---From the perusal of the evidence of prosecution witnesses, it seemed that the contradictions pointed out by defence were of minor nature---Circumstances established that prosecution had succeeded in proving its case against the accused beyond shadow of any reasonable doubt---Appeal against conviction was dismissed, in circumstances.

Allah Ditta v. The State and another 2019 PCr.LJ 172; Mohammad Mansha v. The State 2018 SCMR 772; Tanveer alias Chand v. The State 2018 YLR 2264; Ashfaque Ali v. The State 2018 YLR Note 246; Mohammad Imran v. The State 2018 YLR 2394; Sikandar alias Sani v. The State 2018 MLD 1220; Mohammad Islam v. The State SBLR 2018 Sindh 1580; Mohammad Nadeem alias Deemi v. The State 2011 SCMR 872; Nawab Ali v. The State 2014 PCr.LJ 885 and Mohammad Arshad v. The State 2020 SCMR 2025 ref.

(b) Criminal trial---

----Minor contradictions---Scope---Minor contradictions in the evidence of prosecution witnesses could not be made the basis for acquittal of the accused if otherwise on material aspects the witnesses had corroborated each other---With the passage of time, such minor contradictions usually take place, thus the same are ignorable.

Mohammad Ilyas v. The State 2011 SCMR 460 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Discrepancies committed during the investigation---Inconsequential due to strong ocular testimony---Accused was charged for committing murder of the husband of the complainant by firing due to personal enmity---Blood-stained earth allegedly secured from the spot and blood-stained clothes allegedly sealed by the police were not produced by the police before the Trial Court---Although, the complainant allegedly received injury at the hands of the accused but she was not referred for medical treatment and report etc.---However, in a case, like the present one, where there was unimpeachable and confidence inspiring ocular testimony and there were only some minor contradictions in the evidence of the eyewitnesses, such lacunas could not be given such weight so as to nullify the strong ocular testimony and could not be made basis for acquittal of the accused---Circumstances established that prosecution had succeeded in proving its case against the accused beyond shadow of any reasonable doubt---Appeal against conviction was dismissed, in circumstances.

Muhammad Javed and others v. Zameer Haider and 2 others reported in 2018 YLR 1021; Muhammad Aslam and others v. The State and others 2005 PCr.LJ 1352 and The State/ANF v. Muhammad Arshad 2017 SCMR 283 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Ocular account and medical evidence in contradiction---Inconsequential due to unimpeachable ocular testimony---Accused was charged for committing murder of the husband of the complainant by firing due to personal enmity---According to eye-witnesses and other prosecution witnesses, the deceased sustained firearm injury on his left eye, whereas in his evidence, the Medical Officer, who had conducted post-mortem examination on the dead body, deposed that the deceased had sustained injury on his right eye---From the evidence of prosecution witnesses, it was evident that all of them had categorically and specifically deposed that the deceased had sustained injury on his left eye---Complainant in her evidence specifically deposed that accused fired from his pistol upon her husband which hit him on his left eye as a result of which he fell down and died at the spot---Another eye-witness who was son of the deceased also made statement that accused fired from his pistol which hit on the left eye of the deceased, resultantly the deceased died at the spot---Likewise, the witness who had registered the FIR and had prepared Inquest Report, had stated in the Inquest Report and also admitted in his cross-examination that the bullet allegedly fired by the accused had hit left eye of the deceased---Even, other two witnesses had also stated in categorically terms that deceased had sustained injury on his left eye at the hands of accused---Not only that, even in the charge framed against the accused, and also in all other documents, except the evidence of Medico-Legal Officer, it was mentioned that deceased had sustained injury on his left eye at the hands of the accused---From the minor scrutiny of the post-mortem report it appeared that although against Column No. 13, it had been written, punctured firearm wound irregular in pattern 6cmx4cm over right eye ball---However, prior to that against Column No. 12 while describing condition of certain parts of the dead body of the deceased it had, inter-alia, been stated, left eye bursted---Said fact created, if not serious doubt, at least serious confusion about the authenticity of the contents of the postmortem report itself---It was not understandable that when in the first part of the post-mortem report it was specifically mentioned that the deceased had his left eye bursted, then how in the later part of the post-mortem report it was mentioned that the deceased had received a punctured wound over his right eye ball---Either this had happened due to typographical/humanitarian mistake or error, or Medical Officer had deliberately made two contradictory statements regarding the place seat of injury allegedly sustained by the deceased---However, such doubtful or at least confusing statement of the Medico-Legal Officer could not be given preference over the unimpeachable and confidence inspiring ocular testimony, evidence of other prosecution witnesses and circumstantial evidence---Circumstances established that prosecution had succeeded in proving its case against the accused beyond shadow of any reasonable doubt---Appeal against conviction was dismissed, in circumstances.

Arif v. The State and 2 others PLD 2006 Pesh. 5; Riaz Masih alias Bhola v. The State 2001 YLR 279 and Mohammad Safdar through Attorney v. The State 2016 MLD 1325 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Related and interested witnesses, evidence of---Reliance---Accused was charged for committing murder of the husband of the complainant by firing due to personal enmity---Allegedly, eyewitnesses and the mashir were close relatives of the complainant as well as the deceased---Confidence inspiring evidence of witnesses could not be discarded merely on account of their relationship with complainant party---Certainly, complainant and eye-witness were widow and son of the deceased respectively, and other two prosecution witnesses were also relatives of the deceased, however, their evidence was confidence inspiring and there was no material contradictions in their evidence and all the said witnesses were unanimous on all material aspects/events of the alleged incident and the defence side could not succeed in shaking/shattering their evidence---Mere relationship of a witness with the complainant party would not render their evidence unreliable unless it was established that he had some motive to implicate the accused falsely in the case---Although the accused had taken a plea that he, being landlord of the complainant party, had got vacated the rented premises from them, therefore, they had falsely implicated him in the case, but such ground did not appear to be so strong and convincing so as to persuade the complainant and her son to spare the real murderer of their husband and father respectively and instead involve the accused in his place---No delay in lodging the FIR was found so that no inference could be drawn that the complainant party had indulged in consultation and deliberation in order to implicate present accused falsely---Thus, there was no justification for discarding the evidence of complainant and other witnesses merely on the ground that they were related to the deceased---Circumstances established that prosecution had succeeded in proving its case against the accused beyond shadow of any reasonable doubt---Appeal against conviction was dismissed, in circumstances.

Zakir Khan v. The State 1995 SCMR 1793 and Ashfaq Ahmed v. The State 2007 SCMR 641 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Non-recovery of weapon of offence---Not consequential---Accused was charged for committing murder of the husband of the complainant by firing due to personal enmity---In the present case, no offensive weapon was recovered from the possession of the accused---Accused was arrested after about eight months of the alleged incident, therefore, he had sufficient time to destroy such important piece of evidence---Moreover, it could not be expected from a culprit who had committed murder of a person that despite lapse of such a long period he would still keep the crime weapon with him---Circumstances established that prosecution had succeeded in proving its case against the accused beyond shadow of any reasonable doubt---Appeal against conviction was dismissed, in circumstances.

Mohammad Hanif Noonari for Appellant.

Talib Ali Memon, Asstt. P.G. Sindh for the State.

Date of hearing: 28th September, 2021.

Judgment

Muhammad Saleem Jessar, J.---By means of this Criminal Appeal appellant Saeed Noor has assailed judgment dated 18.10.2018 handed down by learned IV-Additional Sessions Judge, Karachi East in Sessions Case No.610 of 2013 (Re: State v. Saeed Noor son of Ameer Hamza), being outcome of Crime No.448/2012, registered at P.S. Zaman Town K.E. under Sections 302, P.P.C, whereby the appellant has been convicted for the offences punishable under Section 302(b) P.P.C. and sentenced to undergo R.I. for life imprisonment and to pay fine of Rs.50,000/- (Rupees Fifty Thousand only) and in case of non-payment of fine, the appellant was ordered to suffer S.I. for six months more.

The crux of prosecution case, as per contents of FIR, lodged by complainant, Mst. Saeeda Khatoon at P.S. Zaman Town, are that she resides at the address mentioned in the FIR with her children. On the day of incident i.e. 05.09.2012 her son Ameer Hussain aged about 14 years was available in the street, when at about 12.00 / 12.15 p.m. accused Saeed Noor caught him hold with collar and started beating him, then she rashly reached in gali / street and found that his son was laying down in the street and Saeed Noor was beating him, when she tried to save him and restrain the accused, the accused also gave her beatings with fist and kicks. She further alleged that then she brought her husband, who was present at upper floor of house; however, accused Saeed Noor also used abusive language against him, caught hold him with collar and fired on his left eye due to personal enmity, with the result he died at the spot. Thereafter, complainant went to PS and lodged FIR against the accused.

After completing usual investigation, IO submitted challan against the present accused Saeed Noor showing him as absconder before the concerned Judicial Magistrate, who completed proceedings under Sections 87 and 88, Cr.P.C. and declared him proclaimed offender. Thereafter, accused Saeed Noor was arrested by SIP Safdar of PS Awami Colony, who produced him before concerned Judicial Magistrate on 06.5.2013, who after taking cognizance, sent the R&Ps of this case to Sessions Judge, Karachi (East) as the case was exclusively triable by the Court of Sessions, where formal charge against the accused was framed vide Ex.2 to which he pleaded not guilty and claimed to be tried vide his Plea Ex.2/A.

In order to prove its case, prosecution examined PW-1, Dr. Dilip Khatri at Ex.3, who produced postmortem report and medical certificate of cause of death as Ex.3/A, and 3/B respectively. Thereafter, the case was transferred to the trial Court on 11.02.2015 for its disposal according to law.

The Trial Court then recorded statement of PW-2, SIP Aziz Muhammad at Ex.4, who produced entry No.14, inquest report, memo of inspection of dead body, receipt of dead body, copy of FIR and roznamcha entry No.16 as Ex.4/A to 4/G respectively. PW-3, complainant Saeeda Khatoon, was examined at Ex.6, while PW-4 Ameer Hussain was examined as Ex.7. PW-5, Muhammad Husain was examined at Ex.8, whereas PW-6 Hussain Ahmed was examined at Ex.9, who produced site inspection memo as Ex.9/A. PW-7 Inspector, Mohammad Aslam was examined at Ex.10, who produced FSL report as Ex:10/A. Thereafter, learned ADPP closed the side of prosecution vide his statement Ex.11.

Statement of accused under section 342 Cr.P.C. was recorded vide Ex.12, wherein he denied the allegations of prosecution levelled against him and claimed his false implication in this case. He further stated that complainant party was his tenant, who were defaulter in payment of rent therefore he got vacated his house from them, therefore they have involved him in this false case. However, accused neither examined himself on oath under Section 340(2) Cr.P.C. nor produced any witness in his defence.

After formulating the points for determination, recording evidence of the prosecution witnesses and after hearing the arguments of the parties, learned trial Court vide impugned judgment convicted and sentenced the accused / appellant as stated above. Against said judgment the appellant has preferred instant appeal.

I have heard learned counsel for the appellant as well as learned A.P.G. appearing for the State and perused the material available on the record.

Learned counsel for pauper appellant submitted that there are contradictions between the statements of prosecution witnesses; besides, there are also discrepancies in the prosecution case. He next submitted that, per prosecution case, deceased had sustained firearm injury on his left eye but the Medico Legal Officer namely, Dr. Dileep Khatri deposed that deceased sustained firearm injury on his right eye. He, therefore, submitted that it being a major contradiction, vitiates prosecution evidence. He further submitted that no offensive weapon was recovered from the appellant, even the witnesses who have been examined by the prosecution, are not independent witnesses; hence, he submitted that prosecution has not come with clean hands. He, therefore, prayed that by allowing instant appeal, impugned judgment may be set aside and appellant may be acquitted of the charge by extending him benefit of doubt. In support of his contentions, he placed reliance upon case-law (i) Allah Ditta v. The State and another (2019 PCr.LJ 172), (ii) Mohammad Mansha v. The State (2018 SCMR 772), (iii) Tanveer alias Chand v. The State (2018 YLR 2264), (iv) Ashfaque Ali v. The State (2018 YLR Note 246), (v) Mohammad Imran v. The State (2018 YLR 2394), (vi) Sikandar alias Sani v. The State (2018 MLD 1220), (vii) Mohammad Islam v. The State (SBLR 2018 Sindh 1580) and (viii) Allah Ditta v. State (2019 PCr.LJ 172).

On the other hand, learned Assistant P.G. Sindh, appearing for the State, opposed the appeal and rebutted arguments advanced by learned counsel for pauper appellant. He submitted that incident occurred on 06.09.2012 whereas appellant was arrested on 06.5.2013 after about one year of the incident, therefore he had sufficient time to destroy the evidence regarding offensive weapon. In support of his argument, he placed reliance upon the case of Mohammad Nadeem alias Deemi v. The State (2011 SCMR 872). As far as, defective investigation is concerned, learned A.P.G. submitted that due to fault committed by the police or the prosecution, complainant should not be penalized. In this respect, he placed reliance upon the case of Nawab Ali v. The State (2014 PCr.LJ 885). Lastly, he submitted that it was a broad-day light incident and PWs had fully supported the case of prosecution, therefore, impugned judgment does not suffer from any illegality or infirmity, which may require interference by this Court. In support of his contentions, he placed reliance upon the case of Mohammad Arshad v. The State (2020 SCMR 2025).

Prosecution, in the first instance, examined PW-1 Dr. Dilip Khatri, who deposed that on 05.9.2012 he was posted as SR.MLO at JPMC. On said date at about 3.15 p.m. dead body of deceased Hussain Ahmed alias Chand son of Abdul Shakoor was brought by SIP Muhammad Aslam who submitted inquest report for postmortem examination and cause of death. He started postmortem at 3.30 p.m. and finished at 4.15 p.m. On examination of the dead body, he found following internal and external injuries:-

1. Punctured fire arm wound irregular in patron 6 cm x 4cm over right eye ball. Both severe blackening and burning. Bursted eye ball fractured orbital margin (wound of entry)

2. Punctured fire arm wound 1 cm in diameter with averted margins on back of head occipital region (exit wound).

He further deposed that internally vault of skull multiple fractured with cranial cavity full of massive blood in clots meninges and brain matter were damaged. Otherwise rest of body was normal. He opined that cause of death was due to cardiorespiratory failure on account of head injury resulting from firearm. He further deposed that Qameez and Banian were soaked in blood sealed, labeled and handed over to SIP Mohammad Aslam.

In his cross-examination, he admitted that he had not mentioned the distance of causing injury in the postmortem report. He also admitted that he cannot opine about the weapon used in causing injuries. He further admitted that entry wound was on the right eye and injury was through and through in the straight direction.

In the instant case, ocular testimony is consisting of two witnesses i.e. P.W.3, complainant Mst. Saeeda Khatoon and PW.4, Ameer Hussain, who are respectively widow and son of the deceased.

Complainant Mst. Saeeda Khatoon in her evidence at Ex.6 deposed that on the day of incident i.e. 05-09-2012, her son Ameer Hussain aged about 14 years was playing in a street at about 12.00 noon. The accused Saeed Noor was beating her son, who raised cries on which she came out from the house, but the accused Saeed Noor caused butt blow of pistol on her head. Thereafter, she went at the first floor of her house and brought her husband Hussain son of Kala Chand, but the accused Saeed Noor fired from his pistol upon her husband which hit him on his left eye as a result he fell down and died at the spot. She has further deposed that thereafter she went to PS and got registered FIR against the accused. The police had also recorded her statement under Section 161 Cr.P.C. She identified accused present in the Court to be same.

In her cross-examination, she admitted that place of incident was situated at thickly populated area. She also admitted that out of two PWs shown in challan one is relative of her husband and another is neighbor. She; however, denied a suggestion that some unknown persons had committed murder of her husband and that she has falsely implicated the accused in the case due to previous enmity as he was their landlord.

PW-4, Ameer Hussain, who is son of the deceased, in his evidence recorded vide Ex.7 deposed that on 05-09-2012 he was playing in a street when accused Saeed Noor came at about 11.30 a.m. and started abusing him on which he stopped him, but he pushed him as a result he fell down. He further deposed that in the meantime neighbours called his mother Mst. Saeeda Khatoon, who came at the spot, but the accused Saeed Noor also caused butt blow of pistol on her head. Thereafter, she went and brought his father Hussain son of Kala Chand, but the accused Saeed Noor also started abusing him and fired from his pistol upon his father which hit him on his left eye as a result he fell down and died at the spot. He further deposed that thereafter he along with P.W. Hussain and his mother went to PS where his mother got registered FIR against the accused. He further deposed that the police had also recorded his statement under Section 161, Cr.P.C. He identified accused present in the Court to be same.

In his cross-examination, he admitted that PWs Hussain and Mohammad Hussain are his relatives.

Apart from above, prosecution also got examined PW-2 SIP Aziz Muhammad who was posted as SIP at PS Zaman Town on the day of incident. He had recorded FIR lodged by the complainant. In his evidence recorded vide Ex.4, he deposed that on 05-09-2012 he was posted as SIP at PS Zaman Town. His duty hours were from 8.00 a.m. to 8.00 p.m. and was performing his duties as duty officer, when at about 1230 hours he received information through phone at PS from one Nazeer Ahmed that at Gali No.2, Sector 48/F, one Hussain son of Kala Chand had been caused bullet injury, therefore he made entry No.14 and proceeded to the pointed place along with SHO. He further deposed that they reached the place of incident and found the dead body of deceased Hussain alias Kala Chand. The bullet had hit the left eye of deceased. He has further deposed that he inspected the dead body in presence of witnesses and prepared such inquest report under Section 174, Cr.P.C. and memo of inspection of dead body. He also secured one empty from the place of incident which was sealed at the spot. Thereafter, dead body of deceased was shifted to JPMC for conducting postmortem through ASI Aslam Khanzada after giving him letter and he returned back to PS. According to him, complainant Saeeda Khatoon widow of Hussain alias Chand appeared before him at PS and lodged FIR. He further deposed that he narrated entire incident in daily diary vide entry No.16. He identified accused and case property available in the Court to be same.

In his cross-examination, he admitted that he had obtained blood-stained earth from the spot and had also sealed the same, but the sane was not available in Court on the day of recording his evidence. He admitted that the bullet had hit above left eye. He further admitted that the place of incident was situated in thickly populated area and that about 5/10 persons had gathered at the place of incident; however, he did not record the statement of any such person.

Prosecution also examined PW-5, Mohammad Hussain, who deposed that deceased was his maternal uncle. On the day of incident he was available at his place of work when one of his friends came there and informed him that murder of his maternal uncle Hussain alias Chand had taken place. He further deposed that on receiving such information he reached at the place of incident situated in a street of house of complainant where the complainant informed him that accused Saeed Noor had fired upon his maternal uncle, as a result he received injury on his left eye and died at the spot. He further deposed that police also came at the spot and inspected the dead body and recovered one empty of pistol from there and prepared such memo and inquest report at the spot. He further deposed that police had also recorded his statement under Section 161, Cr.P.C. He identified accused present in the Court to be same.

In his cross-examination, he admitted that his signature on the memo was appearing at the below of his name. He further admitted that only one signature was obtained from him on a written document at the spot.

PW-6 Hussain Ahmed deposed that on 05-09-2012 i.e. on the day of incident he was present in his house where he heard fire-shot, therefore, he came out from his house and saw that dead body of Hussain Ahmad alias CHAND was lying in the street. He further deposed that on enquiry, the public informed him that deceased was murdered by Saeed Noor with pistol by firing and he received injury on left eye. He further deposed that the accused Saeed Noor had already escaped away from the spot. The police prepared one document at the spot on which his signature was obtained. Thereafter, an ambulance came at the spot who took away dead body to the hospital. He further deposed that I.O had recorded his statement under Section 161, Cr.P.C. He identified accused present in the Court to be same.

In his cross-examination, he admitted that deceased was his close relative. He also admitted that public informed him about the incident. He admitted that he was uneducated and that police had prepared document and obtained his signature at the spot. He also admitted that the contents of memo were not read over to him. He also admitted that police obtained his signature at 3.00 / 3.30 pm.

It is worthwhile to point out at this stage that I.O. of the case namely SIP Mohammad Ashraf Qaimkhani could not be examined by the prosecution and instead PW-7, Inspector Muhammad Aslam was examined in his place, who deposed that he was well conversant with signature of SIP Ashraf Qaimkhani. He further deposed that said I.O. had been dismissed from his service on 08.01.2018 and had shifted away to some unknown place, therefore there was no any likelihood of his appearance for evidence in this case. He confirmed memo of place of incident at Ex:9/A and said that it bears the signature of SIP Ashraf Qaimkhani. He further deposed that after completing investigation and legal formalities the said SIP submitted challan against the accused before concerned Magistrate. He was not cross-examined by the defence counsel.

From the evidence of aforesaid prosecution witnesses examined in the instant case, it is apparent that they have fully implicated the accused / appellant in the commission of the alleged offence. From minute scrutiny of their evidence, it appears that their evidence is consistent with each other on all material aspects / points. All of them are firm and unanimous on all material events and I do not find any such flexibility or any material lacuna in their evidence which could damage / destroy the case of the prosecution.

Both the alleged eye-witnesses are unanimous that on the day of incident i.e. 05-09-2012, complainant's son P.W. Ameer Hussain aged about 14 years was playing in the street and that accused Saeed Noor was beating him and on his cries complainant came out from her house, but the accused Saeed Noor also gave her beatings. Thereafter, she went and brought her husband Hussain son of Kala Chand, but the accused Saeed Noor fired from his pistol upon him which hit him on his left eye as a result he fell down and died at the spot. Thereafter, complainant went to police station and got registered FIR against the accused.

Such ocular version is further supported by the evidence of PWs Mohammad Hussain and Hussain Ahmed. P.W. 5 Mohammad Hussain deposed that on receiving information about the incident, when he reached at the spot, complainant informed him that accused Saeed Noor had fired upon his maternal uncle, as a result he received injury on his left eye and died at the spot. He further deposed that police also recovered one empty of pistol from the spot.

PW-6 Hussain Ahmed deposed that on 05-09-2012 i.e. on the day of incident he was present in his house where he heard fire-shot, therefore, he came out from his house and saw that dead body of Hussain Ahmad alias CHAND was lying in the street. He further deposed that on enquiry, the public informed him that deceased was murdered by Saeed Noor with pistol by firing and he received injury on left eye.

Likewise, P.W.2 SIP Aziz Mohammad also supported ocular version. According to him, when he along with SHO reached the place of incident, they found the dead body of deceased Hussain alias Kala Chand with bullet injury on his left eye. He also secured one empty from the place of incident which was sealed at the spot, thereafter dead body of deceased was shifted to JPMC for conducting postmortem.

From above, it is apparent that all the prosecution witnesses have made no material contradiction so far as main features / events of the incident are concerned. From the perusal of the evidence of prosecution witnesses, it seems that the contradictions pointed out by learned counsel for the appellant, are of minor nature. Of course, there seems one very material and major contradiction in between medical evidence and ocular testimony i.e. according to alleged eye-witnesses and other prosecution witnesses, the deceased sustained firearm injury on his left eye, whereas in his evidence, Dr. Dileep Khatri, who had conducted postmortem examination on the dead body, deposed that the deceased had sustained injury on his right eye. This point would be discussed in the later part of the judgment. So far as minor contradictions are concerned, suffice it to say that now it is well settled that minor contradictions in the evidence of the prosecution witnesses cannot be made the basis for acquittal of the accused if otherwise on material aspects the witnesses have corroborated each other. In fact, with the passage of time such minor contradictions usually take place, thus the same are ignorable. In this connection reliance could be placed on a decision delivered by Honourable Supreme Court in the case reported as Mohammad Ilyas v. The State (2011 SCMR 460) wherein it was held as under:

"We are conscious of the fact that there are certain contradictions but in our view the same being minor in nature can be ignored safely. The learned Advocate Supreme Court on behalf of the appellants has stressed that these contradictions in oblivion of the fact that merely on the basis of contradictions, statement of a prosecution witnesses cannot be discarded if corroborated by other incriminating material."

There are plethora of decisions of Superior Courts on this points, however for the sake of brevity, I confine myself to only aforesaid one decision of the Apex Court.

Learned counsel for the appellant also pointed out certain flaws and discrepancies committed during the investigation and proceedings of the case. For instance; bloodstained earth allegedly secured from the spot and bloodstained clothes allegedly sealed by the police, were not produced by the police before the trial Court; that although the complainant allegedly received injury at the hands of the accused but she was not referred for medical treatment and report etc. In this context, it may be observed that although such defects in a case, where there would have no strong ocular testimony and circumstantial evidence, of course, would have been very important and should be given due weight, and in the cases having weak ocular testimony, on account of such defects / discrepancies, acquittal could also be ordered. However, in a case, like the present one, where there is unimpeachable and confidence inspiring ocular testimony and there are only some minor contradictions in the evidence of alleged eye-witnesses, apart from one major contradiction, as stated above, which would be discussed in the later part of judgment, such lacunas cannot be given such a weight so as to nullify the strong ocular testimony and cannot be made basis for acquittal of the accused. In this connection, reference may be made to the case of Muhammad Javed and others v. Zameer Haider and 2 others reported in 2018 YLR 1021, wherein it was held that the minor discrepancies in the statements of witnesses and irregularities in the investigation were of no avail to the defence and could be ignored in circumstances. In another case reported as Muhammad Aslam and others v. The State and others (2005 PCr.LJ 1352) it was held that it is a settled and well entrenched principle of law that the procedural defect and irregularities and sometime even the illegalities committed during the course of investigation shall not demolish the prosecution case nor vitiate the trial, while in the case of The State/ANF v. Muhammad Arshad reported in 2017 SCMR 283 it was observed by Honourable Supreme Court that where no proper investigation is conducted, but where the material that comes before the Court is sufficient to connect the accused with the commission of crime, the accused can still be convicted, notwithstanding minor omissions that have no bearing on the outcome of the case.

Now, adverting to the aforesaid alleged major contradiction in between medical evidence and ocular testimony, inasmuch as; according to alleged eye-witnesses and other prosecution witnesses, the deceased sustained firearm injury on his left eye, whereas in his evidence, Dr. Dileep Khatri, who had conducted postmortem examination on the dead body, deposed that the deceased had sustained injury on his right eye. In this connection, in the first place, it may be observed that from the evidence of prosecution witnesses, it is evident that all of them have categorically and specifically deposed that the deceased had sustained injury on his left eye. The complainant in her evidence specifically deposed that accused Saeed Noor fired from his pistol upon her husband which hit him on his left eye as a result of which he fell down and died at the spot. Another alleged eye-witnesses namely P.W.4 Ameer Hussain, who is son of the deceased also made statement that accused fired from his pistol which hit at the left eye of the deceased, resultantly the deceased died at the spot. Likewise, PW-2 SIP Aziz Muhammad who had registered the FIR and had prepared Inquest Report, has stated in the Inquest Report and also admitted in his cross-examination that the bullet allegedly fired by the accused had hit left eye of the deceased. Even, other two prosecution witnesses namely, P.W. Mohammad Hussain and Hussain Ahmed have also stated in categorical terms that deceased had sustained injury on his left eye at the hands of accused. Not only this, even in the Charge framed against the accused, so also in all other documents, except the evidence of Medico Legal Officer, Dr. Dilip Khatri, it is mentioned that deceased had sustained injury on his left eye at the hands of accused.

So far as the medical evidence is concerned, from the minor scrutiny of the postmortem report it appears that although against Column No.13, at page 99 of the paper book, titled, "Surface wounds and injuries", it has been written, "Punctured firearm wound irregular in pattern 6 cm x 4 cm over Right eye ball……..", however, prior to this against Column No.12 while describing condition of certain parts of the dead-body of deceased it has, inter alia, been stated, Left eye Bursted. This creates, if not serious doubt, at least serious confusion, about the authenticity of the contents of the postmortem report itself. It is not understandable that when in the first part of the postmortem report it was specifically mentioned that the deceased had his Left eye Bursted, then as to how in the later part of the postmortem report it was mentioned that the deceased had received a punctured wound over his Right eye ball. Either this has happened due to typographical / humanitarian mistake or error, or Dr. Dilip Khatri has deliberately made two contradictory statements regarding the place seat of injury allegedly sustained by the deceased. However, in my humble opinion, such doubtful or at least confusing statement of the Medico Legal Officer cannot be given preference over the unimpeachable and confidence inspiring ocular testimony, evidence of other prosecution witnesses and circumstantial evidence. In this connection, I am fortified by following decisions of the Superior Courts.

In the case of Arif v. The State and 2 others reported in PLD 2006 Peshawar 5, it was observed as under:

"We have examined the original P.M. Report and found overwriting and tampering therein at various places. The words "charring of wound present" were a later entry with different handwriting and different ink with no signature/initial to verily additions. The additions were further tampered and the word "charring" had been substituted with the word "singeing Dr. Irshad (P.W.10), when questioned about the additions, had categorically denied making any addition in Exh.PW-10/2. Therefore, in view of the above, the contention of the learned counsel hardly required any consideration. Even otherwise when Qatl-i-Amd had been independently established through consistent and confidence inspiring evidence of the eye-witnesses, then the ocular account had to be preferred over medical evidence."

(Emphasis has been applied)

In the case of Riaz Masih alias Bhola v. The State [Lahore] (2001 YLR 279), Honourable Lahore High Court held as under:

"Even otherwise now it is well-settled that in case of any contradiction in the medical evidence and the ocular account, the ocular account will be preferred over the medical evidence as the eye-witnesses have themselves seen the occurrence. On the other hand the doctor gives his opinion after seeing the injuries which can be incorrect. Hence opinion cannot prevail over the ocular account."

In another case of Mohammad Safdar through Attorney v. The State (2016 MLD 1325) it was held that where there was contradiction between medical and ocular account, the ocular testimony was to be preferred over medical evidence.

In view of above legal position, it can safely be held that the version of the eye-witnesses that the deceased had sustained firearm injury on his left eye at the hands of accused would be given preference over the evidence of the Medico Legal Officer who had made two contradictory statements in one and the same postmortem reprot, inasmuch as; in Column No.12 he has stated that the deceased had his Left eye Bursted, whereas against Column No.13 he has stated that the deceased had punctured wound over his Right eye ball.

Learned counsel also laid stress on the fact that the alleged eye-witnesses and the mashir are close relatives of the complainant as well as the deceased. In this connection, it may be observed that confidence inspiring evidence of witnesses cannot be discarded merely on account of their relationship with complainant party. Certainly, complainant and P.W. Ameer Hussain are widow and son of the deceased respectively, so also other two prosecution witnesses namely, Mohammad Hussain and Hussain Ahmed are also relatives of the deceased; however, their evidence is confidence inspiring and there is no material contradiction in their evidence and all the said witnesses are unanimous on all material aspects / events of the alleged incident, and the defence side could not succeed in shaking / shattering their evidence. Even otherwise, now it is well settled that mere relationship of a witness with the complainant party will not render their evidence unreliable unless it is established that he had some motive to implicate the accused falsely in the case. In the instant case, although the accused has taken a plea that he, being landlord of the complainant party, had got vacated the rented premises from them, therefore, they have falsely implicated him in this case, but this ground does not appear to be so strong and convincing so that it may persuade the complainant and her son to spare the real murderer of their husband and father respectively and instead involve the appellant / accused in his place. There is also no delay in lodging the FIR so that an inference could be drawn that the complainant party has indulged in consultation and deliberation in order to implicate present accused falsely. Admittedly, the FIR was lodged promptly, therefore there is no room for such presumption.

In this view of the matter, I am of the firm opinion that there is no justification for discarding the evidence of complainant and other witnesses merely on the ground that they are related to the deceased. In this context, reference may be made to the case reported in Zakir Khan v. The State (1995 SCMR 1793), wherein Honourable Supreme Court held that mere relationship of a prosecution witness with complainant or other prosecution witness cannot render this evidence unreliable unless it is established that he had motive to implicate the accused falsely in the case. In another case reported as in Ashfaq Ahmed v. The State (2007 SCMR 641), Honourable Supreme Court observed as under:

"It is well-settled by now that merely on the basis of inter se relationship the statement of the prosecution witness cannot be disbelieved. The intrinsic value of such evidence is required to be examined and not the inter se relationship. In this regard we are fortified by the dictum laid down by this Court in the following cases:

Muhammad Amin v. The State 2000 SCMR 1784, Iqbal alias Bhala v. The State 1994 SCMR 1, Nazir v. The State PLD 1962 SC 269, Khalil Ahmad v. The State 1976 SCMR 161, Allah Ditta v. The State 1970 SCMR 734, Muhammad Akbar v. Muhammad Khan PLD 1988 SC 274 and Farmanullah v. Qadeem Khan 2001 SCMR 1474.

2024 P Cr. L J 1075

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Muhammad Saleem Jessar, JJ.

Haresh Kumar---Applicant

Versus

The STATE---Respondent

Criminal Appeal No. D-68 of 2018, decided on 20th October, 2022.

Penal Code (XLV of 1860)---

----Ss. 376, 114, 34 & 496-B---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Rape, abettor present when offence is committed, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Sentence, reduction in---Case of fornication instead of rape---Accused was charged for forcibly committing rape with the daughter of the complainant---Admittedly, the only eye-witness of the incident was the victim herself and her mother---Alleged victim had deposed in her evidence that while she was discharging urine the accused allegedly entered in the washroom and committed rape with her, and when her mother came the accused decamped from the scene---Evidence of victim as well as her mother did not show that accused had caused any injury or used force upon the victim nor the victim as well as her mother or any other inmate of the ward/hospital raised hue and cry through which it could be deduced that due to act of the accused, any insecurity or panic atmosphere was created or the act of zina-bil-jabr was committed---Complainant of present case, who was father of victim, was not an eye-witness---Astonishingly at the time of passing urine the victim had not bolted the door of washroom---Question also arose as to how the accused being an outsider entered in the hospital and went to the washroom at a particular time in early hours of the morning---All the said factors suggested that either the offence as alleged was not committed or the victim herself had called the accused for the alleged act and latter she implicated him in the case---Plea of the accused that the victim's family were habitual in making and filing criminal cases against others got support from the evidence of the victim wherein she admitted that prior to this incident same type of allegation was leveled against one co-villager---Clothes allegedly worn by the victim at the time of the offence were not torn nor she sustained any scratch on her body; therefore, court was persuaded to believe that it was a case of fornication and no offence of zina-bil-jabr was committed---In such circumstances, the accused was convicted under S.496-B, P.P.C. and sentenced to suffer R.I for 05 years, which term of sentence the accused had already served out in jail---As none of the ingredients of terrorism as set out in Anti-Terrorism Act, 1997, were established in this case against the accused; therefore, he was acquitted from the charges of Ss.6 & 7 of Anti-Terrorism Act, 1997---Appeal was dismissed with modification in sentence.

Mian Taj Muhammad Keerio for Appellant.

Abdul Waheed Bijarani, Assistant P.G, Sindh for the State.

Date of hearing: 18th October, 2022.

Order

Muhammad Saleem Jessar, J.---Through instant criminal appeal, appellant has assailed judgment dated 29.06.2018 passed by learned Judge, Anti-Terrorism Court, Mirpurkhas Division at Mirpurkhas in Special Case No.15/2017, (re: State v. Haresh Kumar), arising out of FIR No.155/2017 registered at P.S Town Mirpurkhas, under Sections 376, 114, 34, P.P.C. read with Sections 6/7 of Anti-Terrorism Act, 1997, whereby he was convicted and sentenced to suffer rigorous imprisonment for life with fine of Rs.50,000/-. In case of non-payment of fine, he was further directed to undergo rigorous imprisonment for six months more; however, benefit of Section 382-B Cr.P.C was extended to him.

1. The facts of the case are that complainant Mehboob Ali had lodged instant FIR on 13.10.2017 at 1900 hours, alleging therein that he along with his wife Mst. Hameeda and daughter Mst. Gulshan alias Gulnaz went to Civil Hospital, Mirpurkhas, for treatment of his daughter, where doctor admitted her in female medical ward. On 12.10.2017 at about 05:00 a.m, a ward boy came and introduced himself as Haresh son of Naroo Menghwar, checked his daughter, asked that urinary bladder has been filled with water and advised to dispose of her urine and then he went away. His daughter herself went to washroom for disposal of urine. After sometime when she did not return, her mother Mst. Hameeda went towards washroom, where she saw that outside the washroom one person namely Rajesh was guarding, who on seeing her fled away when she went in the washroom. Then she saw that accused Haresh was forcibly committing rape with her daughter by removing her clothes in the washroom while she was raising cries in low voice and accused Haresh on seeing her worn clothes and ran away.

2. After usual investigation, police submitted challan against accused Haresh Kumar and Rajesh. A formal charge was framed against the accused persons as Ex.7 and pleas were recorded as Ex.8 and 9 in which they pleaded not guilty and claimed for trial.

3. In order to prove its case, prosecution examined as many as 08(eight) witnesses namely, PW-1 Mehboob Ali (complainant) as Ex-10, who produced copy of FIR at Ex-10/A. PW-2 Mst. Gulshan (victim) was examined as Ex-11 and P.W-3 Mst. Hameeda (eye-witness) as Ex-12.

4. Thereafter, learned Defence Counsel for accused Rajesh filed an application under Section 265-K Cr.P.C for his acquittal, which was allowed and co-accused Rajesh was acquitted vide order dated 19.03.2018 while case against accused Haresh Kumar proceeded.

5. PW-4 Lady Doctor Tulsi was examined as Ex-13, who produced police letter No.1643 dated 12.10.2017 for medical examination and taking vaginal swab of victim Mst. Gulshan alias Gulnaz for chemical analysis as Ex-13/A, receipt of handing over clothes of victim Mst. Gulshan at Ex-13/B, provisional MLC of victim as Ex-13/C, police letter dated 26.10.2017 for taking blood samples of victim for DNA test as Ex-13/D, receipt of handing over blood samples of victim as Ex-13/E, report of chemical examiner as Ex-13/F, report of Forensic and Molecular Laboratory as Ex-13/G and final MLC of victim as Ex-13/H. PW-5 Shafi Muhammad (Mashir) was examined as Ex-15, who produced mashirnama of securing sealed clothes of victim Mst. Gulshan as Ex-15/A, mashirnama of arrest of both accused as Ex-15/B, mashirnama of place of wardat as Ex-15/C and mashirnama of securing clothes of accused Haresh Kumar as Ex-15/D. PW-6 Doctor Muhammad Ayoub Rai was examined as Ex-16, who produced police letter dated 14.10.2017 for medical examination, taking semen and blood samples for chemical analysis and D.N.A test and issuance of MLC of accused Haresh Kumar and Rajesh, provisional MLC of accused Haresh Kumar as Ex-16/B, provisional MLC of accused Rajesh as Ex-16/C, final MLC of accused Haresh Kumar as Ex-16/D, final MLC of accused Rajesh as Ex-16/E. PW-7 Inspector Kanwar Singh (first I.O) was examined as Ex-17, who produced entry No.36 dated 12.10.2017 and police letter No.1643 addressed to Woman Medical Officer, Civil Hospital, Mirpurkhas dated 12.10.2017, entries No.37 & 40 dated 12.10.2017 as Ex-17/B and 17/C respectively, entries Nos.24, 28, 29 and 40 dated 13.10.2017 as Ex-17/D and letter Nos.CB/R/2601 dated 13.10.2017 of SSP Mirpurkhas regarding entrusting investigation of this case to Inspector Pervaiz Akhtar Ex-17/E respectively. PW-8 Inspector Pervaiz Akhtar (second I.O) was examined as Ex-18, who produced attested photostat copies of roznamcha entries Nos.24, 28, 29, 30 and 33 as Ex-18/A, attested copies of roznamcha entries Nos.4, 5, 10, 11, 12 and 13 dated 14.10.2017 as Ex-18/B, police letter dated 14.10.2017 addressed to Medical Officer, Civil Hospital, Mirpurkhas for medical checkup, taking semen and blood samples of accused Haresh Kumar and Rajesh and issuance of their medical certificates as Ex-18/C, attested photostat copies of roznamcha entries Nos.17 and 18 dated 14.10.2017 as Ex-18/D, attested photostat copies of roznamcha entries Nos.10 and 11 dated 15.10.2017 as Ex-18/E, OPD slip of victim Mst. Gulshan as Ex-18/F, police letter addressed to chemical examiner, Karachi at Ex-18/G, police letter addressed to Forensic and Molecular Biology Laboratory, Jamshoro as Ex-18/H, attested photostat copies of roznamcha entries Nos.11 and 13 dated 21.10.2017 as Ex-18/I, attested photostat copy of entry No.21 dated 21.10.2017 as Ex-18/J, police letter dated 15.10.2017 addressed to Civil Surgeon for giving information about the service of accused Haresh Kumar in Civil Hospital, Mirpurkhas as Ex-18/K and its reply given by Civil Surgeon, Civil Hospital Mirpurkhas vide letter No.CHM/MPS/-8772 as Ex-18/L, letter No.2602 dated 13.10.2017 of SSP Mirpurkhas regarding constituting of joint investigation team in respect of investigation of this case as Ex-18/M, entry No.41 dated 01.11.2017 regarding sending of blood sample of victim for DNA test as Ex-18/N, attested photostat copies of roznamcha entries Nos.10 and 11 dated 01.11.2017 as Ex-18/O. Thereafter, prosecution closed its side vide statement as Ex-19.

6. Statement of accused was recorded under Section 342 Cr.P.C as Ex.21, in which he denied prosecution allegations and claimed to be innocent; however, he neither examined himself on oath nor produced any witness in his defense.

7. After hearing learned Counsel for the parties, learned trial Court convicted and sentenced accused Haresh Kumar in the terms as stated in the foregoing paragraph. Hence, he has filed instant appeal.

8. Learned Counsel for the appellant has argued that no concrete evidence has been adduced by the prosecution through which it could be deduced that appellant has committed the alleged rape with force nor alleged victim had raised any objection or resistance, even she did not cry to save herself from the act allegedly committed by the appellant; therefore, he further submitted that no case for zina-bil-jabr has been made out and lastly prayed for allowing the appeal. On a query being asked by the Court regarding any animosity or ill-will against the complainant party that on what basis he had been implicated in this case, learned Counsel for the appellant very candidly conceded that there is no enmity between the parties and submitted that this is the case which could fall within the ambit of Section 496-B, P.P.C. Hence, he proposed that appellant would not press instant appeal on merits if the conviction and sentence awarded to him in terms of Sections 376, 114 and 34, P.P.C. may be altered and he may be convicted for the offence under Section 496-B, P.P.C. As far as application of Sections 6 and 7 of Anti- Terrorism Act, 1997 is concerned, learned Counsel submitted that no evidence or any one of the ingredients attracting provisions of ATA has been brought on record showing that the offence allegedly committed by the appellant does attract the ingredients of terrorism; therefore, the case was wrongly tried by the Special Court; hence, the appellant may be acquitted from the charges of Sections 6 and 7 of ATA, 1997.

9. On the other hand, Mr. Abdul Waheed Bijarani, learned Assistant Prosecution General Sindh very candidly admitted that no case under Sections 6/7 of ATA, 1997 was made out; therefore, he has no objection for acquittal of appellant from the charges of Sections 6/7 of ATA, 1997. As far as proposal advanced by learned Counsel for the appellant is concerned, learned A.P.G has opposed the appeal on the ground that it is the case of zina-bil-jabr; therefore, appellant has rightly been convicted and sentenced for the offence mentioned in FIR. Learned A.P.G; however, could not controvert the fact that alleged victim had not resisted herself to prevent the appellant from commission of alleged offence, even none from the co-patients had been made witness of the offence. Learned A.P.G when confronted with the fact that the door of washroom was not bolted, which shows either the offence had not been committed or it was the consent act and would fall within the ambit of fornication. He was also not in a position to show us from the evidence whether the appellant was having any weapon at the time of offence and had shown such weapon or force before committing the zina-bil-jabr with alleged victim nor alleged victim had raised any hue and cry. Under these circumstances, learned A.P.G conceded the proposal so advanced by learned Counsel for the appellant.

2024 P Cr. L J 1087

[Sindh (Larkana Bench)]

Before Naimatullah Phulphoto, J.

Ghous Bux Lashari and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.S-79 and Criminal Jail Appeal No. S-50 of 2021, decided on 23rd September, 2022.

(a) Criminal trial---

----Circumstantial evidence---In a case based on circumstantial evidence, the prosecution is bound to link each circumstance to the other in a manner that it should form a continuous chain of circumstances firmly connecting the accused with the alleged offence.

Ibrahim and others v. The State 2009 SCMR 407 and Muhammad Hussain v. The State 2011 SCMR 1127 rel.

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

----Ss. 302(b), 311 & 34---Qatl-i-amd, ta'zir after waiver or compounding of right of qisas in qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Case based on circumstantial evidence---Accused were charged for committing murder of the deceased by strangulation with piece of rope, after declaring her as kari---Prosecution had brought on record the evidence of the Police Officials who were on patrol duty---Complainant received spy information on 02.1.2021 at 11.30 pm, that accused No.1 along with his uncle had committed murder of his wife/deceased---Police proceeded to the house of the said accused and found the dead body of deceased lying in the house---Complainant called a woman from the village and prepared inquest report---Since, it was a case of spy information, complainant did not associate with him private persons of the vicinity---Woman associated by complainant for inspection of the dead body had also not been examined by the prosecution at the trial---Even otherwise, evidence of Police Officials appeared to be unnatural and unbelievable---Trial Court failed to appreciate the evidence according to the settled principles of law---It was unbelievable that police party was armed with official arms and ammunitions and both the accused persons while seeing the police party ran away and police could not arrest them---After arrest of the accused, nothing incriminating was recovered to connect the accused in the commission of the offence---Prosecution had argued that deceased was wife of accused No. 1 and her dead body was found in the house of that accused and such circumstance had not been explained by him---Trial Court had heavily relied upon such piece of evidence---If prosecution failed to prove it's case, then accused person was to be acquitted even he had taken a plea and had thereby admitted killing the deceased---When evidence of Police Officials relied upon by the prosecution had been found to be utterly unreliable then the accused persons could not be convicted for the alleged murder simply on the basis of dead body in the house of the accused---Admittedly, it was a case of circumstantial evidence, therefore, as rule of prudence, it was required that each piece of circumstantial evidence should be supported by independent-corroboration, which shall, by itself, be sufficient to establish the guilt---However, each circumstance shall be so connected with each other that it shall make one complete chain, without there being any broken link---In the present case, there were completely broken links of chain which did not connect the accused persons with the commission of murder of deceased, therefore, they were entitled to benefit of doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 ref.

Azhar Iqbal v. The State 2013 SCMR 383 and Asad Khan v. The State PLD 2017 SC 681 rel.

(c) Criminal trial---

----Police official---Testimony---No doubt, evidence of police officials could not be discarded simply because they belonged to the police force, but where the fate of an accused hinged upon the testimony of the police officials alone, particularly in the case of capital punishment, it was necessary to find out if there was any possibility of securing independent persons at that time---Judicial approach had to be cautious in dealing with such evidence.

Saifullah v. The State 1992 MLD 984 rel.

(d) Criminal trial---

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

Muhammad Mansha v. The State 2018 SCMR 772 rel.

Ghayoor Abbas Shahani for Appellants.

Ali Anwar Kandhro, Additional Prosecutor General for the State.

Date of hearing: 19th September, 2022.

Judgment

Naimatullah Phulpoto, J.---Appellants Ghous Bux and Mukhtiar Ali were tried by learned Sessions Judge, Kashmore at Kandhkot, for offences under Sections 302, 311, 34, P.P.C. in Sessions Case No.51/2021 re-The State v. Ghous Bux and another and found them guilty and vide judgment dated 21.10.2021 convicted them under Section 302(b), P.P.C. read with section 34, P.P.C. and sentenced to life imprisonment and to pay fine of Rs.5,00,000/- (Rupees Five Lac) each, payable to the legal heirs of deceased Mst. Musrat Khatoon; in case of default in payment of fine amount each appellant/accused to suffer S.I. for 06 months more. Benefit of Section 382-B, Cr.P.C was extended to them. By these appeals, appellants have challenged their conviction and sentence.

1. The prosecution story as given in the judgment of the learned trial Court reads as under:-

"Prosecution case in nut-shell as depicted in FIR, lodged by complainant ASI Muhammad Ayoub Bullo at PS B. Section Kandhkot, is that on 02.01.2021, he along with his staff left PS, vide entry No.23 at 1800 hours for patrolling, when they reached near CP Shakh, where complainant received spy information that accused Ghous Bux and Mukhtiar Ali at 2330 hours, have committed murder of Mst. Musrat Khatoon daughter of Manzoor Ahmed wife of Ghous Bux, by strangulating her with piece of rope, after declaring Mst. Musrat Khatoon as kari with one Mir Ahmed Golo. After receiving such information, complainant party proceeded to village Illahi Bux and on 03.01.2021 at 0015 hours (night) they reached in house of accused Ghous Bux and saw on head light of vehicle accused Ghous Bux and Mukhtiar Ali who came out from their house and ran away towards Eastern side and succeeded to run away. It is further alleged that at 0030 hours came back to place of vardat and found that dead body of Mst. Musrat Khatoon wife of Ghous Bux aged 20 years was lying in eastern room on a cot and one piece of rope of blue colour was wrapped around her neck, which was took off. Thereafter, complainant appointed P.Cs Ali Muhammad and Lehaq Khan as mashirs and through a lady he inspected dead body of deceased and found ligature marks around neck of deceased. He then prepared such memo of inspection of dead body and inquest report. After completing legal formalities, complainant referred the dead body of deceased to W.M.O Taluka Hospital Kandhkot for postmortem examination. Complainant searched for accused, but could not get any clue, as such he returned back to PS and no any relative of deceased came at PS for registration of FIR, thereafter, ASI Muhammad Ayoub lodged FIR on behalf of the State, on 03.01.2021 at 0700 hours."

1. After usual investigation challan was submitted against the accused.

2. At the trial, prosecution examined 05 witnesses. Trial Court recorded statements of accused/appellants under section 342, Cr.P.C. The appellants claimed false implication in this case, denied the prosecution allegations. However, they did not make statement on oath under section 340(2), Cr.P.C in disproof of prosecution allegations. They, however, examined Mst. Laila Khatoon and Nabi Bux as defence witnesses.

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

4. Learned trial Court after hearing the learned Counsel for the parties and assessment of evidence, vide judgment dated 21.10.2021 convicted and sentenced the appellants, as stated above.

5. Unnatural death of Mst. Musrat Khatoon is not disputed by defence. Hence, finding of trial Court in this regard requires no interference by this Court. Now I will re-examine and re-assess the prosecution evidence about involvement of appellants in this case, as held by trial Court.

6. The case of prosecution hinges upon the evidence of the police officials. ASI Mohammad Ayoub and his subordinate staff deposed that during patrolling, they received spy information that appellant Ghous Bux has committed murder of his wife along with co-accused Mukhtiar Ali, who is his uncle, on the pretext of Kari with one Mir Ahmed Golo. Police reached at the house of appellant Ghous Bux and found Mst.Musrat Khatoon lying dead. Police collected a rope around the neck of deceased Mst. Musrat Khatoon. Mohammad Hayat PW-4, tapedar, had prepared sketch and deposed that dead body was lying in the house of the appellant Ghous Bux. Investigation officer conducted formal investigation of the case.

7. Learned Counsel for the appellants contended that it was an unseen incident and prosecution case is based upon circumstantial evidence; that the evidence of the police officials is not reliable because police was interested; that learned trial Court has based its finding on mere presumption that dead body was found in the house of appellant Ghous Bux; that evidence of the last seen was also lacking probity; that nothing was recovered from the possession of the appellants during investigation; that there are glaring contradictions and inconsistencies in the evidence of the prosecution witnesses, which were not noticed by the trial Court, resulting into a serious miscarriage of the justice; that the prosecution had failed to prove its case against the appellants beyond shadow of doubt and it is prayed that the appellants are entitled for acquittal. Learned advocate for the appellants relied upon the case of Muhammad Jamil v. Muhammad Akram and others (2009 SCMR 120).

8. On the other hand, while opposing this appeal, learned Addl. Prosecutor General contended that police officials had no enmity with appellants to falsely implicate them in this case; that there was last seen evidence against the appellants coupled with medical evidence; that prosecution had proved its case against the appellants beyond any shadow of doubt. Lastly, it is submitted that deceased was wife of appellant Ghous Bux and dead body was found in the house of appellant No.1 Ghous Bux, for which he failed to furnish explanation and prayed for dismissal of appeals.

9. I have heard the arguments advanced from both the sides and re-assessed and re-examined the evidence available on the record. I have noted that no direct evidence was available with the prosecution to prove its case against the appellants, case mainly hinges upon the circumstantial evidence. It is settled by now that in such like case, prosecution is bound to link each circumstance to the other in a manner that it should form such a continuous chain of the circumstances firmly connecting the accused with the alleged offence. Reliance is placed upon the cases reported as Ibrahim and others v. The State (2009 SCMR 407) and Muhammad Hussain v. The State (2011 SCMR 1127). In this unfortunate incident, prosecution has brought on record the evidence of the police officials who were on patrol duty. ASI Mohammad Ayoub received spy information on 02.1.2021 at 2330 hours, that appellant No.1 Ghous Bux has committed murder of his wife Mst. Musrat Khatoon along with his uncle Mukhtiar Ali. Police proceeded to the house of the appellant No.1 and found the dead body of deceased Mst. Musrat Khatoon lying in the house. ASI Mohammad Ayoub called a woman from village and prepared inquest report. It was a case of spy information, ASI Mohammad Ayoub did not associate with him private persons of the vicinity. A woman associated by ASI Mohammad Ayoub for inspection of the dead body had also not been examined by the prosecution at the trial. Even otherwise, evidence of police officials appears to be unnatural and unbelievable. Trial Court failed to appreciate the evidence according to the settled principles of the law. It is unbelievable that police party was armed with official arms and ammunitions and both the appellants while seeing the police party ran away and police could not arrest them. After arrest of the accused, nothing incriminating was recovered to connect the accused/appellants in the commission of the offence. Learned Addl. P.G. has argued that deceased was wife of appellant Ghous Bux and her dead body was found in the house of appellant Ghous Bux and that circumstance has not been explained by him. Trial Court has heavily relied upon this piece of evidence. Law is quite settled by now that if prosecution fails to prove it's case, then accused person is to be acquitted even he had taken a plea and had thereby admitted killing the deceased. Reliance is placed on the case reported as Azhar Iqbal v. The State (2013 SCMR 383).

10. From the re-appraisal of the evidence, I have come to the conclusion that trial Court failed to appreciate the evidence according to the settled principles of the law, for the reasons that prosecution case was based upon the testimony of police officials alone. It is necessary for this Court to find out if there was any possibility of securing independent person at that time. It was a case of spy information, ASI had prior information, inspite of that he failed to associate private persons to witness the incident. No doubt, evidence of the police officials cannot be discarded simply because they belong to the police force, but where the fate of an accused hinges upon the testimony of the police officials alone, particularly in the case of capital punishment, it is necessary to find out if there was any possibility of securing independent persons at that time. Judicial approach has to be cautious in dealing with such evidence, as held in the case reported as Saifullah v. The State (1992 MLD Karachi 984). Relevant portion is reproduced as under:-

"8. The evidence of police officials cannot be discarded simply because they belong to police force. In Qasim and others v. The State, reported in PLD 1967 Kar. 233, it was held:-

"A police officer is as good a witness as any other person. The standard of judging his evidence is the same on which the evidence of any other witness is judged."

However, in a case of this nature where the fate of an accused person hinges upon the testimony of police officials alone, it is necessary to find out if there was any possibility of securing independent persons at that time. Judicial approach has to be cautious in dealing with such evidence."

1. As regards to the contention of the Addl. P.G. for the State that appellant No.1 had committed murder of his wife in his house; thus, some part of the onus had shifted to the appellant No.1 to explain the circumstances in which the deceased had died an unnatural death in the house of appellant Ghous Bux on the fateful day, which part of the onus had not been discharged by the appellants. I have attended to this aspect of the case with care and have found that when evidence of police officials relied upon by the prosecution has been found to be utterly unreliable then the appellants could not be convicted for the alleged murder simply on the basis of dead body in the house of appellant No.1. In the case of Asad Khan v. The State (PLD 2017 SC 681) the principle has been enunciated that the shifting of some part of the onus to the accused may not be relevant in a case where the entire case of the prosecution itself is not reliable and where the prosecution fails to produce any believable evidence. It is trite that in all such cases the initial onus of proof always lies upon the prosecution and if the prosecution fails to adduce reliable evidence in support of its own case then the accused person cannot be convicted merely on the basis of lack of discharge of some part of the onus on him. Reliance is placed on the case of Wajahat v. Gul Daras and others (2019 SCMR 1451). Relevant portion is reproduced as under:-

"Appellant's belated plea of the suicide even if rejected outrightly by itself would not absolve the prosecution to drive home the charge, on its own strength and same goes for appellant's absconsion; people avoid to face process of law or their adversaries for a variety of reasons, not necessarily inclusive of their guilt; Appellant's reticence to satisfactorily explain as to what befell upon his better half under the same roof, though somewhat intriguing, however, cannot be equated to qualify as evidentiary certainty, essentially required in order to saddle him with formidable corporal consequences; his failure would not give rise to an adverse presumption within the contemplation of Article 121 of the Qanun-e-Shahadat Order, 1984 and thus it would be grievously unsafe to maintain the conviction, without potential risk of error as well as diametrical departure from adversarial nature of criminal trial."

1. For the purpose of conviction and sentence in a case of capital punishment the evidence must come through unimpeachable source and trial Court has to see intrinsic value of such evidence with strong corroboration, which is lacking in the present case.

2024 P Cr. L J 1104

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ.

Muhammad Aslam Khanzada and another---Appellants

Versus

The STATE---Respondent

Spl. Criminal Anti-Terrorism Appeals Nos. 158 and 160 of 2020, decided on 11th April, 2022.

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

----Ss. 384, 385, 386 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Extortion, putting person in fear of injury in order to commit extortion, extortion by putting a person in fear of death or grievous hurt, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Accused were charged for detaining the cousin of complainant for extortion---Ocular account was furnished by the complainant himself and he presented a video clip before the Trial Court which was broadcasted to the public prior to the complaint and gained some attention---Complainant had admitted that the accused "MAK" was not seen in the video clip nor was his voice heard even once throughout the interaction, even though from the depositions of the complainant and the father of person who was detained, it was evident that they spoke to him---Said aspect of the case created doubt in their depositions as the video clip did not have the capability of lying---Moreover, Investigating Officer in his cross-examination admitted that there was no conversation on phone of the accused "MAK" with the complainant party; that there was no conversation of accused "MAK" either visible or hearable; and that it was not mentioned in the video clip that other accused handed over Rs.20,000 to accused "MAK"---Therefore, the only solid piece of evidence available on the record did not implicate the accused "MAK"---Accused "MAK" was acquitted of the charges leveled against him by setting aside the conviction and sentence.

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

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

----Ss. 384, 385, 386 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Extortion, putting person in fear of injury in order to commit extortion, extortion by putting a person in fear of death or grievous hurt, common intention, act of terrorism---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Accused were charged for detaining the cousin of complainant for extortion---Allegation against the accused "BK" on the face of the record was that he contacted son of the person, who was detained, to make them meet at a location---Call Data Record report of the same was obtained which revealed that the said cell-phone had called the son of detained person on his cell-phone number---In the statement of accused "BK" recorded under S.342, Cr.P.C, when asked whether he had taken Rs.20,000/- from the complainant, said accused stated that he had done so, however further stated that the same was 'professional fees' for getting the person, who was detained in connection with a case, out on bail---Transcript of the video available on the record showed the conversation between that accused and complainant and his uncle---Said video started by accused "BK" talking about helping to engage a lawyer, and then "BK" threatening the complainant of registering cases if he did not pay the money---Throughout the transcript, that accused kept demanding money---Both the eye-witnesses, complainant and father of person who was detained remained consistent when it came to assigning accused "BK" his role, from initially calling the son of person who was detained, to arranging the meeting, to then taking Rs.20,000/- and negotiating throughout the incident---Evidence of all the witnesses was consistent on all material particulars of the case---Although there were minor contradictions in the evidence of the witnesses, the same were not material and certainly not of such materiality so as to affect the prosecution case---Defence could not point out any material discrepancy in the evidence of the eye-witnesses---Therefore, prosecution had discharged its burden to prove the charge against the accused "BK" beyond reasonable doubt---However, considering the mitigating circumstances, such as the amount extorted being only Rs.20,000/-, the accused being only 29 years old and having his old parents to look after and the prayer advanced by the counsel for the accused essentially placing him at the mercy of the Court, the sentence awarded to the accused was modified to the term already undergone by him with fine---Appeal was disposed of with modification in sentence.

Javed Ahmed Chhattari for Appellant (in Special Criminal Anti-Terrorism Appeal No. 158 of 2020).

Khuram Lakhani for Appellant (in Special Criminal Appeal No. 160 of 2020).

Muhammad Iqbal Awan, Adl. Prosecutor-General, Sindh for State.

Date of hearing: 5th April, 2022.

Judgment

KHADIM HUSSAIN TUNIO, J.---By this common judgment, we intend to dispose of the captioned anti-terrorism appeals filed by the appellants Muhammad Aslam and Barak who have challenged the judgment dated 27.10.2020 (impugned judgment) passed by the learned Judge Anti-Terrorism Court-XV, Karachi in New Special Cases No. 16/2020 (Old Special Case No. 226/2020) Re: The State v. Muhammad Aslam Khanzada and another, outcome of FIR No. 277/2020 under sections 384, 385, 386 and 34, P.P.C. read with section 7 of the Anti-Terrorism Act, 1997 (ATA 1997) registered at P.S. Nabi Bux, Karachi-South. Through impugned judgment appellant Muhammad Aslam Khanzada, for committing extortion punishable under section 384, P.P.C. was convicted and sentenced to suffer rigorous imprisonment for one year with fine of Rs.20,000/- under section 385, P.P.C. whereas appellant Barak Khan was also convicted and sentenced to suffer R.I. for two years with fine of Rs.50,000/- under section 384, P.P.C., in case of default in payment of fine the accused were to suffer further imprisonment for two months. All the sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. also extended to the appellants.

1. Brief facts of the prosecution case as disclosed in the impugned judgment reads as under:-

"Resume of the facts that complainant M. Tanveer son of Umer Zaman got his statement recorded under section 164, Cr.P.C, which was converted into FIR No. 277/2020, registered on 10.08.2020 at 1730 hours at P.S. Nabi Bux under sections 384, 385 read with section 34, P.P.C., stating therein that he was doing the business of supplying the water in tankers. In the midnight of 05 and 06-08-2020 his cousin Muhammad Munawar son of Muhammad Anwar residing in Tanveer Colony, Orangi Town, 11 1/2, Karachi, Street No. 4 was taken from house in Government mobile at about 12.00 midnight by persons, some of them were in police uniform and rest were in civil dress. The complainant party was in his search and on 06.08.2020 at about 0800 p.m. a call from person namely Barak Khan was received at mobile phone number of Waqar son of Munawar viz. 0345 3124035 from Cell No 0312 2116463 and a caller said to arrive at AVLC Lyari Town of P.S. Nabi Bux at first floor. Whereafter, the complainant, Waqar and father of Munawar arrived at P.S. Nabi Bux and contacted Barak Khan, who was also calling from Cell No. 0312 8996880. Accused Barak Khan called complainant and Muhammad Anwar to first floor and got meet with SI Muhammad Aslam Khanzada, who said that it was an agency and Munawar was with them. He further said that in case only one case is registered against Munawar then Rs.100,000/= to be given otherwise more cases to be registered. The complainant party negotiated and ultimately Rs.20,000/= were fixed. Rs. 20,000/= were paid by the complainant in presence of Muhammad Anwar to accused Barak Khan and such video clip was recorded, which became viral. 4/5 other persons were also there, who could be identified on seen again. On 17.08.2020 at 0041 hours applications were moved to the officers and then the complainant came at P.S. and caused the instant FIR to be registered."

1. After registration of FIRs, usual investigation was conducted by the Investigating officer and on its conclusion, challan was submitted under sections 384, 385, 386 and 34, P.P.C. read with Section 7 ATA, 1997. Then, relevant documents were supplied to the accused whereafter a charge was framed against the accused to which they pleaded not guilty and claimed to be tried. At the trial, prosecution examined as many as five prosecution witnesses namely PW-1 Muhammad Tanveer, PW-2 Muhammad Anwar, PW-3 ASI Zafar Iqbal, PW-4 HC Shahid Ali and PW-5 Inspector Arshad Mahmood, all of whom produced various documents and other items which were duly exhibited, thereafter prosecution side was closed. Statements of accused were recorded under section 342, Cr.P.C wherein they denied the prosecution case in toto and pleaded their false implication. However, they did not examine themselves on oath and disproof of charge but appellant Barak Khan had admitted in his statement under section 342 Cr.P.C that he had received the amount from the complainant Tanveer, a professional fee of advocate that was fixed by him for the purpose of getting accused Muhammad Munawar involved in Crime No. 233/2020 PS. Nabi Bux released on bail from the court of law.

2. After hearing learned counsel for the respective parties, learned trial Court convicted and sentenced the appellants through impugned judgment as stated supra.

3. Learned counsel for the appellant Muhammad Aslam Khanzada has contended that nothing is available on record against the appellant except oral version of complainant; that the complainant is habitual of making complaints against police officials and withdraws the same after entering into compromise with the accused; that the appellant is not shown in video recorded by the complainant party; that there has been no conversation of the appellant with the complainant; that the description of the 2 tolas gold and Rs. 65,000/- are not disclosed in the FIR; that the case is false one, therefore, appellant may be acquitted. Similarly, learned counsel for appellant Barak Khan has contended that the appellant has not received any bhatta from the complainant; that no one was put under fear or caused any injury from the complainant party; that the conversation is available on record through which the appellant has received Rs.20,000/- as professional fees. However, after arguing at some length he submitted under the instructions of the appellant who was present in Court on bail that he would be satisfied if the conviction and sentence awarded to the appellant Barak is modified into one already undergone by him.

4. Conversely, learned APG for the State has argued that the prosecution has examined five witnesses who have fully supported the prosecution case; that the impugned judgment is legal one and does not suffer from any legal infirmity; that appellant Barak Khan collected the amount from complainant in presence of appellant Muhammad Aslam Khanzada.

2024 P Cr. L J 1127

[Sindh]

Before Muhammad Junaid Ghaffar and Amjad Ali Sahito, JJ.

Waqas Azam---Appellant

Versus

The STATE---Respondent

Spl. Criminal Anti-Terrorism Appeals Nos. 92, 93 of 2022 along with Special Criminal Anti-Terrorism Jail Appeal No. 99 of 2022, decided on 21st July, 2022.

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

----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(A)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Record showed that accused was arrested by police during patrolling and a case was registered for the crime---Thereafter the accused was granted bail by the concerned Trial Court and apparently there after he did not appear before the Trial Court and the case was then kept on a dormant file and the accused was declared a proclaimed offender---Subsequently, the accused surrendered before the Trial Court and was once again granted ad-interim pre-arrest bail, which was then dismissed and he was then prosecuted---As to the merits of the case and the main charge, the accused was acquitted, whereas, in respect of his abscondance he was convicted---No justification and reason were found to maintain conviction merely on the ground that after obtaining bail, the accused failed to appear before the Court and then absconded---In such view of the matter when there was no evidence against the accused on merits, except his abscondance, the said piece of evidence in isolation, if at all, was not sufficient to uphold the conviction and sentence---If an accused person absconds through which valuable piece of evidence is lost or concealed or allowed to be destroyed then he is not entitled for concession or benefit of doubt; but if an innocent person becomes fugitive from law or absconds for reasons beyond his control and ultimately such innocence is established by way of his acquittal, then at least, he was entitled for such benefit of doubt---Facts and circumstances of the case, wherein, the accused had appeared by himself before his conviction and trial demonstrated that though he had failed to regularly appear before the Trial Court after obtaining bail, but his intention was never so to abscond permanently---Otherwise, accused would have only sought relief by way of appeal after his conviction in absentia---Appeal against conviction was allowed, in circumstances.

Muhammad Abbas v. The State 2007 YLR 45 rel.

(b) Criminal trial---

----Abscondance---Mere abscondance in absence of any other incriminating piece of evidence could not entail penal consequences against the accused or to expose him to criminal liability for which he had been charged.

Shafqat Abbas v. The State 2007 SCMR 162 rel.

Raj Ali Wahid Kunwar for Appellant.

Muhammad Iqbal Awan, Addl. P.G. for Respondent.

Date of hearing: 20th June, 2022.

Judgment

Muhammad Junaid Ghaffar, J.---Through these Appeals, the Appellant Waqas Azam Son of Muhammad Azam seeks setting-aside of impugned Judgment dated 28.04.2022 passed by the Anti-Terrorism Court No.V, Karachi, in Special Cases Nos. 892 and 892-B of 2018 in Crime No.171 of 2018 and Crime No.175 of 2018 whereby, Appellant has been convicted under Section 265-H(2) Cr.P.C for offence under Section 21-L of The Anti-Terrorism Act, 1997, ("ATA") and sentenced to undergo with rigorous imprisonment for five years and with fine of Rs.50,000/- and in case of default, to further undergo simple imprisonment for a period of six months along with benefit of Section 382-B Cr.P.C.

1. Learned Counsel for the Appellant has contended that the learned trial Court has fallen in serious error by convicting the Appellant under Section 21(L) of ATA; that the Appellant has been acquitted in respect of the main offence and charge; hence there was no occasion for any conviction under section 21(L) (ibid); that the Appellant was never an absconder and had in fact surrendered before the Anti Terrorism Court during the trial; hence the very invocation of Section 21(L) of ATA, was illegal; that no evidence was ever recorded so as to establish that the Appellant was an absconder within the meaning of Sections 87 and 88 Cr.P.C.; that a mere statement of the Investigation Officer, recorded at a pre-trial stage, cannot be made basis for conviction under section 21(L) of ATA; that per settled law no conviction can be maintained in these facts and circumstances of the case, when the Appellant has been acquitted in the main case. In support he has relied upon the cases reported as Haji Muhammad v. The State (PLD 2003 Supreme Court 262), Arbab Khan v. The State (2010 SCMR 755), Dadoo alias Waddan v. The State (2016 PCr.LJ 1130), Zubair Jakhrani v. The State (2022 MLD 438), Riaz Ahmed v. The State (2016 MLD 700), Mst. Mubarak Salman and others v. The State (PLD 2006 Karachi 678),Wali Mohammad and another v. The State (PLD 1973 Peshawar 135), Abdul Wahab v. The State (2003 YLR 1915), Arbab Khan v. The State (2010 SCMR 755), Rasool Bakhsh v. The State (PLD 2019 Balochistan 63), Jumman alias Juma and another v. The State (PLD 2006 Karachi 388), and an unreported judgment dated 29.03.2022 passed by a Divisional Bench of this Court passed in Cr. Appeal No. 610/2021 (Mst. Neha Hassan and 2 others v. The State).

2. On the other hand, learned Additional Prosecutor General has opposed the Appeals on the ground that the Appellant had absconded after procuring interim pre arrest bail, whereas, due process within the contemplation of sections 87 and 88 of the Criminal Procedure Code was followed; hence, no case is made out. He has prayed for dismissal of the Appeals in hand.

3. We have heard the learned Counsel for the Appellant as well as learned Additional Prosecutor General and perused the record including the R and P. It appears that the appellant was nominated in Crime No.171 of 2018 and Crime No.175 of 2018 under various provisions of Pakistan Penal Code and Anti Terrorism Act along with the Arms Act as above. As to merits of the case and the main allegations against the Appellant, admittedly in respect of all charges, the Appellant has been acquitted by the trial Court and presently such acquittal has not been challenged any further by the State. The only issue now in these Appeals is that whether in the given facts and circumstances the conviction of the Appellant under Section 21(L) of ATA can be maintained or not.

4. From perusal of the record and the facts placed before us it seems to be an admitted position that the Appellant / Accused was arrested by Police during patrolling on 10.7.2018 and a case was registered for the crime as above. Thereafter the Appellant was granted bail on 18.08.2018 by the concerned trial Court and apparently thereafter from 15.09.2018 onwards, he did not appear before the Trial Court and the case was then kept on a dormant file. In between, the matter was proceeded against another accused who was in custody and after prosecutions evidence, the said person (not relevant for the present case) was acquitted. In the meantime, the trial Court initiated proceedings against the present Appellant and subsequently on 09.07.2019, he was declared a proclaimed offender by the learned Trial Court. Thereafter on 05.11.2021, the Appellant surrendered before the trial Court and was once again granted ad-interim pre-arrest bail, which was then dismissed on 23.2.2022 and he was remanded to judicial custody and was then prosecuted in the above cases. As to the merits of the case and the main charge, the Appellant as noted hereinabove, stands acquitted, whereas, in respect of his abscondance he was asked a question in this regard in his Section 342 Cr.P.C. statement during the trial which is as follows.

Question No.5. That during trial you accused obtained the bail and then jumped out from this Court then proceedings under sections 87 and 88 Cr.P.C. were initiated against you What you have to say?

"Ans: I was selling fruits in old golimar Karachi, some unknown person demanded Bhatta from me and also issued life threats so my mother send me to Baluchistan and moved application at P.S Pak Colony and P.S Rizvi."

1. A specific question was asked to the Appellant and he has responded as above that he had gone out of the Province due to threat to his life, but still the Trial Court was not agreeable and went on to convict the Appellant by holding that the absence of the Appellant was intentional and deliberate to avoid his arrest and to evade appearance before the Court and so also he remained fugitive from the law. The learned trial Court further observed that had he not gone into hiding, he could have been tried with the co-accused, but apparently instead of, he preferred to wait for decision of the Court in case of co-accused. It is a matter of admitted position that the entire basis on which the trial Court has convicted the Appellant under Section 21(L) of ATA, is the Statement of P.W-3 namely Syed Sajid Hussain i.e. Ex.-6, which was recorded before framing of the charge while concluding proceedings under Sections 87 and 88 Cr.P.C. The same reads as under:-

"Ex…..06.

IN THE COURT OF JUDGE, ANTI-TERRORISM COURT-VI, KARACHI

Special Case No. 892/2018

DEPOSITION OF WITNESS NO.CW-03 FOR THE PROSECUTION.

I do hereby on solemn affirmation state that:-

My Name: Syed Sajid Hussain

My Father Name: Syed Nazar Hussain

Religion: Islam Caste: Syed

Age About: 50 years Occupation: Inspector

Residence: Pak Colony Police Line, West Karachi.

District: Karachi, West.

EXAMINATION-IN-CHIEF

To Court

At present I am posted at PS Pak Colony, Karachi. I had received the NBWs of absconding accused namely Waqas son of Muhammad Azam resident of House No.06, Abdullah Gorej Village, Usmania Masjid, Purana Golimar, Karachi, for execution. I went to his address as mentioned in NBW's but he was not available, as such I made enquiries from the people of that locality. They informed me that the accused was previously residing there but due to fear of his arrest, he has gone underground and his present whereabouts are not known to anyone. I, therefore, recorded statement of Mohalla people. The subject fact explicitly disclosed that there is no likelihood of arrest of accused in near future. I therefore returned unexecuted NBW, Statement of vicinity people along with their CNIC and my report at EX.06/A to EX.06/H respectively.

CROSS TO MISS FARHANA PARVEEN LEARNED APG FOR THE STATE.

Nil though chance given.

No. Re."

Dated:15-02-2019. Sd/=(15.02.2019)

(MUNEER BHUTTO)

Judge

Anti-Terrorism Court No.VI, Karachi"

2024 P Cr. L J 1141

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Kalhoro and Arbab Ali Hakro, JJ.

Rashid Ali Rajper---Appellant

Versus

The STATE---Respondent

Spl. Criminal Appeal No. D-65 of 2023, decided on 15th February, 2024.

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

----S. 9(b)---Possession of narcotic---Appreciation of evidence---Benefit of doubt---Prosecution case was that 250 grams charas was recovered from the possession of the accused---Record showed that the trial Court without referring to the report of Chemical Analyst and his conclusion, convicted and sentenced the accused, which had apparently resulted in gross miscarriage of justice---Accused could be convicted and sentenced in narcotics cases only when the substance recovered from him was found by Chemical Analyst to be narcotics---If the laboratory report in regard to substance was negative and there was no evidence to rebut the same and conclude that the substance was narcotics, then irrespective of the quality of evidence of the witnesses, accused could not be held guilty of committing an offence under the provisions of Control of Narcotic Substances Act, 1997---In such circumstances the charge would become groundless---Trial Court in presence of negative report could have opted to refer the substance to another laboratory for cross checking and second opinion if was not satisfied with the report, but the Trial Court choose to bypass it and decided the case on the basis of evidence completely ignoring the findings of laboratory qua nature of substance allegedly recovered from the accused---Appeal against conviction was allowed, in circumstances.

Ali Nawaz Jagirani for the Appellant.

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

Date of hearing: 15th February, 2024.

Judgment

MUHAMMAD IQBAL KALHORO, J.---Appellant was arrested by a police party headed by ASI Imdad Ali Mubeejo of P.S, Kot Lalu during patrolling from a link road leading from Jarge village, near Dera Shakh Bridge, Taluka Faiz Ganj-Khairpur on 26.04.2022 at 1500 hours and from his possession, 25Q grams of Charas was recovered. He was accordingly booked and tried by learned Additional Sessions Judge, Mirwah who, vide impugned judgment dated 19.09.2023, has convicted and sentenced him to suffer R.I for three years and to pay fine of Rs.30,000/-, in default, to suffer S.I for six months more with benefit of section 382-B Cr.P.C. Learned Judge has founded his findings on the basis of evidence of four witnesses including complainant, mashir, who had witnessed the recovery, and I.O of the case, besides the one who had taken the property to Chemical Lab for analysis.

2024 P Cr. L J 1151

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Abdul Mobeen Lakho, JJ.

Sarang---Applicant

Versus

The STATE and another---Respondents

Criminal Revision Application No. D-18 of 2021, decided on 14th December, 2022.

Penal Code (XLV of 1860)---

----S. 377---Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 23---Unnatural offence, act of terrorism---Power to transfer cases to regular courts---Scope---Application for transfer of the case to the ordinary court was filed by accused persons, which was dismissed---Validity---From the perusal of FIR and other material collected during investigation, it transpired that allegation against applicant/accused was that he committed carnal intercourse with the son of complainant in his otaq, at the time of tuition and complainant reported the matter to the police---From the close scrutiny of the case, it was clear that act of unnatural offence was committed by the accused in an otaq/room---For an action or threat of action to be accepted as terrorism within the meanings of S. 6 of the Anti-Terrorism Act, 1997, the action must fall in subsection (2) of S.6 of the said Act and the use or threat of such action must be designed to achieve any of the objectives specified in clause (b) of subsection (1) of S.6 of that Act or those mentioned in clause (c) of subsection (1) of S.6 of that Act---Any action constituting an offence, howsoever grave, shocking, brutal, gruesome or horrifying, did not qualify to be termed as terrorism if it was not committed with the design or purpose specified or mentioned in clauses (b) or (c) of subsection (1) of S.(6) of the said Act---Actions specified in subsection (2) of S.6 of that Act did not qualify to be labeled or characterized as terrorism if such actions were taken in furtherance of personal enmity or private vendetta---In the present case, element of terrorism was missing---Consequently, order passed by Judge, Anti-Terrorism Court, was not sustainable in law, and the same was set-aside---Case was ordered to be transferred to the ordinary Court having jurisdiction in the matter---Revision application stood allowed in the above terms.

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

Sarfraz A. Akhund for Applicant.

Zulfiqar Ali Jatoi, Additional Prosecutor General for the State.

Complainant in person.

Date of hearing: 14th December, 2022.

Order

Naimatullah Phulpoto, J.---Through this revision application, applicant/accused Sarong son of Hussain Bux by caste Shar has called in question order dated 14.09.2021, passed by learned Judge, Anti-Terrorism Court, Khairpur, in Special Case No.13/2020, whereby an application under Section 23 of ATA, 1997, moved on behalf of the applicant for transfer of the case from Anti-Terrorism Court to the Court of ordinary jurisdiction, was dismissed.

1. Brief facts leading to filing of instant application are that applicant/accused Sarong Shar is facing trial before learned Judge, Anti-Terrorism Court, Khairpur, for offence under Section 377, P.P.C. read with section 7 ATA, 1997. According to prosecution case, on 15.07.2020 at about 2100 hours, complainant Zahid Hussain lodged the FIR against the accused Sarang alleging therein that on 13.07.2020 at about 1500 hours, above named accused committed carnal intercourse with his son Sahil, aged about 11/12 years, in his otaq during tuition. It is alleged that applicant/accused is a teacher. First Information Report was registered under Section 377, P.P.C., However, after usual investigation, challan was submitted against the accused under Section 377, P.P.C. read with Section 7 ATA, 1997.

2. Learned advocate for the applicant/accused mainly contended that element of terrorism is missing in this case and learned Judge, Anti-Terrorism Court, 1997 has no jurisdiction to try this case. In support of his submissions, he placed reliance upon the judgment passed by Hon'ble Supreme Court in the case of Ghulam Hussain and others v. The State (PLD 2020 SC 61).

2024 P Cr. L J 1163

[Sindh]

Before Aftab Ahmed Gorar, J.

Zeeshan Malik---Appellant

Versus

Muhammad Nasir and 5 others---Respondents

Criminal Acquittal Appeal No. 146 of 2022, decided on 19th September, 2022.

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

----Ss. 265-K & 417---Illegal Dispossession Act (XI of 2005), S. 3---Prevention of illegal possession of property---Delivery of possession of property to owner---Appeal against acquittal---Application under S. 265-K of the Criminal Procedure Code, 1898, filed by the accused was allowed by the Trial Court---Validity---Purpose of provisions of S.265-K, Cr.P.C. was very much clear and it never prevented a Court from acquitting an accused at any stage of the case, if, after hearing the prosecution and the accused and for reasons to be recorded, the Court considered that there was no probability of the accused being convicted of the offence alleged against them---There was no legal embargo for exercising of powers conferred under S.265-K Cr.P.C, but even then the Court cannot deprive the prosecution of an opportunity to produce tangible evidence under the garb of S.265-K, Cr.P.C., therefore, it was mandatory for the Court that such discretion must be based on reasons exercised with due care and caution with sole object to prevent fruitless trial when it was apparent from the record that there was no probability of the accused being convicted of the offence---Perusal of impugned order revealed that after examining the entire material, the trial Court observed that there would be no probability of conviction of respondents 1 to 3 in near future and acquitted them from the charge under S.265-K, Cr.P.C.---Appellant had failed to establish extra ordinary reasons and circumstances, whereby the acquittal order recorded by the Trial Court might be interfered with by the High Court---Appeal against acquittal was dismissed, in circumstances.

Naik Muhammad and 5 others v. Naseebullah and another 2008 PCr.LJ 11; Nawaizish Ali and another v. The State and others 2010 SCMR 1785; Rehmatullah v. Mst. Zahida and another 2008 YLR 1044; Shaikh Muhammad Naseem v. Mst. Farida Gul 2016 SCMR 1931; Dr. Sikandar Ali Mohiuddin v. Station House Officer and others 2021 SCMR 1486; Seema Fareed and others v. The State and another 2008 SCMR 839; Hashim v. Gul Muhammad and 2 others 2009 PCr.LJ 36; Muhammad Ali v. Abdul Haq and 2 others 2010 MLD 1920; Mumtaz Hussain v. Dr. Nisar Khan and others 2010 SCMR 1254; Noor Zada v. Muhammad Khalid and 6 others 2007 PCr.LJ 891 and Manzoor Ali Bhatti v. Mrs. Farzana Begum through General Attorney and 2 others 2017 YLR Note 20 ref.

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

----S. 417---Appeal against acquittal---Double presumption of innocence---Scope---Appeal against acquittal had distinctive features and the approach to deal with the appeal against conviction was distinguishable from the appeal against the acquittal because presumption of double innocence was attached in the later case---Order of acquittal could only be interfered with, if it was found on its face to be capricious, perverse, arbitrary in nature or based on misreading, non-appraisal of evidence or was artificial, arbitrary and led to gross miscarriage of justice---Mere disregard of technicalities in a criminal trial without resulting injustice was not enough for interference.

Muhammad Ijaz Ahmad v. Fahim Afzal 1998 SCMR 1281 and Jehangir v. Aminullah and others 2010 SCMR 491 rel.

Muhammad Ilyas Khan Tanoli for Appellant.

Raja Sanaullah Khan for Respondents.

Abrar Ali Khichi, Addl. P.G. Sindh.

Date of hearing: 19th September, 2022.

Order

Aftab Ahmed Gorar, J.---Urgency granted.

2-5. Heard arguments and perused the record.

Perusal of the record reflects that appellant being dissatisfied with the acquittal order dated 19.02.2022 recorded under section 265-K Cr.P.C. in favour of respondents 1 to 13 passed by the learned IInd Additional Sessions Judge, Karachi-East in Criminal Complaint No. 148 of 2021 has approached this Court by filing titled appeal under Section 417 Cr.P.C. read with Section 8 (A) of the Illegal Dispossession Act with a prayer to set-aside the impugned order dated 19.02.2022 and convict the respondents as well.

Learned counsel for the appellant while reiterating the facts and grounds mentioned in the memo of instant appeal, argued that the learned judge while passing the impugned judgment did not go through the evidence and material available on record and acquitted the respondents 1 to 13 without applying his judicial mind, therefore, same may be set aside and respondents 1 to 13 may be convicted. To support his contentions learned counsel for the appellant has relied upon the following cases:-

i) Naik Muhammad and 5 others v. Naseebullah and another 2008 PCr.LJ 11

ii) Nawaizish Ali and another v. The State and others [2010 SCMR 1785]

iii) Rehmatullah v. Mst. Zahida and another [2008 YLR 1044].

iv) Shaikh Muhammad Naseem v. Mst. Farida Gul [2016 SCMR 1931].

v) Dr. Sikandar Ali Mohiuddin v. Station House Officer and others [2021 SCMR 1486].

vi) Seema Fareed and others v. The State and another [2008 SCMR 839].

vii) Hashim v. Gul Muhammad and 2 others [2009 PCr.LJ 36].

viii) Muhammad Ali v. Abdul Haq and 2 others [2010 MLD 1920].

Conversely, learned counsel for respondents 1 to 13 while supporting the impugned order, submitted that the impugned order is well-reasoned and speaking one and there is hardly any improbability or infirmity in it, which does not warrant any interference by this Court as the trial Court in its reasons has thoroughly thrashed the evidence of prosecution side and then reached at the conclusion that the prosecution has miserably failed to prove the charge against the respondents 1 to 13. He also relied upon the following cases:-

i) Mumtaz Hussain v. Dr. Nisar Khan and others [2010 SCMR 1254].

ii) Noor Zada v. Muhammad Khalid and 6 others [2007 PCr.LJ 891].

iii) Manzoor Ali Bhatti v. Mrs. Farzana Begum through General Attorney and 2 others [2017 YLR Note 20]

Learned Additional Prosecutor General Sindh while supporting the impugned order adopted the arguments of learned counsel for Respondents 1 to 13.

The purpose of provisions of section 265-K, Cr.P.C. is very much clear and it never prevents a court from acquitting an accused at any stage of the case; if, after hearing the prosecution and the accused and for the reasons to be recorded, the court considers that there is no probability of the accused being convicted of the offence alleged against them. There is no legal embargo for exercising of powers conferred under this section, but even then the Court cannot deprive the prosecution by giving an opportunity to produce tangible evidence under the garb of section 265-K, Cr.P.C., therefore, it is mandatory for the Court that such discretion must be based on reasons exercised with due care and caution with sole object to prevent fruitless trial when it is apparent from the record that there is no probability of the accused being convicted of the offence. The provisions of section 265-K Cr.P.C. is reproduced herein:-

265-K Cr.P.C.

Power of Court to acquit accused at any stage:

"Nothing in this Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case; if, after hearing the prosecutor and the accused and for reasons to be recorded, if considers that there is no probability of the accused being convicted of any offence."

The perusal of the provision clearly indicates that the power vested under section 265-K Cr.P.C. can be exercised by the learned trial court at any stage of the trial. The language "Nothing in this Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case" adequately conveys the underlying object of the provision that there exists no impediment on the way of trial court in exercise of its powers for acquitting accused at any stage, subject to certain pre-requisites, i.e.

(i) after hearing the Prosecutor and the accused both, (ii) the reasons must be recorded for acquitting the accused, (iii) the trial court shall exercise its powers only if it comes to the conclusion that there exists no probability of the accused being convict of any offence.

(iv) Moving of formal application by the accused is not necessarily envisaged.

(v) The court can exercise its power on its own motion.

Keeping in view the provision of section 265-K Cr.P.C. in verbatim, I may add one thing that the law has vested a trial court with a wide power, enabling it to see through the wall on its other end. It may be observed here that in view of plethora of pending cases, instead of allowing the complainant/ prosecution to produce weak, deficient, and inadmissible proposed evidence in the trial, it is high time for the trial courts to exercise such vast power vested therewith, to save precious public time, for conducting other meaning-full proceedings in some other matters pending in the courts objectively.

2024 P Cr. L J 1183

[Sindh (Sukkur Bench)]

Before Yousuf Ali Sayeed and Zulfiqar Ali Sangi, JJ.

Arshad Ali and another---Appellants

Versus

The STATE---Respondent

Special Criminal Jail Appeal No. D-15 of 2023, decided on 29th March, 2024.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Benefit of doubt---Discrepancies in the prosecution case---Consequential---Charas weighing 25 kilograms was allegedly recovered from the vehicle of the accused persons---Record showed that the police party left their station at about 10 pm on 05.05.2018 and were said to have taken a mere 25 minutes to reach the place where the arrest was shown to have been made at 4.30 am the next morning, leaving a period of over six hours---Witnesses stated that they had not checked any vehicle prior to the time that they stopped the accused persons, by happenstance it seemed, as there was no mention of any tip received from an informant---With a vehicle said to have been laden with charas under the mere cover of a tarpaulin, the accused persons were stated to have brought the same to a halt virtually at the feet of the complainant on the mere signal from his torch, all of which beggared belief---Incongruously, no documents or papers that might be associated with a road journey (i.e. driving licenses, fuel receipts, toll tickets, or restaurant bills, fuel bills) were recovered---Currency notes said to have been recovered from the accused persons on their personal search were not inventoried, sealed or produced---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Benefit of doubt---Discrepancies between the testimony of the witnesses---Effect---Charas weighing 25 kilograms was allegedly recovered from the vehicle of the accused persons---Complainant stated that the place of incident was a busy road and the police party had asked passers-by to serve as witnesses, but they had refused, and had also called upon persons from the nearby restaurant to perform such a function, but they too had refused---Whereas mashir deposed that no such effort or attempt was made---Samples were said to have been separated from each of the twenty-five slabs of charas, and each sample then wrapped in white paper and then sealed---Vessel in which they were sealed (i.e. bag, cloth, etc.) had not been disclosed---Furthermore, the Chemical Examiner's Report discrepantly showed that each of the white paper packets received contained a black brown piece wrapped in plastic, whereas such plastic wrapping did not find any mention in the memo of search, recovery and arrest or the depositions of the witnesses---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Benefit of doubt---Safe custody and transmission of narcotics for analysis not established---Effect---Charas weighing 25 kilograms was allegedly recovered from the vehicle of the accused persons---Complainant stated that the case property was deposited in the Malkhana on the day of arrest and produced an entry on that score---He went on to say that the samples were sent to the Chemical Examiner the same day (i.e. 06.05.2018), but without any narration as to who the task was entrusted to or any explanation as to how the samples were retrieved from the Malkhana and by whom---Report of the Chemical Examiner reflected that the samples were delivered through a Constable, but he was not called upon to depose in the matter to demonstrate the sanctity of the chain of custody---Furthermore, the report stated that the samples were received on 07.05.2018, which gave rise to the question as to where the same were kept during the intervening period and raised some doubt as to the integrity of the chain---Appeal against conviction was allowed, in circumstances.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039; Zahir Shah alias Shat v. The State through Advocate General, Khyber Pakhtunkhwa 2019 SCMR 2004 and Mst. Sakina Ramzan v. The State 2021 SCMR 451 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---Single circumstance that creates reasonable doubt in a prudent mind as to the guilt of an accused entitles him to the benefit of such doubt, not as a matter of grace and concession but as a matter of right.

Muhammad Akram v. The State 2009 SCMR 230 and Tariq Pervez, v. The State 1995 SCMR 1345 rel.

Rukhsar Ahmed Junejo for Appellants.

Zulfiqar Ali Jatoi, APG for the State.

Date of hearing: 29th November, 2023.

Judgment

YOUSUF ALI SAYEED, J.---The Appellants have impugned the Judgment rendered on 13.03.2023 by the Additional Sessions Judge-III/MCTC-II/Special Judge (CNS), Sukkur, in Special Case No. 68 of 2018, whereby they were found guilty of an offence under Section 6 of the Control of Narcotic Substances Act, 1997 (the "CNSA"), punishable under Section 9(c) thereof, and were sentenced to suffer imprisonment for life and to pay a fine of Rs.100,000/- each, failing which to suffer imprisonment for one year, with the benefit of Section 382-B Cr.P.C. being extended.

1. Per the prosecution, the Appellants were apprehended while plying a trailer truck bearing Registration No. C-2592 on the National Highway on 06.05.2018, which was stopped and searched at about 4:30 AM at an Excise Check Post at Rohri near Gulf Hotel by a party of excise officials deployed from DIO Camp Sukkur. The exercise was shown to have yielded a cache of 25 slabs of charas, weighing 1 kg each. A half kg sample is said to have been carved from each slab and separately wrapped in white paper for onward transmission to the Chemical Examiner, with the remaining case property being sealed and a Memo as to the arrest and seizure being prepared on the spot by Excise Inspector Muhammad Yaqoob Jagirani (the "Complainant"), who had led the search party, in the presence of two Mashirs, namely E.I. Rasheed Ahmed and E.C. Hazoor Bux. A first Information Report, bearing Crime Number 9 of 2018, was then registered in the matter by the Complainant under Section 9(c) of the CNSA at P.S. Excise DIO Camp Sukkur at 8:15 AM the same day.

2. Following the usual investigation, the matter was challaned and sent up before the trial Court, where the Appellants came to be charged in the aforementioned Special Case, to which they pleaded not guilty and claimed trial.

3. Of the several officials said to have comprised the excise team, the Prosecution examined only the Complainant (PW-1) and one of the Mashirs to the arrest and recovery, namely E.I. Rasheed Ahmed (PW-2), with the former producing the Roznamacha entries reflecting the departure and arrival of the excise team from and to their camp on the given day, the Memo of Search, Recovery and Arrest, the FIR, the entry regarding depositing of the case property in the Makhana, and the report of the chemical examiner, as Exhibits 6/A to 6/E respectively.

4. Based on the depositions of the two witnesses and the evidence produced by them, the trial Court arrived at the conclusion that the prosecution had successfully proven the charge against both the Appellants, with a finding of guilt according being recorded against them in terms of the impugned Judgment.

5. Learned counsel for the Appellants assailed the Impugned Judgment, contending that the so-called facts narrated by the prosecution were rife with discrepancies and that the evidence produced was insufficient for the trial Court to have recorded a conviction, with the prosecution having failed to satisfactorily establish the purported recovery, as well as safe custody and transmission of the alleged samples to the office of the Chemical Examiner. He submitted that the case of the prosecution was thus marred by gaps and defects and there was no scope for a conviction under such circumstances.

6. Conversely, the learned APG defended the Impugned Judgment, albeit with little conviction or enthusiasm, relying entirely on the Report of the Chemical Examiner to contend that as the samples received were found to be charas, that of itself served to establish the guilt of the Appellants so as to prove the charge against them, hence their conviction ought to be sustained.

7. Having considered the matter in light of the record, we have observed that whilst the two prosecution witnesses furnished their testimony as to the interception of the Vehicle and the investigative steps taken thereafter, the same appears far-fetched in certain respects and is contradictory in others, whereas, more fundamentally, the chain of custody also remains shrouded in uncertainty due to gaps between the alleged recovery and the time that the samples were sent to the Chemical Examiner.

8. Indeed, from a reading of the depositions of the prosecution witnesses and an examination of the documents produced by them, the following points merit consideration:

(a) Whilst the police party left their station at about 10 PM on 05.05.2018 and are said to have taken a mere 25 minutes to reach the Excise Post where the arrest was shown to have been made at 4:30 AM the next morning, leaving a period of over 6 hours, it was stated by both witnesses that they had not checked any vehicle prior to the time that they stopped the Appellants, by happenstance it seems, as there is no mention of any tip received from an informant. Furthermore, albeit the Vehicle said to have been laden with charas under the mere cover of a tarpaulin, the Appellants are stated to have brought the same to a halt virtually at the feet of the Complainant on the mere signal from his torch, all of which beggars' belief;

(b) Incongruously, no documents or papers that may be associated with a road journey (i.e. driving licenses, fuel receipts, toll. Tickets, or restaurant bills fuel bills) were recovered;

(c) The currency notes said to have been recovered from the Appellants on their personal search were not inventoried, sealed or produced;

(d) There is a glaring discrepancy between the testimony of the prosecution witnesses on the subject of the co-option of private persons to witness the search, seizure and arrest, in as much as the Complainant stated the place of incident was a busy road and the policy party had asked passers-by to serve as witnesses, but they had refused, and had also called upon persons from the nearby Gulf restaurant to perform such a function, but they too had refused,. whereas E.I. Rasheed Ahmed deposed that no such effort or attempt was made.

(e) While samples are said to have been separated from each of the twenty-five slabs of charas, and each sample wrapped in white paper and then sealed, the vessel in which they were sealed (i.e. bag, cloth, etc.) has not been disclosed. Furthermore, the Chemical Examiner's Report disciepantly shows each of the white paper packets received to have contained a black brown piece wrapped in plastic, whereas such plastic wrapping does not find any mention in the Memo of Search, Recovery and Arrest or the depositions of the witnesses;

(f) Last but not least, turning to the chain of custody, whilst the Complainant (PW-1) stated that the case property was deposited in the Malkhana on the day of arrest and produced an entry on that score, he went on to say that the samples were sent to the Chemical Examiner the same day (i.e. 06.05.2018), without any narration as to who the task was entrusted to or any explanation as to how the samples were retrieved from the Malkhana and by whom. However, the report of the Chemical Examiner reflects that the samples were delivered through EC Hazoor Bux, but he was not called upon to depose in the matter to demonstrate the sanctity of the chain of custody. Furthermore, the report states that the samples were received on 07.05.2018, which gives rise to the question as to where the same were kept during the intervening period and raises some doubt as to the integrity of the chain.

1. When confronted with the aforementioned lapses and discrepancies, the learned APG sought to argue that they at best presented minor contradictions and inconsistencies which were not material in the final analysis, and sought to rely on the judgment of the Supreme Court in the case reported as Zain Ali v. The State 2023 SCMR 1669 to bolster that argument.

2. However, we are off to view that the aforesaid judgement is completely distinguishable on the facts, as the omissions, contradictions and discrepancies at hand cannot be dispelled as minor. On the country, in our view, taken conjunctively, the same are material and cumulatively serve to raise reasonable doubt as to the credibility of the prosecution witnesses, the factum of search, seizure and arrest, and the veracity of the prosecutions overall case.

3. Needless to say, the chain of custody is a matter of pivotal importance, and its sanctity is absolutely imperative for the Chemical Examiner's Report to have any real probative value. We are fortified in this regard by a long line of case law emanating from the Supreme Court, including the judgments in the cases reported as The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039, Zahir Shah alias Shat v. The State through Advocate General, Khyber Pakhtunkhwa 2019 SCMR 2004 and Mst. Sakina Ramzan v. The State 2021 SCMR 451.

4. Indeed, it is pertinent to observe that it was held by the Supreme Court in the case of Zahir Shah (Supra) on that subject as follows:

We have reappraised the evidence with the able assistance of learned counsel for the parties and have noticed at the very outset that the Police constable, bearing No.FC-688, who delivered the sealed parcel to the Forensic Science Laboratory, Peshawar on 27.2.2013 was not produced by the prosecution. This fact has been conceded by the learned law officer appearing on behalf of the respondents. This court has repeatedly held that safe custody and safe transmission of the drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory must be satisfactorily established. This chain of custody is fundamental as the report of the Government Analyst is the main evidence for the purpose of conviction. The prosecution must establish that chain of custody was unbroken, unsuspicious, safe and secure. Any break in the chain of custody i.e., safe custody or safe transmission impairs and vitiates the conclusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction. Reliance is placed on State v. Imam Bakhsh (2018 SCMR 2039).

1. In the case of Sakina Ramzan (Supra), while restating the principle laid down in Imam Bakhsh, the Court observed in the same vein that:

2024 P Cr. L J 1194

[Sindh (Larkana Bench)]

Before Aqeel Ahmed Abbasi, C.J.

Dilbar Khan---Appellant

Versus

Safeer Ali alias Safeer Ahmed and others---Respondents

Criminal Acquittal Appeal No. S-77 of 2023, decided on 6th March, 2024.

Penal Code (XLV of 1860)---

----Ss.494, 506 (ii), 114, 148 & 149--- Criminal Procedure Code (V of 1898), Ss. 249-A & 417 (2)---Marrying again during lifetime of husband, criminal intimidation, presence of abettor and rioting armed with deadly weapons---Appeal against acquittal---No possibility of conviction---Accused persons were acquitted of the charge by Trial Court exercising powers under S.249-A, Cr.P.C.---Validity---Real father of female accused had expired and there was no possibility of connecting accused persons, particularly his own daughter on the allegations levelled in FIR. which were result of some personal animosity---Allegation of such serious nature affecting chastity of a woman, without any material or substance, needed to be examined with extra care and caution---On the basis of mere allegations, a woman should not be prosecuted and left at the mercy of unscrupulous elements and to face agony of prolonged trial---Neither previous husband of female accused nor any material witness had come forward with such allegations constituting offence under S.494, P.P.C., therefore, there was no possibility of conviction of accused---High Court declined to interfere in judgment of acquittal passed by Trial Court--- Appeal against acquittal was dismissed, in circumstances.

Javed Ahmed Soomro for the Appellant.

Order

Aqeel Ahmed Abbasi, C.J.---After hearing learned counsel for the appellant at some length and from perusal of impugned order passed by Vth CJ and Judicial Magistrate, Larkana, vide order dated 06.10.2023 in Cr. Case No.21 of 2022, it appears that the allegation as contained in the FIR No.21 of 2022 registered under sections 494, 506(ii), 114, 148, 149, P.P.C. at Police Station Allah Abad, by the complainant Muhammad Paryal Chohan, who is real father of accused has got registered the case.

The allegation contained in the FIR was either false or material has been brought was not sufficient to substantiate such allegation, therefore, the learned trial Court proceeded to decide an application filed under section 249-A, Cr.P.C for the acquittal of the accused persons, whereas, three accused have been shown absconders. It will be advantageous to reproduce paras-6 and 7 of the impugned order, which reads as under:

"6. Heard learned for the accused and learned ADPP on behalf of the State and have perused the record with utmost care with their valuable assistance. It is matter of fact that the present accused are only facing the charges under sections 506(ii), 109, P.P.C. Read with Section 114, P.P.C. as such charge was amended in the light of order dated 04.7.2023, passed by Honourable 5th Additional Sessions Judge, Larkana. From the perusal of the record nothing is present which suggests that the alleged involvement of the present accused is confined to the extent of aid or abetment to the absconding accused in solemnization of the marriage which is Nikah over Nikah which attract to the section 109, P.P.C. The abetment or aid has to be shown from the face of the FIR or along with strong and material proofs but in instant case no any specific role attributed to accused in commission of crime which attract to section 109 Read with Section 114, P.P.C. As far as section 506(ii), P.P.C. is concerned no any recovery of the alleged weapon or any other evidence available on record which may go against the accused if the proper evidence will be recorded and it would be only wastage of time and nothing else.

7. Keeping in view of submission of learned ADFPP that prosecution may be provided with the opportunity to bring further evidence on record so that matter could be decided on merits. I found it appropriate to analyze his submissions in light of the provision of Section 249-A Cr.P.C and items No.10 (E) of Part 3(D) the National Judicial Policy, 2009, which read respectively as under:

{249-A Power of Magistrate to acquit accused at any stage.- Nothing in this Chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence.}"

2024 P Cr. L J 1271

[Sindh]

Before Mohammad Karim Khan Agha and Irshad Ali Shah, JJ

Muhammad Jamil Ahmed and another---Appellants

Versus

The State---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 197 to 199 and Confirmation Case No. 08 of 2019, decided on 31st August, 2021.

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

----Ss. 302, 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism---Appreciation of evidence---Sentence, reduction in---Accused were charged for committing murder of the cousin of complainant---Police chased the accused and after exchange of firing, two accused were arrested---Record showed that the FIR was registered with promptitude within an hour and 30 minutes of the incident in which the accused had been named and given specific roles of firing at the deceased and encounter with the police where unlicensed pistols were recovered from them on their arrest and as such there was no time for the police to consult and concoct a false case with the complainant---No enmity existed between either the complainant or the police against the accused and thus the complainant and the police had no reason to implicate the accused in a false case---Both the accused were caught red handed, each with an unlicensed pistol and were arrested almost on the spot by the police after an exchange of fire between them and the police, so once again there was no chance of false implication or even misidentification---All the most relevant and significant police entries were exhibited at trial in support of the prosecution version of events---All the witnesses were consistent in their evidence---Evidence of the witnesses provided a believable corroborated unbroken chain of events---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---Motive was not proved, which factor could be considered as mitigating and justifying the reduction of the death sentence of the accused to that of life imprisonment---Appeal was dismissed with said modification in sentence.

Sarwar Gul v. The State and 2 others 2002 PCr.LJ 163; Muhammad Hafeez alias Babu v. The State 2005 PCr.LJ 1335; Muhammad Imran v. The State 2009 PCr.LJ 997; Fida Hussain v. The State 2013 PCr.LJ 1237; Ziarat Gul v. The State 2017 PCr.LJ Note 86; Shah Izzat alias Shahzad v. Adnan, Constable No.5355 and another 2017 PCr.LJ 25; Ali Sher and others v. The State 2008 SCMR 707; Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Hakeem and others v. The State 2017 SCMR 1546; Azhar Mehmood and others v. The State 2017 SCMR 135; Raees Khan v. The State 2018 MLD 835; Makhan v. Allandino and 4 others 2019 MLD 1383; Maji v. The State 1970 SCMR 331; Muhammad Din v. The State 1985 SCMR 1046; Noor Muhammad v. The State 1999 SCMR 2722; Muhammad Ehsan v. The State 2006 SCMR 1857; Khadim Hussain v. The State PLD 2010 SC 669; Muhammad Ilyas and others v. The State 2011 SCMR 460 and Dadullah and another v. The State 2015 SCMR 856 ref.

(b) Criminal trial---

----Evidence---Direct evidence---Scope---Conviction could be awarded if the direct oral evidence of one eye-witness was found to be reliable, trust worthy and confidence inspiring.

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

(c) Criminal trial---

----Witness---Police witnesses---Reliance---Scope---Police witnesses were as reliable as any other witness unless any ill will or enmity had been attributed to them.

Zafar v. State 2008 SCMR 1254; Riaz Ahmed v. State 2004 SCMR 988 and Muhammed Hanif v. State 2003 SCMR 1237 rel.

(d) Criminal trial---

----Witness---Related and interested witnesses---Reliance---Scope---Witness being related did not make him an interested and unreliable witness, unless he had reason to falsely implicate the accused or he was biased, partisan or inimical to the accused.

Ijaz Ahmad v. The State 2009 SCMR 99 rel.

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

----Ss. 302, 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism---Appreciation of evidence---Test identification parade---Scope---Accused were charged for committing murder of the cousin of complainant---Police chased the accused and after exchange of firing, two accused were arrested---Judicial Magistrate carried out the identification parade in accordance with law and was not dented during cross-examination---Judicial Magistrate also identified in court the two accused who were picked out at the identification parade by the concerned witnesses/identifiers---Said witness was a Judicial Officer and there was no reason to doubt her evidence---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---Motive was not proved, which factor could be considered as mitigating and justifying the reduction of the death sentence of the accused to that of life imprisonment---Appeal was dismissed with said modification in sentence.

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

----Ss. 302, 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism---Appreciation of evidence---Medical evidence---Scope---Accused were charged for committing murder of the cousin of complainant---Police chased the accused and after exchange of firing, two accused were arrested---Medical evidence fully supported the eye-witness version of events---Medical Officer who carried out the post mortem of the deceased gave evidence that the deceased received four firearm injuries, one to the front of his chest, one to the back of the chest, one to the abdomen and one to the left thigh, which tied in with the prosecution evidence that the accused persons opened indiscriminate firing on the deceased---Fact that there was blackening around each wound also tied in with the prosecution evidence that the car pulled up in front of the house, three accused persons dismounted and opened fire on the deceased which was clearly at close range---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---Motive was not proved, which factor could be considered as mitigating and justifying the reduction of the death sentence of the accused to that of life imprisonment---Appeal was dismissed with said modification in sentence.

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

----Ss. 302, 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism---Appreciation of evidence---Recovery of weapon of offence and crime empties---Reliance---Scope---Accused were charged for committing murder of the cousin of complainant---Police chased the accused and after exchange of firing, two accused were arrested---After the murder following an encounter with the police, the accused persons were almost arrested on the spot---Unlicensed pistol was recovered from each of them at the time of the arrest---Some of the empties which were recovered from the scene of the murder when compared with the recovered pistols led to positive Forensic Science Laboratory Reports---Fact that there was a delay in sending the pistols and empties for Forensic Science Laboratory would have no impact on the Forensic Science Laboratory Report in the case as no allegation of tampering had been made---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---However, motive was not proved, which factor could be considered as mitigating and justifying the reduction of the death sentence of the accused to that of life imprisonment---Appeal was dismissed with said modification in sentence.

Muhammed Ashraf v. The State 2011 SCMR 1046 rel.

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

----Ss. 302, 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Scope---Accused were charged for committing murder of the cousin of complainant---Police chased the accused and after exchange of firing, two accused were arrested---Prosecution had failed to assert and prove the motive for the murder which appeared to be a target killing---Not possible to ascertain which of the accused persons fired the fatal shot at the deceased---Said factor could be considered as mitigating and justifying the reduction of the death sentence of the accused to that of life imprisonment---Appeal was dismissed with said modification in sentence.

Munsif Jan and Umar Khan for Appellant No.1 (in Special Criminal ATA Appeal No. 197 of 2019).

Javaid Chatari and Ms. Saima Shahreen Abbasi for Appellant No. 2 (in Special Criminal ATA Appeal No. 197 of 2019).

Mohammad Iqbal Awan, Additional Prosecutor General for the State.

Date of hearing: 25th August, 2021.

jUDGMENT

Mohammad Karim Khan Agha, J.---Muhammad Jamil Ahmed and Muneer Ahmed appellants were tried by learned Anti-Terrorism Court No.VI, Karachi in Special Cases Nos. 220 to 222 of 2011, arising out of FIR No.765/2011 for offences punishable under Sections 302/324/353/34 P.P.C read with Section 7 of Anti-Terrorism Act, 1999, FIR Nos. 766 and 767 of 2011 for offence punishable under Section 13(D) Arms Ordinance 1965 lodged at P.S Gulshan-e-Iqbal, Karachi. After full-dressed trial, the appellants were convicted and sentenced as under;

1. Accused Muhammad Jameel Ahmed is convicted in Crime No.765/2011 under section 302(b) P.P.C and he is sentenced to death with compensation of Rs.200,000/- (Two Lacs) to be paid to the LRs of the victim.

2. Accused Muneer Ahmed is convicted in Crime No.765/2011 under section 302(b) P.P.C and he is sentenced to death with compensation of Rs.200,000/- (Two Lacs) to be paid to the LRs of the victim.

3. Accused Muhammad Jameel Ahmed is also convicted in Crime No. 765/2011 under section 324 P.P.C and sentenced to Rigorous Imprisonment for ten (10) years and fine of Rs.50,000/- in case of default in payment of the fine then he shall suffer a Simple Imprisonment of another 6 months.

4. Accused Muneer Ahmed is also convicted in Crime No. 765/2011 under section 324 P.P.C and sentenced to Rigorous Imprisonment for ten (10) years and fine of Rs.50,000/- in case of default in payment of the fine then he shall suffer a Simple Imprisonment of another 6 months.

5. Accused Muhammad Jameel Ahmed is also convicted in Crime No. 765/2011 under section 353 P.P.C and sentenced to Rigorous Imprisonment for five (05) years and fine of Rs.20,000/ - in case of default in payment of the fine then he shall suffer a Simple Imprisonment of another 4 months.

6. Accused Muneer Ahmed is also convicted in Crime No.765/2011 under section 353 P.P.C and sentenced to Rigorous Imprisonment for five (05) years and fine of Rs.20,000/- in case of default in payment of the fine then he shall suffer a Simple Imprisonment of another 4 months.

7. Accused Muhammad Jameel Ahmed is also convicted in Crime No. 765/2011 under section 7(1)(a) ATA 1997 and he is sentenced to death.

8. Accused Muneer Ahmed is also convicted in Crime No.765/2011 under section 7(1) (a) ATA and he is sentenced to death.

9. Accused Muhammad Jameel Ahmed is guilty of an offence under section 7(1)(c) of Anti-Terrorism Act, 1997 in Crime No.765/2011 and he is convicted and sentenced to R.I for ten (10) years and fine of Rs.50,000/- in case of default in payment of the fine then he shall suffer Simple Imprisonment of another 6 months.

10. Accused Muneer Ahmed is guilty of an offence under section 7(1) (c) of Anti-Terrorism Act, 1997 in Crime No. 765/ 2011 and he is convicted and sentenced R.I for ten (10) years and fine of Rs.50,000/- in case of default in payment of the fine then he shall suffer a Simple Imprisonment of another 6 months.

11. Accused Muhammad Jameel Ahmed is guilty of an offence under section 6(2) (n) punishable under section 7(1) (h) of Anti-Terrorism Act, 1997 in Crime No. 765/2011 and he is convicted and sentenced to R.I for five (5) years and fine of Rs.20, 000/- in case of default in payment of the fine then he shall suffer a Simple Imprisonment of another 4 months.

12. Accused Muneer Ahmed is guilty of an offence under section 6(2) (n) punishable under section 7(1) (h) of Anti-Terrorism Act, 1997 in Crime No. 765/ 2011 and he is convicted and sentenced to R.I for five (5) years and fine of Rs.20, 000/- in case of default in payment of the fine then he shall suffer a Simple Imprisonment of another 4 months.

13. Accused Muhammad Jameel Ahmed is also convicted in Crime No.766/2011 under section 13-D Arms Ordinance, 1965 and he is sentenced to undergo R.I 07 years and with fine of Rs.10,000/- and in case of default in payment of the fine then he shall suffer a Simple Imprisonment of another 6 months.

14. Accused Muneer Ahmed is also convicted in bearing Crime No.767/2011 under section 13-D Arms Ordinance, 1965 and he is sentenced to undergo R.I for 07 years and with fine of Rs.10,000/- and in case of default in payment of the fine then he shall suffer a Simple Imprisonment of another 6 months.

All the sentences were ordered to run concurrently. Benefit of section 382-B Cr.P.C was also extended to the appellants. The sentences of death awarded to the appellants were subject to confirmation by this court.

1. The brief facts of the prosecution case are that on 04.11.2011 at 1230 hours complainant Faisal Mehmood son of Ayoub Khan lodged FIR No. 765 of 2011 under sections 302/ 324/ 353/ 34 P.P.C read with section 7 of ATA 1997 of PS Gulshan-e-Iqbal Karachi. FIR No.766 of 2011 under section 13-D of Arms Ordinance and FIR No.767 of 2011 under section 13-D of Arms Ordinance were lodged by complainant SIP Muhammad Sarfraz of PS Gulshan-e-Iqbal Karachi. Complainant Faisal Mehmood narrated the episode of the incident by stating that on 04.11.2011 at 1230 hours, he and his cousin Ghulam Zain-ul-Abdin left their home to meet Sarfraz son of Justice (R) Zawar Hussain Jafferi, at his residence because it was Friday and they had planned to offer the Jumma prayer together. On arriving, they rang the doorbell of the house of Sarfraz in the meanwhile a silver colour Cultus car bearing Registration No. AUT-209 came in front of the Bungalows No.B-158 and B163 from which four persons alighted and fired at them, indiscriminately. In order to save his life, he laid down on the ground, however, his cousin Ghulam Zain-ul-Abidin sustained multiple fire arm injuries fell down. The police guard Hassan Ali Chandio posted at the house of Justice (R) Zawar Hussain Jafferi on seeing the incident fired upon the culprits and in the meanwhile, a police mobile of PS Gulshan-e-Iqbal also arrived at the place of incident and he apprised the police regarding the incident. The police chased the accused persons and after exchange of fire succeeded to arrest two accused persons with their car at certain distance whereas their companions fled away from the scene. On enquiry the apprehended accused disclosed their names as Muhammad Jameel and Muneer. During personal search from accused Muhammad Jameel, SIP Sarfraz recovered one 30 bore Sten gun without license loaded with four live rounds in its magazine and one in chamber. One bag was also found hung on shoulder of accused Muhammad Jameel from which SIP found ten live bullets and two scarfs like Mask, one ladies shalwar, one pair of ladies sock, one bottle of spirit and one Samsung Mobile phone, whereas from the possession of accused Muneer Ahmed, SIP recovered one 30 bore pistol loaded with five live rounds in the magazine. Six empties of 30 bore pistol and seven empties of SMG were also recovered from the place of incident. The case properties were sealed at the spot and SIP Sarfraz seized the vehicle of the accused persons from the place of incident. SIP Sarfraz recorded the statement of complainant Faisal under section 154 Cr.P.C at the spot. SIP Sarfraz brought the apprehended accused persons along with case property at PS Gulshan-e-Iqbal, where he incorporated the statement under section 154 Cr.P.C of complainant Faisal Mehmood in 154 Cr.P.C. Book and registered FIR No.765 of 2011 for the offence punishable under sections 302/353/324/34 P.P.C read with section 7 ATA 1997. He also registered FIR No.766 of 2011 and FIR No.767 of 2011 and FIR No.768 of 2011 for offence punishable under section 13-D Arms Ordinance against the apprehended accused persons as well as against the absconding accused, who made their escape good after throwing away unlicensed arms and ammunition.

2. After registration of the cases, the investigation was assigned to Inspector Chowdhry Manzoor Ahmed, who received the custody of accused Muhammad Jameel and Muneer Ahmed at SIC District East. On 06.11.2011 he called the owner namely Ammad Sher Khan of vehicle bearing registration No.AGB-663. Maker Cultus Suzuki of 2004 who informed him that he had rented out the car to one Shafi on 28.10.2011 for which he produced receipt. I.O. has seized the same and prepared the memo of seizure of the receipt in presence of Ammad Sher Khan. On 10.11.2011, he sent two letters to his SSP for obtaining permission to send the case property for FSL and chemical analyzer. On 14.12.2011, he got identified both the accused persons by eye-witnesses through Judicial Magistrate Karachi, East. On 15.11.2011, he deposited the Perchajat of the deceased in the office of Chemical Examiner along with letter. After receiving the FSL report, the I.O submitted the report under section 173 Cr.P.C. before the competent Court of Law.

3. The trial court framed charge against the accused to which they pleaded not guilty and claimed their trial.

4. At trial, the prosecution in order to prove its case examined 12 PWs and exhibited numerous documents and other items. The statements of the accused were recorded under section 342 Cr.P.C whereby they claimed false implication. They did not examine themselves on oath or call any witness in support of their defence case.

5. Learned trial court after hearing the learned counsel for the parties and assessing the evidence available on record convicted and sentenced the appellants as stated above.

6. Learned trial court in the impugned judgment has already discussed the evidence in detail and there is no need to repeat the same here, so as to avoid duplication and unnecessary repetition.

7. Learned counsel for the appellants have contended that the appellants are completely innocent and have been falsely implicated in this case; that the eye-witnesses evidence regarding the incident of murder is false as this was an unwitnessed incident; that the police departure entry at P.89 A does not mention one of the PWs as being part of the patrolling party which shows the falseness of the police case; that there are major contradictions in the evidence of the PWs and as such their evidence cannot be safely relied upon; that the recovered pistols were foisted on the appellants by the police; that the identification of the appellants cannot be safely relied upon as it was conducted 10 days after the incident and the rules for conducting identification parades have not been followed; that there was a delay in sending the recovered empties for FSL report and as such the FSL report cannot be relied upon and as such for any or all the above reasons the appellants by extending them the benefit of the doubt should be acquitted of the charge. In support of their contentions, they have relied upon the cases of Sarwar Gul v. The State and 2 others (2002 PCr.LJ 163), Muhammad Hafeez alias Babu v. The State (2005 PCr.LJ 1335), Muhammad Imran v. The State (2009 PCr.LJ 997), Fida Hussain v. The State (2013 PCr.LJ 1237), Ziarat Gul v. The State (2017 PCr.LJ Note 86), Shah Izzat alias Shahzad v. Adnan, Constable No.5355 and another (2017 PCr.LJ 25), Ali Sher and others v. The State (2008 SCMR 707), Mst. Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1142), Hakeem and others v. The State (2017 SCMR 1546), Azhar Mehmood and others v. The State (2017 SCMR 135), Raees Khan v. The State (2018 MLD 835) and Makhan v. Allandino and 4 others (2019 MLD 1383).

8. On the other hand learned Additional Prosecutor General Sindh on behalf of the State has fully supported the impugned judgment. In particular he has contended that the evidence of the police eye-witness and other eye-witnesses are trust worthy reliable and confidence inspiring and can be safely relied upon, that the appellants were arrested on the spot and their pistols recovered from them; that the medical evidence supports the prosecution case, that the empties recovered from the scene led to a positive FSL report when matched with the above pistols and as such the prosecution had proved its case beyond a reasonable doubt against the appellants and their appeals be dismissed and confirmation reference answered in the affirmative. In support of his contentions, he placed reliance upon the cases of Maji v. The State (1970 SCMR 331), Muhammad Din v. The State (1985 SCMR 1046), Noor Muhammad v. The State (1999 SCMR 2722), Muhammad Ehsan v. The State (2006 SCMR 1857), Khadim Hussain v. The State (PLD 2010 SC 669), Muhammad Ilyas and others v. The State (2011 SCMR 460), Muhammad Ashraf v. The State (2011 SCMR 1046) and Dadullah and another v. The State (2015 SCMR 856).

9. We have heard the arguments of the learned counsel for the parties and gone through the entire evidence which has been read out by learned counsel for the appellants and the impugned judgment with their able assistance and have considered the relevant law including that cited at the bar.

10. We find after our reassessment of the evidence based on the evidence of the eye-witness police guard, other PW witnesses including police witnesses, PW MLO and post mortem report, recovery of empties from the spot and the dead body being moved from the place of incident to hospital that the prosecution has proved beyond a reasonable doubt that on 04.11.2011 at 12.30 pm Zain-ul-Abdin (the deceased) was shot by firearm and succumbed to his injuries (murdered) before reaching hospital in front of Bungalow Nos.B-158 and B-163 Block 5 Gulshan-e-Iqbal Karachi.

11. The only issue therefore, in our view, left before us is whether it was the appellants (Jameel and Muneer) who were a part of the group of assailants who fired at the deceased and injured him with their firearm shots which lead to his murder and had an encounter with the police and had unlicensed pistols recovered from them at the aforesaid time, date and location.

12. After our reassessment of the evidence we find that the prosecution has proved its case against the appellants (Jameel and Muneer) for murdering the deceased by firearm, engaging in an encounter with the police and for carrying unlicensed firearms beyond a reasonable doubt and hereby uphold the convictions and some of the sentences in the impugned judgment against the appellants for the following reasons;

(a) that the FIR was registered with promptitude within an hour and 30 minutes of the incident in which the appellants have been named and given specific roles of firing at the deceased and being involved in an encounter with the police where unlicensed pistols were recovered from them on their arrest and as such there was no time for the police to consult and concoct a false case with the complainant. Furthermore no enmity existed between either the complainant or the police against the appellants and thus the complainant and the police had no reason to implicate the appellants in a false case.

(b) that both the accused were caught red handed each with an unlicensed pistol and were arrested almost on the spot by the police after an exchange of fire between them and the police so once again there is no chance of false implication or even misidentification.

(c) The key witnesses in this case in our view are eye-witnesses PW 7 Hasan Ali, PW 10 Fasial Mahmood, PW 5 Amad Sher Khan and PW 6 Muhammed Qureshi, PW 1 Muhammed Sarfraz and PW 2 Ghulam Mustafa's as this prosecution case mainly revolves around the correct identification of the accused who shot the deceased and were involved in the encounter with the police. We shall consider the evidence of these eye-witnesses in turn below;

(i) Eye-witness PW 7 Hasan Ali. He was a security guard performing his duties outside the house of Justice (Rtd.) Zawar Hussain Jaffery. According to his evidence the deceased and PW 10 Fasial came to the house at about 12.30pm on 4.11.2011 and he went inside to inform Justice (Rtd) Jaffery when he heard firearm reports. He went outside and saw 4 persons in a silver cultus car 3 of whom had got out of the car who fired on the deceased who sustained bullet injury to his head. He returned fire but the culprits escaped in the cultus car which was chased by a police mobile whereupon the culprits in the cultus car exchanged fire with the police in the mobile where after the police managed to apprehend two of the culprits at a certain distance in another street. He was called before an identification parade 10 days later where he picked out the appellants as the persons who had fired on and murdered the deceased. Such delay in our view will not hinder his correct identification as there is no hard and fast rule as to when an identification parade should be held although the sooner the better even if it was required which was not necessarily the case based on the particular facts and circumstances of this case as discussed below. The law has also moved on in giving the role of the accused during an identification parade as discussed below as each case must be judged on its own particular facts and circumstances and not in a mechanical manner. Even otherwise we have not been alerted to so grave a breach of the rules governing identification parades which would render the current identification parade unreliable as minor irregularities are permissible under the law.

This eye-witness was a natural witness and not a chance witness as he was one of the police guards to the retired Judge stationed in a tent outside his house. He did not know the appellants before the incident and had no enmity with them and had no reason to implicate them in a false case. His presence at the scene was not challenged during cross-examination. It was a day light incident and since three of the accused had dismounted from the car he would have got a good look at them. He is named in the FIR along with his role at the scene which accords with his evidence and since the FIR was lodged within 1 hour and 30 minutes of the incident he would not have had time to cook up a false case against the appellants with the complainant or the police especially as he had no reason to do so. He recorded his S.161 Cr.P.C eye-witness statement immediately after the incident as such once again there was no time for him to cook up a false case against the appellants. We find that he has correctly identified the two appellants as a part of the group which fired upon the deceased which lead to the death of the deceased. This is more so since both of the appellants were caught red handed almost on the spot only a few minutes after the incident following an encounter with the police. His evidence was not dented during a lengthy cross-examination. As such we find his evidence to be reliable, trustworthy and confidence inspiring and we believe the same especially in respect of the correct identification of the appellants as firing upon and murdering the deceased.

Even otherwise based on the particular facts and circumstances of this case which was a day light incident and the eye-witness got a good look at the appellants who were arrested a few minutes after the incident a few streets away it was not even strictly necessary to hold an identification parade. In this respect reliance is placed on Muhammed Siddique and others v. State dated 02-01-2020 (unreported) in Crim. Jail Appeal No's 24,69,215,486 of 2016 and 682 of 2017 which held as under at Para 5 which is set out below;

"5. Castigating severely the evidence of test identification parade, the learned counsel relied upon the guidelines laid down in the case of Kanwar Anwar Ali (PLD 2019 SC 488) to urge exclusion thereof. The supra case indeed a fine piece of juridical literature, nonetheless, does not extend much help to the convicts; it mainly addressed laconic approach adopted by a Magistrate in holding the test identification parade in the said case while highlighting general principles of law on the subject.

Test identification parade is a method of proof contemplated by Article 22 of the Qanun-e-Shahadat Order, 1984, reproduced below for the convenience of reference:-

"Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of anything or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose".

The above framework provides enough space to admit evidence in prosecution of offenders previously unacquainted with the victims or the witnesses; appraisal of such evidence is subject to same principles as are universally applicable to any piece of evidence, under consideration in a criminal trial; there are no additional barricades as is evident from the plain reading of the Article ibid; without prejudice to the safeguards available to an accused at each stage of trial, essentially fair as guaranteed under the Constitution, nonetheless, it does not cast an artificially heavier onus on the prosecution to meet standards of proof beyond human capacity. Each criminal case is to be decided having regard to its own peculiar facts and circumstances. A test to be essentially applied is one case may absolutely be irrelevant in another, as the crimes are seldom committed in identical situations; there may be cases wherein prosecution must assign distinct roles played during the occurrence by the culprits for determination of their guilt as well as consequences thereof, however, there are cases in which totality of transaction may not warrant reparability for such determination, like the one in hand. Cases involving abductions, dacoities and sudden assaults, more often than not, constitute episodes wherein different roles played by the culprits merge into integral totality of the crime, thus, it would be too harsh as well as unrealistic to demand exact reenactment of roles by the witnesses. Capacities even intellectually most sharp dwindle drastically in calamitous situations, therefore, the administration of criminal justice, in such peculiar situations, has to be dynamically balanced upon fair trial without prejudice to the accused as well as due weightage to the prosecution evidence without being swayed by illusory notions, subjectively structured upon hypothetical beliefs

Having found the witnesses with no axe to grind, in a comfortable unison on all the salient features of the prosecution case as well as events collateral therewith, we do not feel persuaded by the arguments, couched on hyper technical premise. Petitions fail. Dismissed." (bold added)

The appeal which we are currently deciding attracts the above dicta as it is a case of sudden assault.

(ii) Eye-witness PW 10 Faisal Mehmood is the complainant in this case. According to his evidence on 4.11.2011 he and the deceased left for Justice (Rtd) Jaffery's house with a view to offer Juma prayers with his son (Sarfraz).When they rang the bell of the house he saw a silver cultus car pull up in front of the house and 3 persons get out who made indiscriminate fire on the deceased and himself. The deceased received multiple firearm injuries. He was not injured as he took cover by laying on the ground.He saw the police guard at the house (eye-witness PW 7 Hasan Ali) fire upon the cultus car which was then chased after his intervention by a passing police mobile and after an exchange of fire between the police and the culprits two of the culprits were arrested nearby. He was mashir to the arrest and recovery of the appellants and thus having seen them there was no need for him to attend an identification parade as he was present at the time of the arrest and he would have got a clear view of them firing at the deceased as this was a day light incident as also the police encounter. He also witnessed the encounter between the police and the appellants. He was not a chance witness as he had gone with the deceased to the house of the Retired Justice in order to collect his son (Sarfraz) for juma prayers. He had no ill will or enmity with the appellants and had no reason to falsely implicate them in a false case. He registered his FIR within 90 minutes of the incident and as such had no chance to concoct a false case against the appellants in league with the police. His evidence accords with his FIR and corroborates the versions of eye-witness PW 7 Hasan Ali and the other police witnesses who were present at the encounter (especially PW 1 Muhammed Sarfraz and PW 2 Ghulam Mustafa) and the time of the arrest and recovery of the fire arms from the appellants. He was not dented despite a lengthy cross- examination and we have no reason to disbelieve his evidence which we find to be reliable, trust worthy and confidence inspiring and we believe the same. His evidence and that of PW 7 Hasan Ali who he states was on guard duty at his fathers house is also corroborated by PW 4 Sarfraz Haider (the son of the retired Judge) who states in his evidence that he had arranged to perform Juma prayers with the deceased.

(iii) Eye-witnesses PW 5 Amad Sher Khan and PW 6 Muhammed Qureshi are not eye-witnesses to' the actual incident but are eye-witnesses to hiring out the car which was used in the attack i.e the silver cultus. Both of these eye-witnesses are in essence concerned with the business of renting out cars. Both witnesses gave evidence that on 03.11.2012 the silver cultus was given on rent to the appellant Jameel who they had seen before. They had no enmity with appellant Jameel and had no reason to falsely implicate him in this case. The renting of the car used in the assault also links appellant Jameel to the murder and encounter with the police which car was recovered after the encounter and produced in court. We have no reason to disbelieve their evidence which was not shattered despite a lengthy cross-examination and the evidence suggests that they were both in the car business and as such we believe there evidence that the car used to transport the appellants during the murder and the encounter was rented out to appellant Jameel who was identified by PW 7 Hasan Ali.the guard as being one of the persons who fired upon the deceased and who was arrested almost on the spot along with the recovered vehicle.

(iv) PW 1 Muhammed Sarfraz and PW 2 Ghulam Mustafa police officers are eye-witnesses to the encounter with the persons in the silver cultus (which included the appellants). In their evidence they state that whilst on patrol on 04.11.2011 about 12.30 they heard gun shots and reached the Judge's house whereby PW 10 Faisal Mahmood informed them of this incident. They then gave chase to the silver cultus and after an encounter with the persons in the vehicle they managed to arrest the two appellants from which they recovered from each unlicensed pistols and ammunition. They corroborate PW 10 Fasial Mehmood and PW 7 Hasan Ali concerning the events after the murder of the deceased. Both of these eye-witnesses corroborate each other in all material respects and were not dented despite lengthy cross-examination. They had no enmity with the accused and no reason to implicate them in a false case and as such we have no reason to disbelieve their evidence which we do believe as we find it to be reliable trust worthy and confidence inspiring.

(d) It is settled law that we can convict if we find the direct oral evidence of one eye-witness to be reliable, trust worthy and confidence inspiring. In this respect reliance is placed on Muhammad Ehsan v. The State (2006 SCMR 1857). Furthermore, the Supreme Court in the case of Niaz-Ud-Din v. The State (2011 SCMR 725) held as under in respect of the ability of the court to uphold a conviction for murder even based on the evidence of one eye-witness provided that it was reliable and confidence inspiring and was substantiated from the circumstances and other evidence since it is the quality and not the quantity of evidence which matters at P.734 Para 11 as under;

"11. The statement of Israeel (P.W.9) the eye-witness of the occurrence is confidence inspiring, which stands substantiated from the circumstances and other evidence. There is apt observations appearing in Allah Bakhsh v. Shammi and others (PLD 1980 SC 225) that "even in a murder case conviction can be based on the testimony of a single witness, if the Court is satisfied that he is reliable." The reason being that it is the quality of evidence and not the quantity which matter. Therefore, we are left with no doubt whatsoever that conviction of Niaz-ud-Din was fully justified and has rightly been maintained by the High Court."

In this case we find the evidence of the 6 eye-witnesses mentioned above to be fully corroborative and reliable, trust worthy and confidence inspiring especially in terms of correctly identifying the appellants as some of the persons who committed the murder of the deceased by shooting him with their pistols and being involved thereafter with the police in an encounter whereby an attempt was made to murder the police and prevent them from carrying out their official duties. Never the less by way of abundant caution we will consider below whether any corroborative /supportive evidence is available in respect of the direct oral eye-witness evidence.

(e) It is well settled by now that police witnesses are as reliable as any other witness unless any ill will or enmity has been attributed to them which has not been done in this case. In this respect reliance is placed on Zafar v. State (2008 SCMR 1254), Riaz Ahmed v. State (2004 SCMR 988) and Muhammed Hanif v. State (SCMR 2003 1237). Like wise it is well settled that simply because a witness is related does not make him an interested witness and unreliable unless he has reason to falsely implicate the accused, or he is biased, partisan or inimical to the accused which there is no evidence of in this case in respect of PW 10 Faisal Mehmood who was related to the deceased. In this respect reliance is placed on Ijaz Ahmad v. The State (2009 SCMR 99). Thus, we rely on the evidence of the remaining police PW's 1 Muhammed Sarfraz and PW 2 Ghulam Mustafa who arrested the appellants following the, chase of the silver cultus and encounter with the appellants who also recovered the unlicensed firearms of the appellants as per the memo of arrest and recovery, PW 3 Muhammed Akram, PW 11 Aijaz Ahmed the first IO and PW 12 Chaundhry Manzoor the second IO none of whom were dented let alone shattered during cross-examination. In fact Ex 89 A clearly shows that PW 1 Muhammed Sarfraz was on patrol at the time of the incident. PW 8 Zahida Parveen who was the Judicial Magistrate who carried out the identification parade of the accused also as per her evidence carried out the identification parade in accordance with law and was not dented during cross- examination and who also identified in court the two appellants who were picked out at the identification parade by the concerned PW identifiers. She is a judicial officer and we have no reason to doubt her evidence.

(f) The medical evidence fully supports the eye-witness version of events. PW 9 Dr.Zafar who carried out the post mortem of the deceased gave evidence that the deceased received 4 firearm injuries one to the front of his chest, one to the back of the chest, one to the abdomen and one to the left thigh which ties in with the prosecution evidence that the appellants opened indiscriminate firing on the deceased. The fact that there was blackening around each wound also ties in with the prosecution evidence that the car pulled up in front of the house, 3 appellants dismounted and opened fire on the deceased which was clearly at close range.

(g) On the arrest moments after the murder following an encounter with the police the appellants were almost arrested on the spot and at the time of their arrest an unlicensed pistol was recovered from each of them.

(h) That some of the empties which were recovered from the scene of the murder when compared with the recovered pistols lead to positive FSL reports. The fact that there was a delay in sending the pistols and empties for FSL will have no impact on the FSL report in this case as no allegation of tampering has been made. In this respect reliance is placed on the case of Muhammed Ashraf (Supra).

(i) The silver cultus motor vehicle which was used by the appellants at the time of the murder and attempting to make their escape was recovered from the appellants following their arrest after an encounter with the police which as mentioned above PWs 5 and 6 had rented to appellant Jameel the day before and as such clearly links them to the offence.

(j) All the most relevant and significant police entries were exhibited at trial in support of the prosecution version of events.

(k) That all the PWs are consistent in their evidence and even if there are some contradictions in their evidence we consider these contradictions as minor in nature keeping in view the terror and chaos which was then unfolding and not material and certainly not of such materiality so as to effect the prosecution case and the conviction of the appellants. In this respect reliance is placed on Zakir Khan v. State (1995 SCMR 1793) and Muhammed Ilyas v. State (SCMR 2011). The evidence of the PWs provides a believable corroborated unbroken chain of events from the time the appellant Jameel rented the silver cultus car one day before the incident, the deceased and PW 10 Fasial Mehmood reaching Retired Judge Jaffery's house on the day of the incident, to the silver cultus car pulling up in front of the house and 3 persons dismounting and making indiscriminate fire on the deceased who died in hospital, to the appellants attempting to make their escape good to the encounter with the police and there arrest and recovery of their pistols close to the scene of the murder.

(1) Of course it is for the prosecution to prove its case beyond a reasonable doubt against the appellants which we find that it has done in this case however we have considered the defense case before reaching this conclusion. The appellants have taken the defense plea of false implication by the police as they refused to pay a bribe of RS 50,000 having been arrested from the disco bakery a day before the incident. However they have not given evidence under oath or called any defense witness in support of their defense case nor during cross-examination have they suggested to any police PW that he had any enmity with them and therefore a reason to falsely implicate them in this case and as such we disbelieve the defense case of false implication which we consider to be a mere after thought in order to save the skin of the appellants especially in light of the overwhelming prosecution evidence against the appellants and the fact, that the appellants were correctly identified by the eye-witness PWs and they were almost arrested on the spot within moments of the incident after an encounter with the police which would have left no time for them to be substituted with the real culprits by the police.

2024 P Cr. L J 1295

[Sindh]

Before Omar Sial, J

Muhammad Asif---Applicant

Versus

Muhammad Imran and 3 others---Respondents

Criminal Revision Application No. 95 of 2023, decided on 15th December, 2023.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 7, 8 & 8-A---Illegal dispossession---Restoration of possession---Petitioner/accused was aggrieved of order passed by Trial Court restoring possession to respondent/complainant---Validity---Primary aspect of the case, which seemed to have swayed the Trial Court in ordering that the property be taken away from Mr. "A" and handed over to Mr. "I", was that in a preliminary inquiry, the documents of title of the property in question were with Mr. "I" and not with Mr. "A"---Documents of the property on which Mr. "A" relied were fake---Trial Courts seized of criminal complaints under the Illegal Dispossession Act, 2005, often made a slight overreach and also decided issues regarding ownership of the property, which was not the correct approach---Only the Civil Courts of competent jurisdiction could make such findings---Such issue required evidence to be recorded by a Civil Court before such declarations or pronouncements of a conclusive nature were made---Prima facie ownership of the property might only be one of the factors considered by a Criminal Court when adjudicating a S.7 application under the Act of 2005---Primary finding had to be that who was in possession when dispossession was alleged and on what basis the possessor claimed his possession---Person's possession of a property, when he was not the owner, might not always be illegal---In the current case, prima facie, it seemed that Mr. "I" based his property ownership on an agreement to sell---If that was found correct, the question arose about how an agreement to sell established title---Allotment Letter of the property showed that it was allotted to "SJ" with the condition that selling the property was prohibited---How did "SJ" agree to sell the same to Mr. "I"---How did the Lyari Expressway Resettlement Project issued a Transfer Order in the name of Mr. "I" when, apart from the restriction on sale, there was no document on record to show that the sale transaction between "SJ" and Mr. "I" ever culminated---On the contrary, Mr. "A" had documents to show prima facie that the property's electricity, water and gas connections were in his wife's name and that he had been paying the utility charges since 2009---Mr. "I" had not denied that---Given the above, prima facie, it seemed that Mr. "A" had been in possession of the property since 2009, therefore, it would be unsafe to order him to be evicted arbitrarily---An opportunity should be given to both Mr. "I" and Mr. "A" to show at trial how they claimed to be in possession of the property---Impugned order was, therefore, set aside---High Court observed that parties should wait till the conclusion of the trial so that the Trial Court decided their respective claims of being in lawful possession after it had an opportunity to review the evidence produced.

Syed Sabir Ali for Applicant.

Khawaja Muhammad Azeem for Respondent No. 1.

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

Date of hearing: 13th November, 2023.

Order

Omar Sial, J.---Mohammad Imran filed a criminal complaint under the Illegal Dispossession Act, 2005 before the learned 12th Additional Sessions Judge, Karachi West. On 05.05,2023, they learnt that the trial court ordered the property taken from the opponent Mohammad Asif and handed over to Mohammad Imran. This order has been challenged through these proceedings.

1. The case is that Mohammad lmran alleged that he owns a property bearing No. 162 in Sector 21-B/C, Category 1, Lyari Express Resettlement Project, which he purchased from Sabra Jillani on 06.03.2020. Imran's duties with his employers took him away for some time, and when he returned on 05.12.2020, he saw Mohammad Asif living on the property.

2. I have heard the learned counsel for the applicant, the answering respondent, and the learned Additional Prosecutor General. My observations and findings are as follows.

2024 P Cr. L J 1321

[Sindh (Sukkur Bench)]

Before Muhammad Faisal Kamal Alam and Amjad Ali Sahito, JJ

Jawed Aftab Tanweri and others---Applicants

Versus

The State through National Accountability Bureau and others---Respondents

Constitutional Petition Nos. 2217, 2218, 2219, 2220, 2222, 2223, 2224, 2233, 2238, 2240, 2247, 2248, 2252, 2263, 2278 and 2279 of 2017 along with (others connected appeals) decided on 2nd Mach, 2022.

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

----Ss. 9 & 10---Corruption and corrupt practice---Appreciation of evidence---Benefit of doubt---Accused were charged for embezzlement of funds amounting to Rs. 190 million by committing procedural irregularities---In the present case, it was hard to believe that the Investigating Officer of the case while sitting in the office completed the investigation---Simple controversy was involved in this case, that the accused persons prepared fake work orders and misused their authority and embezzled the government funds on non-functional tube wells---Claim of the accused persons was that after repair the tube wells were functional---Thus, it was the duty of the Investigating Officer of the case to physically check/verify the tube wells in question whether the same were in working condition or not; whether meters were installed or not, and what was the reading of the meters; whether the electric meters were in working condition or not---Second duty of the Investigating Officer was to collect monthly electricity bills to see how many units were consumed---If in any month units were not consumed then he had to call a report from the concerned department---However, all of this was not done by the Investigating Officer---Second claim of the accused persons was that the work orders were issued toward maintenance of the tube wells which required maintenance i.e. mechanically and electrically---Investigating officer of the case had not checked which tube wells were maintained mechanically and which were maintained electrically, with respect to the maintenance material required viz. copper wire, grease oil, copper winding and other electrical material---Investigating Officer of the case was not even sure whether he had physically inspected tube wells in question or not---Dispute between the Provincial Government and WAPDA authorities was with regard to installation of the meter and not on the meter reading, the bills were issued and if it was the fault of WAPDA authorities as they had not issued the bills, then how the accused persons had committed the offence---In such a situation, it was the duty of the Engineer and Expert in the NAB as well as Investigating Officer of the case to leave their office, visit the site of 51 tube wells to verify that the meters were installed on those tube wells and whether they were in working condition or not, and how many units were consumed---Surprisingly the Investigating Officer of the case had not recorded the statement of Chowkidars and Operators who were posted on the tube wells in question to bring the real facts on record as to whether the Tube wells were in working condition or not---In such circumstances, no elements of the offence of corruption and corrupt practice in the transaction in question was found---Appeal against conviction was allowed accordingly.

The State and other v. M. Idrees Ghauri and others 2008 SCMR 1118 rel.

(b) Criminal trial---

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

Mohammad Mansha v. The State 2018 SCMR 772 rel.

Nisar Ahmed Bhanbhro for Appellants (in Criminal Appeals Nos. D-188, D-189, D-190, D-191, D-196 and D-199 of 2017).

Dareshani Ali Hyder 'Ada' for Appellants (in Criminal Appeals Nos. D-192, D-193, D-194, D-195, D-197 and D-200 of 2017).

Khan Muhammad Sangi for Appellants (in Criminal Appeals Nos. D-201 and D-2018 of 2017).

Rab Dino Makwal for Appellants (in Criminal Appeals Nos. D-207 and D-209 of 2017).

Mujeeb-ur-Rehman Soomro, Special Prosecutor NAB Sukkur.

Mumtaz Ali Gopang, Assistant Attorney General.

Date of hearing: 2nd February, 2022.

Judgment

Amjad Ali Sahito, J.--- By this common judgment, we intend to dispose of the above captioned Crl. Appeals filed by the appellants Jawed Aftab Tanweri, Nizamuddin Mangnejo, Mukhtiar Ali Gilal, Syed Shayan Ali Shah, Rajib Ali Shah, Amanullah Ghanghro, Nisar Ahmed Shaikh, Aijaz Ali Memon, Roshan Ali Kandhro, Muhammad Nawaz Buriro, Sajjad Ali Mirani, Rameez Rajab Abro, Abdul Ghani Mangi, Mushtaque Hussain Sarki, Agha Faiz Rasool, Nabi Bakhsh Mahar and Ameer Bakhsh Mahar against the Judgment dated 20.11.2017 whereby they have been convicted and sentenced by the Accountability Court, Sukkur in Reference No.24/2015 "Re. The State v. Rajab Ali Shah and others" as under:-

1. Accused Jawed Aftab is sentenced to suffer R.I for five years and fine of Rs. 100,000/- (Rupees one lac only). 2. Accused Nizamuddin Mangnejo is sentenced to suffer R.I for five years and fine of Rs. 360,000/- (Rupees three lac and sixty thousand only). 3. Accused Mukhtiar Ali is sentenced to suffer R.I for five years and fine of Rs.600,000/- (Rupees six lac only). 4. Accused Syed Shayan Ali Shah is sentenced to suffer R.I for five years and fine of Rs.260,000/ - (Rupees two lac and sixty thousand only). 5. Accused Rajab Ali Shah is sentenced to suffer R.I for five years and fine of Rs.25,00,000/ (Rupees Twety five five lac only). 6. Amanullah Ghanghro is sentenced to suffer R.I for five years and fine of Rs. 150,000/ -(One lac fifty thousand only). 7. Nisar Ahmed Shaikh is sentenced to suffer R.I for five years and fine of Rs.200,000/- (two lacs only). 8. Aijaz Ali Memon is sentenced to suffer R.I for five years and fine of Rs.650,000/-( Rupees six lac fifty thousand only), 9. Roshan Ali Kandhro is sentenced to suffer R.I for five years and fine of Rs. 700,000/- (Rupees seven lac only). 10. Muhammad Nawaz is sentenced to suffer R.I for five years and fine of Rs. 75,000/- (Rupees seventy five thousand only). 11. Sajjad Ali is sentenced to suffer R.I for five years and fine of Rs.280,000/ (Rupees two lac and eighty thousand only). 12. Rameez Rajah Abro is sentenced to suffer R.I for five years and fine of Rs. 70,000/- (Rupees seventy thousand only). 13. Abdul Ghani Mangi is sentenced to suffer R.I for five years and fine of Rs. 170,000/- (Rupees one lac and seventy thousand only). 14. Mushtaque Hussain Sarki is sentenced to suffer R.I for five years and fine of Rs.13,00,000/- (Rupees thirteen lac only) and 15. Agha Faiz Rasool is sentenced to suffer R.I for five years and fine of Rs. 70,000/- (Rupees seventy thousand only), 16. Nabi Bakhsh Mahar is sentenced to suffer R.I for five years and fine of Rs. 75.000/ -(Rupees seventy five thousand only) and 17. Ameer Bakhsh Mahar is sentenced to suffer R.I for five years and fine of Rs.4,10,000/- (Rupees four lacs and ten thousand only). In case, accused fail to pay the fine it shall be recoverable as arrears of land revenue in terms of section 33-E of National Accountability Bureau Ordinance, 1999.

1. Since accused Jawed Aftab, Nizamuddin Mangnejo, Mukhtiar Ali Gilal, Syed Shayan Ali Shah, Rajab Ali Shah, Amanullah Ghanghro, Nisar Ahmed Shaikh, Aijaz Ali Memon, Roshan Ali Kandhro, Muhammad Nawaz Buriro, Sajjad Ali Mirani, Rameez Rajab Abro, Abdul Ghani Mangi, Mushtaque Hussain Sarki, Agha Faiz Rasool, Nabi Bakhsh Mahar and Ameer Bakhsh Mahar have been convicted, as such they were directed by the Trial Court that they shall forthwith cease to hold public offices, if any, held by them and further they stand disqualified for a period of ten years, to be reckoned from the date they are released after serving the sentences, for seeking or from being elected, chosen, appointed or nominated as a member of representative of any public body or any statutory or local authority or in service of Pakistan or any Province as required under section 15(a) of NAO, 1999. The accused are also disallowed to apply for or be granted or allowed any financial facilities in the form of any loan or advances or other financial accommodation by any bank or financial institution owned or controlled by the government for a period of 10 years from the date of conviction as required under section 15 (b) of the Ordinance. All the above named accused persons were present on bail except accused Agha Faiz Rasool; therefore, they were taken into custody and remanded to Superintendent Central Prison Sukkur along with conviction warrants to serve out the aforesaid sentences. True copies of the judgment provided to all accused as well as learned Special Prosecutor NAB, Sukkur free of costs.

2. The relevant facts, as set out in Reference No.24/2015, are that a complaint was lodged with NAB Karachi against officers and officials of Tube Well Division Khairpur Mirs on allegations of embezzlement of funds amounting to Rs. 190 million during the period of 2011, 2012 and 2013. Procedural irregularities were being practiced in the office of Tube Well Division, Khairpur Mirs. After the verification of the complainant at NAB Karachi, the competent authority converted the case into inquiry. The inquiry was transferred to NAB, Sukkur due to territorial jurisdiction and subsequently inquiry was authorized to vide letter dated 19th January 2015.

3. During the inquiry, accused Nos.1 to 8, 10 to 14 along with Mr. Amir Bux Bozdar, the then Executive Engineer, Mr. Aftab Ali Talpur, the then Executive Engineer, Mr. Muhammad Siddique Memon, the then Assistant Executive Engineer, Mr. Mukhtiar Hussain Mahar, Government Contractor, Mr. Farman Ali Shah, Government Contractor and Mr. Nisar Ahmed Siming, Government Contractor, applied for Voluntarily Return (VR), on simple plain paper without fulfilling the Codal formalities, therefore their VR application did not proceed.

4. On the basis, of oral evidence as well as documentary evidence the inquiry was converted into investigation vide letter of authorization dated 25th June 2015 and consequent thereto warrants of arrest were issued against the accused persons. The role and liability assigned against accused/appellants are as under.

5. Appellant Jawed Aftab Tanwri being Ex-XEN, Tube Well Division District Khairpur Mir's, during his incumbency viz. from 02-12-2011 till 23-01-2012, in connivance with officers/officials and Government Contractors, caused loss to the National exchequer by misuse of authority and embezzlement of funds on account of issuing fake work orders and by signing final bills for illegal payment for repair and maintenance of Tube Wells amounting to Rs. 260, 578/- his liability is Rs. 78,174/- (which is 30% of liability) and gains upon the embezzled amount following KIBOR charges were amounting to Rs. 21,080/- total amounting to Rs.99,254/-.

6. Appellant Nizamuddin Mangnejo being Government Contractor, (Proprietor of M/S Nizamuddin and Co.) in connivance with officers/officials of Tube Well Division, District Khairpur Mir's managed to encash illegal payments and caused loss to the National exchequer and involved in embezzlement of funds on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs. 951,696/- and his liability is Rs. 588,350/- (which is 50% of liability) and gains upon the embezzled amount under KIBOR charges were amounting to Rs. 59,953/- total amounting to Rs. 354,128/-.

7. Appellant Mukhtiar Ali Gilal being Government Contractor, (Proprietor of M/S Mukhtiar Ali and Co.) in connivance with officers/officials of Tube Well Division, District Khairpur Mir's managed to encash illegal payments and caused loss to the National exchequer and involved in embezzlement of funds on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs. 95151,696/- and his liability is Rs. 475,848/- (which is 50% of liability) and gains upon the embezzled amount per KIBOR charges were amounting to Rs. 105,121/-ototal amounting to Rs. 580,969/-.

8. Appellant Syed Shayan Ali Shah being Government Contractor, (Proprietor of M/S Shayan Ali Bukhari) in connivance with officers/officials of Tube Well Division, District Khairpur Mir's managed to encash illegal payments and caused loss to the National exchequer and involved in embezzlement of funds on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs. 442,922/- and his liability is Rs. 221,461/- (which is 50% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs. 37, 286/-; total amounting to Rs. 258,747/-.

9. Appellant Rajab Ali Shah being Ex-XEN, Tube Well Division District Khairpur Mir's during his incumbencies viz. from (i) 23-01-2012 to 26-03-2013 and (ii) 26-03-2013 to 19- 04-2013, in connivance with officers/officials and Government Contractors caused loss to the National exchequer by misuse of authority and embezzlement of funds on account of issuing fake work orders and by signing final bills for illegal payment in repair and maintenance of Tube Wells amounting to Rs. 70,00,355/- and his liability is Rs.2,100,100/- (which is 30% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs. 391,749/-; total amounting to Rs. 24, 91,849/-.

10. Appellant Amanullah Ghanghro being Government Contractor, (Proprietor of M/S Mukhtiar Ali and Co) in connivance with officers/officials of Tube Well Division, District Khairpur Mir's managed to encash illegal payments and caused loss to the National exchequer and involved in embezzlement of funds on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs. 260,582/- and his liability is Rs. 130,291/- (which is 50% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs. 15,551/-; total amounting to Rs. 145,842/-.

11. Appellant Nisar Ahmed Shaikh being Ex-AEN, Tube Well Division District Khairpur Mir's, during his incumbency viz. from 18-10-2010 till 23-0:5-2022 and 07-12-2012 till 29-12-2013, in connivance with officers/officials and Government Contractors caused loss to the National exchequer by misuse of authority and embezzlement of funds on account of recording fake MBs and forwarded demands and estimates of tube wells/pumps with his signature on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs.834,262/- and his liability is Rs. 166,853/- (which is 20% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs. 29,713/-; total amounting to Rs. 196,566/-

12. Appellant Aijaz Ali Memon being Ex-AEN, Tube Well Division District Khairpur Mir's, during his incumbency viz. from 31-03-2010 till 30-06-2014, in connivance with officers/officials and Government Contractors, caused loss to the National exchequer by misuse of authority and embezzlement of funds on account of recording fake MBs and forwarded demands and estimates of tube wells/pumps with his signature on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs. 26,35,778/- and his liability is Rs. 527,156/- (which is 20% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs. 103,390/-; total amounting to Rs. 630,546/-.

13. Appellant Roshan Ali being Ex-AEN, Tube Well Division District Khairpur Mir's, during his incumbency viz. from 31-03-2011 till 07-12-2012 in connivance with officers/officials and Government Contractors caused loss to the National exchequer by misuse of authority and embezzlement of funds on account of recording fake MBs and forwarded demands and estimates of tube wells/pumps with his signature on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs. 834,68,097/ - and his liability is Rs. 5,73,620/- (which is 20% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs. 16,836/-; total amounting to Rs. 690,456/-

14. Appellant Muhammad Nawaz being Government Contractor (Proprietor of M/S Mukhtiar Ali and Co.) in connivance with officers/officials of Tube Well Division, District Khairpur Mir's managed to encash illegal payments and caused loss to the National exchequer and involved in embezzlement of funds on account of payments in repair and maintenance of Tube Wells amounting to Rs. 126,019/- and his liability is Rs. 63,010/- (which is 50% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs. 7,083/-; total amounting to Rs. 70,093/-.

15. Appellant Sajjad Ali Mirani being Government Contractor, (Proprietor of Al-Sajjad Enter Prizes) in connivance with officers/officials of Tube Well Division, District Khairpur Mir's managed to encash illegal payments and caused loss to the National exchequer and involved in embezzlement of funds on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs. 466,200/- and his liability is Rs. 233,100/- (which is 50% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs. 42,080/-; total amounting to Rs, 275,180/-.

16. Appellant Rameez Rajab being Government Contractor, (Proprietor of P.R Enterprises) in connivance with officers/officials of Tube Well Division, District Khairpur Mir's managed to encash illegal payments and caused loss to the National exchequer and involved in embezzlement of funds on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs. 108,143/ - and his liability is Rs. 54,143/- (which is 50% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs. 11,024/-; total amounting to Rs. 65,177/-.

17. Appellant Abdul Ghani being Ex-AEN, Tube Well Division District Khairpur Mir's, during his incumbency viz. from 02-12-2012 till 30-06-2014 in connivance with officers/officials and Government Contractors caused loss to the National exchequer by misuse of authority and embezzlement of funds on account of recording fake MBs and forwarded demands and estimates of tube wells/pumps with his signature on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs. 711.689/- and his liability is Rs. 142, 338/- (which is 20% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs. 18,461/- total amounting to Rs. 160,799/-

18. Appellant Mushtaq Hussain Sarki being Government Contractor, (Proprietor of M/S Sarki Brothers Enterprises) in connivance with officers/officials of Tube Well Division, District Khairpur Mir's managed to encash illegal payments and caused loss to the National exchequer and involved in embezzlement of funds on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs. 20,50,243/- and his liability is Rs. 10,25,122/- (which is 50% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs. 219,352/- total amounting to Rs. 12, 44,474/-.

19. Appellant Agha Faiz Rasool being Ex-AEN, Tube Well Division District Khairpur Mir's, during his incumbency viz. from 25-08-2011 till 02-02-2012 in connivance with officers/officials and Government Contractors caused loss to the National exchequer by misuse of authority and embezzlement of funds on account of recording fake MBs and forwarded demands and estimates of tube wells/pumps with his signature on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs. 260,578/- and his liability is Rs. 52, 116/- (which is 20% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs. 14,053/; total amounting to Rs. 66,169/-.

20. Appellant Nabi Bakhsh being EX-AEN, Tube Well Division, District Khairpur Mirs, during his incumbency from 01.07.2009 to 25.08.201.1, 16.07.2012 to 28.03.2013 and 19.02.2014 to 06.06.2014 he in connivance with officers/officials and Government Contractors caused loss to National Exchequer by misusing his authority and embezzlement of funds in account of recording fake MB's and forwarded demands and estimates of Tube Wells/Pumps with his signature in the account of illegal payments in repair and maintenance of Tube Wells amounting to Rs. 2,79,524/- and his liability is Rs. 55,905/- (which is 20% of liability) and gains upon the embezzled amount in accordance with KIBOR charges amounting to Rs. 15,112/-; total amounting to Rs.71,017/-.

21. Appellant Amir Bakhsh being Government Contractor (Proprietor of Habib Enterprises) he in connivance with officers/officials Tube Well Division, District Khairpur Mirs, managed to encash illegal payment and caused loss to the National Exchequer and involved in embezzlement of funds in account of illegal payments in repair and maintenance of Tube Wells amounting to Rs, 6,97,232/- and his liability is 3,48,616/- (which is 50% of liability) and gains upon the embezzled amount in accordance with KIBOR charges amounting to Rs. 56818/-; total amounting to Rs. 40, 54,34/-.

22. Thereafter it was concluded that accused Nos. 1 to 09 in the Reference being officers/officials in furtherance of common intention and in connivance with each other misused their authorities to gain benefits and willfully misappropriated the government funds and converted to their own use and the property lawfully entrusted to accused Nos.01 to 09 was willfully allowed to be misappropriated by accused Nos. 10 to 20 on account of payments concerning fake bills of maintenance and repair in Tube Well Division District Khairpur Mir's. All the illegal payments caused loss to the Government Exchequer to the tune of Rs. 9,077,765/- actual Rs.7,589,928/- + KIBOR Rs. 1487,837/-) thus accused Nos. 01 to 20 committed an offence of corruption and corrupt practices as provided in Section 9 (a) (vi) and, (vi) of NAO, 1999 (National Accountability Ordinance) and schedule thereto punishable under section 10 of NAO, 1999.

23. In compliance with Section 265-C, Cr.P.C, a complete set of case papers was supplied to the accused, then charge Ex. 18 was framed against them, to which they pleaded not guilty and claimed to be tried. To prove the case, the prosecution examined PW/1 Faiz Muhammad Senior Clerk, Tube Well Division Khairpur Mir's, who produced seizure memorandum along with documents; PW/2 Shamsu. Rehman Executive Engineer, Tube Well Division Khairpur Mir's, who produced seizure memorandum along with documents containing 18 leaves and attested Photostat copies of incumbency period of AENs and XENs for the period from 2009 until 2014; PW/3 Talib, Senior Clerk, Tube Well Division Khairpur Mir's; PW/4 Ashraf Ali Shaikh, Head Draftsman, Tube Well Division Khairpur; PW/5 Muhammad Saadullan Deputy Commercial Manager SEPCO Sukkur. PW Jawed Ahmed was given up.

24. Thereafter accused Mukhtiar Ali Gilal joined the trial, as such, case papers were supplied to him and then amended charge Ex. 44 was framed. Because of the amended charge, PWs Faiz Muhammad, Shamsu Rehman, Talib, Ashraf Ali Shaikh and Muhammad Asadullah were again examined. PW Muhammad Asadullah produced the original, seizure memorandum along with documents containing 23 leaves. PW Jawed Ahmed and Zaheer Ahmed were given up. PW Kashif Noor, the Investigating Officer was examined, who produced a complaint containing 12 leaves, letter of authorization of enquiry, application of 18 accused of acceptance of VR, letter of incumbency period of the accused, letter for authorization of investigation as well as an investigation report. Ultimately learned Prosecutor NAB, Sukkur closed its side. The statements of accused under section 342 Cr.P.C, were recorded, to which they denied embezzlement, misuse of authority, managing to encash illegal payments and causing loss to the National Exchequer. They further pleaded their innocence, how they declined to examined themselves on oath under section 340 (2) Cr.P.C, as well as to adduce or produce any evidence in their defence.

25. The learned Trial Court, after hearing learned counsel for the parties and appraisal of the evidence, convicted and sentenced the appellants/accused vide judgment dated 20-11-2017, which is impugned by the appellants/accused before this Court by way of filing instant Appeals.

26. Learned counsel for the appellants argued that PW/1 namely Faiz Muhammad who exhibited Works Orders, Estimate, Form-24 and other documents deposed that the demand and estimate of work which he produced in his evidence are also marked to the Head Draftsman and further he admitted in his cross that the work order which are produced in his evidence were passed after fulfillment of cordial formalities; that the Head draftsman, namely, Ashraf All Shaikh deposed in his cross-examination that the work order as well as demand and estimate of work are genuine, as such draftsman was endorsed by PW/1 Faiz Muhammad; that PW/2 Shams Rehman, Executive Engineer of Tube Well Division Khairpur deposed in cross that Tube Well Division Khairpur has Kotdiji, Gambat and Ranipur Sub-Divisions, but the same were not controlled by him and the same were controlled by another XEN and he further deposed in cross-examination that the Tube wells have incharge as well as Sub-Engineer; that the said witness has deposed in cross that the Tube wells are getting electricity from Rohri SEPCO Division and no record of the SEPCO sub-Division Rohri is produced in Court; that PW/5 Muhammad Asadullah from SEPCO Sukkur has deposed in his cross-examination that there is a particular department to deal with 51 Tube Wells as the Commercial Branch did not deal the same as XEN Rohri deals with 51 Tube Wells while no report was called from him; that he further deposed in his cross-examination that the Tube Wells in question are not included in the list of permanent disconnection even after filing of Reference; that the prosecution has failed to establish the case as serious doubtful circumstances have come on surface, therefore he prays for acquittal of appellants.

27. On the other hand learned Special Prosecutor NAB argued that accused Nos. 01 to 09 being officers/officials in furtherance of their common intention and in connivance of each other misused their authorities to gain benefits and willfully misappropriated the government funds and fails to exercise their authorities to prevent grant renditions to the accused Nos. 10 to 20, therefore, all accused dishonestly, fraudulently misappropriate the government funds and converted to their own use and the property lawfully entrusted to accused Nos. 01 to 09 were willfully allowed to be misappropriated by the accused Nos. 10 to 20 in the account of payments with regard to fake bills of maintenance and repair in Tube Wells Division District Khairpur Mirs; that all illegal payments caused loss to the government exchequer to the tune of Rs. 9,077,765/- (Rs.75,89,928/- + Rs.1,487,837/-), thus the accused Nos. 01 to 20 cited in the impugned judgment have committed an offence of corruption and corrupt practice as provided in -Section 9 (a) (iii, iv and vi) of NAO and scheduled thereto punishable under section 10 of the said Ordinance; that after framing of the charge, all the PWs have been examined who established the case against all the accused persons and produced the documentary evidence in support of their version and it has been established that the work orders have been issued during the tenure of accused Rajab Ali shah and the then. executive engineer, whereas the demand measurement sheet/abstract Sheet and form No. 24 have been established that he same have been signed by the accused Aijaz Ali Memon and it has also being established that all the payments on the part of all known official accused/Government contractors have never been denied either in the course of cross-examination on it the statements; that the prosecution has successfully proved the indictment in respect of misappropriation of government funds against accused Rajab Ali Shah; Jawed Aftab, Aijaz Ali Memon, Nisar Ahmed Shaikh, Nahi Bux Mahar, Abdul Ghani Mangi, Roshan Ali Kandhro, Agha Faiz Rasol, Syed Shayan Ali Shah, Mukhtiar Ali Gilal, Mushtaque Husain Sarki, Nizamuddin Mangnejo, Sajjad Ali, Muhammad Nawaz, Fawad Ahmed Amir Bux Mahar Amanullah Ghanghro and Rameez Rajab Abro, beyond shadow of reasonable doubt under section 9 (a) (iii) (iv) of NAO 1999, hence, they have rightly been convicted and are sentenced under section 10 of NAO, 1999.

28. We have heard learned counsel for the parties and have gone through the material on record.

29. The accusation against the appellants is/was that they by misusing their authority, committed an offence of corruption and corrupt practices within the meaning of section 9(a)(vi) punishable under section 10(a) of the Ordinance. The misuse of authority in general means wrong and improper exercise of authority for the purpose not intended by law, therefore, to prove the charge of misuse of authority, at least two basic ingredients i.e. mens rea and actus reus of the crime have to be necessarily established and in case anyone of these two elements is found missing, the offence is not made out. Mens rea in context to the misuse of authority means to act in disregard of the law with the conscious knowledge that act was being done without the authority of law and except in the case of strict liability, the element of mens rea is a necessary constituent of crime. The offence of corruption and corrupt practices within the meanings of section 9(a)(vi) of the Ordinance, is not an offence of strict liability therefore, the use of authority without the object of illegal gain or pecuniary benefit or undue favour to any other person with some ulterior motive, may not be a deliberate act to constitute an offence. The mens rea for an offence under section 9(a)(vi) of the Ordinance, is found in two elements i.e, conscious misuse of authority and illegal gain or undue benefit and in absence of anyone of these basic components of crime, the misuse of authority is not culpable, therefore, the prosecution must establish mens rea and actus reus of the crime to establish the charge, as without proof of these elements of crime, mere misuse of authority, has no penal consequence. The offence of corruption and corrupt practices have not been as such defined in the Ordinance but in general terms, corruption is an act which is done with intent to give some advantage inconsistent with law and wrongful or unlawful use of official position to procure some benefit or personal gain, whereas the expression corrupt practices are series of depraved debased/morally degenerate acts, therefore, as contemplated in section 14(d) of the Ordinance, unless the prosecution successfully discharges the initial burden of proving the allegation in a reasonable manner, the accused cannot be called to disprove the charge by raising a presumption of guilt.

30. In the present case, in the year 2015, some complaints were received by the NAB authorities. On 19-01-2015 PW/7 Kashif Noor who was posted as Deputy Director, NAB Sukkur was authorized to conduct an inquiry against the officers and officials of Tube Well Division Khairpur Mirs on allegations of embezzlement of funds on account of repairing and maintenance of Tube Well and sums for the period 2010-20-11 to 2013-20-14. The inquiry was conducted upon a complaint that was received at NAB Karachi, the verification of the complaint was conducted at NAB Karachi and it was recommended for conversion into inquiry. The same was transferred to. Sukkur for want of jurisdiction. He/I.O then issued a notice to PW/1 Faiz Muhammad Senior Clerk, Tube Well Division Khairpur Irrigation Department. As per his statement, he was called by the IO NAB Kashif Noor at NAB Officer, Sukkur in connection with the ongoing inquiry against the officials of Tube Well Division Khairpur Mirs of Irrigation Department. He produced the seizure memo in all 6 pages along with documents at Ex. 17/1. In cross-examination, he has admitted that he was also having the charge of storekeeper. The NIT (Notice inviting Tenders) was also published in the newspapers and the demand and estimate of work were marked by XEN to the drawing branch which was dealt by Head Draftsman but said Head Draftsman was not made as an accused in this case. This PW also admitted during his cross-examination, that the work orders that he produced in his evidence were passed after fulfillment of Codal formalities. Before issuance of work order, the comparative statement was/is to be prepared. He also admitted in his cross-examination that the comparative statement of the work orders was also prepared before issuance of the work orders, At the end of his evidence, he also admitted in his cross-examination that upon the pressure of IO NAB he has deposed as well as the produced record before the Court. "It is correct that upon the pressure of I.O of NAB I have deposed as well as produced the record in court." Whereas PW-2 Shamsu Rehman Executive Engineer deposed that he was called by the I.O NAB at NAB office Sukkur where he saw the record which includes estimates; demands, work order and form 24-bills as well as some bills of WAPDA (SEPCO). After verification, he found that the billing was not made by SEPCO according to the record. According to the WAPDA record, the bills were issued wrongly as the same does not tally with the record. In cross-examination, he admitted that "At the time of recording of my statement before I.O NAB I have not visited the closed tube wells. The certificate which I issued were showing the tube wells as in running condition. It is correct that in the inqiry report we given findings that most of the Sumps were found in running conditions. It is correct that the Sumps for which we appoint as the same were in running condition are shown in the present reference as in closed conditions. ......It is correct to suggest that the position at the spot is different than the record which is produced in the court."

31. It is important to note here that the role of the Head Draftsman is to check the demand and estimate of work forwarded by the AXEN and after checking the same forward to the storekeeper. Further after receipt of demand and estimate of work the head draftsman also prepared a comparative statement. The comparative statement was approved by the official of the Irrigation Department comprising of Chief Engineer, project Director and others. PW-4 Ashraf Ali Sheikh admitted that "It is correct that no head draftsman is accused in this reference. ....No project director or chief engineer is an accused in this reference." PW-4 Ashraf Ali admitted that the work orders produced by him in court are genuine "The work orders produced in court are genuine as well as the demand and estimate of work are also genuine."

32. The prosecution has also examined PW/6 Junaid Hashim Expert NAB Sukkur in this case, hereinafter referred to as (Expert). He deposed that he was called by IO NAB Kashif Noor at NAB Sukkur on 07-12-2015 in the case of Rajab Ali Shah and others for his opinion. The case against Rajab Ali Shah was about Khairpur Tube Well Division, Irrigation Department from the year 2010 to June 2014. In all, there were tube wells more than 600 but the opinion which was sought from him was of the closed tube wells, which were about 51. Those tube wells were closed for about 3 years. There was misappropriation in those tube wells and for determination of the misappropriation; his opinion was sought by NAB Sukkur. He was provided with the record of Khairpur tube wells division by the IO NAB Sukkur, viz. demands, work orders, bills/vourchers and SEPCO electricity billing record. He has given his opinion for the embezzlement in 51 closed tube wells as there was no electricity billing against them but expenditure were shown as incurred upon those tube wells for repair and maintenance. It is unfortunate that while sitting in the office he has given his opinion that about 51 tube wells are closed. In cross-examination, he admitted that "I have not physically inspected those 51 closed tube wells as the period for which I have given my opinion was already passed." He has also not examined any of the lower staff from the Khairpur Tube Well Division, who was appointed with the 51 closed tube wells. Whereas the claim of the appellants was/is that they all were in working condition and High Court of Sindh in its order dated 24-12-2010 has directed the Government of Sindh and its various departments shall continue to pay the correct Electricity bills and the bills received for February 2010 till date, where such bills are based on meter reading and contain such reading by mentioning the previous and current reading separately. In case such bills remained unpaid, the WAPDA/SEPCO shall within the time prescribed in the bill, may discontinue the power supply to such defaulting consumers. The affected consumers shall however be at liberty to have a legal course against such disconnection.

33. When we have confronted with the special prosecutor NAB the documents were produced as Ex-68/1 by the PW-5 Mohammad Asadullah Deputy Commerical Manager, SEPCO, Sukkur, in some of the tube wells payments have been made and some of the tube wells units are shown zero. However, after going through the documents he admits the above position also admitted that none of the witnesses has physically verified the said tube wells to see whether the electric meters were installed and same were in working condition or not, nor produced electricity bills of the disputed tube wells and what was reading? PW-5 admitted that "I have not produced any electricity bills of the disputed tube wells in my evidence.... I.O NAB has not personally visited the tube wells in question with me. I have not asked to any of my subordinates to personally visit the tube wells in question and furnish such report with me." The witness/PW-5 admitted that he was/is working in the commercial branch of the WAPDA. The WAPDA installation, installed for the tube wells in question were being maintained and repaired by the SCARP authorities including the transformers. The I.O/prosecution neither examined any witness from the said department nor produced him as a witness before the Trial Court to give evidence that the tube wells in question were not in working condition but the amount was charged for its maintenance. He has also admitted that "I have not given any notice or made any correspondence with the SCARP department regarding the billing of the non-functional electricity meters of the tube wells in question." Learned counsel for the appellants submits that the tube wells were in working condition and SEPCO authorities used to reconcile the electricity bills with the government departments. As such the bills were not issued and tube wells were in working condition.

34. The record was provided to the Expert by the I.O Nab Sukkur viz. demands, work orders, bills/vouchers and SEPCO electricity billing record. He had also examined the record and analyzed that the expenditure incurred on the closed tube wells was embezzled and there was the involvement of four XENs, 6 AENs and the payment was made to 12 contractors. In all, there was misappropriation of Rs. 75,89,928/-. It is surprising to note here that while sitting in the office by perusing the record, produced by the storekeeper PW/1 he has given his poinion that the above mentioned amount was misappropriated by the appellants. He neither left the office to visit all 51 closed tube wells nor issued notice to the appellants about the allegations levelled against them. In his cross-examination, he admitted that "I have not physically inspected those 51 closed tube wells as for the period for which I had given my opinion already passed." Furthermore, after receiving the opinion, even the Investigating Officer of the case had not bothered to leave his office and inspected those 51 closed tube wells to ensure as to whether the said tube wells are in working condition or not. In his evidence, he has admitted that "he collected such list of 51 close tube wells from one Shams Rehman which was duly signed by four concerned AENs of concerned sub-divisions. In his evidence, he has also admitted that "I have not inspected physically any of the tube well involved in this reference." Voluntarily said, that as the period of investigation was already passed; hence I had not physically visited the tube wells in question. For more than 600 tube wells, I collected billing records from SEPCO." The Expert also admitted that the tube well number KE-25, D-67, 65, 62 and 92 of Khairpur division are involved in work order number 3458 dated 19-10-2012 and payment of tube well No. C-92 the payment of electricity have been received for the year 2009-2010 and 2010-2011. He has also admitted that "it is correct that there is mentioned in the title details of payment made by tube well division Khairpur against following account numbers to SEPCO (WAPDA) Division Ranipur in the documents produced with EX-68/1....It is correct that there are some tube wells against whom the no payment is made to the SEPCO for the electricity and even no expenditure were incurred upon them." In the end the Expert admitted that "The documents produced with Ex-37 are genuine."

35. In the end prosecution examined I.O of the case PW-7 Kashif Noor Deputy Director NAB, Sukkur. He has also repeated the same story narrated by the Expert, also added that 18 accused persons entered into VR and recovered Rs. 7,72,507. Further, he disclosed that 6 accused persons were not joined as an accused person as no sufficient material was available against them. Lastly, he reached in conclusion that Rs. 7,589,928/ has been embezzled by the accused person. Admittedly the investigation was started on the complaint of one Mohammad Iqbal Malik but surprisingly he was not examined nor it was verified that the complaint is a genuine one or not. In cross-examination, I.O admitted that "The complainant of this reference is Mohammad Iqbal Malik. I have not examined him as I tried to locate him but he could not be traced out." The I.O of the case called the record which was produced by PW-1 Faiz Mohammad Senior clerk, Tube well Division which was produced by him as Ex-37/1 and PW-5 Mohammad Asadullah Deputy Commercial Manager SEPCO Sukkur. After receiving the recorded from PW-1 to 5 he/I.O had called PW-6 Junaid Hashim Expert NAB Sukkur for his opinion and based on the opinion he has conducted the investigation. In cross-examination "I have not inspected physically any of the tube wells involved in this reference. Voluntarily say that as the period of investigation was already passed, hence I had not physically visited the tube wells in question." The I.O of the case has not called the report from the SEPCO authorities as to whether the proper electricity was installed or not and the tube wells were properly working or not. Even he has not recorded the statement of the project director of SCARP. He has also admitted that "it is the practice that if the meter is not installed then average billing is the reconciling of the SDO, SEPCO and SDO irrigation but I had not produced such record of reconciled bills. ... The un-functional tube wells are repaired and maintained for its functional." On the other hand, PW-6 admitted that pasyments have been made through cheque to SEPCO. "It is correct that payment is shown to have been made in the list of closed tube wells produced with Ex-38/1 through cheque to the SEPCO."

36. The presumption of guilt under section 14(d) of the NAB Ordinance, in respect of an offence can only be raised after the prosecution has established preliminary facts and succeeded in making out prima facie a reasonable case to charge an accused for an offence under section 9(a)(vi) of the Ordinance. Therefore, notwithstanding the provision of section 14(d) of NAB Ordinance, this is settled law that unless the prosecution to the satisfaction of the Court succeeds in discharging the initial burden of proving the allegation, no presumption of guilt can be raised to shift the burden of disproving the allegation to the accused.

37. It is hard to believe that the I.O of the case while sitting in the office completed the investigation. The simple controversy was involved in this case, that the appellants prepared fake work orders and misused their authority and embezzle the government funds on the non-functional tube wells. The claim of the appellants was/is that after repair the tube wells were functional. It was the duty of the I.O of the case to physically check/verify the tube wells in question whether the same was in working condition or not. The meters were installed or not what was the reading of the meters. Whether the electric meters were in working condition or not. The second duty of the I.O was to collect monthly electricity bills to see how many units were consumed. If any month units were not consumed then he had to call a report from the SCRAP department. But all was not done by the I.O of the case. The second claim of the appellants was that the work orders were issued toward maintenance of the tube wells which required maintenance i.e. mechanically and electrically. The I.O of the case had not checked which tube wells were maintained mechanically and which were maintained electrically, as for the maintenance material required viz. copper wire, grease oil, copper winding and other electrical material. Even I.O of the case was not sure whether he has inspected physically tube wells in question or not, in the first part of the evidence he deposed that "I have not inspected physically any of the tube well involved in this reference." For want of time, his cross-examination was reserved again he was recalled reaffirmed, during cross-examination he has taken u-turn and deposed that "It is correct that during inquiry I visited some tube wells of Khairpur with the then XEN Ghulam Mustafa Panhyar. Some of the visited tube wells were operational while some were not operational. I have not disclosed such a fact in my investigation report.... The work orders produced in evidence are genuine."

38. It was disputed between the SEPCO/WAPDA authorities and Government of Sindh on the matter of billing of tube wells and it was settled between WAPDA/SEPCO authorities and Government of Sindh that the payment will made on the basis of reading of the electricity meter installed in tube wells. In his cross, the IO of the case deposed that he cannot say with sure that the dispute arose between WAPDA and Government of Sindh on the matter of billing of tube wells and it is not in his knowledge that it was settled between WAPDA and Government of Sindh that the payment will be made on the basis of reading of the electricity meter installed in the tube wells.

39. When we have confronted the Special Prosecutor NAB that Tube Well KE-23, the units are shown 14738 and also the payment was made, thereafter no bill was received, subsequently, in the year 2013-2014 units were consumed as 17742 and in the year 2015 the units were consumed 31563 and payment was made and further we enquired from the prosecutor that the dispute between the Government of Sindh and WAPDA authorities was on installation of the meter not on the meter reading, the bills were issued and if it is the fault of WAPDA authorities as they have not issued the bills, then how the accused persons have committed the offence, but he was unable to reply properly. In such a situation, it was the duty of the PW/6 who is also an engineer and expert in the NAB as well as IO of the case to leave the office, visit the site of 51 tube wells to verify that the meters were installed on those tube wells and meters were in working condition or not, how many units were consumed. Surprisingly the I.O of the case has not recorded the statement of chowkidars and operators who were posted on the tube wells in question to bring the real facts on record as to whether the Tube wells were in working condition or not.

40. In the light of facts and circumstances of the present case and the evidence brought on record, we have not been able to find out the basic elements of an offence of corruption and corrupt practices in the transaction in question within the meanings of section 9(a)(vi) read with section 10(a) of the NAB Ordinance, 1999 which provide as under:-

"9. (a) A holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices.--

(vi) If he mis-uses his authority so as to gain any benefit or favour: himself or any other person, or renders or attempts to render or willfully fails to exercise his authority to prevent the grant, or rendition of any undue benefit or favour which he could have prevented by exercising his authority.

1. (a) A holder of public office or any other person who commits the offence of corruption and corrupt practices shall be punishable with rigorous imprisonment for a term which may extend to 14 years and with fine and such of the assets and pecuniary resources of such holder of public office or person, as are found to be disproportionate to the known sources of his income or which are acquired by money obtained through corruption and corrupt practices whether in his name or in the name of any of his dependents, or Benamindars shall be forfeited to the appropriate Government, or the concerned bank or financial institution as the case may be."

2. The plain reading of the above provisions would show that without discharge of initial burden by the prosecution, the presumption of guilt cannot be raised and trial of a person on vague allegation is a misuse of the process of law and Courts. The prosecution must discharge its duty fairly, justly and in accordance with law and since any lapse of prosecuting agency in respect of the right and liabilities of a person facing prosecution, is not condonable, therefore, the Courts must be vigilant about the right of such a person to save him from the incarceration of unjustified prosecution at the cost of his honour and reputation. In Islam right to honour was declared a sacred right, which means not only the violation of such right is punishable and to be compensated but the violation is also to be prevented and thus on one hand protection is to be provided to the victim and on the other hand, one who violates such right is made accountable. In criminal administration of justice, this is a common principle that in case of liability with a penal or quasi penal consequence, the oppressive use of law in respect of honour and reputation of a person is not justified and denial of safeguard of just and fair treatment must be prevented in the larger interest of justice which is the most fundamental of all the rights in Islam and cannot be abridged by any limitation. The NAB Ordinance is a special law and the use of this law in an oppressive manner must be tested on the touchstone of the fundamental right of a person as guaranteed under the Constitution. Since the Courts are under a legal duty to defend, preserve and enforce the rights of people and their Constitutional guarantees, therefore, notwithstanding the protection provided to the NAB authorities under the law in respect of their functions, the use of power by them in an unbridled manner for the prosecution of innocent persons in disregard to their constitutional guarantees, rights, liabilities and duties must not be allowed and Courts must prevent such oppressive use of penal law through judicial determination. Reliance is placed on the case of "The State and others v. M. Idrees Ghauri and others (2008 SCMR 1118)."

2024 P Cr. L J 1349

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

Summair---Appellant

Versus

The State and another---Respondents

Criminal Appeal No. 248 and confirmation Case No. 09 of 2021, decided on 26th August, 2022.

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

----Ss. 302(b), 392, 396, 397 & 34---Qatl-i-amd, robbery, dacoity with murder, robbery or dacoity, with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---First Information Report lodged with promptitude---Accused was charged that he along with his co-accused committed murder of the brother of complainant by firing while committing robbery---Record showed that the statement of the complainant which became FIR was recorded just ten minutes after the incident as the complainant had chased down the accused and apprehended him with members of the public just after the robbery and murder of the deceased---Police recorded statement of complainant under S.154, Cr.P.C, on the spot and formal FIR was lodged one hour later---Thus, the FIR was lodged with extreme promptitude and left no time for the complainant to cook up a false case against the accused in league with the police or anyone else---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b), 392, 396, 397 & 34---Qatl-i-amd, robbery, dacoity with murder, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Ocular account proved---Accused was charged that he along with his co-accused committed murder of the brother of complainant by firing while committing robbery---Eye-witness, who was owner of the scrap shop which was robbed and brother of deceased chased the armed person on his motorbike and hit the armed person who fell down and as he grabbed him he shot the eye-witness in his knee after which the mohalla people grabbed hold of the person who fired at him and started beating him---Police arrived and arrested the person who made the shot and his pistol was handed over to the police---Said witness was not a chance witness as he was owner of the shop which was robbed and as such was a natural witness---Admittedly, said witness was brother of the deceased however since he had no enmity or ill will towards the accused thus, there was no reason to discount his evidence---Thus, the evidence of the eye-witness was found to be reliable, trustworthy and confidence inspiring and was to be believed especially with regard to the correct identification of the accused as the person who robbed the shop with a co-accused and shot and murdered the deceased and also shot and injured the eye-witness---Appeal against conviction was dismissed, in circumstances.

Riaz Ahmad v. The State 2016 PCr.LJ 114; Muhammad Nawaz v. The State PLD 2005 SC 40; Dost Muhammad v. The State PLD 1982 Kar. 1000; Naseeb ur Rehman v. Muqarab Khan 2023 MLD 836; Hakeem v. The State 2017 SCMR 1546; Khalid Javed v. The State 2003 SCMR 1419; Abdul Ghafoor v. The State 2013 PCr.LJ 1185; Ishtiaq Ahmed v. The State 2020 PCr.LJ Note 43; Muhammad Mansha v. The State 2001 SCMR 199; Majhi v. The State 1970 SCMR 331; Noor Muhammad v. The State 1999 SCMR 2722; Farooq Khan v. The State 2008 SCMR 917; Abdul Majeed v. The State 2008 SCMR 1228; Aijaz Nawaz alias Baba v. The State 2019 PCr.LJ 1775; Muhammad Ilyas v. The State 2011 SCMR 460; Dadullah v. The State 2015 SCMR 856; Sikandar v. The State 2006 SCMR 1786; Ijaz Ahmed v. The State 2009 SCMR 99 and Nasir Iqbal v. The State 2016 SCMR 2152 ref.

Muhammad Ehsan v. The State 2006 SCMR 1857; Farooq Khan v. The State 2008 SCMR 917; Niaz-ud-Din and another v. The State and another 2011 SCMR 725; Muhammad Ismail v. The State 2017 SCMR 713 and Muhammad Waris v. The State 2008 SCMR 784 rel.

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

----Ss. 302(b), 392, 396, 397 & 34---Qatl-i-amd, robbery, dacoity with murder, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Medical evidence corroborating ocular account---Accused was charged that he along with his co-accused committed murder of the brother of complainant by firing while committing robbery---Medical evidence and medical reports fully supported the eye-witness/ prosecution evidence and confirmed that the deceased was hit at least in either his neck, jaw or face by a firearm which was similar to the version stated by the eye-witness, that the accused's injuries were on account of being beaten by the public and the complainant's injury was caused by firearm shot to his knee---In any event ocular evidence took preference over medical evidence which was only of a corroboratory nature and could only tell the place of injury and kind of weapon used and did not identify the culprit---Fact that no post mortem was carried out on the deceased in the light of the other ocular and medical evidence was of no assistance to the accused---In that respect the accused was arrested on the spot and a firearm was recovered from him which when matched with the empties recovered at the scene of the murder led to a positive Forensic Science Laboratory Report---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b), 392, 396, 397 & 34---Qatl-i-amd, robbery, dacoity with murder, robbery or dacoity, with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Substitution---Scope---Accused was charged that he along with his co-accused committed murder of the brother of complainant by firing while committing robbery---It did not appeal to logic, commonsense or reason that a real brother would let the actual murderer of his real brother get away scott free and falsely implicate an innocent person by way of substitution---Appeal against conviction was dismissed, in circumstances.

Muhammed Ashraf v. State 2021 SCMR 758 rel.

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

----Ss. 302(b), 392, 396, 397 & 34---Qatl-i-amd, robbery, dacoity with murder, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Police witnesses, evidence of---Reliance---Scope---Accused was charged that he along with his co-accused committed murder of the brother of complainant by firing while committing robbery---Record showed that the police witnesses had no enmity or ill will towards the accused and had no reason to falsely implicate him in this case for instance by foisting a pistol on him---Evidence of the police witnesses could be fully relied upon---Appeal against conviction was dismissed, in circumstances.

Mushtaq Ahmed v. The State 2020 SCMR 474 rel.

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

----Ss. 302(b), 392, 396, 397 & 34---Qatl-i-amd, robbery, dacoity with murder, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Minor contradictions in evidence of witnesses---Inconsequential---Scope---Accused was charged that he along with his co-accused committed murder of the brother of complainant by firing while committing robbery---Record showed that all the witnesses were consistent in their evidence and even if there were some contradictions in their evidence, these contradictions were minor in nature and not material, and were certainly not of such materiality so as to affect the prosecution case and the conviction of the accused---Appeal against conviction was dismissed, in circumstances.

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), 392, 396, 397 & 34---Qatl-i-amd, robbery, dacoity with murder, robbery or dacoity, with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Co-accused acquitted on same set of evidence---Accused was charged that he along with his co-accused committed murder of the brother of complainant by firing while committing robbery---Record showed that the acquittal of co-accused was of no assistance to the accused as their cases were on a completely different footing in that the only evidence against the co-accused was that the accused had implicated him in this case---Appeal against conviction was dismissed, in circumstances.

Qadir Hussain Khan for Appellant.

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

Date of hearing: 22nd August, 2022.

Judgment

Mohammad Karim Khan Agha, J.---Appellant Summair son of Muhammad Hanif was tried before the Model Criminal Trial Court/1st Additional District and Sessions Judge (East), Karachi in Session Case No.810/2020, FIR No.637/2020 registered at Police Station K.I.A. under Sections 392/397/396/302/34 P.P.C. vide judgment dated 03.04.2021; whereby he was convicted and sentenced as under:-

i) Accused Summair was convicted under section 392 read with Section 397 for committing robbery duly armed with deadly weapon, therefore, he was sentenced rigorous imprisonment for ten years and fine of Rs.50000/-.

ii) Accused Summair was also convicted under section 302(b) P.P.C. and sentenced to death subject to confirmation by this court. He was also directed to pay compensation to legal heirs of the deceased to the tune of Rs.10,00,000/- (Rupees Ten Lac Only) as required under section. 544-A Cr.P.C.

iii) Accused Summair was also convicted under section 324 P.P.C. for causing firearm injury to complainant and sentenced him to rigorous imprisonment for seven years with fine of Rs.50000/- to be paid to the complainant as compensation as prescribed under section 544-A Cr.PC. for injury caused to the complainant.

All sentences were directed to run concurrently and the appellant was granted the benefit of Section 382-B Cr.P.C.

1. The brief facts of the prosecution case as per the complainant are that he used to work at a. scrap shop situated at Plot No.A-12 Sector 8/A, Gali No.1, Hazrat Bilal Colony. On 29.06.2010 the complainant along with his brother Ejaz (deceased) was present at his scrap shop at about 1400 hours taking lunch with other employees. Meanwhile, two persons entered the shop, one of them was duly armed with weapon. They snatched amount of Rs.25000/30000 and two mobile phones from the deceased, Rs.2500, mobile phone from the complainant, Rs.1000/- and mobile from Bilal and Rs.300 to Rs.400/ from another employee Tariq. After committing robbery one of the accused, who was holding pistol fired at the deceased on his face and tried to slip away. The complainant chased the culprit on his motorcycle on which the culprit again fired at the complainant, which hit him on his left leg, but he apprehended him. Meanwhile, mohallah people gathered and apprehended the armed accused. In the meantime, police party came and apprehended the accused who disclosed his name as Sumair son of Muhammad Hanif. From his possession one pistol .30 bore with three live rounds and one Nokia Mobile was recovered. The deceased was shifted to hospital for treatment and the complainant recorded his statement under section 154 Cr.PC on the spot which was incorporated in the aforesaid FIR.

2. After thorough investigation the matter was challaned and the appellant was sent up to face trial. He pleaded not guilty and claimed trial.

3. The prosecution in order to prove its case examined 09 PWs and exhibited various documents and other items. The statement of accused person was recorded under Section 342 Cr.P.C in which he denied all the allegations levelled against him. He did not give evidence on oath or call any DW in support of his defence case.

4. After appreciating the evidence on record the trial court convicted the appellant and sentenced him as set out earlier in this judgment. Hence, the appellant has filed this appeal against his conviction.

5. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment dated 03.04.2021 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

6. Learned counsel for the appellant has contended that he is completely innocent; that the sole eye-witness cannot be safely relied upon as he chased the wrong person on his motorbike; that the medical evidence does not support the ocular evidence; that there are material contradictions in the evidence of the PWs which renders their evidence unreliable; that the pistol which was allegedly recovered from the appellant was foisted on him by the police; that no post mortem report was carried out on the deceased and as such for any or all of the above reasons the appellant by being extended the benefit of the doubt should be acquitted of the charge and the confirmation reference answered in the negative. In support of his contentions he placed reliance on the cases of Riaz Ahmad v. The State (2016 PCr.LJ 114), Muhammad Nawaz v. The State (PLD 2005 SC 40), Dost Muhammad v. The State (PLD 1982 Kar. 1000), Naseeb ur Rehman v. Muqarab Khan (2023 MLD 836), Hakeem v. The State (2017 SCMR 1546), Khalid Javed v. The State (2003 SCMR 1419) Abdul Ghafoor v. The State (2013 PCr.LJ 1185) and Ishtiaq Ahmed v. The State (2020 PCr.LJ Note 43).

7. On the other hand, learned Addl. Prosecutor General Sindh has fully supported the impugned judgment and has in particular contended that the sole eye-witness has correctly identified the appellant as being the person who fired on and murdered the deceased and also fired on and injured himself; that the appellant was arrested on the spot from which a pistol was recovered from him which lead to a positive FSL report when matched with the empties recovered at the scene; that the medical evidence supported the prosecution case; that there was no material contradictions in the prosecution evidence and as such the prosecution had proved its case against the appellant beyond a reasonable doubt. He contended that the death sentence should also be upheld as this was a brutal murder during a robbery with no mitigating circumstances. In support of his contentions he placed reliance on the cases of Muhammad Mansha v. The State (2001 SCMR 199), Majhi v. The State (1970 SCMR 331), Noor Muhammad v. The State (1999 SCMR 2722), Farooq Khan v. The State (2008 SCMR 917), Abdul Majeed v. The State (2008 SCMR 1228), Aijaz Nawaz alias Baba v. The State (2019 PCr.LJ 1775), Muhammad Ilyas v. The State (2011 SCMR 460), Dadullah v. The State (2015 SCMR 856), Sikandar v. The State (2006 SCMR 1786), Ijaz Ahmed v. The State (2009 SCMR 99) and Nasir Iqbal v. The State (2016 SCMR 2152).

8. We have heard the arguments of the learned counsel for the appellant as well as learned Additional Prosecutor General and have gone through the entire evidence which has been read out by learned counsel for the appellant, and the impugned judgment with the able assistance of learned counsel and have considered the relevant law including the case-laws cited at the bar.

9. Before proceeding further we would like to deal with a procedural issue which arose during the hearing of this appeal. Originally the appellant was charged on 25.11.2010 in open court to which he plead not guilty. Before any evidence could be recorded however one of the absconding co-accused Muhammed Mubeen was arrested which lead to an amended charge being framed on 17.08.2016 in the same terms but only against Muhammed Mubeen the newly arrested co-accused which charge did not include the appellant in this case which it ought to have done but it appears that the appellant's name was omitted from the amended charge by mistake by the trial court. It appears that the appellant was convicted on account of the amended charge. This court therefore prima facie had the option of remanding back the whole case for a complete retrial of the appellant or hearing the appeal.

10. In our view the main object of the charge is to put the accused on notice of the offences for which he must defend himself so that he is not taken by surprise at the trial and is therefore not prejudiced in his ability to defend himself.

11. In the section of the Cr.P.C. which deals at Chapter XLV of irregular proceedings we note that Section 535 provides as under;

"S.535. Effect of Omission to prepare charge (1) No finding or sentence pronounced or passed shall be deemed invalid merely on the ground that no charge was framed, unless, in the opinion of the Court of appeal or revision failure of justice has in fact been occasioned thereby.

(2) If the Court of appeal or revision thinks that a failure of justice has been occasioned by an omission to frame a charge, it shall order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge"(bold added).

13, Section 535 Cr.PC seems to indicate that even if no charge is framed the case will not be remanded unless such failure has occasioned a failure of justice.

1. In this case the charge was read out to the accused before it was amended and the amended charge was roughly in the same terms and as such the accused had full notice of the offences which he had to defend himself against. The accused fully participated in the trial by cross-examining all the PWs and giving his statement under 5.342 Cr.P.C. and thus in our view taking guidance from section 535 Cr.P.C. no failure of justice has occurred on account of this irregularity as 'no prejudice had been caused to the accused in terms of his right to a fair trial. Furthermore, the accused had already spent 11 years behind bars and we were of the view that it would not meet the ends of justice to remand the case back for a retrial after the charge was again framed against the accused which trial might take a number of years and still lead to the same result which we considered would be more of a prejudice to him when the case could be decided now and the accused could then move on after the judgment in this case. In addition both learned counsel for the appellant and the learned APG when asked whether they wanted the case remanded for a fresh trial both stated that they did not and would rather argue the matter before this court as a remand in their view would only further potentially prejudice the accused by keeping him in jail even longer. As such keeping in view the above considerations and being guided by section 535 Cr.P.C we have proceeded to hear and decide the case on merits.

2. Based on our reassessment of the evidence of the PWs especially the medical evidence and other medical reports, recovery of empties at the scene of the robbery and the recovery of the pistol from the accused on his arrest we find that the prosecution has proved beyond a reasonable doubt that Ejaz (the deceased) was shot and murdered by firearm on 29.06.2010 at about 1400 hours at his junk shop situated in Plot No.A/12 Gali No.1 Sector 8/A Hazrat Bilal Coloney, KIA Karachi during the course of the robbery of his shop and that thereafter the complainant was shot whilst he tried to apprehend one of the robbers whilst giving chase outside the junk shop.

3. The only question left before us therefore is who took part in the robbery of the shop, murdered the deceased by firearm at the said time, date and location and injured the complainant by firearm just outside the said location on the same date a few moments thereafter?

4. After our reassessment of the evidence we find that the prosecution has proved beyond a reasonable doubt the charge against the appellant for the following reasons keeping in view that each criminal case must be decided on its own particular facts and circumstances;

(a) That the S.154 Cr.P.C statement of the complainant which became the FIR was recorded just 10 minutes after the incident as the complainant had chased down the appellant and apprehended him with members of the public just after the robbery and murder of the deceased. The police recorded his S.154 Cr.P.C on the spot and formal FIR was lodged one hour later and thus the FIR was lodged with extreme promptitude and left no time for the complainant to cook up a false case against the accused in league with the police or any one else.

(b) We find that the prosecution's case primarily rests on the sole eye-witness to the robbery and murder of the deceased and in particular his correct identification of the appellant as the person who took part in the robbery of the shop, who shot and murdered the deceased and also shot him when he apprehended the accused with the assistance of members of the public whose evidence we shall consider in detail below;

(i) Eye-witness PW 2 Muhammed Sajjad. He is the owner of the scrap shop which was robbed and brother of the deceased Ejaz. According to his evidence on 29.06.2010 he was at his shop with his brother Ejaz when at about 1.45/ 2pm two persons entered the shop. One was armed whilst the other was unarmed. The unarmed person robbed them of their cash and mobile phones whilst the armed person kept them covered with his pistol. The empty handed person left the shop with the cash whilst the armed person pointed his pistol at them while the unarmed person escaped. The deceased tried to come forward on which the armed person shot him (Ejaz) in the face and then tried to escape. The eye-witness chased the armed person on his motorbike and hit the armed person who fell down and as he grabbed him he shot the eye-witness in his knee after which the mohalla people grabbed hold of the person who fired at him and started beating him. The police arrived and arrested the person who shot at him and his pistol was handed over to the police who searched the accused. He was mashir of memo of arrest and recovery and recorded his S.154 Cr.P.C statement before the police on the spot.

The witness was not a chance witness as he was the owner of the shop which was robbed and as such was a natural witness. It is true that he is the brother of the deceased however since he had no enmity or ill will towards the accused we have no reason to discount his evidence. In this respect reliance is placed on the cases of Nasir Iqbal (Supra) and Ijaz Ahmed (Supra). It was a daylight robbery and murder and the accused was standing 3 feet away from the accused in the shop whilst the robbery was taking place. The robbery took about 10 to 15 minutes and as such he would have got a good look at the accused from close range in good light over a sustained period of time. He also saw the accused shoot his bother in the face. He chased the accused who shot him in the leg after he knocked him down a short distance from the shop who was then beaten by the mohala people before being arrested by the police on the spot. As such we have no doubt that the accused was the person who robbed the shop by firearm and shot and murdered Ejaz and also shot the complainant. The complainant's evidence is corroborated by PW 5 Ghulam Ali who according to his evidence whilst on patrol on 29.06.2010 at about 2pm when he reached Bilal Colony, Sector 8 KIA he heard the shout of Daku Daku from the public. On hearing such commotion he went to that place and found the public beating up a person who was the accused who he rescued from the public. PW 2 Sajjad was also there who had sustained a fire arm injury and narrated his S.154 Cr.P.C statement on the spot concerning the accused's robbery of his shop and murder of his brother by firearm. The S.154 Cr.P.C statement was not materially improved on from the eye-witnesses evidence at trial and the eye-witness had no reason to falsely implicate the accused as he had no enmity or ill will towards him. PW 7 Dileep Katri who was the MLO who examined the accused also found that when he examined the accused his injuries were consistent with him being beaten by the public which further corroborates PW2 Sajjad's eye-witness evidence and the evidence of PW 5 Ghulam Ali about the accused being beaten by members of the public. pw 1 Abdul Razzak who was the MLO who examined the injured eye-witness Sajjad also stated in his evidence that Sajjad had been shot in his knee which corroborates the evidence of PW 2 eye witness Sajjad and of PW 5 Ghulam Ali who was the officer who arrested the accused on the spot where he also saw eye-witness Sajjad's injury to his knee. The eye-witness remained undented in his evidence despite a lengthy cross-examination like wise PW 5 Ghulam Ali and as such we believe the evidence of the sole eye-witness as to the robbery by the accused, the accused shooting his brother which lead to his death and the accused shooting the eye-witness while trying to flee and that he has correctly identified the accused who was arrested on the spot as the person who committed the robbery, shot and murdered the deceased and shot the eye-witness.

Thus, for the reasons mentioned above we find the evidence of the eye-witness to be reliable, trustworthy and confidence inspiring and we believe the same especially with regard to the correct identification of the appellant as the person who robbed the shop with a co-accused and shot and murdered the deceased and who shot and injured the eye-witness and can convict on the evidence of this sole eye-witness alone though it would be of assistance by way of caution if there is some corroborative/ supportive evidence. In this respect reliance is placed on the cases of Muhammad Ehsan v. The State (2006 SCMR 1857). As also found the cases of Farooq Khan v. The State (2008 SCMR 917), Niaz-ud-Din and another v. The State and another (2011 SCMR 725) and Muhammad Ismail v. The State (2017 SCMR 713). That what is of significance is the quality of the evidence and not its quantity and in this case we find the evidence of this sole eye-witness to be of good quality and believe the same especially in terms of the correct identification of the accused who robbed the shop, fired on and murdered the deceased and fired on and injured the complainant.

Thus, based on our believing the evidence of the PW eye-witness especially in terms of him correctly identifying the appellant as the person who robed his shop along with his co-accused, murdered the deceased by firearm and injured him by firearm what other supportive/corroborative material is there against the appellant? It being noted that corroboration is only a rule of caution and not a rule of law. In this respect reliance is placed on the case of Muhammad Waris v. The State (2008 SCMR 784)

(c) That the medical evidence and medical reports as discussed above fully support the eye-witness/ prosecution evidence. It confirms that the deceased was hit at least in either neck, jaw or face by firearm which are in similar position to that stated by the eye-witness, that the accused injuries were on account of being beaten by the public and the complainant's injury was caused by firearm shot to his knee. In any event it is well settled that ocular evidence takes preference over medical evidence which is only of a corroboratory nature and can only tell you the place of injury and kind of weapon used and not identify the culprit. The fact that no post mortem was carried out on the deceased in the light of the other ocular and medical evidence is of no assistance to the appellant. In this respect reliance is placed on the case of Sikander (Supra)

(d) That the accused was arrested on the spot and a firearm was recovered from him which when matched with the empties recovered at the scene of the murder lead to a positive FSL report.

(e) In deciding criminal cases we must also consider the environment in which we live and the associated ground realities and consider the same with commonsense. For example, in Pakistan it is quite common for members of the public to grab hold of robbers before the police come and beat them up and even potentially try to beat them to death unless restrained by the police as happened in this case. In this case there were only two possible persons for the public to grab hold of. Either the person being chased or the person running away who was brought to the ground and shot the other in order to escape. In such circumstances it was only natural that the public grabbed hold of the accused who was the culprit in their eyes.

(f) That it does not appeal to logic, commonsense or reason that a real brother would let the real murderer of his real brother get away scott free and falsely implicate an innocent person by way of substitution. In this respect reliance is placed on the case of Muharnmed Ashraf v. State (2021 SCMR 758)

(g) That the police PWs had no enmity or ill will towards the appellant and had no reason to falsely implicate him in this case for instance by foisting a pistol on him and in such circumstances it has been held that the evidence of the police PWs can be fully relied upon and as such we rely on the police evidence. In this respect reliance is placed on Mushtaq Ahmed v. The State (2020 SCMR 474).

(h) That all the PWs 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 the cases of Zakir Khan v. State (1995 SCMR 1793) and Khadim Hussain v. The State (PLD 2010 Supreme Court 669). The evidence of the PW's provides a believable corroborated unbroken chain of events from the accused robbing the shop with his co-accused to him shooting the deceased to the recovery of empties at the scene to the accused being caught red handed on the spot by the complainant who he shot in order to escape to the accused being beaten by the public before being arrested by the police from whom a pistol was recovered which empties recovered at the scene matched the recovered pistol through a positive FSL report.

(i) The fact that the appellant's co-accused was acquitted is of no assistance to the appellant as their cases are on a completely different footing in that the only evidence against the co-accused was that the appellant had implicated him in this case.

(j) It is not without significance that when the accused first recorded his S.342 Cr.P.C statement before this case was remanded he made the following reply to question 3 which is produced as under for ease of reference;

Ques 3: It has also come in the evidence that on the same day complainant was chasing you on his motorcycle and upon seeing you the complainant hit motorcycle on your leg and tried to catch you but you made a fire shot upon him and the bullet was hit on the left leg of complainant. What you have to say?

Ans: Sir, it was lunch time and I was working there in company and I came cross the road and the complainant hit me motorcycle and 8/10 persons who beaten me and then I become unconscious and when I regained in senses I found myself in Police Station.

He also stated as under on oath as follows:-

"It was one 1 p.m. on 28,06.2010, I was working in Fatima Garments Factory situated at VITA Chowrangi, Korangi Industrial area and after lunch break I came out from the factory for having a lunch and crossed the road one person who was on motorcycle and hit me. The 8/10 persons who also beaten me and I became unconscious, when I regain my senses and found myself at Police Station and then I inquired from the police and they informed me that I have committed murder and they demanded two lacs from me for my release. I could not pay the money to the police and I was involved in this murder case".

Thus, at the initial trial before remand in both his S.342 Cr.P.C statement and his evidence under oath he admits being hit by a bike and being got hold of by the public before being handed over to the police (as is the prosecution case) but on remand conveniently he kept mum on this aspect of the case.

(k) Undoubtedly it is for the prosecution to prove its case against the accused beyond a reasonable doubt but we have also considered the defence case to see if it at all can cast doubt on or dent the prosecution case. The defence case is simply one of false implication by the police. The appellant did not give evidence on oath after remand of the case and did not produce any DW in support of his defence case or produce any other evidence which could dent the prosecution case. Thus, for the reasons mentioned above we disbelieve the defense case as an afterthought in the face of a reliable, trust worthy and confidence inspiring eye-witness and other corroborative /supportive evidence against the appellant which has not at all dented the prosecution case.

1. Thus we have no doubt that the prosecution has proved its case against the appellant beyond a reasonable doubt for the offences for which he has been convicted and hereby maintain his convictions in the impugned judgment.

2. With regard to sentencing the motive for the murder was that the deceased tried to resist during a robbery of his shop which lead to the appellant shooting him dead in cold blood without a thought for his life, his family or how his family would suffer following his death in terms of the love of a husband/father and the financial security of his family. He also did not hesitate to shoot the complainant in his attempt to escape.

3. Today in Karachi we either read or see nearly every day in either the print or electronic media about a robbery escalating into murder on resistance to such an extent that it appears that a human life be it man, women or child, young or old, is of no more value than a mobile phone. In such cases deterrent sentences are warranted in order to protect the public and dissuade would be robbers from robbery in the first place let alone shooting victims on resisting such robbery. As was held in the case of Dadullah (Supra);

"Death sentence in a murder case is a normal penalty and the Courts while diverting towards lesser sentence should have to give detailed reasons. The appellants have committed the murder of two innocent citizens and also looted the bank in a wanton, cruel and callous manner. Now a days the crime in the society has reached an alarming situation and the mental propensity towards the commission of the crime with impunity is increasing. Sense of fear in the mind of a criminal before embarking upon its commission could only be inculcated when he is certain of its punishment provided by law and it is only then that the purpose and object of punishment could be assiduously achieved. If a Court of law at any stage relaxes its grip, the hardened criminal would take the society on the same page, allowing the habitual recidivist to run away scot-free or with punishment not commensurate with the proposition of crime, bringing the administration of criminal justice to ridicule and contempt. Courts could not sacrifice such deterrence and retribution in the name of mercy and expediency. Sparing the accused with death sentence is causing a grave miscarriage of justice and in order to restore its supremacy, sentence of death should be imposed on the culprits where the case has been proved.

1. This Court in Noor Muhammad v. State (1999 SCMR 2722) has also adverted to this aspect of the matter and has observed as under:--

2024 P Cr. L J 1448

[Sindh]

Before Mohammad Karim Khan Agha, J

Atta Khan and 2 others---Appellants

Versus

The State---Respondent

Criminal Jail Appeal No. 77 of 2019, decided on 1st March, 2024.

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

----Ss. 302(b), 393 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Confession, retraction of---Admissibility---Accused were charged for committing murder of the brother of the complainant by strangulation during robbery---As per record one of the accused persons "AH" made a judicial confession, which was later retracted---Retracted confession could be relied upon if it was found to be voluntary and was truthful and fit in with the prosecution case---In the present case, the accused had claimed that his confession was not voluntary and was a result of him being maltreated by the police---No mention of this was made in the statement of accused recorded under S. 342, Cr.P.C, and no sign of maltreatment was seen on him at the time of making his confession---Said accused did not give evidence on oath to support his claim---Accused was not in injured condition at the time of the confession---Confession fully fit in with the prosecution case, namely that an attempt was made to break upon an ATM inside a bank in order to rob it and the bank guard was killed during such attempted robbery---As such it was found that confession was made voluntarily with the object to tell the truth---Appeal of accused persons "AK" and "AH" against conviction was dismissed, in circumstances.

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

----Ss. 302(b), 393 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Accused identified through CCTV footage---Accused were charged for committing murder of the brother of the complainant by strangulation during robbery---Record showed that one of the accused persons "AK" had been correctly identified in the CCTV as being present at the time of the incident---Said accused was also a security guard at the bank who was due to come on duty in the morning so his presence at the bank when the body was discovered was not particularly unusual---Likewise the finger prints of the said accused being found at the scene of the crime and his CDR data indicating that he was in touch with the deceased and co-accused during the night as the deceased was a security guard and the other co-accused were his relatives might not appear to be unusual when taken individually however when taken all together along with the judicial confession of accused "AH"it was found that they provided sufficient corroboration to prove beyond reasonable doubt that the accused "AK" attempted to rob the bank and murdered the deceased for the obvious reason that the deceased was a co-worker and would have been able to identify him as attempting to rob the bank---Accused "AH" admittedly was not shown at the bank on the CCTV footage at the time of the attempted robbery and murder however his judicial confession had been believed which was corroborated by his finger prints being found at the crime scene especially as he was not a security guard; he did not work for the bank and did not hold a bank account at the bank, and as such the only reason why his finger prints could have been at the bank was on account of his presence during the attempted robbery of the bank and murder of the deceased---As such his confession was corroborated by his finger print being found at the crime scene, and therefore the prosecution had proved beyond reasonable doubt that the accused "AH" attempted to rob the bank and murdered the deceased---Appeal of accused persons "AK" and "AH" against conviction was dismissed, in circumstances.

Asfandyar and another v. Kamran and another 2016 SCMR 2084; Kaleemullah v. The State and another 2018 YLR 2363; Gohar Khan v. The State and another 2020 YLR 195; Hayatullah v. The State 2018 SCMR 2092; Muhammad Hashim Shah and others v. The State 2023 YLR 1768; Shah Faisal v. The State 2021 YLR 244; Ayyas Ahmed v. Allah Wasaya and others 2004 SCMR 1808; Athar v. The State 2020 SCMR 2020; Syed Mohsin Ali and others v. The State 2022 PCr.LJ 1511; Manjeet Singh v. The State PLD 2006 SC 30; Jafar Ali v. The State 1998 SCMR 2669 and The State/ANF v. Muhammad Arshad 2017 SCMR 283 ref.

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

----Ss. 302(b), 393 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Medical evidence corroborating prosecution case---Accused were charged for committing murder of the brother of the complainant by strangulation during robbery---Medical evidence and post mortem report fully supported the prosecution evidence and the confession of accused "AH" that the deceased died from strangulation and the rope around his neck was recovered by the police at the crime scene around his neck---Appeal of accused persons "AK" and "AH" against conviction was dismissed, in circumstances.

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

----Ss. 302(b), 393 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Police officials as witnesses---Scope---Accused were charged for committing murder of the brother of the complainant by strangulation during robbery---No ill will or enmity between the police and the accused persons was established and as such they had no reason to falsely implicate the accused persons in the case, for instance, by falsifying CDR records, or finger prints or CCTV footage---Evidence of police witnesses was as good as any other witness---Evidence of the police witnesses was not dented during cross-examination and evidence of arrest and recovery was supported by the Mashir's evidence---Appeal of accused persons "AK" and "AH" against conviction was dismissed, in circumstances.

Mushtaq Ahmed v. The State 2020 SCMR 474 rel.

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

----Ss. 302(b), 393 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Motive proved---Accused were charged for committing murder of the brother of the complainant by strangulation during robbery---Motive for the murder was that the deceased being a security guard would have been able to recognize/ identify fellow security guard/accused "AK" as being the person who tried to rob the bank and hence he needed to be silenced by accused "AK"---Appeal of accused persons "AK" and "AH" against conviction was dismissed, in circumstances.

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

----Ss. 302(b), 393 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Contradictions in the statements of witnesses---Inconsequential---Accused were charged for committing murder of the brother of the complainant by strangulation during robbery---All the witnesses were consistent in their evidence and even if there were some contradictions in their evidence, same 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 persons---Evidence of the witnesses provided a believable corroborated unbroken chain of events from the discovery of the dead body at the bank along with the damaged ATM, along with accused "AK's presence at the scene to accused "AK's arrest on suspicion of robbery and murder, to said accused pointing out the co-accused who were arrested on his pointation, to co-accused "AH" confessing to the crime before a Judicial Magistrate, to accused "AK's" and "AH's" finger prints being found at the crime scene along with their CDR record linking them to the deceased and the co-accused on the night of the robbery and murder---Appeal of accused persons "AK" and "AH" against conviction was dismissed, in circumstances.

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

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

----Ss. 302(b), 393 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Confession, retraction of---Accused were charged for committing murder of the brother of the complainant by strangulation during robbery---With regard to the accused "W" the only evidence against him was the judicial confession of his co-accused "AH" which was not corroborated by any other single piece of evidence---Said accused was not shown on the CCTV at the bank and his finger print was not found at the bank---As such by extending him the benefit of doubt, accused "W" was acquitted of the charge.

Muhammad Altaf Khan assisted by Imtiaz Hussain Abbasi for Appellants.

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

Date of hearing; 22nd February, 2024.

Judgment

Mohammad Karim Khan Agha, J.---Appellants Atta Khan son of Muhammad Yar Khan, Altaf Hussain son of Sher Bahadur and Wajid Khan son of Sher Bahadur have preferred this appeal against the impugned judgment dated 28.02.2018 passed by the learned 11st Additional Session Judge (South) Karachi in Sessions Case No.2387/2014 arising out of FIR No. 320/2014 under sections 302/ 393/ 34 registered at PS Baloch Colony, Karachi whereby the appellants were convicted under Sections 393 and 302 P.P.C. respectively and all the appellants were sentenced to undergo R.I. for seven (07) years for the offence punishable under section 393 of P.P.C. and awarded Imprisonment of Life as Tazir under section 302(b) P.P.C. for committing Qatl-i-Amd. Both the sentences were ordered to run concurrently. However, the benefit of Section 382-B Cr.P.C was extend to the appellants.

1. The Brief facts of the prosecution case as per FIR are that on 29.07.2014 complainant Khalid Mahmood lodged above FIR while stating that he and his brother Arif resided together. That on 29.07.2014 he was available at his home when one security guard came and informed his nephew Rashid Mahmood that during robbery at Summit Bank in Manzoor Colony, unknown offenders had committed murder of his brother Arif. Complainant according rushed to said bank and found dead body of his brother Arif having feet towards east and head towards west was lying on sofa while he was bleeding from nose and he had rope around his neck and there were wounds on his nose and chest. Police were already available in the bank who had found that offenders had failed to break ATM machine and had only opened its outer cover hence cash had remained safe. The police then prepared inquest report in his presence and of co-mashir Muhammad Yousif and they also recorded his statement under section 154 of Cr.P.C. The police then taking his son and other relatives left for further action. Some unknown offenders had killed his brother Arif on his offering them resistance to robbery hence legal action be taken in the matter.

2. After completion of usual investigation charge was framed against the accused person to which they pleaded not guilty and claimed to be tried.

3. In order to prove its case, the prosecution examined 10 witnesses who exhibited various documents and other items in support of the prosecution case where after the prosecution closed its side. The statements of the appellants/accused persons were recorded under Section 342 Cr.P.C. wherein they denied the prosecution allegations and claimed themselves to be innocent. However, the appellants neither examined themselves on oath nor produced any witness in their defence.

4. After hearing the learned counsel for the parties and assessment of evidence available on record, learned trial Court vide judgment dated 28.02.2018 convicted and sentenced the appellants as stated above, hence this appeal has been filed.

5. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the impugned judgment, therefore, the same are not reproduced here so as to avoid duplication and unnecessary repetition.

6. Learned counsel for the appellants has contended that appellants are innocent; that with regard to all the appellants there is no eye-witness to the murder and it is a case which revolves around unreliable circumstantial evidence and a retracted judicial confession made by one appellant against the other appellants which is exculpatory in nature and cannot be relied upon especially as it was retracted a trial; with regard to appellant Atta it was only natural for him to be at the crime scene as he was called their after the deceased who was also a security guard at the bank was unresponsive where he found the dead body of the deceased along with tools used to break into the ATM machine; that as he was present at the time it is only natural that he was on the CCTV footage and his finger prints were found on certain items; that the confession which implicates him in the case cannot be safely relief upon as it is exculpatory in nature, was made by a co-accused and was later retracted. That appellant Altaf was not present at the scene of the crime; that his confession was retracted and cannot be used against him and as such there is no other evidence against him; that with regard to appellant Wajid there is no evidence against him at all except the retracted judicial confession which was made by a co-accused and as such is of no evidentiary value and as such for any or all of the above reasons the appellants be acquitted of the charge by extending them the benefit of the doubt. In support of his contentions he placed reliance on the cases of Asfandyar and another v. Kamran and another (2016 SCMR 2084), Kaleemullah v. The State and another (2018 YLR 2363), Gohar Khan v. The State and another (2020 YLR 195), Hayatullah v. The State (2018 SCMR 2092), Muhammad Hashim Shah and others v. The State (2023 YLR 1768) and Shah Faisal v. The State (2021 YLR 244).

7. Learned APG Sindh on behalf of the state, who was also looking after the interests of the complainant, after going through the entire evidence of the prosecution witnesses as well as other record of the case has fully supported the impugned judgment. In particular, he has contended that there was no delay in lodging the FIR; that although it is a case of circumstantial evidence when the evidence is read in a holistic manner coupled with the confession of appellant Altaf which corroborates the prosecution case the prosecution has proved its case against all three appellants beyond a reasonable doubt and as such all their appeals should be dismissed. In support of this contentions, he placed reliance on the case of Ayyas Ahmed v. Allah Wasaya and others (2004 SCMR 1808), Athar v. The State (2020 SCMR 2020), Syed Mohsin Ali and others v. The State (2022 PCr.LJ 1511), Manjeet Singh v. The State (PLD 2006 SC 30), Jafar Ali v. The State (1998 SCMR 2669) and The State/ANF v. Muhammad Arshad (2017 SCMR 283).

8. I have heard the learned counsel for the appellants as well as learned APG and have also perused the material available on record and the case law cited at the bar.

9. Based on my reassessment of the evidence of the PW's, especially the medical evidence, recovery of body of the deceased and rope at the crime scene I find that the prosecution has proved beyond a reasonable doubt that Arif (the deceased) was murdered by strangulation on 29.07.2014 between 12 midnight to 9:00 am inside Summit bank Manzoor Coloney Branch and an attempt was made to rob the bank through breaking open its ATM.

10. The only question left before me therefore is who murdered the deceased by strangulation and attempted to rob the bank through breaking open its ATM at the said time, date and location?

11. After my reassessment of the evidence on record, I find that the prosecution has proved beyond a reasonable doubt the charge against the appellants Atta Khan and Altaf Hussain for which they were convicted for the following reasons:

(a) That the case is an unseen one which is primarily based on a retracted judicial confession and other circumstantial evidence.

(b) Initially appellant Atta Khan was arrested by the police on suspicion of committing the crime on 05.08.2014 as he was seen in the CCTV footage at the bank around the time of the crime. Appellant Atta Khan then confessed to the attempted robbery and murder of the deceased before the police. Although his confession before the police is inadmissible in evidence significantly on his pointation his co-accused were arrested on 11.08.2014 namely Altaf Hussain and Wajid both of whom were real brothers and were appellant Atta Khan's cousins and thus all knowing each other and related through blood living in the same area. On 15.08.2014 4 days after his arrest appellant Altaf Hussain made a judicial conession (later retracted) which is reproduced as under for ease of reference.

"Judicial confession of appellant Altaf Husssain under section 164 Cr.P.C.

Question: What you have to say?

Answer: My cousin Atta Khan on 22nd-23rd Ramadam came to our house situated at Sherpao Colony, Nawaz Sharif Chowk for living, he was doing job of Security Guard in bank since two years, he told me that he has to break ATM of the bank and wants to take out money, thereafter, first I shared this with my cousin Shahzad, then told to my brother Wahid and Wahid said this is not good thing, than Atta said nothing to worry I will switch off camera, thereafter, I and Atta went to Quaidabad and purchased chisel and hammer for breaking the lock. Thereafter Atta through mobile phone at 03.00 p.m afternoon fixed moon night for committing wardat.

Than on moon night at about 10.30 p.m. Atta on phone specified the bank that the bank is near furniture market, thereafter, I, Shahzad and Wahid all three together at 11.00 p.m. Atta opened the door of the bank, we went inside, Atta was available there and one person was lying unconscious, Atta disclosed that he has given high power dosage of tranquillizer to him, thereafter, we all together tried to break the ATM machine but we could not break it through chisel, meanwhile Atta stated that he has apprehension from guard, than Atta in our presence tied the rope around neck of that person and committed his murder, at that time Shahzad caught hold legs of deceased, at time of dying the person was moving than at about 01.00 am. We returned and Atta returned later on."

It is settled by now that even a retracted judicial confession can be relied upon if it is found to be voluntary and is truthful and fits in with the prosecution case. In this respect reliance is placed on the case of Muhammad Amin v. The State (PLD 2006 SC 219). In the instant case the appellant has claimed that his confession was not voluntary and was a result of him being maltreated by the police. No mention of this was made in the appellant's Section 342 Cr.P.C statement and no sign of maltreatment was seen on him at the time of making his confession. He did not give evidence on oath to support his claim. He was not in an injured condition at the time of confession. The confession fully fits in with the prosecution case. Namely that an attempt was made to break open an ATM inside a bank in order to rob it and the bank guard was killed during such attempted robbery. As such I find that the confession was made voluntarily with the object to tell the truth and as such I believe the confession and place reliance on it although I am put to some caution as it is partly exculpatory in nature in that the appellant Altaf takes the blame for the attempted robbery with the other co-accused but places the blame of the murder of the deceased on appellant Atta Khan alone.

I also find that the magistrate committed no material procedural irregularities in recording the judicial confession which I have placed reliance on which can be seen from his cross-examination.

Now we need to consider what other circumstantial evidence there is to connect the three appellants to the offences.

With regard to circumstantial evidence leading to a conviction in a capital case it was held as under in Fayyaz Ahmed v. The State (2017 SCMR 2016);

"To believe or rely on circumstantial evidence, the well settled and deeply entrenched principle is, that it is imperative for the Prosecution to provide all links in chain an unbroken one, where one end of the same touches the dead body and the other the neck of the accused. The present case is of such a nature where many links are missing in the chain. To carry coniction on a capital charge it is essential that courts have to deeply scrutinize the circumstantial evidence because fabricating of such evidence is not uncommon as we have noticed in some cases thus, very minute and narrow examination of the same is necessary to secure the ends of justice and that the Prosecution has to establish the case beyond all reasonable doubts, resting on circumstantial evidence. "Reasonable Doubt" does not mean any doubt but it must be accompanied by such reasons, sufficient to persuade a judicial mind for placing reliance on it. If it is short of such standard, it is better to discard the same so that an innocent person might not be sent to gallows. To draw an inference of guilt from such evidence, the Court has to apply its judicial mind with deep thought and with extra care and caution and whenever there are one or some indications, showing the design of the Prosecution of manufacturing and preparation of a case, the Courts have to show reluctance to believe it unless it is judicially satisfied about the guilt of accused person and the required chain is made out without missing link, otherwise at random reliance on such evidence would result in failure of justice." (bold added)

(c) Whether or not the appellant Atta Khan has been correctly identified in the CCTV as being present at the time of the incident I do not find to be of huge significance as most of the witnesses in their evidence have placed the appellant at the crime scene who had no reason to falsely implicate the appellant and whose evidence can be safely relied upon. In any event appellant Atta Khan was also a security guard at the bank who was due to come on duty in the morning so his presence at the bank when the body was discovered was not particularly unusual. Likewise the finger prints of the appellant being found at the scene of the crime and his CDR data indicating that he was in touch with the deceased and co-accused during the night as the deceased was a security guard and the other co-accused were his relatives might not appear to be unusual when taken individually however when taken all together along with the judicial confession of appellant Altaf Hussain I find that they provide sufficient corroboration to prove beyond a reasonable doubt that the appellant Atta Khan attempted to rob the bank and murdered the deceased for the obvious reason that the deceased was a co-worker and would have been able to identify him as attempting to rob the bank especially when read with the other evidence discussed below.

(d) With regard to appellant Altaf Hussain admittedly he is not shown at the bank on the CCTV footage at the time of the attempted robbery and murder however I have already believed his judicial confession which is corroborated by his finger print being found at the crime scene especially as he was not a security guard, did not work for the bank and did not hold a bank account at the bank and as such the only reason why his finger print could have been at the bank was on account of his presence during the attempted robbery of the bank and murder of the deceased and as such I find that his confession, which I have already believed, is corroborated by his finger print being found at the crime scene and therefore I find that the prosecution has proved beyond a reasonable doubt that the appellant Altaf Hussain attempted to rob the bank and murdered the deceased especially when read with the other evidence discussed below.

Other evidence against appellants Atta Khan and Altaf Hussain

(e) That the medical evidence and post mortem report fully support the prosecution evidence and the confession of appellant Altaf Hussain that the deceased died from strangulation and the rope around his neck was recovered by the police at the crime scene around his neck.

(f) No non police witnesses including the bank officials and other security guards had no ill will or enmity against the appellants and as such had no reason to implicate the appellants in a false case which in fact they did not do. They simply gave their evidence in a straight forward manner and were not damaged during cross-examination. The only reason why suspicion fell on the appellant Atta Khan was because of his potential identification in the CCTV and it was he himself who fingered his co-accused. Hence I believe the evidence of such witnesses (non police).

(g) That there was no ill will or enmity between the police and the appellants and as such they had no reason to falsely implicate the appellants in this case, for instance, by falsifying CDR records, or finger prints or CCTV footage. Under these circumstances it is settled by now that the evidence of police witnesses is as good as any other witness. In this respect reliance is placed on the case of Musthaq Ahmed v. The State (2020 SCMR 474). Thus, I believe the evidence of the police witnesses who were not dented during cross-examination whose evidence of arrest and recovery is supported by the mashir's evidence.

(h) The motive for the murder was that the deceased Arif being a security guard would have been able to recognize/identify fellow security guard appellant Atta Khan who he knew when he woke up as being the person who tried to rob the bank and hence he needed to be silenced by appellant Atta Khan.

(i) That all the PWs are consistent in their evidence and even if there are some contradictions in their evidence I consider these contradictions as minor in nature and not material and certainly not of such materiality so as to effect the prosecution case and he conviction of the appellants. In this respect reliance is placed on the cases of Zakir Khan v. The State (1995 SCMR 1793) and Khadim Hussain v. The State (PLD 2010 SC 669). The evidence of the PW's provides a believable corroborated unbroken chain of events from the discovery of the dead body at the bank along with the damaged ATM along with appellant Atta Khan's presence at the scene to appellant Atta Khan's arrest on suspicion of robbery and murder to appellant Atta Khan pointing out the co-accused who were arrested on his pointation to co-accused Altaf Hussain confessing to the crime before a judicial magistrate to appellant Atta Khan's and Altaf Hussain's finger prints being found at the crime scene along with their CDR record linking them to the deceased and the co-accused on the night of the robbery and murder.

(j) Undoubtedly it is for the prosecution to prove its case against the accused beyond a reasonable doubt but I have also considered the defence case to see if it at all can caste doubt on or dent the prosecution case. The defence case is simply one of innocence however neither appellant gave evidence under oath or called any DW in support of their defence case. Thus, in the face of appellant Altaf Hussain's judicial confession and other circumstantial/supportive/corroborative evidence I disbelieve the defence case which has not at all dented the prosecution case.

1. Based on the above discussion I find that the prosecution has proved its case against appellant Atta Khan and Altaf Hussain beyond a reasonable doubt and as such their convictions and sentences are maintained and their appeals are dismissed.

2. With regard to appellant Wajid the only evidence against him is the judicial confession of his co-accused Altaf Hassain which is not corroborated by any other single piece of evidence. He is not shown on the CCTV at the bank. His finger print was not found at the bank and as such by extending him the benefit of the doubt appellant Wajid is acquitted of the charge.

3. Before parting with this judgment I would like to observe that I was troubled in the manner in which the Section 342 Cr.P.C statements of the accused were recorded by the trial court. Namely, virtually the whole of the evidence was put to the accused in one block paragraph which was copied and pasted in respect of each accused which I reproduced below in order to clarily precisely what I mean.

Statement of Accused Atta Khan under Section 342 Cr.P.C

Question 1: You have heard the evidence of prosecution witnesses Khalid Mehmood, Muhammad Saleem Mirza, Badardin, Jehangir Javed, Shafiq-ur-Rehman, Sadaruddin, Ghulam Raza, Imtiaz Hussain, Dr. Rohina Hassan, ASI Sagheer Ahmed wherein it is alleged that in the night 29th day of July, 2014 security guard of Summit Bank in Manzoor Colony, Karachi namely Muhammad Arif having been strangulated was found lying dead in the room of cabin of Bank Manager while ATM machine was found having some damage and tools of hammer, 02 chisel, plies, plas and screw driver were lying near it. Atta Khan was arrested vide memo at Ex-10-A, mobile phone data of deceased Muhammad Arif and accused Atta Khan was seized vide Ex-10-B. Accused Altaf Hussain and Wajid Khan were arrested vide memo of arrest 10-B, mobile phone data and call record of their mobile phone was seized vide memo at Ex-10-F-, CCTV footage of the offence was seized vide memo at Ex-10-I, finger-prints of Atta Khan and Altaf Hussain matched with samples taken from it vide report of Forensic Division at Ex-13-N, death of security guard Muhammad Arif through strangulation is confirmed by his postmortem report at Ex-13-Q and cause of death certificate at Ex-13-R, 13-S. During investigation Atta Khan was identified from CCTV footages for the relevant time of the incident and on arrest you accused Atta Khan, Altaf and Wajid admitted your guilt in police station in presence of private witnesses Khalid Mehmood and Badruddin while stating that you, co-accused and one Shahzad had committed offence and during attempted robbery Atta Khan who was then serving as security guard in the same bank for the day time had killed security guard Muhammad Arif during the offence. Investigation officer also collected call data of mobile phones in your use and of co-accused which established your inter se communication during relevant time before and after incident. Accused Altaf further recorded his confessional statement at Ex-11/B wherein he has deposed that you and co-accused had committed the offence at the instance of Atta Khan. During investigation fingerprints taken form wardat were also matched with the finger prints of Atta Khan and Altaf. What have you to say about incriminating evidence Against you?

Answer: Sir, this is false police have falsely involved me in this case at the instigation of bank officials of private security company. Judicial confession of Altaf was obtained by police through coercion.

1. Section 342 Cr.P.C provides as under:

"342. Power to exaine the accused. (1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.

(2) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them; but the Court\\\ may draw such inference from such refusal or answer as it thinks just.

(3) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.

(4) Except as provided by subsection (2) of section 340, no oath shall be administered to the accused.

1. The object of this section is to give the accused, even if he chooses not to give evidence under oath, the opportunity to explain every single piece of evidence which has come on record against him and enable the court to consider his explanation in juxtaposition with the prosecution evidence. The importance of this section is that it is well settled that even if one piece of evidence is not put to an accused during his Section 342 Cr.P.C statement that piece of evidence cannot be used convict him.

2. My initial feeling was that the appeal should be remanded to the trial court to record the Section 342 Cr.P.C statements of each of the accused a fresh by ensuring that each and every piece of evidence was put to them individually to explain but then I realized that this would probably be giving a premium to the prosecution to fill up this potential lacuna in its case. I also took into account that each of the accused had already been in jail for about 10 years and this would only prolong their agony.

3. I then considered that if the Section 342 statements had been recorded unlawfully whether the appellants should all be acquitted since in effect this would mean that no piece of evidence was put to the appellants and as such they could not convicted.

4. Finally I came to the conclusion, keeping in view the above considerations, that there was no set legal format in which the evidence was to be put to the accused in the Section 342 Cr.P.C statement i.e., whether en bloc as in this case or by careful simple independent separate questions in respect of each piece of evidence. As eve in this case the accused could have broken up the long en block question and given an individual answer to each part of it or given one long answer answering the whole en bloc question.

5. The main issue appeared to me in the end was whether or not each and every piece of evidence which was used to convict the accused had been put to him in even the en bloc format as reproduced above and I found that it had and as such there was no clear violation of Section 342 Cr.P.C as per letter of the law and as such I found the manner in which the Section 342 Cr.P.C statement was recorded in this appeal to be permissible under the law.

6. I would however reiterate that in my humble opinion in order to comply with the object, purpose and spirit of Section 342 Cr.P.C and to ensure that no prejudice is caused to the accused in failing to comprehend or miss a part of the bloc question the preferred approach is to put each piece of evidence to the appellant by short, simple and separate questions which he can easily understand and reply to.

In summary.

2024 P Cr. L J 1526

[Sindh]

Before Omar Sial, J

Asad Ali Toor---Applicant

Versus

Messrs Axact Private Limited through Authorized Officer and another---Respondents

Cr. Misc. Application No. 715 of 2022, decided on 19th June, 2023.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss. 499, 500, 502-A & 505---Defamation---Private complaint---Quashmeat of proceedings---Petitioner uploaded a video on his YouTube channel, which two employees working for respondent company claimed defamed the company---Respondent company filed a private complaint against the petitioner and the Trial Court registered the complaint---Validity---If respondent company was aggrieved then why did it not act, as required under the companies legislation, to initiate criminal proceedings---No resolution passed by the company in its general body or Board of Directors was on record or was ever obtained---How did the two persons, who had filed the complaint, claim that they were aggrieved by the alleged defamation when they were in essence some unknown employees of a subsidiary, of respondent company---Why was a criminal complaint being filed in city "K", even though the law allowed the same to be filed, however it would have been more convenient for both parties to litigate in city "I"---Court should have considered the said basics, at the very least, before taking cognizance of a criminal complaint that was a challenge to the fundamental right of freedom of speech---Initiation of unnecessary litigation causes massive burden and inconvenience to the parties involved and further burdens an already struggling criminal justice system---Both the parties in their own ways had contributed extensively towards defending the right of freedom of expression and speech in the country---When persons of such profile and large admiration base come into conflict for minor, insignificant reasons, it no doubt causes a negative impact on the right of freedom of expression---It seemed that present case was more a case of conflict of egos than real criminal harm---Hopefully parties will be in a position to resolve such disputes through mediation---Complaint was vague from which it seemed that respondent company itself had given an interpretation to claim that what petitioner said was regarding them---Two unknown employees of a subsidiary company of respondent claimed to be aggrieved; respondent, itself did not initiate any complaint for defamation to it; no authorization was available from respondent to the two employees to initiate action; and most importantly the right of freedom of expression was being attacked on a flimsy ground---In such circumstances, it would be appropriate to quash the proceeding arising out of the complaint filed by respondent---Proceedings were quashed accordingly.

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

Abdul Moiz Jaffary for Applicant.

Raj Ali Wahid Kunwar for Respondents.

Muhammad Ahmed, Assistant Attorney General for Federation of Pakistan.

Date of hearing: 9th May, 2023.

Order

Omar Sial, J.---Asad Ali Toor ("Mr. Toor"), the applicant herein, is a print and electronic media journalist working in Pakistan, who also operates a channel on the video sharing service, YouTube M/s. Axact (Private) Limited ("Axact"), the answering respondent, is a company limited by shares, incorporated in Pakistan and engaged in the business of Information Technology. Mr. Toor, on 28.09.2022, uploaded a video on his YouTube channel, which 2 employees working for Axact claimed, defamed Axact. A direct private complaint bearing number 4597 of 2022 was filed by Axact before the learned 4th Additional Sessions Judge, Karachi South. The learned trial court registered the complaint under sections 499, 500, 502-A and 505 P.P.C. on 09.11.2022. Mr. Toor, being aggrieved by such a registration, has now approached this Court.

1. Learned counsel, representing Mr. Toor, has argued that the court in Karachi did not have jurisdiction and in any case neither was what Mr. Toor uploaded, directed towards Axact nor was what he said defamatory. Learned counsel for Axact was of the view that the courts in Karachi did have jurisdiction and that as the trial court had taken cognizance of the complaint, Mr. Toor should approach the trial court for the redressal of his grievance. My decision in this matter is not based on the territorial jurisdictional issue which the counsels have argued and hence for the sake of brevity no further discussion is made on this aspect of the counsels' arguments. Learned Assistant Attorney General supported the impugned order. I have heard all counsel. My observations and findings are as follows.

2. One of the cases which Mr. Raj Ali Wahid, representing Axact, has relied upon in his argument is an unreported order of the Supreme Court of Pakistan in a case titled FIA through Director General, F.I.A. and others v. Syed Hamad Ali Shah (C.P. 1257 of 2020). In particular, in this order, learned counsel has relied on paragraph 4 of the order. The essence of the observation made in this paragraph is that the High Court does not have power under section 561-A Cr.P.C. to quash an FIR or an investigation proceedings. Reliance on a few lines of the order without looking at the thought of the Court holistically would not be appropriate. While relying on the first few lines of paragraph 4, the learned counsel did not emphasize that the Court itself also gave a reason for the High Court not to do so. In order to facilitate reference, it would be, appropriate to quote what the Court said: "This is because jurisdiction of a High Court to make an appropriate order under Section 561-A Cr.P.C. necessary to secure the ends of justice, can only be exercised with regard to the judicial or court proceedings and not relating to any other authority or department, such as FIR. registration or investigation proceedings of the police department." The Court itself in the same paragraph of the order went on to observe, "This has been authoritatively held by a five-member bench of this Court in Shahnaz Begum. A High Court, therefore, can quash a judicial proceeding pending before any subordinate court under Section 561-A Cr.P.C, if it finds it necessary to make such order to prevent the abuse of the process of that court or otherwise to secure the ends of justice; however, it should not ordinarily exercise its power under Section 561-A Cr.P.C. to make such order unless the accused person has first availed his remedy before the trial court under Section 249-A or 265-K, Cr.P.C.". One of the key observations made by the Court: A High Court, therefore, can quash a judicial proceeding pending before any subordinate court under Section 561-A Cr.P.C., if it finds it necessary to make such order to prevent the abuse of the process of that court or otherwise to secure the ends of justice. There is no dispute however that a High Court should not ordinarily exercise such a power under section 561-A Cr.P.C. to make such orders unless the accused person has first availed his remedy before the trial court under section 249-A or 265-K Cr.P.C. Learned counsel for Axact has also relied upon Muhammad Farooq v. Ahmed Nawaz Jagirani and others (PLD 2016 SC 55). In this case as well the Supreme Court has observed that exercise of jurisdiction by the High Court under section 561-A Cr.P.C. should not be undertaken in the normal course and that the exercise of the inherent jurisdiction was dependent on non-availability of alternate and efficacious remedy and/or exercise of some extraordinary circumstances warranting exercise of such jurisdiction. Some other cases have been cited by the learned counsel for Axact, however, I have not referred to them because each of those cases reiterates the same thought i.e. a High Court should not exercise powers under section 561-A Cr.P.C. ordinarily however the same may be exercised in exceptional cases and for reasons to be recorded by the High Court.

3. Before proceeding further it would therefore be appropriate to first address the question as to whether there are any exceptional grounds or whether it is necessary for the High Court to make an order in order to prevent abuse of the process of the.trial court or to otherwise secure the ends of justice. In my opinion, in the circumstances of the present case, there is a ground for the High Court to entertain an application under section 561-A Cr.P.C. in order to prevent the abuse of the process of the trial court as well as to secure the ends of justice. Looking at the case broadly, the case is exceptional as at the heart of it is the fundamental right of speech as enshrined in Article 19 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution"). The reason I have taken an exception and not dismissed this application on the ground that the applicant should now seek his remedy before the trial court, are as follows:

4. Freedom of speech is not a fundamental right which is not unfettered. The debate of where the right of freedom of speech ends and hate speech begins has been the subject of numerous debates since at least 1948 when the right of freedom of expression was given a place in Universal Declaration of Human Rights. Coincidentally, such a right is contained, as in our Constitution, in Article 19 of the Declaration. There is no denying though that freedom of speech is "our blueprint for personal liberty and the cornerstone of a free society." "The matrix, the indispensable condition, of nearly every other freedom"-that's how Justice Benjamin Cardozo referred to freedom of speech.

2024 P Cr. L J 1535

[Sindh (Sukkur Bench)]

Before Rashida Asad and Khadim Hussain Soomro, JJ

Shahnawaz Almani---Appellant

Versus

The State---Respondent

Special Anti-Terrorism Jail Appeal No. D-73 of 2019, decided on 31st October, 2023.

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

----Ss. 302(b), 364, 376 & 201---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, kidnapping or abducting any person in order that such person may be murdered, rape, causing disappearance of evidence of offence, or giving false information to screen offender, act of terrorism---Appreciation of evidence---Ocular account proved---Accused was charged for kidnapping minor niece of complainant and murdering her after rape---Ocular account of the incident had been furnished by complainant and two others as eye-witnesses---Complainant narrated the whole story of the case corroborated with the averments of the FIR---Eye-witnesses gave the same story of the incident as narrated by the complainant and they categorically stated that as the accused, was a maternal cousin of the deceased, therefore, they could not react on the spur of the movement, while he was taking away the deceased with him---Appeal against conviction was dismissed, in circumstances.

(b) Criminal trial---

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

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

----Ss. 302(b), 364, 376 & 201---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, kidnapping or abducting any person in order that such person may be murdered, rape, causing disappearance of evidence of offence, or giving false information to screen offender, act of terrorism---Appreciation of evidence---Last seen evidence, principle of---Applicability---Accused was charged for kidnapping minor niece of complainant and murdering her after rape---Record showed that last seen evidence had been produced by three witnesses---From the evidence of eye-witnesses who had seen the accused taking minor girl with him and her never returning and later she being found dead in crop, clearly showed that the deceased-baby was last seen with the accused who took her in front of the eye-witnesses---Thus, the last seen principle was absolutely applicable against the accused in the present circumstances---Therefore, the accused was connected in a chain of events that occurred leading to the recovery of the deceased baby girl on the pointation of the accused---Therefore, it was a link to the chain of circumstances against the accused---Such piece of evidence connected the circumstances i.e. the deceased knew the accused who was her maternal cousin---Complainant, father of the deceased baby, was relative of the accused and there was no ill will on their part to implicate him by leaving the real culprit---Moreover the incident took place within a short gap between the sighting and the occurrence of the offence, which was consistent with the prosecution evidence---Appeal against conviction was dismissed, in circumstances.

Muhammad Abid v. The State and another PLD 2018 SC 813; Sajjan Solangi v. The State 2019 SCMR 872; Ghous Bux v. Saleem and 3 others 2017 PCr.LJ 836; Gul Hassan alias Gulan v. The State 2022 PCr.LJ Note 80; Abdul Jabbar and another v. The State 2019 SCMR 129; Muhammad Bilal v. The State and others 2021 SCMR 1039; Allah Ditta v. The Crown 1969 PCr.LJ 1108; Abdus Samad v. The State PLD 1964 SC 167; Muhammad Amin v. The State 2000 SCMR 1784; Muhammad Naseem alias Deemi v. The State 2011 SCMR 872 and Khair Muhammad and another v. The State 2019 PCr.LJ 26 ref.

Robina Bibi v. The State 2001 SCMR 1914 rel.

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

----Ss. 302(b), 364, 376 & 201---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, kidnapping or abducting any person in order that such person may be murdered, rape, causing disappearance of evidence of offence, or giving false information to screen offender, act of terrorism---Appreciation of evidence---Chemical report consistent with medical examination report---Scope---Accused was charged for kidnapping minor niece of complainant and murdering her after rape---Perusal of chemical report showed that four sealed cloth parcels, each with 02 seals, were received at the office of the Chemical Examiner---On careful examination of the Chemical Examiner's report and statement of Woman Medical Officer, the case of the prosecution could not be doubted on the point of rape of the deceased baby before she was murdered---Woman Medical Officer had also supported the injuries on the person of the deceased baby due to torture, assault on the body, causing haemorrhage, paralysis and shock---Thus, medical evidence was consistent with the Chemical Examiner's report---Appeal against conviction was dismissed, in circumstances.

(e) Criminal trial---

----Circumstantial evidence---Scope---There is no bar or hindrance to pass the sentence upon a killer when the chain of guilt is found not to be broken and irresistible conclusion of guilt is surfacing from the evidence, which connects the accused with the commission of the offence without any doubt or suspicion---If the circumstantial evidence brought on the record is of such nature, then the conclusion will be in the shape of conviction and no other conclusion will be drawn by any stretch of imagination in such a case.

Khuda Bukhsh v. The State 2004 SCMR 331; Sheraz Tufail v. The State 2007 SCMR 518; Israr Ali v. The State 2007 SCMR 525; Ghulam Nabi v. The State 2007 SCMR 808 and Muhammad Akhtar v. The State 2007 SCMR 876 rel.

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

----Ss. 302(b), 364, 376 & 201---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, kidnapping or abducting any person in order that such person may be murdered, rape, causing disappearance of evidence of offence, or giving false information to screen offender, act of terrorism---Appreciation of evidence---Dead body of the deceased recovered on the pointation of accused from a place in exclusive knowledge of accused---Reliance---Accused was charged for kidnapping minor niece of complainant, and murdering her after rape---Record showed that the dead body of the deceased was recovered at the pointation of the accused from a place which was in his exclusive knowledge and was sufficient to establish the accusation leveled against the accused---Factum of last seen evidence required corroboration and the evidence alone that the deceased having been last seen in the company of the accused itself would be sufficient to sustain the charge of murder against the accused---Recovery of the dead body at the pointation of the accused from the place which was exclusively in his knowledge lent full corroboration to the last seen evidence---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b), 364, 376 & 201---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, kidnapping or abducting any person in order that such person may be murdered, rape, causing disappearance of evidence of offence, or giving false information to screen offender, act of terrorism---Appreciation of evidence---Act of terrorism---Scope---Accused was charged for kidnapping minor niece of complainant and murdering her after rape---Events and the circumstantial evidence proved that the accused was the person who had committed heinous offence of rape and murder and deserved no leniency---No reason or mitigating circumstances for awarding a lesser sentence to the accused was available in the case---However, the offences did not fall within the purview of the Anti-Terrorism Act, 1997---Regardless of the severity, shock value, brutality, gruesomeness, or horror of an offence, it could not be characterized as an act of terrorism unless it was committed with the specific intent or purpose outlined in clauses (b) or (c) of subsection (1) of S.6 of the Act, 1997 which was lacking in the present case---Resultantly the appeal was dismissed however, the convictions and sentences were upheld with regard to the non-Anti-Terrorism Act, 1997 offences so charged.

Ghulam Hussain v. State PLD 2020 SC 61 rel.

Ubedullah Malano for Appellant.

Syed Sardar Ali Shah, Additional Prosecutor General Sindh for the State.

Date of hearing: 22nd August, 2023.

Judgment

Khadim Hussain Soomro, J.--- Through this instant Appeal, the appellant has assailed the judgment dated 15.05.2019, passed by learned Anti-Terrorism Court, Naushehro Feroze in Spl. Case No. 84 of 2014 [Re: State v. Shahnawaz Almani] arising out of Crime No.314 of 2014 under Sections 364, 302, 376, 201 P.P.C. and 6/7 ATA, 1997 of Police Station, Moro, whereby the appellant is convicted and sentenced as under:

i) convicted for the offence punishable under section 364-A P.P.C. and sentenced to suffer R.I. for 'Life Imprisonment.'

ii) Also convicted for the offence punishable under section 376(3) P.P.C. and sentenced to suffer R.I. for Life Imprisonment and to pay a fine of Rs.100,000/-, in case of failure to pay fine, the appellant shall suffer S.I for one year.

iii) Further convicted for the offence punishable under section 302(b) P.P.C. and sentenced to suffer Imprisonment for Life as ta'zir and pay compensation of Rs.200,000/- under section 544-A Cr.P.C. In case of failure to pay compensation accused shall suffer S.I. for one year more.

iv) Further convicted for the offence punishable under section 201 P.P.C. and sentenced to suffer R.I. for three years and to pay fine of Rs.50,000/-, in case of failure to pay fine, accused shall suffer S.I. for six months more.

v) Also convicted for the offence punishable under section 7(1)(a) of Anti-Terrorism Act, 1997, sentenced to suffer R.I, for Imprisonment for life and to pay fine of Rs.100,000/ in case of failure to pay fine, appellant would suffer S.I, for one year more.

The learned trial court has also held that the compensation if recovered shall be paid to the legal heirs of deceased Baby Marvi. All the sentences awarded to the appellant/accused shall run concurrently with the benefit of section 382-B Cr.P.C.

1. The brief facts of the prosecution case are that on 11.09.2014 at 1500 hours, complainant Rasool Bux appeared at Police Station, Moro, and lodged the FIR stating therein that on 09.09.2014, his niece, baby Marvi, aged about 7 years, went out of the house in the street, wherefrom accused Shahnawaz son of Ali Murad Almani forcibly abducted her in order to murder her. The Complainant, along with PW, namely, Loung, Shahid, and other neighbors made a search of the accused and baby Marvi but could not succeed; thereafter, the complainant went to the Police Station, Moro, and lodged FIR. During the course of the investigation, the accused, Shahnawaz, confessed to his guilt. He revealed that after kidnapping the minor girl, he raped and murdered her. He then concealed her dead body in a crop field in Manjhandri. The police recovered the dead body from the crop field near the Moro bypass on his pointation.

2. After registration of FIR and conducting a usual investigation, I.O. submitted challan before the Court against the accused for trial. The Presiding Officer of the trial Court took oath as prescribed under Section 16 of the Anti-Terrorism Act at Exh.1, and copies of police papers were supplied to the accused vide receipt at Exh.2, Charge framed at Exh.3; however, accused pleaded not guilty and claimed to be tried vide plea at Exh.4.

3. To substantiate the charge, the prosecution examined complainant Rasool Bux at Exh.5, who produced FIR at Exh.5-A and receipt of the dead body at Exh.5-B, photographs of the deceased at Exh.5-C to 5-E, and his further statement at Exh.5-F. PW-2 Loung was examined at Exh.6. PW-3 Shahid Almani was examined at Exh.7. PW-4 Abdul Rasheed was examined at Exh.8, who produced a memo of the arrest of accused at Exh.8-A, memo of recovery of the dead body at Exh.8-B, Danistnama of deceased at Exh.8-C, memo of wardat at Exh.8-D, memo of securing clothes of deceased at Exh.8-E, memo of inspection of place of incident at Exh.8-F. PW-5 ASI Ghulam Qasim was examined at Exh.09, who produced entry No.30 at Ex.9-A. PW-6 Ghulam Nabi was examined at Exh.10. PW-7 HC Mangho Khan was examined at Exh.11. PW-8 Tapadar Ghazi Khan at Exh.12, who produced a sketch of wardat at Exh.12-A. PW-9 Dr. Shahnaz was examined at Exh.13, and she produced a postmortem report of a deceased baby minor girl at Ex.13-A, lash chakas form at Ex.13-B, final postmortem report at Ex.13-C and chemical examiner's report at Exh.13-D. PW-10 ASI Ammer Bux was examined at Exh.14. PW-11 Inspector Ghulam Hussain Sahito was examined at Exh.15. Thereafter, learned DDPP for the State closed the prosecution side vide statement at Ex.16.

4. The trial court recorded the statements of the accused under section 342, Cr.P.C, wherein he denied the prosecution allegations and pleaded innocence. However, he neither examined himself on oath under section 340(2) Cr.P.C nor led any evidence in his defense. After hearing the parties and assessment of the evidence brought on record, the learned trial court convicted and sentenced the appellant, Shahnawaz Almani, as detailed above.

5. Heard and perused the material available record minutely.

6. Learned Counsel for appellant contended that the appellant has been falsely implicated in the present case by the complainant party; that no eye-witnesses have seen the appellant while committing rape and subsequent murder of victim baby Marvi and the circumstances have not been proved to make a chain of circumstances against the accused-appellant; that the witnesses being closely related to the deceased are interested witnesses, hence they have falsely deposed against the appellant; that there was delay of two days in lodging the FIR for which no explanation has been furnished; that there was no enmity of the appellant and his family members; however, there was matrimonial dispute as the sister of present/accused is the wife of Ayaz and Mst. Nazia did not want to reside with Ayaz, so he has implicated the present applicant in the present case. According to the dead body recovery memo, the dead body was recovered at the night time but neither the memo nor the eye-witness disclosed the source of light on the basis of which the dead body was identified; that it was an unseen/un-witnessed occurrence; that upon circumstantial evidence, one cannot be convicted and awarded capital punishment; that there are material inconsistencies in the evidence of the prosecution witnesses. He has lastly contended that since the prosecution fails to prove the instant case beyond a reasonable shadow of doubt, that the learned trial Court has erred in law in finding the accused/appellant guilty as such, the conviction and sentence against the accused/appellant should be set aside. In support of his contentions, learned Counsel for the appellant has relied upon the cases of Muhammad Abid v. The State and another (PLD 2018 SC 813), Sajjan Solangi v. The State (2019 SCMR 872), Ghous Bux v. Saleem and 3 others (2017 PCr.LJ 836), Gul Hassan alias Gulan v. The State (2022 PCr.LJ Note 80), Abdul Jabbar and another v. The State (2019 SCMR 129) and Muhammad Bilal v. The State and others (2021 SCMR 1039).

7. On the other hand, the learned Additional Prosecutor General contended that the appellant has been nominated in the FIR that mere relationship between the P.Ws is no ground to discard their evidence, that all the P.Ws have fully supported the case of prosecution, that at trial, the prosecution successfully established last seen evidence. He has further submitted that the evidence of P.W-5/complainant Rasool Bux, PW-6 Loung, and PW-7 Shahid, who had lastly seen the deceased/baby with the accused/appellant and on the query. He revealed that he was taking her to her father, Ghulam Nabi; that there are two aspects of the case one was of kidnapping, and other was committing rape and subsequent murder. The dead body of the deceased was recovered on the pointation of the appellant in a very crippled condition. Neither is there a proof of matrimonial dispute, nor was such suggestion made during cross-examination in the trial. No doubt, there was no eye-witness who saw the accused committing the murder; however, two witnesses, Loung and Shahid saw the accused while kidnapping the baby as the appellant was her maternal cousin; that is why the eye-witnesses did not react at the spur of the moment when the baby was taken away by him. All the PWs have fully implicated the present appellant at the time of evidence. He further argued that the complainant and prosecution witnesses had no enmity whatsoever with the appellant; that WMO, who conducted the postmortem, opined that the death of the deceased occurred due to torture, assault on the body caused hemorrhage, paralyzes, and shock; and was also victimized of rape, therefore, he prayed for dismissal of the instant appeal. In support of his contentions, he relied upon cases of Allah Ditta v. The Crown (1969 PCr.LJ 1108), Abdus Samad v. The State (PLD 1964 SC 167), Muhammad Amin v. The State (2000 SCMR 1784), Muhammad Naseem alias Deemi v. The State (2011 SCMR 872) and Khair Muhammad and another v. The State (2019 PCr.LJ 26).

8. We have considered the arguments advanced before us and perused the material available on record carefully.

9. The meticulous re-appraisal of the evidence so produced by the prosecution is entailing that the complainant Rasool Bux Almani, P.W-1, who deposed that the deceased Marvi, aged about 7 years, was his niece. On 09.09.2014, in the evening time, baby Marvi went outside the house to play in the street. It was about 7.00 p.m. time when the accused Shahnawaz forcibly kidnapped baby Marvi for committing her rape and murder. He met PWs Loung and Shahid, who also disclosed that they had seen the accused Shahnawaz while taking baby Marvi with him. They searched everywhere but did not find the baby Marvi and accused Shahnawaz for two days, thereafter on 11.09.2014 at about 3.00 p.m. time, he appeared at the Police Station, Moro, and lodged FIR. Police arrested the accused Shahnawaz. On 11.09.2014 at about 2100 hours, the accused Shahnawaz voluntarily led the Police to Manjhandri crops situated near bypass Moro and showed the dead body of baby Marvi in the presence of mashirs. Police also called the parents of the deceased, namely, Ghulam Nabi and Mst. Shahzadi also identified the dead body of baby Marvi. ASI Ghulam Qasim Mashori prepared such a memo, inquest report, and Lash Chakas Form, and after a postmortem examination, the dead body was returned to him under receipt. He also produced two photographs of the deceased and one photograph of her dead body. P.Ws Loung and Shahid, being eye-witnesses, gave the same story of the incident as narrated by the complainant, and they categorically stated that the appellant, who was a maternal cousin of the deceased, therefore, they could not react on the spur of the movement, while he was taking away the deceased with him.

10. As far as the contention regarding the last seen evidence is concerned, we observe that the foundation of the "last seen together" theory is based on principles of probability, cause and connection, and cogent reasons that the deceased in the normal and ordinary course was supposed to accompany the accused, the proximity of the crime scene, small time gap between the sighting and crime, no possibility of third person interference as well as the time of death of the victim.

11. The evidence of P.W-10 Ghulam Nabi, who is the father of deceased/victim, deposed that the deceased baby Marvi, aged about seven years, was his daughter. On 09.09.2014, his daughter was kidnapped, and he went in search of her. PWs Loung, Shahid, and Rasool Bux informed him that they had seen present appellant Shahnawaz taking minor girl Marvi with him. On 11.09.2014, on the pointation of present appellant dead body of his daughter was recovered by police under the Manjhandri trees near Moro bypass, where he identified the dead body of his daughter Marvi. His brother Rasool Bux lodged the FIR against the appellant on 11.09.2014. He was also examined by police. From the evidence of eye-witnesses who had seen present appellant Shahnawaz taking minor girl Marvi with him and had never returned; and later she was found dead in crop, which clearly shows that the deceased baby was lastly seen with the appellant who took her in front of them. Thus, the last seen principle is absolutely applicable against the appellant in the present circumstances. Therefore, the appellant is connected in a chain of events that occurred leading to the recovery of the deceased baby girl on the pointation of the appellant. Therefore, it is a link to the chain of circumstances against the appellant. Such piece of evidence connects the circumstances i.e. the deceased knew the appellant, who was her maternal cousin. It is worth mentioning here that the complainant, Ghulam Nabi, father of the deceased baby, is relative of the appellant, and there is no ill will on their part to implicate him by leaving the real culprit. Moreover the incident took place within a short gap between the sighting and the occurrence of the offence, consistent with the prosecution evidence. Reliance is placed on the case of Mst. Robina Bibi v. The State (2001 SCMR 1914).

12. As it is evident from the facts narrated in the FIR as well as the evidence of the complainant, and other P.Ws that the incident was un-witnessed because the offence was committed in Manjhandri crop, as is clear in the sketch of vardat produced by P.W-12/Tapedar Ghazi Khan in his evidence, even otherwise, the defense has not disputed the place of vardat which is Manjhandri crop. The prosecution has, therefore, relied upon circumstantial evidence viz. last seen of the deceased in the crop with appellant, medical evidence, and report of chemical examiner.

13. In order to prove the unnatural death of Baby Marvi, the prosecution has examined Dr. Shahnaz at Exh.13, Women Medical officer, who stated that the dead body of deceased Marvi aged about 7 years daughter of Ghulam Nabi Almani was brought to Taluka Hospital, Moro through PC Mangho Khan Dahar of PS Moro, on 12.09.2014 for postmortem examination and report. Senior Women Medical officer started postmortem examination at 12:15 a.m and completed it at 01:30 a.m. On the external examination of dead body, Senior Women Medical Officer found the following injuries pm her son:

1. Skull was ruptured, brain matter came out. Maggots present in wound.

1. Skin and walls of left side of chest ruptured.

2. Left side of abdomen ruptured; intestine loops came out. Maggots present in wound.

4. Infected wound present on left arm.

1. Vaginal swabs taken and preserved for sending to Chemical Laboratory, Rohri for chemical examination.

2. The cause of death, as mentioned, was due to torture, assault on the body caused hemorrhage paralyzes and shock. We, therefore, hold that Baby Marvi died her unnatural death as described by the Senior Women Medical officer.

3. The perusal of chemical report shows that four sealed cloth parcels, each with 02 seals, seals perfect and as per the copy sent, were received at the office of the Chemical Examiner. The relevant portion of the chemical report is reproduced as under:

"DESCRIPTION OF ARTICLES CONTAINED IN THE PARCEL

1. Contains one small glass bottle containing one vaginal cotton swab of deceased

Marvi daughter of Ghulam Nabi Almani …………

Parcel No.1.

2. Contains one small glass bottle containing one vaginal cotton swab of deceased Marvi daughter of Ghulam Nabi Almani …………

Parcel No.2.

3. Contains one small glass bottle containing one vaginal cotton swab of deceased

Marvi daughter of Ghulam Nabi Almani …………

Parcel No.3.

4. Contains one small glass bottle containing one vaginal cotton swab of deceased

Marvi daughter of Ghulam Nabi Almani …………

Parcel No.4.

RESULT OF CHEMICAL EXAMINATION

Human semen and human blood has been detected in each vaginal cotton swab of above said glass bottle Nos.1, 2, 3 and 4.

1. On careful examination of the Chemical Examiner's report and statement of P.W-9 WMO Dr. Shahnaz (supra), the case of the prosecution cannot be doubted with tainted glasses on the point of committing rape of the deceased baby before she was murdered. Therefore, the finding of the learned trial Judge on Points Nos.2 and 3 stands proved is very much justified with the facts of the case. The said Doctor had also supported the injuries on the person of the deceased baby due to torture, assault on the body, caused hemorrhage and paralyzes, and shock, and thus, medical evidence is consistent with the Chemical Examiner's report.

2. The appellant had the opportunity to lead evidence in his defence, but he had not led any evidence proving his innocence. The appellant and the complainant are admittedly relative, and the P.Ws are relatives of the both side viz the complainant and the appellant.

3. As far as the contention of the learned counsel for the appellant is concerned that upon circumstantial evidence, one cannot be convicted and awarded capital punishment, this plea is also misconceived because there is no bar or hindrance to pass the sentence upon a killer when the chain of guilt is found not to be broken and irresistible conclusion of the guilt is surfacing from the evidence, which is connecting the accused with the commission of that offence without any doubt or suspicion. If the circumstantial evidence brought on the record is of such nature, then the conclusion would be in the shape of conviction and no other conclusion shall be drawn by any stretch of imagination in such a case, for the guilt of the appellant, penalty of life imprisonment shall be a normal event. Reliance is placed upon the cases reported as Khuda Bukhsh v. The State (2004 SCMR 331); Sheraz Tufail v. The State (2007 SCMR 518); Israr Ali v. The State (2007 SCMR 525); Ghulam Nabi v. The State (2007 SCMR 808) and Muhammad Akhtar v. The State (2007 SCMR 876). In the case of Muhammad Akhtar (supra) it is held as under:-

"5. After having gone through the statements of Abdul Shakoor (P.W.1) and Muhammad Naeem (P.W.2) we have no hesitation in our mind to hold that Muhammad Mursaleen (deceased) was taken away by the petitioner from his house whose dead body was recovered subsequently. The conduct of petitioner also remained unusual as he could not furnish any plausible justification that where Muhammad Mursaleen (deceased) was left who had been admittedly taken by him from his house. It is to be noted that blood-stained Toki was also recovered at the pointation of petitioner as a result of his disclosure hence the question of applicability of section 103, Cr.P.C. does not arise as pressed time and again by the learned Advocate Supreme Court on behalf of petitioner but in such an eventuality Article 40 of the Qanun-e-Shahadat Order, 1984 would figure in. The Toki (Exh.P.1) was found stained with human blood as per the report of Chemical Examiner. Dr. Muhammad Mushtaq (P.W.3) has conducted the post-mortem examination of dead body of Muhammad Mursaleen on 19-2-2002. According to whom injury No.1 i.e. "an incised wound 7.5 x 3 c.m. on left side of neck, 1 c.m. below lobule of left ear", injury No.5 i.e. "an incised wound 11 x 2 c.m. on right and back of neck at upper part 1 c.m. below injury No.4 second cervical vertebrae on right part was cut in the line of the incised wound" and injury No.6 i.e. "an incised wound 7 x 2 c.m. on back of right side of neck at its junction with the trunk, 4 c.m. below to injury No.5. Intervertebral disc between 6th and 7th cervical vertebrae was cut and spinal card was also cut at the level of injury No.6. Upper border of back part of right first rib was exposed. Cervical plura on the right side was exposed in the depth of the wound but not cut", which resulted in the death of Muhammad Mursaleen due to "acute cardio pulmanary arrest as a result of haemmoragic and nurogenic shock" caused by heavy cutting weapon and no doubt the Toki is a sharp-edged weapon and injury No.1 as mentioned hereinabove could have been caused by it. It is worth while to mention here that act of sodomy was also committed with Muhammad Mursaleen (deceased) as the anal swabs were found stained with semen. The prosecution has succeeded in establishing the accusation by cogent and concrete evidence as discussed hereinabove.

"6. We have dilated upon at length the prime contention of learned Advocate Supreme Court on behalf of petitioner that reliance could not have been placed on the last seen evidence. "It is to be noted that the ' above question has been examined time and again in different cases and a few are mentioned hereinbelow for ready reference:

1969 SCMR 558, 1969 PCr.LJ 1108, PLD 1991 SC 718; 1999 ALD 48(i), PLD 1991 SC 434, 1991 SCMR 1601, 1998 PCr.LJ 722, PLD 1959 SC (Pak.) 269, PLD 1978 SC 21, 1991 PCr.LJ 956, PLD 1964 Quetta 6, 1971 PCr.LJ 211, 1980 PCr.LJ 164, 1998 SCMR 2669, PLD 1964 SC 67, PLD 1971 Lah. 781, 1972 SCMR 15, 1974 PCr.LJ 463, PLD 1971 Kar. 299, PLD 1977 SC 515, 1997 SCMR 1416, 1988 PCr. LJ 205, NLR 1988 Cr. 599, 1997 SCMR 1279, PLD 1978 BJ 31 and 1997 SCMR 20".

" 7. We have perused the dictum laid down in the abovementioned authorities. The consensus seems to be that "last seen evidence itself would not be sufficient to sustain charge of murder and such evidence further required to link accused with the murder of his companion i.e. incriminating recoveries at accused's instance, strong motive or proximity of time when both last seen together and time of murder, accused required to explain demise of his companion only when such requirements fulfilled". PLD 1997 SC 515, AIR 1927 Lah. 541, PLD 1956 FC 123, 1972 SCMR 15, PLD 1964 SC 167 and PLD 1966 SC 644".

" 8. The further consensus in such-like cases appear to be that "last seen evidence carries weight depending upon varying degree of possibility and facts and circumstances of each case Before inferring guilt merely from inculpatory circumstances, such circumstances, held, must be found to be incompatible with innocence of accused and incapable of explanation upon any other reasonable hypothesis than that of guilt". PLD 1977 SC 515, AIR 1922 Lah. 181, AIR 1922 All. 340, PLD 1955 BJ 1, 1974 PCr.LJ 463, AIR 1932 Lah.243, PLD 1971 Kar.299, PLD 1953 FC 214 and PLD 1964 SC 167."

2024 P Cr. L J 1558

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

Muhammad Yousuf and another---Appellants

Versus

The State---Respondent

Criminal Appeal No. 470 of 2021, decided on 16th November, 2022.

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

----S. 9(c)---Possession of narcotic substance---Appreciation of evidence---Contradictions and discrepancies in the statements of witnesses---Prosecution case was that 25-kilogram charas was recovered from the possession of the accused persons---Prosecution case was that the raiding party after information had stopped the accused coming on motorcycle in front of the office of Executive Engineer near Toll Plaza, and the complainant and mashir also deposed during their examination-in-chief the same which confirmed that they stopped their vehicles in front of a Government building---However, on an application under S.539-B Cr.P.C filed by defence, Nazir of the Trial Court was appointed as commissioner for inspection of the place of recovery, who had submitted his report mentioning that there was no office building at the pointed place where the vehicles were stopped and the inspection was carried out on the pointation and in presence of the complainant---Recovery witness during cross-examination stated that there was no office where they were standing but on their back side there were showroom-type offices beside a hotel---Court witness during his cross-examination stated that the complainant pointed out the place and informed that vehicles were parked at the time of occurrence at that place and in front of it there was no building of Executive Engineer---Such aspect of the case made the recovery alleged by the prosecution doubtful---Complainant during cross-examination stated that Head Mohrar had reduced into writing the entry and the FIR while recovery witness stated that the same was registered by the complainant himself---Recovery witness during cross-examination stated that there was no other road except the main National Highway and there was no link road---However, Court witness during his cross-examination contradicted him by stating that there was a service road adjacent to Toll Plaza---Complainant and recovery witness negated the suggestion that after crossing Toll Plaza there was a Rangers check post, however, Court witness admitted that there was a Rangers picket---Witnesses during cross-examination mostly used the words that they did not remember on certain questions and suggestions put to them by the defence---Discrepancies in the testimonies of the two witnesses; the purported lack of knowledge about certain things which they ought to have remembered and not knowing those things which they should have known as in the present case was fatal to the case of the prosecution---Appeal against conviction was allowed, in circumstances.

Ahsan Marfani v. The State 2022 YLR Note 5; Mst. Sakina Ramzan v. The State 2021 SCMR 451 and Minhaj Khan v. The State 2019 SCMR 326 ref.

Minhaj Khan v. The State 2019 SCMR 326 rel.

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

----S. 9(c)---Possession of narcotic substance---Appreciation of evidence---Safe custody of the recovered narcotic substance not proved---Prosecution case was that 25-kilogram charas was recovered from the possession of the accused persons---Complainant had deposed that he deposited the case property in the Malkhana---Complainant did not utter a single word in respect of in charge Malkhana at that time---However, official witness who took the samples to the Chemical Examiner had stated that in-charge Malkhana had handed over the samples to complainant, who had handed over the same to him, which reflected that complainant was not the in-charge of Malkhana and someone else had handed over to him the samples from the Malkhana---Prosecution in order to cover up such lacuna in their case moved an application before the Trial Court under S.540, Cr.P.C, wherein it was mentioned that Malkhana in-charge was SI and at the time of application he was posted in another Province---Subsequently,another application under S.540, Cr.P.C, was moved, wherein the name of In-charge Malkhana was mentioned as complainant stating that name of SI was given mistakenly---Complainant was again examined and he introduced himself to be the in-charge of Malkhana---However, in his earlier deposition, complainant did not depose a single word that he was the in-charge of Malkhana at that time, which conflicted with the evidence of Head Constable, who in clear words stated that in-charge Malkhana had handed over the samples to complainant, who handed over the same to him---This was an afterthought and managed one to bring the case in conformity in respect of proving the safe custody and safe transmission of the narcotic to the Chemical Examiner---Prosecution had not been able to prove the safe custody of alleged charas and did not examine the in-charge Malkhana who was available at that time but instead managed the evidence of complainant to fill the lacuna---Further the alleged charas was recovered on 05.07.2016 and samples were sent to the Chemical Examiner on 07.07.2016---No evidence was available to ascertain as to whether the property was kept in safe custody from its recovery till its arrival at the office of the Chemical Examiner---Therefore, by failing to prove the safe custody of the recovered contraband, the same could not be used against the accused persons in thatregard and the chemical report was of no legal value---Appeal against conviction was allowed, in circumstances.

Mst. Razia Sultana v. The State and another 2019 SCMR 1300; Zahir Shah alias Shat v. The State through Advocate General, Khyber Pakhtunkhwa 2019 SCMR 2004 and Qaiser and another v. The State 2022 SCMR 1641 rel.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 342---Possession of narcotic substance---Appreciation of evidence---Defence plea of false implication in the case plausible---Prosecution case was that 25-kilogram charas was recovered from the possession of the accused persons---Accused persons examined themselves on oath under S.340(2), Cr.P.C., and stated that on the day of incident at 06.00 p.m. they had a dispute over an electricity issue with the Mohalla people and during such dispute police came on two official vehicles and arrested them and they were handed over to Anti-Narcotic Force Officials where they were falsely involved in the case---To support their version accused persons examined two defence witnesses, both of whom supported their version while deposing that there was a quarrel between the accused and defence witness and the matter was being patched up, however, police came there and took away the accused persons---In respect of such quarrel a N.C Report No. 19 at 05.35 pm on 05-03-2016 for the offence under Ss.337-F(i) & 504, P.P.C, was registered at police station which was exhibited in their evidence and supported the version of the accused persons---Both the defence witnesses were also independent and not related to the accused persons but rather just neighbors who had witnessed them being arrested on the day of the incident and nothing was recovered from them at the time of their arrest---Anti-Narcotic Force had not challenged the said N.C report during their cross-examination---As such, the defence plea set up by the accused persons appeared to have some weight in the absence of any denial by the prosecution---Appeal against conviction was allowed, in circumstances.

(d) Criminal trial---

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

Naveed Asghar and 2 others v. The State PLD 2021 SC 600 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

Zakir Hussain Bughio for Appellants.

Habib Ahmed Special Prosecutor, ANF for the State.

Date of hearing: 31st October, 2022.

Judgment

Zulfiqar Ali Sangi, J.--- Appellants found guilty of possessing 25 Kgs Charas were convicted by learned Special Court No. II (Control of Narcotic Substances), Karachi in Special Case No.183 of 2018 bearing FIR No.18 of 2016 for offence under section 6/9-C read with sections 14/15 Control of Narcotic Substances Act, 1997, registered at PS ANF-II, Karachi and sentenced to suffer Life Imprisonment with fine of Rs.200,000/- (Two Lac Rupees Only) each and in default, to further undergo for two (02) years imprisonment with the benefit of Section 382-B Cr.P.C. vide judgment dated 09.08.2021. By means of this appeal, the appellants have assailed their convictions and sentences.

1. Brief facts of the prosecution case as per FIR are that on 05.03.2016 at about 1730 hours on a tip-off the Complainant Inspector Muhammad Muzamil Ahmed of PS ANF-II Karachi along with other ANF officials arrested appellants in front of the office of Executive Engineering, New Malir Housing Project, Scheme No.1, Sassui Toll Plaza, National Highway, Karachi while coming on a Motorcycle bearing Registration No.KIU-7612 and recovered 25 foil packets of Charas weighing 25 Kgs Charas from them. After observing the requisite formalities, the arrested accused persons, and recovered contraband Charas and their Motorcycle were brought to PS ANF-II, where FIR was lodged.

2. After usual investigation charge sheet against the appellants was submitted before the court having jurisdiction and after completing the legal formalities including supplying the copies of papers the charge against them was framed to which they pleaded not guilty and claimed trial. At the trial, the prosecution examined four (04) witnesses including the complainant, mashir of arrest and recovery and Investigating Officer etc., who exhibited various documents and items in support of the case of the prosecution.

3. The statements under section 342 Cr.P.C of the appellants were recorded to which they denied prosecution allegations and pleaded their innocence. They examined themselves on oath and produced two defence witnesses in their defence. After hearing the parties the trial court convicted and sentenced the appellants through impugned judgment as stated above.

4. Learned counsel for the appellants mainly contended that the appellants are innocent and have been falsely implicated in this case; that the prosecution has failed to prove the charge against the appellants beyond a shadow of reasonable doubt; that as per complainant sample of 20 grams from each packet was separated at the place of incident and as per entry No.4 of daily diary of P.S. samples were sealed after taking out the recovered charas from Malkhana which creates serious doubt in the prosecution case; that there are contradictions in the evidence of P.Ws in regard to the recovery of narcotics etc. but same were not considered by the trial court; that P.W.2 Raja Iftikhar stated that Malkhana Incharge handed over the case property to complainant Muhammad Muzamil, who handed over the same to him; that P.W.2 in his evidence stated that there was katcha path where mobile was stopped but site inspection memo revealed that there was no space to park the vehicles; that there is no evidence of safe custody of recovered charas from the time of its recovery up to sending samples to the Chemical Examiner. Lastly, he prayed for setting aside the impugned judgment and acquittal of the appellants by extending them the benefit of the doubt. In support of his arguments learned counsel has relied upon the cases of Ahsan Marfani v. The State (2022 YLR Note 5), Mst. Sakina Ramzan v. The State (2021 SCMR 451) and Minhaj Khan v. The State (2019 SCMR 326).

5. On the other hand learned Special Prosecutor ANF has contended that the prosecution has successfully proved its case by examining the P.Ws who have no enmity with the appellants; that there are eye-witnesses who deposed that in their presence the appellants were arrested and from them 25 foil packets of Charas weighing 25 Kgs were recovered; that there are no major contradictions between the evidence of the complainant and the other P.Ws and thus the prosecution has proved its case beyond a reasonable doubt and the impugned judgment does not call for any interference by this court and the appeal should be dismissed.

6. We have heard learned counsel for appellants and learned Special Prosecutor ANF and examined the record and the case law cited at the bar with their able assistance.

7. The case of the prosecution is that the raiding party after information had stopped their vehicles in front of the office of Executive Engineer new Malir Housing Project Scheme-1 near Sassui Toll Plaza and the complainant and mashir also deposed during their examination-in-chief the same which confirms that they stopped their vehicles in front of a Govt. building. However, on an application under section 539-B Cr. P.C filed by learned defence counsel, Nazir of the trial court was appointed as commissioner for inspection of the place of recovery, who had submitted his report mentioning that there was no office building at the pointed place where the vehicles were stopped and the inspection was carried out on the pointation and in presence of the complainant. P.W.2 Raja Iftikhar during cross-examination stated that there was no office where they were standing but on their back side there were showroom-type offices beside a Chapra hotel. The court witness No.1 Sajid Mehmood during his cross-examination stated that Inspector Muhammad Muzamil pointed out the place and informed that vehicles were parked at the time of occurrence at that place and in front of it there was no building of Executive Engineer, New Malir Housing Project Scheme-1. These aspects of the case make the recovery alleged by the prosecution doubtful. P.W.1 complainant Muhammad Muzamil during cross-examination stated that HM (Head Mohrar) had reduced to writing the entry and the FIR while P.W.2 mashir Raja Iftikhar stated that the same was registered by the complainant himself. P.W.2 Raja Iftikhar during cross-examination stated that there was no other road except the main National Highway and there was no link road. However, C.W.1 Sajid Mehmood during his cross-examination contradicted him by stating that there was a service road adjacent to Sassui Toll Plaza while going to the Gharo side from Karachi. P.Ws 1 and 2 negated the suggestion that after crossing Sassui Toll Plaza there was a Rangers check post, however, C.W.1 Sajid Mehmood admitted that there was a Rangers picket. The witnesses during cross-examination mostly used the words that they do not remember on certain questions and suggestions put to them by the defence counsel. The discrepancies in the testimonies of the two witnesses; the purported lack of knowledge about certain things which they ought to have remembered and not knowing those things which they should have to known as in the present case is fatal to the case of the prosecution. Reliance can be placed on the case of Minhaj Khan v. The State (2019 SCMR 326).

8. The prosecution in respect of safe custody of alleged charas has not produced strong evidence to prove the same. P.W.1 Inspector Muhammad Muzamil has deposed that he deposited the case property in the Malkhana. He did not utter a single word in respect of in charge Malkhana at that time who was the in charge of Malkhana. However, P.W.3 Muhammad Rasheed who took the samples to the Chemical Examiner has stated that incharge Malkhana had handed over the samples to complainant inspector Muhammad Muzamil, who had handed over the same to him, which reflects that P.W.1 Muhammad Muzamil was not the incharge of Malkhana and someone else had handed over him the samples from the Malkhana to him. The prosecution in order to cover up this lacuna in their case moved an application before the trial court under section 540 Cr. P.C wherein it is mentioned that Malkhana incharge was SI Afzal Nazeer and at the time of application was posted at Peshawar. Subsequently another application under section 540 Cr. P.C was moved, wherein the name of Incharge Malkhana was mentioned as (complainant) Muhammad Muzamil stating that name of SI Afzal Nazeer was given mistakenly. Inspector Muhammad Muzamil was again examined and he introduced himself to be the incharge of Malkhana. However, in his earlier deposition as P.W.1, he did not depose a single word that he was the incharge of Malkhana at that time, which conflicts with the evidence of P.W.3 HC Muhammad Rasheed, who in clear words stated that incharge Malkhana had handed over the samples to P.W.1 Muhammad Muzamil, who handed over the same to him, which in our view was an afterthought and managed one to bring the case in conformity with the recent view of the Honourable Supreme Court in respect of proving the safe custody and safe transmission of the narcotic to the chemical examiner. After a look at the evidence in respect of safe custody of alleged charas, we are of the view that the prosecution has not been able to prove the same and did not examine the incharge Malkhana who was available at that time but instead managed the evidence of Muhammad Muzamil to fill the lacuna. Further the alleged charas was recovered on 05.07.2016 and samples were sent to the Chemical Examiner on 07.07.2016. There is no evidence to ascertain as to whether the property was kept in safe custody from its recovery till its arrival at the office of the chemical examiner. Therefore, by failing to prove the safe custody of the recovered contraband, the same could not be used against the appellants in this regard and the chemical report is of no legal value. The Honourable Supreme Court in the case of Mst. Razia Sultana v. The State and another (2019 SCMR 1300), has held as under:-

9. At the very outset, we have noticed that the sample of the narcotic drugs was dispatched to the Government Analyst for chemical examination on 27.2.2006 through one Imtiaz Hussain, an officer of ANF but the said officer was not produced to prove safe transmission of the drug from the Police to the chemical examiner. The chain of custody stands compromised as a result it would be unsafe to rely on the report of the chemical examiner. This Court has held time and again that in case the chain of custody is broken, the Report of the chemical examiner loses reliability making it unsafe to support conviction. Reliance is placed on State v. Imam Bakhsh (2018 SCMR 2039).

10. For the above reasons the prosecution has failed to establish the charge against the appellant beyond reasonable doubt, hence the conviction and sentence of the appellant is set aside and this appeal is allowed, setting the appellant at liberty unless required in any other case.

11. In another case of Zahir Shah alias Shat v. The State through Advocate General, Khyber Pakhtunkhwa (2019 SCMR 2004), Honourable Supreme Court has held as under:-

12. We have reappraised the evidence with the able assistance of learned counsel for the parties and have noticed at the very outset that the Police constable, bearing No.FC-688, who delivered the sealed parcel to the Forensic Science Laboratory, Peshawar on 27.2.2013 was not produced by the prosecution. This fact has been conceded by the learned law officer appearing on behalf of the respondents. This court has repeatedly held that safe custody and safe transmission of the drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory must be satisfactorily established. This chain of custody is fundamental as the report of the Government Analyst is the main evidence for the purpose of conviction. The prosecution must establish that chain of custody was unbroken, unsuspicious, safe and secure. Any break in the chain of custody i.e., safe custody or safe transmission impairs and vitiates the conclusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction. Reliance is placed on State v. Imam Bakhsh (2018 SCMR 2039).

13. Recently the Honourable Supreme Court of Pakistan in the case of Qaiser and another v. The State (2022 SCMR 1641), has observed that "In absence of establishing the safe custody and safe transmission, the element of tempering cannot be excluded in this case. The chain of custody of sample parcels begins from the recovery of the narcotics by the police including the separation of representative samples of the recovered narcotics, their dispatch to the Malkhana and further dispatch to the testing laboratory. The said chain of custody and transmission was pivotal as the entire construct of the Act 1997 and the Control of Narcotic Substances (Government Analysts) Rules 2001 (Rules 2001), rests upon the report of the analyst. It is prosecutions bounded duty that such chain of custody must be safe and secure because the report of chemical examiner enjoined critical importance under the Act 1997, and the chain of custody ensure the reaching of correct representative samples to the office of chemical examiner. Any break in the chain of custody i.e. the safe custody or safe transmission of the representative samples, makes the report of chemical examiner worthless and un-reliable for justifying conviction of the accused. Such lapse on the part of the prosecution would cast doubt and would vitiate the conclusiveness and reliability of the report of chemical examiner. Reliance can be made upon the judgments rendered by three members benches of this court i.e. Ikramulah v. The State (2015 SCMR 1002), The State v. Imam Bakhsh (2018 S'CMR 2039), Abdul Ghani v. The State (2019 SCMR 608), Kamran Shah v. The State (2019 SCMR 1217), Mst. Razia Sultana v. The State (2019 SCMR 1300), Faizan Ali v. The State (2019 SCMR 1649), Zahir Shah alias Shat v. State through AG KPK (2019 SCMR 2004), Haji Nawaz v. The State (2020 SCMR 687), Qaiser Khan v. The State (2021 SCMR 363), Mst. Sakina Ramzan v. The State (2021 SCMR 451), Zubair Khan v. The State (2021 SCMR 492) and Gulzar v. The State (2021 SCMR 380)."

14. The appellants also examined themselves on oath under section 340(2) Cr.P.C. and stated that on the day of incident at 1800 hours they had a dispute on an electricity issue between them and the Mohalla people and during such dispute police came on two mobiles and arrested them and they were handed over to ANF Officials where they were falsely involved in the case. To support their version they examined DW-1 Nadeem Ahmed and DW-2 Makhdoom Abdul Khalique, both of whom supported their version while deposing that there was a quarrel between the accused and DW.1 Nadeem Ahmed and the matter was being patched up, however, police came there and took away the appellants. In respect of such quarrel a N.C report No. 19 at 1735 on 05-03-2016 for the offence under sections 337 F(i) and 504 P.P.C. was registered at Police Station Gharo which was exhibited in their evidence and supports the version of the appellants. Both the defence witnesses are also independent and not related to the appellants but rather just neighbors who had witnessed him being arrested on the day of the incident and nothing was recovered from them at the time of their arrest. The ANF has not challenged the said N.C report during their cross-examination. As such, the defence plea set up by the appellants appears to have some weight in the absence of any denial by the prosecution.

15. It is also an established principle of law that an accused person is presumed to be innocent till the time he is proven guilty beyond a reasonable doubt and this presumption of his innocence continues until the prosecution succeeds in proving the charge against him beyond a reasonable doubt on the basis of legally admissible, confidence-inspiring, trustworthy and reliable evidence. It is well-settled law that the prosecution is bound to prove its case against the accused beyond any shadow of reasonable doubt, but no such duty is cast upon the accused to prove his innocence. It has also been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused. The rule of giving the benefit of doubt to an accused person is essentially a rule of caution and prudence and is deep-rooted in our jurisprudence for the safe administration of criminal justice. In common law, it is based on the maxim, "It is better that ten guilty persons be acquitted rather than one innocent person be convicted". While in Islamic criminal law it is based on the high authority of sayings of the Holy Prophet of Islam (Peace Be Upon Him): "Avert punishments (hudood) when there are doubts" and "Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him [accused], let him have his way, because the leader's mistake in pardon is better than his mistake in punishment." The Hon'ble Supreme Court has quoted probably the latter part of the last-mentioned saying of the Holy Prophet (PBUH) in the case of Ayub Masih v. State (PLD 2002 SC 1048) "Mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent." The same principle has also been followed by the Honourable Supreme Court of Pakistan in the recent Judgment in the case of Naveed Asghar and 2 others v. The State (PLD 2021 SC 600).

16. After our reassessment of the evidence produced by the prosecution as discussed above and while taking the defence plea of the appellants in juxtaposition we are of the view that the prosecution has not proved its case against the appellants beyond a reasonable doubt and for extending the benefit of the doubt there do not need to be multiple circumstances creating doubt. If a single circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in the case of Tariq Pervez v. The State reported as (1995 SCMR 1345), wherein the Honourable Supreme Court of Pakistan has held as under:-

2024 P Cr. L J 1601

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto, J

Qurban Ali---Appellant

Versus

The State---Respondent

Criminal Appeals Nos. S-50 and S-51 of 2022, decided on 17th July, 2023.

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

----Ss. 302 (b) & 311---Qatl-i-amd, ta'zir after waiver or compounding of right of qisas in qatl-i-amd---Appreciation of evidence---Police witnesses, evidence of---Reliance---Scope---Accused was charged for committing murder of his sister on the pretext of kari with a person---Prosecution's case primarily rested upon the evidence of Police Officials---Complainant/ASI stated before the Trial Court that he was on patrolling duty on 26.05.2020 along with his subordinate staff and received spy information that accused was prepared to commit murder of his sister at the house---Police party proceeded to the pointed place and reached at 3.00 pm and saw deceased running in the street and accused was behind her and fired upon her from back---Police Constable identified the accused but in the cross-examination complainant/ASI replied that accused and deceased were seen by the police party from their back side in the street---Police Constable replied in cross-examination that accused was not previously known to him---Said evidence clearly showed that evidence of eye-witnesses/Police Officials was unnatural, unbelievable and un-trustworthy---In the present case, the fate of the accused hinged upon testimony of the Police Officials alone, thus, it was necessary to find out if there was any possibility of securing independent persons at that time---Record showed that in the evidence of complainant/ASI 8/10 persons had gathered at the time of incident along with woman of a village but prosecution did not produce them before Trial Court as such material evidence was withheld, which was fatal to the case of prosecution---In the cases of evidence of Police Officials judicial approach has to be cautious in dealing with such evidence---Circumstances established that the prosecution had failed to prove its case against accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Mureed Hussain v. The State Through Prosecutor General Sindh 2014 Scmr 1689; Muhammad Imran v. The State 2020 Scmr 857; Muhammad Bilal v. The State 2021 Ylr 1252; Abdul Basit v. The State and another 2021 PCr.LJ 348; Allah Bakhsh v. The State 2021 Mld 972; Naik Nawaz alias Shekar v. The State and 3 others 2021 Ylr 872 and Hanifullah alias Pentar and 4 others v. Habib Ur Rehman and 3 others 2021 Ylr 899 ref.

Saifullah v. The State 1992 MLD 984 rel.

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

----Ss. 302 (b) & 311---Qatl-i-amd, ta'zir after waiver or compounding of right of qisas in qatl-i-amd---Appreciation of evidence---No private witness associated---Consequential---Accused was charged for committing murder of his sister on the pretext of kari with a person---According to evidence, it was a spy information case and incident had occurred in a village---No effort was made by complainant/ASI, head of the police party to call the villagers, whose presence had come on record---Conduct of Police Officials was also highly questionable, as they made no effort at all to rescue the deceased and made no effort to arrest the accused at the spot---Moreover, it was unbelievable that accused waited for the police then he committed murder of his sister---Circumstances established that the prosecution had failed to prove its case against accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302 (b) & 311---Qatl-i-amd, ta'zir after waiver or compounding of right of qisas in qatl-i-amd---Appreciation of evidence---Ocular account and medical evidence---Inconsistencies---Accused was charged for committing murder of his sister on the pretext of kari with a person---Record showed that ocular evidence was contrary to the medical evidence---According to evidence of eye-witnesses, when they reached at the place of incident, they saw the deceased running in the street---Accused followed his sister/victim and fired at her from back side but perusal of evidence of Medical Officer showed that deceased had sustained two fire arm injuries on neck and chest---Circumstances established that the prosecution had failed to prove its case against accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstance.

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

----Ss. 302 (b) & 311---Qatl-i-amd, ta'zir after waiver or compounding of right of qisas in qatl-i-amd---Appreciation of evidence---Contradictions in the statements of witnesses---Scope---Accused was charged for committing murder of his sister on the pretext of kari with a person---There were material contradictions in the prosecution evidence---Complainant/ASI deposed that accused was identified by Police Constable but Police Constable in his cross-examination replied that accusedwas not previously known to him---Complainant/ASI had deposed that accused was carrying SBBL gun at the time of incident but other witness stated in his evidence that accused was carrying DBBL gun---Circumstances established that the prosecution had failed to prove its case against accused beyond reasonable doubt---Resultantly---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302 (b) & 311---Qatl-i-amd, ta'zir after waiver or compounding of right of qisas in qatl-i-amd---Appreciation of evidence---Safe custody and transmission of recovered weapon of offence not proved---Accused was charged for committing murder of his sister on the pretext of kari with a person---Record showed that empties and gun were not sent to expert on same date, which created doubt in the prosecution case---Prosecution failed to produce before Trial Court evidence with regard to safe custody and safe transmission of the gun to the Chemical Examiner---Incharge Malkhana of Police Station was also not examined---Prosecution utterly failed to prove safe custody and safe transmission of the gun to the expert, therefore, positive report of the expert would not improve the case of prosecution---Circumstances established that the prosecution had failed to prove its case against accused beyond reasonable doubt---Resultantly, appeal against conviction was allowed, in circumstances.

Kamaluddin alias Kamala v. The State 2018 SCMR 577 rel.

Nawab Ali Pitafi for Appellant.

Zulfiqar Ali Jatoi, Additional Prosecutor General for the State.

Date of hearing: 10th July, 2023.

Judgment

Naimatullah Phulpoto, J.---Through captioned appeals, appellant Qurban Ali has impugned judgments dated 15.06.2022 passed by learned Additional Sessions Judge Ubauro in main Sessions case No. 233/2020 for offence under section 302(b) P.P.C. and sentenced to imprisonment for life as Ta'zir. In the connected / off shoot case No.96/2020 appellant was also convicted under section 24 of Sindh Arms Act, 2013 and sentenced to 05 years R.I and to pay fine of Rs.50,000/-, in case of default in payment of fine, he was ordered to suffer S.I for 03 months. Appellant was extended benefit of Section 382-B Cr.P.C.

1. Brief facts of the prosecution case are that ASI Muhammad Ameen Leghari of Police Station Reti left P.S along with PC Sanaullah and others for patrolling duty on 26.05.2020. It is alleged that ASI Muhammad Ameen received spy information that appellant Qurban Ali Khambhro was prepared to commit murder of his sister Mst. Jameela on the pretext of Kari with one Zahid Khambro. Police party on receiving such information, proceeded to the house of appellant Qurban Ali and reached near his house at 1500 hours and saw woman, she was running in the street to save her life. Appellant was armed with gun and was behind her. It is further alleged in the FIR that PC Sanaullah identified appellant as Qurban Ali Khambhro and his sister as Mst. Jameelan. Police officials challenged Qurban Ali Khambhro and asked him not to commit murder of his sister Mst. Jameelan. It is further alleged that appellant Qurban Ali made repeated fires upon his sister Mst. Jameelan. Police party tried to catch hold the appellant but he succeeded in running away in the streets. Police found Mst. Jameelan lying dead in the street. ASI Muhammad Ameen made PCs Sanaullah and Attaullah as mashirs. Two empty cartridges and blood stained earth were collected from the place of incident. Inquest report and mashirnama of vardat were prepared. Dead body was sent through PC Attaullah for post mortem examination and report to Taluka Hospital Daharki. Thereafter, ASI returned to P.S Reti, where he lodged FIR against appellant on behalf of state on 26.05.2020 vide Crime No. 16/2020 for offences under sections 302, 311 P.P.C.

2. On the same date (26.05.2020) investigation was handed over to SIP Imtiaz Hussain. On 31.05.2020, Investigating Officer left Police Station along with P.Cs Sanaullah and Attaullah for conducting investigation of the case, he received spy information near graveyard that accused Qurban Ali involved in this case was standing near Narli bridge. Appellant was arrested by Investigating Officer in presence of above-named constables. He was carrying DBBL gun of 12 bore which was recovered from him, the same was without license. According to Investigating Officer, it was used in the commission of offence. Appellant and gun were brought at Police station where FIR was lodged on behalf of State vide crime No.17/2020 under section 24 of Sindh Arms Act, 2013. Investigating officer sent gun and cartridges to ballistic expert Larkana for examination and report. Blood stained clothes and earth were also sent to Chemical Examiner. Positive reports were received. On the conclusion of usual investigation, final reports were submitted in both the cases before concerned Judicial Magistrate who took cognizance of the offences and sent up the R & Ps to the Sessions Court for trial.

3. Trial Court framed charge against the appellant/accused in the main case under section 302 P.P.C. at Exh.2. Appellant Qurban Ali pleaded not guilty and claimed to be tried. In support of its' case prosecution examined 06 witnesses at Exh. 10 to Exh.15 who produced certain documents, then prosecution side was closed.

4. Trial Court recorded the statement of appellant/accused under section 342 Cr.P.C at Exh.17 where, he denied allegations levelled against him by the prosecution witnesses. Appellant did not lead evidence in defense and declined to give statement on oath in disproof of prosecution evidence.

5. In the connected / off shoot case, charge was also framed separately against appellant/accused at Exh. 2 to which he pleaded not guilty and claimed to be tried. At trial prosecution examined PW/mashir PC Sanaullah and SIP Imtiaz Hussain complainant as well as Investigating Officer of the case at Exhs. 4 and 5. Thereafter, prosecution side was closed. In the statement recorded under section 342 Cr.P.C, allegations were denied.

6. Learned trial Court after hearing learned counsel for the parties convicted and sentenced the appellant in the main case as well as in the off shoot/connected case separately as mentioned supra hence the appellant has filed these appeals against his conviction and sentence. By this single judgment, I intend to decide both cases, as same both cases required same appreciation of evidence.

7. The facts of the cases as well as evidence produced before the trial Court find an elaborate mention in the impugned judgments, therefore, the same are not reproduced here so as to avoid duplication and unnecessary repetition.

8. Learned counsel for the appellant argued that impugned judgments are contrary to law and facts of the cases are against the principles of criminal justice; that prosecution case is full of doubts and trial Court has failed to appreciate the evidence according to settled principles of law; that it is unbelievable that ASI Muhammad Ameen had received spy information that appellant was prepared to commit murder of his sister Mst. Jameelan on the pretext of KARI; that conduct of the police officials was highly questionable as they made no attempt at all to rescue the deceased and even no effort was made to catch hold the appellant who committed murder of his sister; learned advocate for the appellant has referred to the cross-examination of PW-1 ASI Muhammad Ameen and argued that he had clearly replied that he had seen the appellant and deceased while running in the street from their back side; it is further argued that deceased had sustained injuries from her front side and ocular evidence was contrary to the medical evidence. As regards to the evidence in the connected / off shoot case is concerned, it is argued that it was unbelievable that appellant was carrying gun after five days of the incident with which he had committed the murder of his sister; that gun produced before the trial Court was SBBL but Investigating Officer in his evidence stated that it was DBBL gun; that there are material contradictions in the evidence of prosecution witnesses; lastly, it is argued that prosecution failed to produce evidence before the trial Court with regard to safe custody and safe transmission of the crime weapon to the Ballistic Expert. In support of his contentions he has relied upon the reported cases of (i) Mureed Hussain v. The State Through Prosecutor General Sindh (2014 Scmr 1689), (ii) Muhammad Imran v. The State (2020 Scmr 857), Muhammad Bilal v. The State (2021 Ylr 1252), Abdul Basit v. The State and another (2021 PCr.LJ 348), Allah Bakhsh v. The State (2021 Mld 972), Naik Nawaz alias Shekar v. The State and 3 others (2021 Ylr 872) and Hanifullah alias Pentar and 4 others Vs Habib Ur Rehman and 3 others (2021 Ylr 899).

9. Learned Additional Prosecutor General supported the impugned judgment and argued that prosecution has proved its case beyond the reasonable doubt based on reliable evidence of the police officials which is corroborated by other pieces of evidence as such prayed that appeals may be dismissed.

10. After re-assessment of entire evidence, I have come to conclusion that prosecution has NOT proved the charge against the appellant in the main case as well as in the connected / off shoot case beyond the reasonable doubt. Trial Court has made errors in assessing the evidence, misapplied the law that affected the accuracy of the verdict. Trial Courts' Judgment is legally unreasonable, for the following reasons:

(a) I find that prosecution's case primarily rests upon the evidence of police officials. ASI Muhammad Ameen stated before the trial Court that he was on patrolling duty on 26.05.2020 along with his subordinate staff. He received spy information that appellant was prepared to commit murder of his sister Mst. Jameela at the house. Police party proceeded to the pointed place and reached at 1500 hours and saw Mst. Jameela running in the street and appellant was behind her and fired upon her from back. It is stated that PC Sanaullah identified the appellant but in the cross-examination ASI Muhammad Ameen replied that appellant and deceased were seen by the police party from their back side in the street. PC Sanaullah replied in cross-examination that appellant was not previously known to him. Above referred evidence clearly shows that evidence of eye-witnesses/police officials was unnatural, unbelievable and un-trustworthy.

(b) According to evidence, it was spy information case and incident had occurred in a village. No effort was made by ASI Muhammad Ameen/head of the police party to call the villagers, whose presence has come on record. Conduct of police officials was also highly questionable, as they made no effort at all to rescue the deceased Mst. Jameela and made no effort to arrest the appellant at spot. It is unbelievable that appellant waited for the police then he committed murder of his sister.

(c) Contention of learned Additional P.G that evidence of police officials cannot be discarded, simply because they belonged to the police force. In the present case, the fate of the appellant hinges upon testimony of the police officials alone, it is necessary to find out if there was any possibility of securing independent persons, at that time. It has come on record in the evidence of ASI Muhammad Ameen Leghari that 8/10 persons had gathered at the time of incident so also woman of a village but prosecution did not produce them before trial Court as such material evidence was withheld, it would be fatal to the case of prosecution. In the cases of evidence of police officials judicial approach has to be cautious in dealing with such evidence as held in the case of Saifullah v. The State (1992 MLD 984).

(d) that ocular evidence was contrary to the medical evidence. According to evidence of eye-witnesses PW-1 ASI Muhammad Ameen and PW-2 PC Sanullah when they reached at the place of incident, saw deceased Mst. Jameela running in the street. Appellant followed her from back and fired from his gun at her sister from back side but perusal of evidence of Dr. Shazia at Exh.13 shows that deceased had sustained two fire arm injuries at neck and chest.

(e) that there are material contradictions in the prosecution evidence. Complainant ASI Muhammad Ameen deposed at Exh 10 that appellant was identified by PC Sanaullah but PC Sanaullah in his cross-examination replied that appellant was not previously known to him. PW-1 Complainant ASI Muhammad Ameen has deposed that appellant was carrying SBBL gun at the time of incident but PW-6 SIP Imtiaz Hussain stated in his evidence that appellant was carrying DBBL gun.

(f) that Investigating Officer during investigation failed to interrogate/investigate the motive attributed to the appellant for commission of the offence.

(g) that empties and gun were not sent to expert on same date, which created doubt in the prosecution case.

(h) Trial Court had also failed to appreciate evidence of police officials in the connected / off shoot case and convicted the appellant for offence under section 24 of Sindh Arms Act, 2013 without confidence inspiring evidence. Prosecution failed to produce before trial court evidence with regard to safe custody and safe transmission of the gun to the Chemical Examiner.

(i) Incharge Malkhana of Police Station was also not examined, prosecution utterly failed to prove safe custody and safe transmission of the gun to Expert, therefore, positive report of the expert would not improve the case of prosecution. Rightly, reliance is placed on the case reported as Kamaluddin alias Kamala v. The State (2018 SCMR 577) wherein it has been held that:

" As regards the alleged recovery of a Kalashnikov from the appellant's custody during the investigation and its subsequent matching with some crime-empties secured from the place of occurrence suffice it to observe that Muhammad Athar Farooq DSP/SDPO (PW18), the Investigating Officer, had divulged before the trial court that the recoveries relied upon in this case had been affected by Ayub, Inspector in an earlier case and, thus, the said recoveries had no relevance to the criminal case in hand. Apart from that safe custody of the recovered weapon and its safe transmission to the Forensic Science Laboratory had never been proved by the prosecution before the trial court through production of any witness concerned with such custody and transmission."

(j) For the reasons it is unbelievable that appellant after commission of the murder of the sister was arrested by the police when he was carrying gun used by him in commission of offence after five days.

2024 P Cr. L J 1610

[Sindh]

Before Zafar Ahmed Rajput and Amjad Ali Bohio, JJ

Muzamil and 3 others----Appellants

Versus

The State and another----Respondents

Special Criminal Anti-Terrorism Appeal No. 10 of 2023, decided on 9th July, 2024.

Anti-Rape (Investigation and Trial) Act (XXX of 2021)---

----Sched. I, Entries Nos. 3 & 4---Penal Code (XLV of 1860), Ss. 376(2), 506-B & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Rape, criminal intimidation, common intention, act of terrorism---Jurisdiction of Special Court---Scope---Accused were charged for committing rape with a minor girl---In the present case, admitted position was that the alleged offence was not committed for ransom, hence, the same did not fall within the Scheduled Offences of the Anti-Terrorism Act, 1997 ("Act, 1997") and thus, the same was not triable by the Anti-Terrorism Court---Alleged offence of rape under S. 376(2), P.P.C, though was of serious and brutal nature, yet being not included in entry No. 4 of the Third Schedule to the Act, 1997, was not triable by the Anti-Terrorism Court as a heinous offence---Alleged offence under S.376(2), P.P.C., did not even fall within the jurisdiction of regular Court under the Code in view of promulgation of the Anti-Rape (Investigation and Trial) Act, 2021 ("Act of 2021"), which came into force on 03.12.2021 to ensure expeditious redressal of rape and sexual abuse crimes in respect of women and children through special investigation teams and Special Courts providing for efficacious procedures, speedy trial, evidence and matters connected therewith or incidental thereto---Under Entries Nos.3 & 4 of the Schedule-I of the Act, 2021, offences under Ss. 21 and 22 of the Prevention of Electronic Crimes Act, 2016; the offences under the Act of 1997, which are committed along with the offences in the said Schedule and under Entry No.1 of the Schedule-II of the Act, an offence under S.376, P.P.C., were Scheduled Offences of the Act of 2021 and were triable by the Special Court established under the said Act---As per FIR, the alleged offence was committed on 12.01.2021---Charge was framed by the Trial Court on 04.06.2021---Special Courts under the Act of 2021 were notified in the Province of Sindh on 11.10.2022---Impugned judgment was passed on 19.01.2023---Meaning thereby, that on the day of notification of Special Courts under the Act of 2021, the trial of Scheduled Offence of the Act of 2021 was pending in the Anti-Terrorism Court, which ought to have been transferred to the Special Court having jurisdiction under the Act of 2021, which had the territorial jurisdiction to try the alleged offence as per notification---Since the trial Court i.e. Anti-Terrorism Court had no jurisdiction to try the case; the accused could not be tried, convicted and sentenced by it---Accordingly, the conviction and sentence awarded under the impugned judgment was set-aside with direction to Trial Court to transfer the case to Special Court established and notified under the Act of 2021, having territorial jurisdiction for trial in accordance with law---Appeal was allowed in the said terms.

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

Syed Naimatullah Shah for Appellants.

Siraj Ali Khan Chandio, Additional Prosecutor General for the State.

Muhammad Khan Shaikh for the Complainant.

Date of hearing: 24th May, 2024.

Judgment

Zafar Ahmed Rajput, J.---This Special Anti-Terrorism appeal is directed against the judgment, dated 19.01.2023, passed by the Anti-Terrorism Court No. IV, Karachi Division ("the Trial Court") in Special Case No. 195 of 2021, arising out of FIR. No. 133 of 2021, registered under Sections 376(2), 506-B, 34, P.P.C. read with Section 7 of the Anti-Terrorism Act, 1997 ("Act of 1997") at P.S. Memon Goth, Karachi-Malir, whereby the appellants were convicted for the said offences and sentenced to suffer life imprisonment and imprisonment for five years. Both the sentences were ordered to run concurrently; however, the benefit of Section 382-B, Cr P.C was extended to them.

1. It is case of the prosecution that, on 12.01.2021 at about 1700 hours, appellant Adeel, 17, called baby Hadiqa, 12/13, at his vacant house, located at Memon Goth, Malir, Karachi, where appellants Muzamil, 15, Subhan, 15, and Aaraiz, 16 ½ , were already present. They in furtherance of common intention committed rape of said minor baby. Appellant Adeel made video recording and made it viral on WhatsApp group; for that they were booked in the aforementioned FIR.

2. After usual investigation, police submitted the charge-sheet against them before the Administrative Judge, Anti-Terrorism Courts ("ATC"), Karachi Division, which was marked to the Trial Court. Having been completed formal proceedings, the Trial Court framed the charge against the appellants, to which they pleaded not guilty and claimed to be tried. The prosecution in order to substantiate the charge examined eleven witnesses, who produced on record relevant documents. The Trial Court also recorded statements of minor appellants under Section 342(1), Cr.P.C, wherein they denied the charges against them and claimed to be innocent. They; however, neither examined themselves on oath under section 340(2), Cr.P.C. nor did they produce any witness in their defence. The Trial Court after hearing the learned counsel for the parties, convicted and sentenced the appellants vide impugned judgment.

3. Heard the learned counsel for the appellants, complainant as well as learned Addl. P.G. and perused the material available on the record.

4. Since the issue of jurisdiction of the Trial Court is prime issue agitated before us, we do not deem it appropriate to evaluate the legality and propriety of the impugned judgment in entirety.

5. We are not impressed with the arguments of the learned counsel for the appellants that the alleged offence is triable by the Juvenile Court concerned established under the Juvenile Justice System Act, 2018 ("Act of 2018") as the appellants were juvenile as defined under clause (h) of section 2 of the Act of 2018 at the time of committing alleged offence. In this regard, suffice it to say that all the Anti-Terrorism Courts in Sindh are established and designated as Juvenile Courts vide Notification No. SOJI/9-2/2018, dated 1st April, 2019, issued by the Government of Sindh in exercise of the powers conferred under section 4 of the Act of 2018. Hence, if the offence is otherwise triable by the ATC, the ATC can also try the juvenile offender(s) under the Act of 2018.

6. It may be observed that under Section 12 of the Act of 1997, the ATC has jurisdiction to try a scheduled offence. The term "Scheduled offence" has been defined under Section 2(t) (ibid) as an offence as set out in the Third Schedule. The Third Schedule of the Act of 1997 specifies following offences as Scheduled Offences:-

THE THIRD SCHEDULE

Scheduled Offences

[See section 2(t)]

1. Any act of terrorism within the meaning of this Act including those offences which may be added or amended in accordance with the provisions of section 34 of this Act.

2. Any other offence punishable under this Act.

3. Any attempt to commit, or any aid or abetment of, or any conspiracy to commit, any of the aforesaid offences.

4. Without prejudice to the generality or the above paragraphs, the Anti-Terrorism Court to the exclusion of any other Court shall try the offences relating to the following, namely:-

(i) Abduction or kidnapping for ransom;

(ii) use of fire arms or explosives by any device, including bomb blast in a mosque, imambargah, church, temple or any other place of worship, whether or not any hurt or damage is caused thereby; or

(iii) firing or use of explosive by any device, including bomb blast in the court premises.

(Emphasis supplied)

1. Term "terrorism" has been defined under section 6 of the Act of 1997, as under:

6. Terrorism.-(1) In this Act, "terrorism" means the use or threat of action where:-

(a) the action falls within the meaning of subsection (2); and

(b) the use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or a foreign government or population or an international organization or create a sense of fear or insecurity in society; or

(c) the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause or intimidating and terrorizing the public, social sectors, media persons, business community or attacking the civilians, including damaging property by ransacking, looting, arson or by any other means, government officials, installations, security forces or law enforcement agencies.

Provided that nothing herein contained shall apply to a democratic and religious rally or a peaceful demonstration in accordance with law.

(2) An "action" shall fall within the meaning of subsection (1), if it:-

(a) involves the doing of anything that causes death;

(b) involves grievous violence against a person or grievous bodily injury or harm to a person;

(c) involves grievous damage to property including government premises, official installations, schools, hospitals, offices or any other public or private property including damaging property by ransacking, looting or arson or by any others means;

(d) involves the doing of anything that is likely to cause death or endangers person's life;

(e) involves kidnapping for ransom, hostage-taking or hijacking;

(ee) involves use of explosive by any device including bomb blast or having any explosive substance without any lawful justification or having been unlawfully concerned with such explosive;

(f) incites hatred and contempt on religious, sectarian or ethnic basis to strip up violence or cause internal disturbance;

(g) involves taking the law in own hand, award of any punishment by an organization, individual or group whatsoever, not recognized by the law, with a view to coerce, intimidate or terrorize public, individuals, groups, communities, government officials and institutions, including law enforcement agencies beyond the purview of the law of the land;

(h) involves firing on religious congregation, mosques, imambargah, churches, temples and all other places or worship, or random firing to spread panic, or involves any forcible takeover of mosques or other places of worship;

(i) creates a serious risk to safety of the public or a section of the public, or is designed to frighten the general public and thereby prevent them from coming out and carrying on their lawful trade and daily business, and disrupts civic life;

(j) involves the burning of vehicles or any other serious form of arson;

(k) involves extortion of money ("bhatta") or property;

(l) is designed to seriously interfere with or seriously disrupt a communication system or public utility service;

(m) involves serious coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his lawful duties;

(n) involves serious violence against a member of the police force, armed forces, civil armed forces, or a public servant;

(o) involves in acts as part of armed resistance by groups or individuals against law enforcement agencies; or

(p) involves in dissemination, preaching ideas, teachings and beliefs as per own interpretation on FM stations or through any other means of communication without explicit approval of the government or its concerned departments.

(3) The use or threat of use of any action falling within subsection (2) which involves the use of firearms, explosive or any other weapon is terrorism, whether or not subsection (1) (c) is satisfied.

(3A) Notwithstanding anything contained in subsection (1), an action in violation of a convention specified in the Fifth Schedule shall be an act of terrorism under this Act.

(4) In this section "action" includes an act or a series of acts.

(5) In this Act, terrorism includes any act done for the benefit of a proscribed organization.

(6) A person who commits an offence under this section or any other provision of this Act, shall be guilty of an act of terrorism.

(Emphasis supplied)

1. It may be observed from perusal of aforementioned definitions of the term "terrorism" provided under Section 6 of the Act of 1997 that the offence of rape does not fall within the prescribed definitions. It; however, appears from perusal of the entry No. 4 (i) of the Third Schedule and clause (e) of subsection (1) of the Section 6 of the Act of 1997 that only those offences of abduction and kidnapping for ransom fall in the Scheduled offence and the definition of "terrorism" provided in the Act of 1997. In the instant case, it is an admitted position that the alleged offence(s) was not committed for ransom; hence, the same does not fall within the "Scheduled Offence" of the Act of 1997 and; thus, the same was not triable by the ATC. Section 23 of the Act of 1997 stipulates the power of ATC to transfer cases for trial of such offences to regular Courts having jurisdiction under the Code of Criminal Procedure, 1898 ("the Code").

2. Learned counsel for the complainant as well as learned Addl. P.G. have vehemently argued, with reference to Preamble of the Act of 1997, that being "heinous" the alleged offence(s) falls within the jurisdiction of the ATC. The Preamble to the Act of 1997 reads as follows:

"An Act to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences;

WHEREAS it is expedient to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences and for matters connected therewith and incidental thereto;

1. In this regard, a seven-member Bench of Hon'ble Supreme Court of Pakistan in the case of Ghulam Hussain and others v. The State and others (PLD 2020 SC 61) has observed and held, as under:

2. We understand, and we observe so with all the respect at our command, that in the above mentioned cases falling in the second category this Court had, wittingly or otherwise, detracted or moved away from the principle of nexus so painstakingly carved out by it in the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445). As already noticed above, one of the reasons for such drifting away from the principle of nexus was the effect-based definition of "terrorist act" provided in the repealed Suppression of Terrorist Activities (Special Courts) Act, 1975. Another reason for the lack of clarity in this respect was an incorrect understanding of the words "speedy trial of heinous offences" contained in the Preamble to the Anti-Terrorism Act, 1997. In many of the judgments referred to above those words appearing in the Preamble were mentioned and relied upon for holding that commission of heinous offences also amounted to terrorism even if the 'design' or 'purpose' mentioned in clauses (b) and (c) of subsection (1) of section 6 of the Anti-Terrorism Act, 1997 did not stand attracted to a case. For removal of any confusion in that respect the scheme of the Anti-Terrorism Act, 1997 needs to be understood and appreciated in its correct perspective…

A careful reading of the Third Schedule shows that an Anti-Terrorism Court has been conferred jurisdiction not only to try all those offences which attract the definition of terrorism provided by the Act but also some other specified cases involving heinous offences which do not fall in the said definition of terrorism. For such latter category of cases it was provided that although those offences may not constitute terrorism yet such offences may be tried by Anti-Terrorism Court for speedy trial of such heinous offences. This distinction between cases of terrorism and cases of specified heinous offences not amounting to terrorism but triable by an Anti-Terrorism Court has already been recognized by this Court in the cases of Farooq Ahmed v. State and another (2020 SCMR 78), Amjad Ali and others v. The State (PLD 2017 SC 661) and Muhammad Bilal v. The State and others (2019 SCMR 1362). It has been clarified by this Court in those cases that such specified heinous offences are only to be tried by Anti-Terrorism Court and that court can punish the person committing such specified heinous offences only for commission of those offences and not for committing terrorism because such offences do not constitute terrorism. For the purposes of further clarity on this issue it is explained for the benefit of all concerned that the cases of the offences specified in entry No. 4 of the Third Schedule to the Anti-Terrorism Act, 1997 are cases of those heinous offences which do not per se constitute the offence of terrorism but such cases are to be tried by an Anti-Terrorism Court because of their inclusion in the Third Schedule. It is also clarified that in such cases of heinous offences mentioned in entry No. 4 of the said Schedule Anti-Terrorism Court can pass a punishment for the said offence and not for committing the offence of terrorism. It may be pertinent to mention here that the offence of abduction or kidnapping for ransom under section 365-A, P.P.C. is included in entry No. 4 of the Third Schedule and kidnapping for ransom is also one of the actions specified in section 7(e) of the Anti-Terrorism Act, 1997. Abduction or kidnapping for ransom is a heinous offence but the scheme of the Anti-Terrorism Act, 1997 shows that an ordinary case of abduction or kidnapping for ransom under section 365-A, P.P.C. is merely triable by an Anti-Terrorism Court but if kidnapping for ransom is committed with the design or purpose mentioned in clauses (b) or (c) of subsection (1) of section 6 of the Anti-Terrorism Act, 1997 then such offence amounts to terrorism attracting section 7(e) of that Act. In the former case the convicted person is to be convicted and sentenced only for the offence under section 365-A, P.P.C. whereas in the latter case the convicted person is to be convicted both for the offence under section 365-A, P.P.C. as well as for the offence under section 7(e) of the Anti-Terrorism Act, 1997. The same may also be said about the other offences mentioned in entry No. 4 of the Third Schedule to the Act pertaining to "Use of firearms or explosives by any device, including bomb blast in a mosque, imambargah, church, temple or any other place of worship, whether or not any hurt or damage is caused thereby", "Firing or use of explosive by any device, including bomb blast in the court premises", "Hurt caused by corrosive substance or attempt to cause hurt by means of a corrosive substance" and "Unlawful possession of an explosive substance or abetment for such an offence under the Explosive Substances Act, 1908 (VI of 1908)". Such distinction between cases of terrorism and other heinous offences by itself explains and recognizes that all heinous offences, howsoever serious, grave, brutal, gruesome, macabre or shocking, do not ipso facto constitute terrorism which is a species apart. Through an amendment of the Third Schedule any heinous offence not constituting terrorism may be added to the list of offences which may be tried by an Anti-Terrorism Court and it was in this context that the Preamble to the Act had mentioned "Whereas it is expedient to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences".

17. Before parting with this judgment we may observe that the definition of 'terrorism' contained in section 6 of the Anti-Terrorism Act, 1997 as it stands at present is too wide and the same includes so many actions, designs and purposes which have no nexus with the generally recognized concept of what terrorism is. Apart from that including some other heinous offences in the Preamble and the Third Schedule to that Act for trial of such offences by an Anti-Terrorism Court when such other offences do not qualify to be included in the definition of terrorism puts an extra and unnecessary burden on such courts and causes delay in trial of actual cases of terrorism. It is, therefore, recommended that the Parliament may consider substituting the present definition of 'terrorism' by a more succinct definition bringing it in line with the international perspectives of that offence and focusing on violent activities aimed at achieving political, ideological or religious objectives. We further recommend that the Parliament may also consider suitably amending the Preamble to the Act and removing all those offences from the Third Schedule to the Act which offences have no nexus with the offence of terrorism.

(Emphasis supplied)

1. The dictum laid down by the Apex Court in the above cited case-law elucidates that the offences specified in entry No.4 of the Third Schedule to the Act of 1997 are those heinous offences that do not inherently qualify as terrorism. Such offences are to be tried by an ATC due to their inclusion in the Third Schedule, and the ATC can impose a punishment appropriate for the specific offence, rather than for the offence of terrorism itself. However, not all heinous offences, regardless of their seriousness, brutality, or shocking nature, automatically qualify as acts of terrorism, which is a distinct category of crime. Nonetheless the Third Schedule can be amended by the legislature to include any heinous offence, even if it does not constitute terrorism, thereby making it subject to trial by an ATC. Consequently, alleged offence of rape under section 376(2), P.P.C. though is of serious and brutal nature, yet being not included in entry No. 4 of the Third Schedule to the Act of 1997 is not triable by the ATC as a "heinous offence".

2. We are also of the considered view that the alleged offence under section 376(2), P.P.C. even does not fall within the jurisdiction of regular Court under the Code in view of promulgation of the Anti-Rape (Investigation and Trial) Act, 2021 ("Act of 2021"), which came into force on 03.12.2021 to ensure expeditious redressal of rape and sexual abuse crimes in respect of women and children through special investigation teams and Special Courts providing for efficacious procedures, speedy trial, evidence and matters connected therewith or incidental thereto. It is a significant legislative measures aimed at addressing sexual violence. It establishes Special Courts and introduces new mechanisms for the investigation and prosecution of rape cases and also mandates the protection of the privacy and dignity of survivors during legal proceedings. Sections 2(g) and (j), 3, 10, 16, and 23 and Schedules 1 and 2 of the Act of 2021 being relevant are reproduced as under:

2. Definitions.- (1) In this Act, unless there is anything repugnant in the subject or contest, -

(g) "scheduled offences" means offences as set out in the Schedules against a "victim" or a "child" as defined in this Act;

(j) "Special Court" means the Court established under section 3 of this Act;

3. Establishment of Special Courts, etc. - (1) The Federal Government, in consultation with the Chief Justice of the High Court concerned, shall establish as many Special Courts throughout the country, as it may deem necessary, to try the scheduled offences.

(2)

(3)

Provided that where gender based violence (GBV) courts or juvenile courts or child protection courts have already been designated, they shall be deemed to be the Special Courts under this Act:

Provided further that where more than one Special Court is designated or established in one jurisdiction, the concerned Courts of Sessions shall allocate the case.

10. Connected offences not in the Schedules. The investigation officer or the joint investigation team (JIT), as the case may be, under section 9, may also take cognizance of offences, not listed in the schedules, committed in connection with the scheduled offences, as if those offences were scheduled offences.

16. Trial. (1) The Court upon taking cognizance of a case, under this Act, shall decide the case expeditiously, preferably within four months.

(2)

(3)

(4) A Special Court may also try offences, not listed in the schedules, committed in connection with the scheduled offences, as if those offences were scheduled offences.

Explanation. It is clarified that subsection (4) shall also be applicable where the provisions of the Anti-Terrorism Act, 1997 (Act XXVII of 1997) are invoked or invokable in respect of offences under this Act.

23. Jurisdiction and transfer of cases, etc. (1) The scheduled offences shall be exclusively triable by the Special Court.

(2) Subject to subsection (3), upon commencement of this Act, the trial of scheduled offences pending in any court shall stand transferred to the Special Court having jurisdiction under this Act and such Court shall proceed with the case from the stage at which it was pending immediately before such transfer and it shall not be bound to recall or re-hear any witness who has given evidence and may act on the evidence and procedures already recorded and complied with, respectively.

(3) Each time when a new offence is inserted into any of the Schedules to this Act, subsection (2) shall come into operation, mutatis mutandis, from the date of such insertion.

SCHEDULE-I

1. Offences under sections 34, 292A, 292B, 292C, 354, 365, 365A, 368, 369, 369A, 498B, 498C, 511 of the Pakistan Penal Code, 1860 (Act XLV of 1860).

2. Offences mentioned in Chapters V and V-A of the Pakistan Penal Code, 1860 (Act XLV of 1860).

3. Offences under sections 21 and 22 of the Prevention of Electronic Crimes Act, 2016 (Act XL of 2016).

4. Offences under the Anti-Terrorism Act, 1997 (Act XXVII of 1997) which are committed along with the offences in this Schedule

Explanation. It is clarified that offences under sections 34, 365, 365A, 368, 369, 369A, 498A, 498C and 511 of the Pakistan Penal Code, 1860 (Act XLV of 1860) and offences mentioned in items Nos. 2 and 4, above, shall only be cognizable and triable as offences falling under this Schedule, if they are connected with offences under sections 292A, 292B, 292C and 354 of the Pakistan Penal Code, 1860 (Act XLV of 1860) and offences mentioned in item No. 3 above.

SCHEDULE-II

1. Offences under sections 34, 336A, 336B, 354A, 364, 364A, 365B, 366A, 366B, 367A, 371A, 371B, 375, 375A, 376, 377, 377A, 377B, 511 of the Pakistan Penal Code, 1860 (Act XLV of 1860).

2. Offences mentioned in Chapters V, V-A and XVI of the Pakistan Penal Code, 1860 (Act XLV of 1860).

3. Offences under the Anti-Terrorism Act, 1997 (Act XXVII of 1997) which are committed along with the offences in this Schedule.

Explanation. It is clarified that offences under sections 34, 364, 364A and 511 of the Pakistan Penal Code, 1860 (Act XLV of 1860) and offences mentioned in items Nos. 2 and 3, above, shall only be cognizable and triable as offences falling under this Schedule, if they are connected with offences under sections 336A, 336B, 354A, 365B, 366A, 366B, 367A, 371A, 371B, 375, 375A, 376, 377, 377A and 377B of the Pakistan Penal Code, 1860 (Act XLV of 1860).

(Emphasis supplied)

1. It reflects from the perusal of above-mentioned provisions that under entries Nos.3 and 4 of the Schedule-I of the Act of 2021, offences under sections 21 and 22 of the Prevention of Electronic Crimes Act, 2016; the offences under the Act of 1997, which are committed along with the offences in the said Schedule, and under entry No.1 of the Schedule-II of the Act, an offence under Section 376, P.P.C., are scheduled offences of the Act of 2021 and are triable by the Special Court established under the said Act. It may also be seen that the first proviso to subsection (3) of section 3 of the Act of 2021 specifies that where the gender-based violence (GBV) courts or juvenile courts or child protection courts have already been designated, they shall be deemed to be the Special Courts under this Act. Under Section 16 of the Act, a Special Court may also try offences, not listed in the Schedules, committed in connection with the scheduled offence, as if those offences were scheduled offences. Under Section 23 of the Act of 2021, the scheduled offences are exclusively triable by the Special Courts. Under subsection (2) (ibid), upon commencement of the Act of 2021, the trial of scheduled offences pending in any court stood transferred to the Special Court having jurisdiction under the Act of 2021.

2. It is a matter of record that after promulgation of the Act of 2021 on 03.12.2021, the Federal Government, vide Notification No. S.R.O. 2029(I)/2022, dated 11th October, 2022, in exercise of the power conferred by subsection (3) of Section 3 of the Act of 2021 and in consultation with the Chief Justice of the Sindh High Court, designated 27 Courts of the Additional District and Sessions Judges as Special Courts in the Province of Sindh to exercise jurisdiction under the Act of 2021 within their territories specified in the said Notification.

2024 P Cr. L J 1678

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

Shah Nawaz----Appellant

Versus

The State----Respondent

Criminal Appeal No. 384 of 2021, decided on 4th November, 2022.

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

----S. 9(c)---Possession of narcotic substance---Appreciation of evidence---Recovery of narcotic substance proved---Prosecution case was that 50-kilograms charas was recovered from the Rickshaw driven by the accused---In support of the case to prove the recovery of charas, the prosecution examined complainant who was also Investigating Officer and the carrier of the samples to the chemical laboratory from Malkhana and mashir of the recovery and arrest---Both the witnesses were on one line with each other regarding the recovery of charas from the Rickshaw of the accused---Both the witnesses were cross-examined and during cross-examination of complainant, the suggestion was made that the Rickshaw was stopped by the Anti-Narcotic Force Officials after crossing the toll plaza to which complainant replied that it was incorrect to suggest that the Rickshaw was stopped after crossing the toll plaza and that the Rickshaw came from Northern Bypass---Further on a suggestion the witness stated that it was a fact that the sacks were lying on the footrest on the rear seat and the rear was covered with the veiling sheets on both sides---Said suggestions confirmed the recovery from the Rickshaw and from the place where it was alleged that it was recovered from by the prosecution---No enmity or ill-will was suggested to show that the accused was booked due to some grudge or with mala fide intentions---No major/substantial contradiction was found in the evidence of said witnesses and as such their evidence was found to be reliable, trust worthy and confidence inspiring and believable---Prosecution had proven its case against the accused beyond reasonable doubt---Appeal against conviction was dismissed, in circumstances.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 4, 5 & 6---Possession of narcotic substance---Appreciation of evidence---Transmission/dispatch of sample for test or analysis---Safe custody and transmission of samples established---Prosecution case was that 50-kilograms charas was recovered from the Rickshaw driven by the accused---Inspector/Malkhana Incharge had deposed that upon returning after arresting the accused, he had lodged the FIR and after mentioning the FIR number on the parcels of case property by deposited it into the Malkhana under register number 19---Said witness also produced attested photocopy of such entry---Recovery was effected on 05.02.2015 and it was sent for chemical examination on 06.02.2015 through Police Constable, who deposed that on 06.02.2015 complainant handed over to him one sealed parcel for depositing the same at chemical laboratory---Said witness had deposited the case property to the concerned officials at chemical laboratory under a proper letter---Said witness had handed over the receiving to complainant and after returning at Police Station an entry was made at about 01.00 pm which he also produced---Report reflected that the parcel was perfect and the seals were perfect as per the copy sent---Both the witnesses were cross-examined but nothing favourable to accused was brought on record by the defence---No enmity or ill-will was suggested against the witnesses---Prosecution witnesses were found to be reliable, trustworthy and confidence inspiring---Recovery of huge quantity of charas was effected from the possession of accused and the same was kept in safe custody and within shortest period it was sent for chemical examination---Prosecution also proved the safe custody and its safe transmission by producing the witnesses in whose custody the property was in the Malkhana and through whom it was sent for chemical examination---All the chains from the recovery of the narcotics till sending the same for chemical examination had been proven by the prosecution beyond a reasonable doubt---Appeal against conviction was dismissed in circumstances.

Fahad v. The State 2022 PCr.LJ 279; Ahmed v. The State 2021 MLD 803; Abdul Aziz v. The State 2021 YLR 1166; Tahir uz Zaman v. The State/ANF 2019 PCr.LJ 1302; Khuda Bukhsh v. The State 2015 SCMR 735; Ameer Zeb v. The State PLD 2012 SC 380 and Sharafat Khan v. The State PLD 2022 SC 281 ref.

(c) Criminal trial---

----Complainant working as Investigating Officer---Permissibility---There is no prohibition in the law for the Police Officer to investigate the case lodged by him.

Zafar v. The State 2008 SCMR 1254 rel.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotic substance---Appreciation of evidence---Non-association of private witnesses at the time of recovery and arrest---Inconsequential---Prosecution case was that 50-kilograms charas was recovered from the Rickshaw driven by the accused---Despite having prior information no private persons were associated as witness/mashir in the recovery proceeding---Reluctance of the general public to become a witness in such cases had become a judicially recognized fact and there was no way out but to consider the statement of the official witnesses as no legal bar or restriction had been imposed in such regards---No direct enmity or ill-will had been suggested by the accused against the complainant or any of the officials who participated in recovery proceedings during cross-examination, and therefore in the circumstances the Police Officials were good witnesses and could be relied upon if their testimony remained un-shattered during the cross-examination---Even otherwise, the provision of S.25 of the Control of Narcotic Substance Act had provided the exclusion of S.103, Cr.P.C., during recovery proceedings---Prosecution had proven its case against the accused beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence---Appeal against conviction was dismissed, in circumstances.

Salah-ud-Din v. The State 2010 SCMR 1962; Shabbir Hussain v. The State 2021 SCMR 198 and Mushtaq Ahmad v. The State and another 2020 SCMR 474 rel.

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

----S. 9(c)---Possession of narcotic substance---Appreciation of evidence---Samples from each recovered slab sent for analysis---Prosecution case was that 50-kilograms charas was recovered from the Rickshaw driven by the accused---Record showed that the mashir during examination-in-chief had clearly deposed that from every slab 10 grams samples were withdrawn and 20 grams from each packet which were put in brown envelopes and numbered 1 to 50 for identification and sealed in white color sack for the purpose of chemical analysis, whereas the rest of the narcotic in the same order was sealed in sacks and for the purpose of identification number 1 and 2 were marked on them---As per the prosecution case every packet had two slabs and from every slab 10 grams were separated which became 20 grams from every packet and 20 grams of every packet were sealed for analysis---Moreover, it had come on evidence that from each slab of charas samples were separated and after sealing the same were sent for chemical examination, therefore it could easily be said that the prosecution had proved each slab to be charas---Prosecution had proven its case against the accused beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence---Appeal against conviction was dismissed, in circumstances.

Sharafat Khan v. The State PLD 2022 SC 28 rel.

Liaqat Ali Khan for Appellant.

Habib Ahmed, Special Prosecutor, ANF for the State.

Date of hearing: 26th October, 2022.

Judgment

Zulfiqar Ali Sangi, J.---Appellant was tried by learned Special Court-II (CNS), Karachi in Spl. Case No.09/2020 bearing Crime No.05/2015 under sections 6, 9(c) of CNS Act, 1997 of P.S. ANF-I Gulshan-e-Iqbal, Karachi and was convicted under sections 6, 9(c) of CNS Act and sentenced to suffer life imprisonment with fine of Rs.500,000/- (Five Lac) and in default to suffer imprisonment for 02 years more with benefit under section 382-B Cr.P.C vide judgment dated 01.07.2021. By means of this appeal, appellant has impugned his conviction and sentence.

1. Brief facts of prosecution case as per FIR are that on a tip off ANF officials headed by Inspector Tahir Ahmed Bhatti of P.S. ANF-1 Karachi reached near Tool Plaza, Super Highway, Karachi on 05.02.2015 at 1300 hours and got stopped Rickshaw bearing Registration No.D-1502762 and apprehended appellant sitting on driving seat and recovered two white nylon sacks, one containing 30 multicolor foil packets of charas and other containing 20 multicolor foil packets of charas total 50 packets weighing 50 Kilograms charas. Arrested accused and recovered property was brought at P.S. and FIR was lodged.

2. After usual investigation challan was submitted before the court having jurisdiction and there after the legal formalities were completed and the charge against the appellant was framed to which he pleaded not guilty and claimed trial. At the trial, the prosecution examined 4 prosecution witnesses. PW-1 complainant Inspector Tahir Ahmed, PW-2 mashir SI Rashid Ali, PW-3 PC Muhammad Rizwan and P.W.4 Inspector Tahir Ahmed, who produced various documents i.e. FIR, mashirnama of arrest and recovery, report of chemical examiner etc. and then prosecution closed its side.

3. The Statement of appellant under section 342 Cr.P.C was recorded wherein he denied the prosecution allegations and pleaded his innocence. Appellant gave evidence on oath and also examined two witnesses Abdul Wahid and Saeed in his defence.

4. On conclusion of the trial, learned trial court after hearing the parties convicted and sentenced the appellant as stated above through impugned judgment.

5. Learned counsel for the appellant mainly argued that the appellant is innocent and has been falsely implicated in this case; that despite having advance information the complainant did not bother to associate any independent mashir; that there is no evidence as to safe custody of alleged charas from the time of its recovery till arrival at the office of chemical examiner on 06.02.2015; that there are material contradictions between the evidence of the complainant and P.Ws as the P.W.2 mashir Rashid Ali stated that 10 grams sample was separated from each packet whereas P.W.1 complainant stated that from each packet he separated 20 grams and the report of chemical examiner shows 50 parcels of 20 grams each which renders their evidence unreliable; that the case property was not produced and exhibited at the time of evidence of complainant and it was later on produced during cross-examination which is not sustainable in law; that prosecution had failed to prove the charge against the appellants beyond shadow of doubt and thus the appellant was entitled to be acquitted of the charge by being extended the benefit of the doubt. Learned counsel has relied upon the cases of Fahad v. The State (2022 PCr.LJ 279), Ahmed v. The State (2021 MLD 803), Abdul Aziz v. The State (2021 YLR 1166), Tahir uz Zaman v. The State/ANF (2019 PCr.LJ 1302), Khuda Bukhsh v. The State (2015 SCMR 735) and Ameer Zeb v. The State (PLD 2012 SC 380).

6. On the other hand, Special Prosecutor ANF has contended that the prosecution has successfully proved its case by examining the P.Ws, who have no enmity or ill will with the appellant; that the appellant was apprehended red handed and huge quantity of narcotics was recovered from him under mashirnama of arrest and recovery on the spot; that the prosecution also proved the safe custody and its safe transmission to the chemical examiner; that all the P.Ws have supported the prosecution case, therefore, conviction and sentence awarded by the trial court requires no interference by this court and the appeal may be dismissed. He has relied upon the case of Sharafat Khan v. The State (PLD 2022 SC 281).

7. We have heard learned counsel for the appellant as well as learned Addl. P.G and perused the material available on record with their able assistance.

8. In support of the case to prove the recovery of charas the prosecution examined PW-1 who is the complainant so also the investigation officer and was also examined as PW-4 being the carrier of samples to the chemical laboratory from Malkhana and PW-2 being the mashir of the recovery and arrest. Both the witnesses are on one line with each other and have deposed that on 05-02-2015 they were on the duty and after the spy information in respect of transpiration of narcotics to Malir via Toll Plaza super Highway by notorious drug dealer Abdul Ghaffar alias Jago through his agent Shah Nawaz son of Abdul Ghafoor in Riskshaw No.D-1502762 of Mairoon and yellow colour, and under direction of higher ups a raiding party consisting of himself (complainant), ASI Rashid, PC Hafiz Shahid, Sepoys Ghous, Yaseen and other ANF staff was constituted. They along with spy informer, under supervision of AD Incharge of P.S Namely Manzoor Ahmed Phull, vide roznamcha entry No.4 at about 0900 hours in official vehicle made departure from police station and at about 0930 hours reached near Toll Plaza Super Highway, Karachi, cordoned of the area and started surveillance on the vehicles coming from Karachi side. At about 1300 hours they noticed the subject Rickshaw. On pointation of spy informer they halted the said Rickshaw through members of raiding party. The driver of the said Rickshaw was apprehended. The passerby persons were asked to act as witnesses but they due to fear of narcotics dealers did not act as witnesses. ASI Rashid Ali and P.C Hafiz Shahid were made as mashirs and in their presence complainant inquired name from the apprehended accused, who disclosed his name as Shah Nawaz. On query the said accused produced two sacks contained narcotics lying at the foot mat/rest of rear seat of Rickshaw. Both the sacks were opened in presence of aforementioned mashir. From first sack 30 packets wrapped in multi colour wrappers words "Coconut Milk" printed on it recovered. When opened each packet contained two slabs of charas wrapped with plastic pani. The words "Gurnnam-2015" was embossed on each slab. Thenceforth second plastic sack was opened where 20 packets wrapped in multi colour wrapper were recovered and when the same were opened each packet contained two slabs of charas wrapped with plastic pani. The words "Shandar Sindh-2011/2012" was embossed on each slab. Each packet was quantified one kilogram. Accumulated weight of recovered 50 packets of charas was 50 kilograms. 20 grams of charas was extracted from each packet, sealed in Khaki colour envelope for analysis of its chemical compositions. For identification of samples and remaining charas numbers from 1 to 50 were written on the khaki colour envelop as well as on packets containing the remaining charas. Khakhi envelop contained samples sealed in white colour sack. Whereas remaining charas in the packets sealed in respective sacks. From personal search of accused complainant also recovered cash Rs.1300/-. The memo. of arrest and recovery was prepared at the crime scene in presence of both mashirs, who being token of acknowledgement signed the same. Thereafter, accused, crime property and Rickshaw were brought at P.S. ANF Gulshan-e-Iqbal, Karachi where arrival entry and FIR of the instant crime was registered. On parcels of crime property FIR number was written and stored at Malkhana. On 06.02.2015 the deposited samples were sent to the chemical examiner through PC Muhammad Rizwan in consonance of his forwarding letter addressed to chemical examiner and also received chemical examiner's report dated 13.02.2015 which verified the material lying in packets are charas. All the case property and the Rickshaw were produced before the trial court and were exhibited in evidence. Both the witnesses were cross-examined and during cross-examination of PW-1 the suggestion was made that the Rickshaw was stopped by the ANF officials after crossing the toll plaza to which PW-1 replied that "It is incorrect to suggest that the rickshaw was stopped after crossing the toll plaza. Vol. says that the rickshaw came from Northern Bypass." Further on a suggestion this witness stated that "It is a fact that the sacks were lying on the footrest on the rear seat and the rear seat covered with the veiling sheets on both sides of rear seat." These suggestions confirm the recovery from the rickshaw and from the place where it is alleged it was recovered from by the prosecution. No enmity or ill-will was suggested to show that the appellant was booked due to some grudge or with mala fide intentions. We also do not find any major/substantial contradiction in their evidence and as such we find their evidence to be reliable, trust worthy and confidence inspiring and believe the same.

9. The prosecution also in order to prove the safe custody of the recovered narcotics has examined PW-4 who has deposed that on 05.02.2015 he was posted at P.S. ANF, Gulshan Iqbal, Karachi being Inspector/Malkhana Incharge. Upon returning after arrest the accused Shah Nawaz he had lodged the FIR and after mentioning the FIR number on the parcels of case property deposited it into the Malkhana under Register No.19 at Serial No.156. He also produced attested photocopy of such Entry at Ex.10/A. He was cross-examined and during cross-examination it was suggested that the case property was in his exclusive possession to which he negated and stated that the property was deposited in the Malkhana he also negated that he has produced false entry in respect of depositing the case property in the Malkhana. The recovery was effected on 05-02-2015 and it was sent for chemical examination on 06-02-2015 through PW-3 Muhammad Rizwan who deposed that on 06.02.2015 he was posted at P.S. ANF, Gulshan Iqbal, Karachi being PC, Inspector Tahir Ahmed Bhatti handed over to him one sealed parcel viz. white cloth bag to him with regard to FIR No.05 of 2015 for depositing the same at Sindh Chemical Lab. He had gone to Sindh Chemical Lab along with Inspector Tahir Ahmed and other officials in an official vehicle vide entry No.3 at about 0820 hours. He has seen such entry at Ex.6/F, which according to him is same and correct. He had deposited the case property to the concerned official at Sindh Chemical Lab under a proper letter which is also seen at Ex.6/D and stated that it is same and correct. He had handed over such receiving to Inspector Tahir Ahmed and after returning at PS an entry No.6 was maintained at about 1300 hours which he also produced at Ex.9/A. The contention of defence counsel that the report reflects that the samples were deposited by the Inspector Tahir Ahmed and not by the police constable Rizwan which creates doubt has no force as according to the letter dated: 06-02-2015 the samples were sent through P.C Rizwan by the inspector Tahir and P.C Rizwan during his evidence deposed that at the time of depositing the samples in the office of chemical examiner Inspector Tahir and other ANF officials were also with him. The name of Inspector Tahir might have appeared as he was with the P.C Rizwan at the time of depositing the case property in the office of chemical examiner. The report reflects that the parcel was perfect and the seals were perfect as per the copy sent. Both the witnesses were cross-examined but nothing favourable to appellant was brought on record by the defence counsel or any enmity or ill-will is suggested against the witnesses. We have carefully examined the evidence of the prosecution witnesses and found the same reliable, trustworthy and confidence inspiring. The recovery of huge quantity of charas was affected from the possession of accused and the same was kept in safe custody and with shortest period it was sent for chemical examination. The prosecution also proved the safe custody and its safe transmission by producing the witnesses in whose custody the property was in the Malkhana and through whom it was sent for chemical examination. All the chains from the recovery of the narcotics till sending the same for chemical examination have been proven by the prosecution beyond a reasonable doubt.

10. The defence counsel mainly contented that PW-1 and 4 are the same person namely Tahir Ahmed who himself is the complainant and the investigation officer of the case so also the incharge of the Malkhana therefore his evidence cannot be relied upon and its benefit must be given to the appellant however this contention has no force as there is no prohibition in the law for the police officer to investigate the case lodged by him as held by Honourable Supreme Court of Pakistan in the case of Zafar v. The State (2008 SCMR 1254), wherein it is held as follows:-

"11. So far as the objection of the learned counsel for the applicant that the Investigation Officer is the complainant and the witness of the occurrence and recovery, the matter has been dealt with by this Court in the case of State through Advocate-General Sindh v. Bashir and others PLD 1997 SC 408, wherein it is observed that a Police Office is not prohibited under the law to be complainant if he is a witness to the commission of an offence and also to be an Investigating Officer, so long as it does not in any way prejudice the accused person. Though the Investigation Officer and other prosecution witnesses are employees of A.N.F., they had no animosity or rancor against the appellant to plant such a huge quantity of narcotic material upon him. The defence has not produced any such evidence to establish animosity qua the prosecution witnesses. All the prosecution witnesses have deposed in line to support the prosecution case. The witnesses have passed the test of lengthy cross-examination but the defence failed to make any dent in the prosecution story or to extract any material contradiction fatal to the prosecution case. The prosecution has been successful to bring home the guilt of the appellant to the hilt by placing ocular account, recovery of narcotic material, the Chemical Examiner report G.1, Exh.P.3. The learned counsel for appellant has not been able to point out any error of law in the impugned judgment and the same is unexceptionable.

1. The next argument of learned counsel for the appellant that having prior information no private persons were associated as witness/mashir in the recovery proceeding hence the provision of section 103 Cr. P.C was violated by the complainant and the evidence of police officials cannot be relied upon while awarding the conviction in cases of capital punishment also has no force as the reluctance of the general public to become a witness in such cases has become a judicially recognized fact and there was no way out but to consider the statement of the official witnesses as no legal bar or restriction has been imposed and even then there was no time to collect independent witnesses. No direct enmity or ill will has been suggested by the appellant against the complainant or any of the officials who participated in recovery proceedings during cross-examination and therefore in the circumstances the police officials were good witnesses and could be relied upon if their testimony remained un-shattered during the cross-examination. Even otherwise, the provision of Section 25 of the CNS Act has provided the exclusion of Section 103 Cr.P.C. during recovery proceedings as has been held by the Honourable Supreme Court of Pakistan in the case of Salah-uddin v. The State (2010 SCMR 1962), which reads as under:-

"4. We have carefully examined the entire record and perused the judgment impugned with the eminent assistance of Mr. Kamran Murtaza, learned Advocate Supreme Court on behalf of petitioner. After having gone through the entire evidence by keeping the defence version in juxtaposition we have no hesitation in our mind to hold that prosecution has proved the factum of recovery on the basis of forthright and convincing evidence. The statements of prosecution witnesses namely Ghulam Hassan, IP/SHO (P. W.1), Muhammad Ansar, SI (P.W.2) and Amanullah Kethran SIP/I.O. (P.W.3) have been thrashed out in depth who all have supported the prosecution version and stood firm to the test of cross-examination and nothing beneficial could be elicited casting any doubt on their veracity. The petitioner was apprehended at the spot from a double seater Datsun pickup bearing registration No.WAC-526 on whose search 20 kilograms hashish (charas) was found for which FIR was got lodged with promptitude and samples from alleged recovered material were sent to Chemical Expert without any loss of time which were found "charas" as a result of chemical examination. No enmity whatsoever has been alleged against the prosecution witnesses and there is hardly any possibility for false implication without having any ulterior motive which was never alleged. In view of the overwhelming prosecution evidence the defence version has rightly been discarded which otherwise is denial simpliciter and does not appeal to logic and reason. We are conscious of the fact that no private witness could be produced but it must not lost sight of that reluctance of general public to become witness in such like cases by now has become a judicially recognized fact and there is no way out but to consider the statement of an official witness as no legal bar or restriction whatsoever has been imposed in this regard. We are fortified by the dictum laid down in Hayat Bibi v. Muhammad Khan (1976 SCMR 128), Yaqoob Shah v. The State (PLD 1976 SC 53), Muhammad Hanif v. State (2003 SCMR 1237). It is well settled by now that police officials are good witnesses and can be relied upon if their testimony remained un shattered during cross-examination as has been held in case of Muhammad Naeem v. State (1992 SCMR 1617), Muhammad v. State (PLD 1981 SC 635). The contentions of Mr. Kamran Murtaza, learned Advocate Supreme Court on behalf of petitioner qua violation of provisions as enumerated in section 103, Cr.P.C. seems to be devoid of merit when examined in the light of provisions as contained in section 29 of the Act which provides exclusion of section 103, Cr.P.C. The learned trial Court has appreciated the entire evidence in accordance with well settled principles of appreciation of evidence and conclusion arrived at has been affirmed by the learned Division Bench vide judgment impugned which being well based does not warrant interference. The petition being meritless is dismissed and leave refused."

In another case of Shabbir Hussain v. The State (2021 SCMR 198), the Honourable Supreme Court of Pakistan has observed as under:-

"Mehmood-ul-Hassan Inspector (PW-3) joined by Mumtaz Bibi Lady Constable (PW-4) in the witness box furnished details of the arrest and recovery. We have gone through their statements to find them in a comfortable and confident unison on all the salient aspects of the raid as well as details collateral therewith. Learned counsel for the petitioner has not been able to point out any substantial or major variation or contradiction in their statements that may possibly justify to exclude their testimony from consideration. On the contrary, it sounds straightforward and confidence inspiring without a slightest tremor. Absence of a witness from the public, despite possible availability is not a new story; it is reminiscent of a long drawn apathy depicting public reluctance to come forward in assistance of law, exasperating legal procedures and lack of witness protection being the prime reasons. Against the above backdrop, evidence of official witnesses is the only available option to combat the menace of drug trafficking with the assistance of functionaries of the State tasked with the responsibility; their evidence, if found confidence inspiring, may implicitly be relied upon without a demur unhesitatingly; without a blemish, they are second to none in status. Similarly, forensic report is sufficiently detailed to conclusively establish narcotic character of the contraband. The argument is otherwise not available to the petitioner as he never disputed the nature of substance being attributed to him nor attempted to summon the chemical analyst to vindicate his position. A challenge illusory as well as hyper-technical is beside the mark in the face of "proof beyond doubt" sufficient to prove the charge to the hilt. Petition fails. Leave declined."

Yet in another case of Mushtaq Ahmad v. The State and another (2020 SCMR-474), the Honourable Supreme Court of Pakistan has also held as under:-

2024 P Cr. LJ 1752

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

Ghulam Rasool----Appellant

Versus

The State----Respondent

Cril. Jail Appeal No. 707 of 2021 and Confirmation Case No. 18 of 2021, decided on 20th November, 2022.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Last seen evidence plausible---Accused was charged for committing murder of his wife/sister of the complainant by strangulation---According to the evidence of landlord's wife one room of the ground floor of their house was handed over on rent to the accused and the deceased and thus she was able to recognize him as she had seen him on and off for two days as he was living in a room in her house with his wife and as such no question of mistaken identity had arisen---Next day, said witness saw the accused cleaning clothes and then heard him exchanging hot words with his wife whilst loud music was playing---Said witness then saw the accused locking the room and left the house and then went down to the room where the window was opened and saw the feet of the deceased tied with the bed---Meanwhile the complainant arrived and broke the lock of the door where they found the hands and feet of the deceased tied with Dupata and Narra and her neck was tied with rope and she was dead---Landlord in his evidence confirmed the letting of the room in his house to the accused and the deceased on 01.11.2018 and that he saw the accused in the room on 02.11.2018 at 11.00 am eating breakfast which corroborated his wife's evidence of the accused and the deceased both being at home on the day of the incident and for the same reasons it was not a case of mistaken identity---Both the witnesses were independent witnesses and had no reason to falsely implicate the accused and gave their evidence in a straightforward manner and were not dented during cross-examination and the Trial Court found there evidence to be reliable, trust worthy and confidence inspiring and believed the same---Circumstances established that the prosecution had proved its case but since the case was based on circumstantial evidence as such death sentence was reduced to life imprisonment---Appeal was dismissed with said modification in sentence.

Muhammad Abid v. The State PLD 2018 SC 813; Muhammad Pervaiz v. The State PLD 2019 SC 592; Nazir Ahmad v. The State 2018 SCMR 787; Nasrullah alias NASRO v. The State 2017 SCMR 724; Raza and another v. The State PLD 2020 Sc 523; Muhammad Abbas v. The State PLD 2020 SC 620; The State v. Manzoor Ahmed and others PLD 1966 SC 664; Fayyaz Ahmad v. The State 2017 SCMR 2026; Saeed Ahmed v. The State 2015 SCMR 710; Muhammad Amin v. The State PLD 2006 SC 219 and Shamshad Ali v. The State 2011 SCMR 1394 ref.

Muhammad Abid v. State PLD 2018 SC 813 rel.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd---Appreciation of evidence---Confessional statement of accused---Accused was charged for committing murder of his wife/sister of the complainant by strangulation---Notably the judicial confession of accused was not retracted---Accused simply stated in his S.342 Cr.P.C statement that he gave his statement on the saying of the police---Accused had confessed before the police and when asked by the police he appeared before the Magistrate and recorded his confession---Record showed that all the procedural safeguards were followed by the Judicial Magistrate as required under the law at the time the accused was produced before him for recording his confession and his confession could not have been dictated to him by the police because it was too long and detailed and covered some aspects which the police did not even know about---Confession of accused had been made voluntarily with the object of telling the truth and was in line with the prosecution case especially as matrimonial difficulties/disputes of accused had been corroborated by other evidence and his confession was in line with the prosecution case and thus the Trial Court relied on the judicial confession of accused which found corroboration by the last scene evidence---Slight delay in recording the judicial confession was of no relevance based on the particular facts and circumstances of this case---Circumstances established that the prosecution had proved its case but since the case was based on circumstantial evidence as such death sentence was reduced to life imprisonment---Appeal was dismissed with said modification in sentence.

Khan Muhammad and others v. The State 1999 SCMR 1818 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Accused was charged for committing murder of his wife/sister of the complainant by strangulation---There was no premeditation in the murder and since the case was based on circumstantial evidence, Therefore, the death sentence imposed on the accused was reduced to life imprisonment---Appeal was dismissed by reducing the death penalty to life imprisonment.

Iftikhar Ahmed Shah for Appellant.

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

Date of hearing: 15th September, 2022.

Judgment

Mohammad Karim Khan Agha, J.---The appellant Ghulam Rasool son of Ghulam Hussain has preferred the instant appeal against the judgment dated 30.11.2021 passed by Learned VIth Additional District and Sessions Judge, Karachi West in Special Case No.103 of 2019 arising out of Crime No.450 of 2018 under section 302 P.P.C. registered at P.S. Docks Karachi whereby the appellant was convicted and sentenced to death subject to confirmation by this court.

1. The brief facts of the case are that on 03.11.2018 at about 0255 hours, complainant namely Qari Hilal Ahmed son of Muhammad Chan lodged FIR No.450/ 2018, under section 302 P.P.C. at Police Station Docks wherein he stated that he is residing along with his family at House No.721, Siraji Chowk, Muhammaadi Colony, Karachi. His sister namely Mumtaz Begum aged about 28 years, who was divorcee and from that wedlock had three children about eight months ago got love marriage with Ghulam Rasool son of Ghulam Hussain and they started to reside in a rented house where they mostly quarreled. Six days ago his sister was angry due to such quarreling and came to his house. Three days before, his brother-in-law Ghulam Rasool came at his house and asked his wife to come home and she went along with him. On 02.11.2018, the conwlainant after offering Asar prayer, came out from masjid when his nephew (bhanja) Rafiq son of Mumtaz came to him and told him that people have gathered outside the house where his mother is residing so he immediately reached there where he came to know that three days before one lady who came at rented house had been strangled by her husband. The complainant went inside and saw that his sister's dead body was lying on bed, whose both hands and feet were tied up and rope was available on her neck. The complainant enquired from the owner of the house who informed him that today at the time of Jumma prayer, a quarrel was ongoing between the husband and wife and the sound of music was coming and after that at about 0400 hours, there were no any sound coming and Ghulam Rasool locked the house from the outside and went away. The son-in-law of the owner namely Noor us Salam stated to the complainant that the women of his house, saw from the window that Mumtaz Begum's feet have been tied up, on which mohalla people gathered and broke the lock and found the complainant's dead sister which information was given to 15 emergency. Meantime police reached there and conducted proceedings. Thereafter, the complainant brought his sister's dead body through Edhi Ambulance to Civil Hospital where due to non-availability of lady MLO, he has brought the same to Jinnah Hospital, hence the FIR was lodged.

2. After completion of investigation I.O. submitted charge sheet against the accused person to which he pleaded not guilty and claimed trial.

3. The prosecution in order to prove its case examined 11 witnesses and exhibited various documents and other items. The statement of accused was recorded under Section 342 Cr.P.C in which he denied all the allegations levelled against him. After appreciating the evidence on record the trial court convicted the appellant and sentenced him as stated earlier in this judgment hence, the appellant has filed this appeal against his conviction.

4. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment dated 30.11.2021 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 the appellant is innocent and has been falsely implicated in this case; that there was no eye-witness to the murder; that the last seen evidence is not sufficient to convict the appellant without corroboration from an unimpeachable source of which there is none; that the confession of the appellant is not actually a confession at all as he does not confess to the murder of his wife and thus for any or all of the above reasons the appellant should be acquitted of the charge by being extended the benefit of the doubt. He however contended in the alternative that if we were to find the appellant guilty of the charge it was a case which warranted life imprisonment as opposed to the death sentence. In support of his contentions he placed reliance on the cases of Muhammad Abid v. The State (PLD 2018 SC 813), Muhammad Pervaiz v. The State (PLD 2019 SC 592), Nazir Ahmad v. The State (2018 SCMR 787), Nasrullah alias NASRO v. The State (2017 SCMR 724), Raza and another v. The State (PLD 2020 Sc 523) and Muhammad Abbas v. The State (PLD 2020 SC 620).

6. On the other hand learned Additional Prosecutor General Sindh appearing on behalf of the State has fully supported the impugned judgment. In particular he has placed reliance on the last seen evidence which was corroborated by the judicial confession of the accused and the medical evidence and has preyed for the dismissal of the appeal and the confirmation reference to be answered in the affirmative. In support of his contentions he has placed reliance on the cases The State v. Manzoor Ahmed and others (PLD 1966 SC 664), Fayyaz Ahmad v. The State (2017 SCMR 2026), Saeed Ahmed v. The State (2015 SCM-R 710), Muhammad Amin v. The State (PLD 2006 SC 219), Khan Muhammad and others v. The State (1999 SCMR 1818), Muhammad Ishaq v. The State (PSC (Crl.) 1)(sec) and Shamshad Ali v. The State (2011 SCMR 1394).

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

8. At the outset based on our reassessment of the prosecution oral evidence and medical evidence including post mortem report we find that the prosecution has proved beyond a reasonable doubt that on 02.11.2018 at 1630 hours Mst Mumtaz Begum (the deceased) was murdered through strangulation inside a house at Saddam Chowk Muhammadi Colony Karachi.

9. The only question left before us therefore is whether it was the appellant who murdered the deceased at the said time, date and location?

10. After our reassessment of the evidence we find that the prosecution has proved beyond a reasonable doubt the charge against the appellant for which he was convicted keeping in view that each criminal case is based on its own particular facts, circumstances and evidence for the following reasons and uphold his conviction;

(a) Although the FIR was registered with promptitude and the appellant was named in the FIR as the person who murdered the deceased this allegation has been made against the appellant on the basis of hearsay evidence as there was no eye-witness to the murder and as such the case is based on circumstantial evidence which the court must view with great care and caution. In this respect reliance is placed on the case of Azeem Khan v. Mujahid Khan (2016 SCMR 274) which held as under;

"In cases of circumstantial evidence, the Courts are to take extraordinary care and caution before relying on the same. Circumstantial evidence, even if supported by defective or inadequate evidence, cannot be made basis for conviction on a capital charge. More particularly, when there are indications of design in the preparation of a case or introducing any piece of fabricated evidence, the Court should always be mindful to take extraordinary precautions, so that the possibility of it being deliberately misled into false inference and patently wrong conclusion is to be ruled out, therefore hard and fast rules should be applied for carefully and narrowly examining circumstantial evidence in such cases because chances of fabricating such evidence are always there. To justify the inference of guilt of an accused person, the circumstantial evidence must be of a quality to be incompatible with the innocence of the accused. If such circumstantial evidence is not of that standard and quality, it would be highly dangerous to rely upon the same by awarding capital punishment. The better and safe course would be not to rely upon it in securing the ends of justice."

(i) Likewise in the case of Fayyaz Ahmed v. State (2017 SCMR 2026) the great care and caution in which circumstantial evidence needed to be scrutinized was emphasized especially when dealing with a capital case in the following terms;

"To believe or rely on circumstantial evidence, the well settled and deeply entrenched principle is, that it is imperative for the Prosecution to provide all links in chain an unbroken one, where one end of the same touches the dead body and the other the neck of the accused. The present case is of such a nature where many links are missing in the chain.

To carry conviction on a capital charge it is essential that courts have to deeply scrutinize the circumstantial evidence because fabricating of such evidence is not uncommon as we have noticed in some cases thus, very minute and narrow examination of the same is necessary to secure the ends of justice and that the Prosecution has to establish the case beyond all reasonable doubts, resting on circumstantial evidence. "Reasonable Doubt" does not mean any doubt but it must be accompanied by such reasons, sufficient to persuade a judicial mind for placing reliance on it. If it is short of such standard, it is better to discard the same so that an innocent person might not be sent to gallows. To draw an inference of guilt from such evidence, the Court has to apply its judicial mind with deep thought and with extra care and caution and whenever there are one or some indications, showing the design of the Prosecution of manufacturing and preparation of a case, the Courts have to show reluctance to believe it unless it is judicially satisfied about the guilt of accused person and the required chain is made out without missing link, otherwise at random reliance on such evidence would result in failure of justice".

It may also be kept in mind that sometimes the investigating agency collects circumstantial evidence seems apparently believable however, if the strict standards of scrutiny are applied there would appear many cracks and doubts in the same which are always inherent therein and in that case Courts have to discard and disbelieve the same." (bold added)

(b) Turning to the circumstantial evidence in terms of last seen evidence. The test for last seen evidence has been set out in the following cases in the following terms;

(i) In Fayyaz's case (Supra) at P.2030 at Para 7 it was held as under regarding last seen evidence;

"The last seen evidence is one of such categories of evidence. In this category of cases some fundamental principles must be followed and the Prosecution is under-legal obligation to fulfill the same, some of which may be cited below:-

(i) There must be cogent reasons that the deceased in normal and ordinary course was supposed to accompany the accused and those reasons must be palpable and prima facie furnished by the Prosecution.

(ii) The proximity of the crime scene plays a vital role because if within a short distance the deceased is done to death then, ordinarily the inference would be that he did not part ways or separated from the accused and onus in this regard would shift to the accused to furnish those circumstances under which, the deceased left him and parted ways in the course of transit.

(iii) The timing of that the deceased was last seen with the accused and subsequently his murder, must be reasonably close to each other to exclude any possibility of the deceased getting away from the accused or the accused getting away from him.

(iv) There must be some reasons and objects on account of which the deceased accompanied the accused for accomplishment of the same towards a particular destination, otherwise giving company by the deceased to the accused would become a question mark.

(v) Additionally there must be some motive on the part of the accused to kill the deceased otherwise the Prosecution has to furnish evidence that it was during the transit that something happened abnormal or unpleasant which motivated the accused in killing the deceased.

(vi) The quick reporting of the matter without any undue delay is essential, otherwise the prosecution story would become doubtful for the reason that the story of last seen was tailored or designed falsely, involving accused person.

Beside the above, circumstantial evidence of last seen must be corroborated by independent evidence, coming from unimpeachable source because uncorroborated last seen evidence is a weak type of evidence in cases involving capital punishment.

(vii) The recovery of the crime weapon from the accused and the opinion of the expert must be carried out in a transparent and fair manner to exclude all possible doubts, which may arise if it is not done in a proper and fair manner.

(viii) The Court has also to seriously consider that whether the deceased was having any contributory role in the cause of his death inviting the trouble, if it was not a pre-planned and calculated murder."(Bold added)

(ii) In the later case of Muhammed Abid v. State (PLD 2018 SC 813) which delved further into the doctrine of "last seen together" evidence it was held as under at P.817 Para 6:

"The foundation of the "last seen together" theory is based on principles of probability and cause and connection and requires 1. cogent reasons that the deceased in normal and ordinary course was supposed to accompany the accused. 2. proximity of the crime scene. 3. small time gap between the sighting and crime. 4. no possibility of third person interference 5. motive 6. time of death of victim. The circumstance of last seen together does not by itself necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime" (bold added).

(iii) Returning to the case in hand. According to the evidence of PW 6 Manun Nihar on 01.11.2018 her husband PW 7 Ali Hussain handed over one room of the ground floor of their house on rent to the appellant and the deceased and thus was able to recognize him as she had seen him on and off for two days as he was living in a room in her house with his wife and as such no question of mistaken identity arises. The next day she saw the accused cleaning clothes and then heard him exchanging hot words with his wife whilst loud music was playing. She then saw the accused lock the room and leave the house. She then went down to the room where the window was open and saw the feet of the deceased tied with the bed. Meanwhile the complainant arrived and broke the lock of the door where they found the hands and feet of the deceased were tied with dupata and narra and her neck was tied with rope and that she was dead. Her husband PW 7 Ali Hussain in his evidence confirms the letting of the room in his house to the accused and the deceased on 01.11.2018 and that he saw the accused in the room on 02.11.2018 at 11am eating breakfast which corroborates his wife's evidence of the accused and the deceased both being at home on the day of the incident and for the same reasons as his wife this was not a case of mistaken identity. Both of these witnesses were independent witnesses and had no reason to falsely implicate the accused and gave there evidence in a straightforward manner and were not dented during cross- examination and we find there evidence to be reliable, trust worthy and confidence inspiring and we believe the same.

(iv) We find that in all respects the law in respect of last seen evidence has been met in respect of the accused especially as PW 6 Manun Nihar went down to the room where the argument was coming from between the accused and the deceased immediately after the accused left and saw the body of the deceased and thus since only the accused was living in the house with his deceased wife no one else had the opportunity to enter the house after the accused left and the motive of the murder is set out in the appellants own judicial confession which we shall come to later. As mentioned above however last seen evidence is the weakest type of evidence and needs to be supported by some corroborative evidence from an unimpeachable source to lead to a conviction in a capital case. So does the judicial confession of the appellant amount to such corroboration?

(c) The Judicial Confession of the Appellant.

(i) It is well settled by now that a retracted confession before a magistrate can be the basis of convicting in a capital case however it must be; (reliance is placed on Ch. Muhammad v. Yaqoob v. The State (1992 SCMR 1983); Muhammad Amin v. The State (PLD 2006 SC 219); Azeem Khan v. Mujahid Khan (2016 SCMR 274); Bahadur v. State (PLD 1996 SC 336) and Manjeet Singh v. State (PLD 2006 SC 30).

(a) Voluntary i.e. without threat or inducement and

(b) Its object must be to state the truth; assistance for which can be ascertained from (i) whether the confession appears truthful within the context of the prosecution case and (ii) whether there is any other evidence on record which tends to corroborate the truthfulness of the confession and

(c) Only minor irregularities regarding the rules concerning the recording of judicial confessions can be permitted as determined on a case to case basis the main criteria being that such irregularities have not adversely effected the voluntariness or truthfulness of the confession.

(ii) Notably in this case the appellant's judicial confession was not retracted. The appellant simply states in his S.342 Cr.P.C. statement that he gave his statement on the saying of the police. It appears that as he had confessed before the police when asked by the police the appellant appeared before the magistrate and recorded his confession. It find that all the procedural safeguards were followed by the judicial magistrate as required under the law at the time the appellant was produced before him for recording his confession and in our view his confession could not have been dictated to him by the police because it is too long and detailed and cover's some aspects which the police did not even know about. His confession has been made voluntarily with the object of telling the truth and is in line with the prosecution case especially as the appellants matrimonial difficulties/ disputes have been corroborated by other evidence and his confession is in line with the prosecution case and thus we rely on the appellant's judicial confession which we find corroborates the last scene evidence. The slight delay in recording the judicial confession we find of no relevance based on the particular facts and circumstances of this case. In this respect reliance is placed on the case of Khan Muhammed (Supra)

(iii) For ease of reference the judicial confession of the appellant under section 164 Cr.P.C is set out below;

"CONFESSIONAL STATEMENT OF ACCUSED GHULAM RASOOL son of GHULAM HUSSAIN"

I work as a fisherman in the fishery. I was married to the deceased Mumtaz in February of this year and this was my second marriage and this was also her second marriage. The deceased Mumtaz was following me for about a year before the marriage and finally she managed to persuade me for marriage. She even threatened me to marry her else she will implicate me in a case of adultery "and once a lawyer came to my house to threaten me. Then I was compelled to marry her and for the first two months my marriage with Mumtaz went well, but she also started going to her job every day and I also went to work but she should have come back from by 6/7 hours however she would come either at 12 or 1 o'clock. When I asked the reason for coming late every day then sometimes she said she was at her aunt's and sometimes at her sister's. Then the neighbors also started to notice her coming late every day and told me that your wife arrives with a man by motorcycle late at night. When I asked her the same question, she replied that he is an employee of the company. Then when she was constantly seen with the same motorcycle guy, finally I asked her, "Tell me the truth, what is the reason?" she replied, "You are doubting for no reason." Then I said, "'Whatever it is." You will stay at home then she said I get bored that's why I go out. On which I slapped her and went out. TA/hen I returned in evening, her brothers beat me up, which worsened my Condition. Then on the 1st November I shifted to machar colony along with lady deceased Mumtaz but on Friday, the 2nd of November, at two o'clock I saw a Pathan like person leave my house and then when I entered my house then I saw my wife listening to loud music and also saw two cups of tea lying there. Then when I asked her who had come, she replied that my friend had come. I said to her, to act up. Don't you feel ashamed of listening loud music on Fridays and if he came, you should have made me meet him, because whoever he is, I am your husband." So an argument ensued at which she misbehaved. Then I slapped her in anger, in response she grabbed my collar, in response I kicked her left arm, which forcefully hit her neck with the iron bed and then she started making noises in pain. Then I said that if she has not done anything with this person, then get herself checked because I am her husband, but she was not showing. Being angry with her, I tied her right and left hands to the bed because I suspected her of wrongdoings. Then I took off her shalwar and saw a man's sperm which was stuck around her shalwar and thighs then she was not getting her thighs checked so I tied her legs too with the drawstring. Then she was resisting so I tied a rope around her neck and tightened so that she may stopped resisting and then I locked the door and left to bring her family members so that they could come and see their sister's doing. Then when I reached the round about, I thought that if I called her family so seeing her in this condition, they might start beating me. So I thought I would go back and show her family her shalwar to show her doings. But when I came back, I saw that there was a commotion and then I thought that my wife got herself released and is raising hue and cry so I ran away from there then I spent the night on the road but the next day I was caught by the Docks police and I came to know that Mumtaz had died. I accept my act. I really did not know that Mumtaz would be strangulated to death. Please, have mercy upon me. (bold added)

Sd/-(In English)"

2024 P Cr. LJ 1813

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Kalhoro and Arbab Ali Hakro, JJ

Ayaz Ali Abro and others----Appellants

Versus

The State and others----Respondents

Crl. Jail Appeal No. D-37, Confirmation Case No. D-05 and Crl. Acquittal Appeal No. S-94 of 2021, decided on 30th May, 2024.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular account supported by other evidence---Accused was charged that he along with his co-accused committed murder of the son of complainant---Ocular account of the incident had been furnished by complainant/father of deceased, his brother and cousin---Complainant in his evidence had reiterated all the facts disclosed by him in FIR---Complainant's evidence had materially been supported by eye-witnesses on all important facts---Said witnesses had repeated the same story in evidence without swerving on any crucial point---Lengthy cross-examination had not yielded any aberration casting doubt over the version of the incident---No material contradictions were present in their evidence eroding essence of the scene and the role ascribed to accused and his late father---Said witnesses were spot on in describing the manner of scene as it unfolded before them right from arrival of the accused and his father, challenging the deceased and causing him fatal injuries to registration of FIR---Evidence of other witnesses including Mashirs, Medico-Legal Officer, Investigating Officer of the case, and Tapedar was also found up to the mark---Mashir had revealed in evidence about preparation of all relevant memos and confirmed that in his and other Mashirs' presence, all the formalities were completed, injuries of deceased were inspected by the police and in hospital, danishnama etc. were reduced into writing---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt, however due to mitigating circumstances, death sentence of accused was altered to imprisonment for life---Appeal was dismissed with modification in sentence.

2000 SCMR 1859; 1980 SCMR 225; 2001 SCMR 424; 2000 SCMR 683; 1996 SCMR 167; 2017 SCMR 596; 2021 SCMR 736; PLD 1995 SC 526; 1980 SCMR 126; 2006 YLR 359; 2000 PCr.LJ 367; 2003 YLR 1607; 2000 PCr.LJ 850; 2000 SCMR 423; 2000 SCMR 746; 1984 PCr.LJ 331; 2006 PCr.LJ 101; 2003 SCMR 1419; 1995 PCr.LJ 765; 2001 SCMR 726; 2015 SCMR 864; 2015 SCMR 423; 2008 SCMR 1228; PLD 2005 SC 40; 1998 SCMR 1823; 2011 SCMR 872; 2007 SCMR 91; 1995 SCMR 1776; PLD 2015 SC 145; 2018 YLR 1702 and 2007 PCr.LJ 173 ref.

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

----S. 154---First Information Report---Scope---Purpose of FIR is to record firsthand information as it is received and then set the law into motion to verify its correctness or otherwise---First Information Report is neither considered a substantial document, nor is required to have all the minute detail of the incident.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Time of occurrence---Time of occurrence mentioned by scribe of FIR different from the time mentioned by complainant in the FIR---Inconsequential---Accused was charged that he along with his co-accused committed murder of the son of complainant---Allegedly time of incident was recorded as 05.00 pm in the FIR---Time had been recorded by scriber of FIR, a Police Official, and had nothing to do with the facts conveyed by the complainant to him---Version of the scene narrated by complainant appeared in the body of FIR and it was actually what was important for determining actual time of the incident---Complainant had described the time of incident as 05.30 pm in FIR---Complainant and his witnesses had stuck to that timing in their evidence also---Nothing was on record to show that any ambiguity was created by the complainant while narrating the facts of the case for FIR over timing of incident, nor anything had been suggested in his cross-examination to establish the same---Thus, mentioning of 05.00 pm on the top of FIR by its scriber was immaterial and irrelevant having no nexus with merits of the case or time of its happening---On the basis of such irregularity, sanctity of FIR could not be suspected or entire prosecution case set up in the wake of such FIR considered as doubtful---However, circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt, however due to mitigating circumstances, death sentence of accused was altered to imprisonment for life---Appeal was dismissed with modification in sentence.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Minor contradictions in the statements of witnesses---Inconsequential---Accused was charged that he along with his co-accused committed murder of the son of complainant---Record showed that there was no shocking or unconscionable contradiction made by any of the witnesses in evidence which could make the prosecution case doubtful---Minor discrepancies like who had gone with complainant to Police Station for registration of FIR, or who had taken deceased to the hospital or Police Station for obtaining a letter for treatment etc., highlighted in arguments, did not make prosecution story unreliable---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt, however due to mitigating circumstances, death sentence of accused was altered to imprisonment for life---Appeal was dismissed with modification in sentence.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Defence plea not plausible---Accused was charged that he along with his co-accused committed murder of the son of complainant---Defence had laid much emphasis on the story that deceased had died from the firing of his own man---But defence did not offer any tenable proof in that regard---Trial arraigning the complainant party on those facts had already been lost---Defense evidence led on such narration by the accused in the case had not inspired confidence of the Court either---Thus, such plea was not found persuasive---Moreso, deceased had not sustained only one firearm injury but three firearm injuries---Person could by mistake hit his partner in crime once but not thrice---Thus, it did not appeal to common sense that companion of complainant would fire three times from his gun on his adversary and each time he hit his fellow instead of his rival and then left the scene without causing any scratch to him---Deceased had three firearm injuries on his person, not a single one to assume that it might have been caused to him by his accomplice---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt, however due to mitigating circumstances, death sentence of accused was altered to imprisonment for life---Appeal was dismissed with modification in sentence.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Place of occurrence---Accused was charged that he along with his co-accused committed murder of the son of complainant---Claim of accused and his wife that incident happened inside their house was not born out of any record---All the relevant memos showed that incident had happened outside in the street, wherefrom all the relevant recoveries, empties, bloodstained earth were made---Accused and complainant party were closely related---Accused was a real son of sister of complainant and their houses were situated adjacent to each other---Naturally, the area outside the house of accused would be the same area outside the house of complainant---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt, however due to mitigating circumstances, death sentence of accused was altered to imprisonment for life---Appeal was dismissed with modification in sentence.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Accused was charged that he along with his co-accused committed murder of the son of complainant---Record showed that prosecutor had conceded that the prosecution had failed to prove motive part of the story and it shall be considered in favour of the accused while determining quantum of the sentence---Where motive, was not proved and the parties were closely related to each other, maintaining death penalty of accused would be harsh and not justified---Consequently, in such circumstances, conviction of the accused under S.302(b) P.P.C was maintained but his sentence of death was altered and converted into imprisonment for life---Appeal was dismissed with said modification in sentence.

Amanullah and another v. The State and others 2023 SCMR 723 rel.

Ms. Rizwana Jabeen Siddiqui for Appellant (in Criminal Jail Appeal No. D-37 of 2021) and for appellant/complainant (in Criminal Acquittal Appeal No. S-94 of 2021).

Qurban Ali Malano for Appellant (in Criminal Jail Appeal No. D-37 of 2021).

Naeemuddin Chachar for the Complainant (in Criminal Jail Appeal No. D-37 of 2021).

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

Date of hearing: 15th May, 2024.

Judgment

Muhammad Iqbal Kalhoro, J.---Appellant Ayaz Ali and his father Abdul Latif (since dead) were charged for committing Qatl-i-Amd of deceased Asmatullah, aged about 17 years near house of complainant, his father, situated in Deh Adilpur-Ghotki by causing him lathi and firearm injures on 09.04.2015 at 1700 hours. They were tried against the said charge by learned 1st Additional Sessions Judge (MCTC), Ghotki and have been returned guilty verdict in the terms, whereby appellant Ayaz Ali has been convicted and sentenced to death under section 302(b) P.P.C and to pay compensation of Rs.5,00,000/- under section 544-A Cr.P.C. Whereas, his father Abdul Latif has been condemned to imprisonment for life under section 302(b) P.P.C vide impugned judgment. They both separately filed jail appeals before this Court, which were admitted and decided to be taken up along with Confirmation Case No.05 of 2021, sent in terms of section 374 Cr.P.C by the trial Court.

1. During pendency of the appeals, father of appellant Ayaz Ali, namely, Abdul Latif died in jail and such report was submitted in the Court by jail authorities on 27.02.2022. In the light whereof, the appeal against him was abated under section 431 Cr.P.C vide order dated 30.03.2022 and disposed of accordingly. Hence, appeal filed by appellant has been heard along with Confirmation Case and Crl. Acquittal Appeal No.S-94 of 2021, filed by wife of appellant against a judgment rendered by the same Court on the even date viz. 03.04.2021, whereby it has acquitted accused (the complainant party) in Sessions Case No.511 of 2015, Crime No.32 of 2015 of P.S, Adilpur, purported to be a counter case to the case registered against the appellant and his father.

2. Complainant has alleged in FIR registered on 10.04.2015 at about 1700 hours that accused party had a dispute with his son Asmatullah, and they had threatened him of dire consequences. On 09.04.2015, when he along with his said son, Jahangir another son, and nephew Siraj Ahmed were standing outside their house at about 5:30 pm. accused Abdul Latif armed with a lathi and appellant armed with a gun came over there and referred to their on-going dispute with Asmatullah. And then, accused Abdul Latif caused him lathi blows on different parts of his body, meanwhile, appellant made straight fires upon him. He fell down and both the accused left the scene. Complainant seeing his son critically injured with firearm injuries on different parts of his body took him to P.S for a letter and thereafter went to Taluka Hospital, Ghotki for his treatment. But due to his serious condition, he was referred to Sukkur Hospital. While he was being taken there, he succumbed to injuries and died on his way. Complainant conveyed such information to the police and brought his dead body at Taluka Hospital, Ghotki for a postmortem. After such procedure, he went to his village, buried his son and then appeared at PS to file a report as above.

3. In investigation, both the accused were arrested on 14.04.2014 and 15.04.2015 and from them a lathi and a DBBL gun, alleged crime weapons, were recovered respectively. After the Challan submitted in the Court, a formal charge was framed against the accused, they denied it and opted for a trial. Hence, the prosecution has examined ten witnesses, who have produced all necessary documents viz. FIR, different memos, postmortem report, FSL report, site plan etc. After their evidence, statements of appellant and his father Abdul Latif were recorded. They denied the charge and in defence examined themselves on oath, besides, examining Ms. Sanna, wife of appellant, as a defence witness.

4. Learned trial Court after hearing both the parties and appreciating the evidence rendered the impugned judgment in the terms as stated above, which the accused challenged by filing two separate jail appeals, but due to death of convict Abdul Latif, one has already been disposed of.

5. Learned defense counsel have argued that the prosecution case is full of inconsistencies and contradictions; the complainant in cross-examination has revealed a story which is in conflict with the version he has disclosed in FIR; the charge does not contain necessary particulars and hence is in violation of section 222 Cr.P.C; there is delay of one day in registration of FIR, which has not been explained by the complainant; title of FIR shows the time of incident as 1700 hours on 09.04.2015, whereas, as per evidence of complainant and other witnesses, incident had taken place at 1730 hours, which makes the case from the very inception: registration of FIR as doubtful and manipulated; the medical evidence runs contrary to oral version of the incident; there are inconsistencies and incongruities over local of injuries between medical evidence and oral account; motive part of the story has not been established; the IO has failed to find out real owner of the gun allegedly recovered from the appellant because as per defense version deceased had died from firing of one Abdul Raheem, his accomplice, who had attacked the accused party inside the house, but instead of hitting them had hit the deceased; so many contradictions in evidence of witnesses have made the prosecution case highly doubtful.

6. They further submitted that recovery of allege gun has been foisted upon the appellant as nothing was recovered from him, and he has no concern with the offence. According to them, a counter FIR No.32/2015 under section, among others, 364, 324, 452 and 382 P.P.C was got registered by wife of the appellant against complainant party disclosing the facts that they had barged into house of appellant and one Abdul Raheem had fired upon appellant and other inmates that however had hit deceased Asmatullah. Thereafter her husband/ appellant had approached the police for FIR, but it was not recorded under influence of complainant party. Hence, this case being of two versions, one put forward by the appellant, he is entitled to such benefit. They further submitted that version of Mst. Sanna, wife of appellant is established from admission of complainant and witnesses in this regard in their own evidence. In support of their contentions, they have relied upon the cases reported as 2000 SCMR 1859, 1980 SCMR 225, 2001 SCMR 424, 2000 SCMR 683, 1996 SCMR 167, 2017 SCMR 596, 2021 SCMR 736, PLD 1995 SC 526, PLD 1963 805, 1980 SCMR 126, 2006 YLR 359, 2000 PCr.LJ 367, 2003 YLR 1607, 2000 PCr.LJ 850, 2000 SCMR 423, 2000 SCMR 746, 1984 PCr.LJ 331, 2006 PCr.LJ 101, 2003 SCMR 1419 and 1995 PCr.LJ 765.

7. On the other hand, leaned counsel appearing on behalf of complainant and learned Additional P.G have opposed the arguments in defence and have submitted that there is unimpeachable evidence against the appellant. There are no major contradictions in the evidence of witnesses and the inconsistencies highlighted by learned defense counsel in arguments are minor in nature which transpired due to lapse of time between the incident having occurred in the year 2015 and the evidence recorded in the year 2020, after five years. They have relied upon 2001 SCMR 726, 2015 SCMR 864, 2015 SCMR 423, 2008 SCMR 1228, PLD 2005 SC 40, 1998 SCMR 1823, 2011 SCMR 872, 2007 SCMR 91, 1995 SCMR 1776, PLD 2015 SC 145, 2018 YLR 1702 and 2007 PCr.LJ 173.

8. We have considered submissions of parties and perused material available on record including the case law cited at bar. Prosecution has examined at least three eye-witnesses in this case. First is complainant, father of deceased, second is Jahangir, a brother of deceased, and third is Siraj Ahmed, a cousin of deceased. Complainant in his evidence has reiterated all the facts disclosed by him in FIR that on the day of incident viz. 09.04.2015 at about 5:30 pm. when he along with PWs and deceased was standing outside of their house in the street, the appellant and his father armed with a gun and a lathi respectively accosted them and called Asmatullah out due to previous dispute between them over the street. Then they cautioned everyone stating they will not spare him. Saying so, accused Abdul Latif caused lathi blows on his forehead and thumb of right foot. Whereas, appellant directly made fires from his gun hitting different parts of his body i.e. thigh of right leg, head and knee of his left leg. He has also deposed that when accused left, he took the injured first to PS Adilpur for a letter and from there to Taluka Hospital Ghotki for treatment. When, due to his critical condition he was referred to Civil Hospital, Sukkur, he took him there, but on the way, he succumbed to injuries and died. After which, he brought the dead body to Taluka Hospital, Ghotki for a postmortem and completion of other procedural formalities.

9. Complainant's evidence has materially been supported by PWs Jahangir and Siraj Ahmed on all important facts. They have repeated the same story in evidence without swerving on any crucial point. Their lengthy cross-examination has not yielded any aberration casting doubt over the version of the incident. There are no material contradictions in their evidence eroding essence of the scene and the role ascribed to appellant and his late father. They all are spot on in describing the manner of scene as it unfolded before them right from arrival of the appellant and his father, challenging the deceased and causing him fatal injuries to registration of FIR. Learned defense counsel emphasized that complainant in cross-examination has admitted to so many discrepancies that are contrary to version in FIR. It may be said that he in replies to different suggestions in cross-examination has given a detail of the story which otherwise does not find place in the FIR. Learned defense counsel has tried to depict the same as contradictions by saying that these facts are neither mentioned in FIR or in 161 Cr.P.C. Needless to say, purpose of FIR is to record firsthand information as it is received and then set the law at motion to verify its correctness or otherwise. It is neither considered a substantial document, nor is it required to have all the minute detail of the incident. Hence, facts revealed in replies to questions in cross-examination-- not found specifically incorporated in FIR--would not reduce authenticity of such document. Nor the same would be treated as contradiction to the facts contained in the FIR.

10. Further, on the point, it is said that examination-in-chief of a witness is mainly confined to narration rooted either in FIR or statement under section 161 Cr.P.C. While scope of cross-examination is wider that than. In cross-examination, suggestions extraneous to facts are sometimes made to the witness and in reply they make statements with no concern with the facts in the FIR or 161 Cr.P.C statements. But, it does not mean that defense can be allowed to turn around and say: look at these facts, there are not mentioned in the FIR and therefore shall be treated as contradictions. A disclosure made in reply to irrelevant suggestions in cross-examination different than the fact in FIR or 161 Cr.P.C statement would not be construed as a contradiction obliterating authenticity of FIR or the version recorded in examination-in-chief.

11. Next question raised by learned defense counsel is over time of incident recorded as 1700 in the FIR. It does not appear to be material one either. This time has been recorded by scriber of FIR, a police official, and has nothing to do with the facts informed by the complainant to him. The version of the scene narrated by complainant appears in the body of FIR and it is actually what is important for determining actual time of the incident. In this case, complainant has described the time of incident as 1730 hours in FIR. He and his witnesses have stuck to this timing in their evidence also. There is nothing to show that any ambiguity was created by the complainant while narrating the facts of the case for FIR over timings of incident, nor anything has been suggested in his cross-examination to establish the same. Seen thus, mention of 1700 hours on the top of FIR by its scriber is held to be immaterial and irrelevant having no nexus with merits of the case or time of its happening. Further on the basis of such irregularity, sanctity of FIR cannot be suspected or entire prosecution case set up in the wake of such FIR considered as doubtful.

12. The evidence of other witnesses including Mashirs, Medico-Legal Officer, IO of the case, and Tapedar is also found up to the mark. There is no vagueness in them. PW-4 Muhammad Ishaque, a Mashir has revealed in evidence about preparation of all relevant memos. He has further confirmed that in his and other Mashir's presence, all the formalities were completed, injuries of deceased were inspected by the police, and in Taluka Hospital, Ghotki, Danishnama etc. were reduced in writing. In evidence, PW-5 SIP Muhammad Ayoub, first I.O, at Exb.11, has confirmed preparation of all necessary documents in presence of mashirs, visiting hospital for inspection of dead body and completing all requirements there. PW-6, HC Qurban Ali, corpse bearer, has revealed in evidence relevant facts including handing over dead body of deceased to complainant after postmortem. PW-7 SIP Roshan Ali Seelro, the second IO has conducted entire investigation: examining witnesses under section 161, Cr.P.C, arresting the accused, recovering three empty cartridges from the place of incident, preparing the memos, sending recovered gun to a lab at Larkana for FSL report. He has produced all such documents in evidence including all lab reports. PW-8, HC Muhammad Ramzan, is the one in whose presence IO had arrested appellant and recovered a DBBL gun from him. Evidence of PW-9 Tapedar Abdul Ghafoor Shaikh is to the extent that he had visited place of incident in presence of Mashirs and prepared such report and a sketch. Since Medico-Legal Officer concerned had died, his colleague CMO, Dr. Asif Hakeem has been examined as PW-10 at Exh.16. He has produced postmortem report of deceased containing at least five injures, out of which three have been described to have been caused to him by firearm, whereas, remaining two are lacerated wounds on his forehead and big toe of right foot.

13. Evidence of all such witnesses has been recorded by prosecution to support eye account furnished by complainant and the witnesses. These all witnesses have also been subjected to a lengthy cross-examination, but have not waivered or faltered on any of aspects of the case performed by them in investigation to induce an element of suspicion over the chain of events starting from the actual incident to filing of the Challan in the Court. Every one of them has satisfactorily stuck to his role and has adduced evidence relevant to input contributed by him in his respective position supporting essentially the prosecution case. Their act is confined to collecting relevant material in the investigation for weighing prosecution story. The inconsistencies or contradictions, highlighted by defence counsel, are minor in nature and do not have any impact over merits of the case or the salient features of the prosecution story.

14. There is no shocking or unconscionable contradiction made by any of the witnesses in evidence which can make the prosecution case as doubtful. The minor discrepancies like as to who had gone with complainant to PS for registration of FIR or who had taken deceased to the hospital or PS for obtaining a letter for treatment etc., highlighted in arguments, do not make prosecution story unreliable or having been manipulated against the appellant. Not the least, when the appellant does not deny its happening. The fact that wife of appellant happened to lodge an FIR claiming that deceased had died with firing of one Abdul Raheem, his collaborator, on the very day at the same time inside her house would imply that the incident is not disputed. However, her assertion that deceased had died mistakenly from firing of Abdul Raheem has been proved neither by her in the trial, nor by the appellant despite examining himself on oath and his wife as a defence witness.

15. Learned defense counsel has also laid much emphasis on this story and argued that deceased had died from the firing of his own man namely Abdul Raheem. But he did not offer any tenable proof in this regard. The trial arraigning the complainant party on these facts has already been lost. Defense evidence led on such narration by the appellant in this case has not inspired confidence of the Court either. Therefore, we do not find such argument persuasive. More so, deceased had not sustained only one firearm injury-- but three firearm injuries-- to think he was hit by mistake by accomplice in some scuffle with the appellant party. A person can by mistake hit his partner in crime once but not thrice. It would not appeal to common sense that he would fire three times from his gun on his adversary and all the times he would hit his fellow instead of his rival and then would leave the scene without causing any scratch to him. The deceased had three firearm injuries on his person, not a single one to assume that it might have been caused to him by his accomplice namely Abdul Raheem.

16. Further, claim of appellant and his wife that incident happened inside their house is not born out of any record. All the relevant memos show that incident had happened outside in the street, wherefrom all the relevant recoveries: empties, bloodstained earth at all were made. It may be mentioned that appellant and complainant party are closely related. It was stated by learned defense counsel that appellant is a real son of a sister of complainant and their houses are situated adjacent to each other. Therefore, naturally the area outside the house of accused would be the same area outside the house of complainant. Making a reply in cross-examination to a suggestion that the incident had happened outside the house of accused by the complainant, argued by defense counsel to be a contradiction, would not make occurrence and its place different than the one as described by the prosecution and such revelation as a contradiction.

17. As we have already observed above that the occurrence is not disputed by the appellant. It is the manner in which it happened has been called into question by him. It is settled that burden to prove charge is upon the prosecution. But when a particular plea is taken up by accused in defense casting cloud over the very story set up against him by the prosecution, the proof of the same is upon him to establish. Here, the appellant accepts the incident but blames one Abdul Raheem, an alleged accomplice of complainant party for it. But he has miserably failed to prove the same. The case registered by wife of the appellant on the basis of such assertion has ended in acquittal. Against which, an acquittal appeal has been filed that although has been heard together with the case in hand, but nothing, as pointed out by her counsel, tends to indicate mis-appreciation of evidence by learned trial Court or it losing sight of some incriminating material while acquitting the accused to justify interference by this Court in the shape of upsetting such findings, particularly when due to acquittal already a double presumption of innocence runs in favour of the respondents.

2024 P Cr. LJ 1871

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

Muhammad Hashim Pathan----Appellant

Versus

The State----Respondent

Criminal Appeal No. S-99 of 2023, decided on 29th February, 2024.

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

----S. 23(i)(a)---Possessing illicit weapon---Appreciation of evidence---Prosecution case was that an unlicensed pistol 30-bore with four live bullets and foreign currency was recovered from the possession of accused---Accused contended that the specific plea regarding his arrest by the Rangers taken by him at the time of recording his S.342, Cr.P.C statements was not noted down by the Presiding Officer nor was kept in juxtaposition with the material brought on record---Such plea appeared to be correct and got support from the record, as in paragraph No.15 of the impugned judgment such fact was mentioned, however, it was not incorporated in the S.342, Cr.P.C statement of accused---Admitted position on record was that the foreign currency allegedly recovered from the accused was not sealed at the spot nor its description viz., denomination numbers were noted down by the Recovery Officer at the relevant time---Moreover, the alleged incident was shown to have taken place in broad daylight and that too near a hotel, where availability of people from general public could not be denied, yet the complainant did not associate or cite any independent person to witness and/or attest the alleged recovery proceedings---Hence, such glaring features on the part of prosecution had dented its own case, which created lot of doubts---Appeal against conviction was accordingly allowed.

Liaquat and another v. The State 2014 YLR 484; Bhutto v. The State 2017 PCr.LJ Note 66; Nazeer Ali v. The State 2011 YLR 403; Abdul Hameed v. Muhammad Abdullah and others 1999 SCMR 2589 and Mustansar Ali v. Tariq Mahmood 2011 YLR 2393 ref.

(b) Criminal trial---

----Benefit of doubt---Principle---If the slightest doubt arises in the prosecution case, its benefit must be extended in favour of the accused.

Tariq Parvez v. The State 1995 SCMR 1345 rel.

Athar Abbas Solangi for Appellant.

Khalil Ahmed Metlo, Deputy Prosecutor General for the State.

Date of hearing: 29th February, 2024.

Judgment

Muhammad Saleem Jessar, J.---Through this appeal, Appellant Muhammad Hashim son of Muhammad Ibrahim, by caste Pathan, has assailed the Judgment dated 25.11.2023, handed down by learned 1st Assistant Sessions Judge, Jacobabad, in Sessions Case No. 401 of 2023 (re: The State v. Muhammad Hashim Pathan), being outcome of FIR No. 192/2023, registered at Police Station Saddar, Jacobabad), whereby the appellant was convicted for offence under Section 23(i)(a), Sindh Arms Act, 2013 and sentenced to undergo R.I. for five (05) years, and to pay fine of Rs. 10,000/-, in case of default, the appellant was directed to undergo S.I. for three months more. The appellant, however, were extended benefit of Section 382-B, Cr.P.C.

1. According to the case of prosecution, on 05.8.2023, a police party of PS Saddar Jacobabad, headed by HC Muneer Ahmed apprehended the appellant/accused, who was standing alongside of road near Jacobabad Bypass at Herbiayar Hotel road and recovered an unlicensed T.T. Pistol of 30-bore loaded with five live bullets in its magazine, together with another magazine containing four live bullets; whereas the black shopper was also found containing Afghani currency amounting to Rs. 875000/- in different denomination notes of Rs. 500/- and Rs. 1000/-, three currency notes of Rs. 1000/-, one Oppo Mobile Phone and CNIC.

2. A formal charge was framed against the accused, to which he pleaded 'not guilty' and claimed to be tried.

3. In order to prove its case, prosecution examined and relied upon the evidence of PW-1 complainant HC Muneer Ahmed, PW-2 PC Babal, PW-3 PC Waqar Ali and PW-4 IO/ASI Khadim Hussain Kohiri.

4. In his statement under section 342, Cr.P.C, the appellant/ accused denied the prosecution allegations and claimed to be innocent. However, neither he examined himself on oath nor produced any witness in his defence.

5. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties, trial Court convicted and sentenced the appellant/accused vide impugned judgment dated 25.11.2023, as stated above. Against said judgment, the appellant has preferred instant criminal appeal.

6. Learned Counsel for the appellant submitted that in fact the appellant, who is Vice Chairman of UC Naasirabad, District Loralai (Balochistan), had visited Jacobabad City for his personal work, as District Jacobabad is adjacent to District Loralai at the border area, where the Rangers had apprehended him along with huge quantity of Afghan currency of Rs. 875,000/-; however, the currency was not sealed at the spot nor its description viz, denomination numbers were noted down by the recovery officer at the relevant time. He further submitted that the appellant had specifically stated before the trial Court in his statement recorded under section 342, Cr.P.C regarding his arrest by the Rangers; however, it was not noted down and the truth paved its way itself, therefore, the author of impugned judgment himself mentioned this fact in paragraph-15 of the impugned judgment, in the following terms:

"15. On assessment of material brought on record as above, it is established that prosecution has successfully proved its case against the accused beyond any reasonable shadow of doubt by producing reliable, trustworthy and confidence inspiring evidence. Even, no material contradiction has been floated on record during evidence of all PWs, though, some minor discrepancies may be there in prosecution case, but, those are ignorable and are not detrimental to prosecution case. Moreover, statement of accused under section 342, Cr.P.C was recorded, wherein, he took plea that, at bypass Jacobabad, Sindh Rangers arrested him and handed over to Police, but accused could not bring any cogent evidence in support of his defensive plea so that it be assuned that he has been falsely implicated in this case at the hands of Police officials. Further, Police officials are as good witnesses as other citizens, unless any mala fide is established against them. Reliance, in this regard, is placed on case law cited as 1995 SCMR 1793 (Zakir Khan v. State) as afore-noted. Consequential upon, point No.1 is replied accordingly."

He, therefore, submitted that the specific plea which the appellant had taken was not noted down by the Presiding Officer at the time of recording 342, Cr.P.C statement of the accused/appellant or was kept in juxtaposition. He further submitted that a person who occupies office of Union Council might be the man of means and being vigilant cannot commit such a crime by keeping an unlicensed low quality weapon in his possession. He submitted that though the appellant was shown to have been found along with unlicensed weapon, whereas the offence has not been committed in the manner as reported and it is all job of Pakistan Rangers who had handed over his custody to police, so that he may not raise any complaint against them; hence, submitted that the plea though was not noted down by the trial Court in his 342, Cr.P.C statement, yet has come out in the impugned judgment, which carries much weight and creates doubt, therefore, by following the dictum laid down by the Apex Court in its numerous verdicts that even the slightest doubt may be extended in favour of the accused, the appeal may be accepted and the appellant may be acquitted by extending him benefit of doubt. In support of his contentions, he placed reliance upon the cases reported as Liaquat and another v. The State (2014 YLR 484), Bhutto v. The State (2017 PCr.LJ Note 60), Nazeer Ali v. The State (2011 YLR 403), Abdul Hameed v. Muhammad Abdullah and others (1999 SCMR 2589) and Mustansar Ali v. Tariq Mahmood (2011 YLR 2393[2)].

1. Learned DPG opposed the appeal, on the ground(s) that no ill-will or animosity has been proved against the police for false implication or foisting the weapon as alleged, therefore, the prosecution has successfully established the charge against the appellant; hence, the impugned judgment does not suffer from any illegality or infirmity, which may warrant interference by this Court. He prayed for dismissal of the appeal and maintaining of the impugned judgment. Learned DPG however admitted that as per mashirnama huge foreign currency was recovered, yet it was not sealed nor its description was noted down by the complainant, though in his evidence before the Court he specifically deposed in his examination-in-chief that he had sealed entire property; however, at the time of his examination before the trial court the property produced before the Court was in unsealed condition. Still he was arrogant to oppose the appeal.

2024 P Cr. LJ 1890

[Sindh (Mirpurkhas Bench)]

Before Omar Sial, J

Sikandar Ali Kolachi and others---Appellants

Versus

The State and another---Respondents

Criminal Appeal No. S-10 of 2023, decided on 15th September, 2023.

Penal Code (XLV of 1860)---

----S. 228---Intentional insult or interruption to public servant sitting in judicial proceeding---Show Cause Notice was issued to the petitioners by a Judge to explain their disorderly behavior failing which contempt proceedings would be initiated against them---Reply was sought by 31.08.2023 and on the same day impugned orders were passed by awarding sentence to the petitioners---Validity---Record showed that a resolution to boycott all proceedings before the Judge in question was passed on 18.08.2023---Disorderly conduct of lawyers happened on 21.08.2023---Notice was issued by the Judge on 28.08.2023---Entire proceedings in the matter were held on 31.08.2023 and the judgment was passed on the same date---On 28.08.2023, the Chief Justice ordered the transfer of certain judges from one jurisdiction to another---Said transfers also included that of the Judge, who on 28.08.2023 was transferred from his assignment at place "M" to take up an assignment at place "H"---Order for transfer was with "immediate effect"---In essence, the Judge stood relieved of his duties upon issuance of the Notification on 28.08.2023---Judge ceased to be a Judge performing his duties at "M" and was transferred to "H" to perform his duties there---Judge in question remained a judge but lost territorial jurisdiction---On 28.08.2023, when the orders of transfer were in effect, the Judge stood transferred from "M" to "H"---Hence, for all intents and purposes, mandate of the Judge for exercising jurisdiction at "M" lapsed and he lost territorial jurisdiction---It was unclear whether the Notice was issued by the judge prior to or after the receipt of transfer orders---Regardless, as his judicial mandate as a judge at "M" expired on 28.08.2023, he could not have proceeded to hold his Court sittings post notification let alone conduct a trial and pass a judgment after that date---In such circumstances, it was concluded that the Judge for want of authority could not have exercised judicial power---As mandate of judge had ceased with immediate effect on 28.08.2023, all further actions were barred under the concepts of functus officio and coram non judice---Accordingly, without dilating upon the merits, the impugned judgment was declared as null and void---Appeal was disposed of.

Qazi Mehardin v. Mst. Murad Begum PLD 1964 SC 446; Dr. Seema Irfan and others v. Federation of Pakistan and others PLD 2019 Sindh 516; Bhoruka Textiles Ltd. v. Kashmiri Rice Industries (2009) 7 SCC 521 and Lord Denning in Metropolitan Properties Co (FGC) Ltd. v. Lannon and others [1968] 3 All ER 304 rel.

Javed Chaudhry and Muhammad Hashim Laghari for Appellants.

Shahzado Saleem, Additional Prosecutor General, Sindh for the State.

Date of hearing: 12th September, 2023.

Judgment

Omar Sial, J.---The Mirpurkhas District Bar Association, being extremely disgruntled with the learned 1st Additional District and Sessions Judge, Mirpurkhas (the Judge), in a meeting held on 18.08.2023, resolved, inter alia, that the members of the Bar would not appear in his Court. The resolution passed by the Bar highlighted the grievances which the Bar had in connection with the conduct and actions of the Judge. It was in the backdrop of the resolution that the learned advocates representing a set of accused in a criminal case did not appear in Court on 21.08.2023. The Judge averred that the members of the Bar, which included the appellants, disrupted court proceedings on that particular date and that a group of lawyers also chanted slogans against him. The actions of the lawyers prompted the Judge to issue the appellants a Show Cause Notice on 28.08.2023 (the Notice) to explain their disorderly behavior of 21.08.2023, failing which contempt proceedings would be initiated against them. A reply was sought by 31.08.2023.

1. The appellants did not reply to the Notice within the given time frame and instead sought further time to file their replies. However, the Judge did not accede to their request and on 31.08.2023 passed a judgment in terms of which the appellants were found guilty of having committed an offence under section 228 P.P.C. and sentenced them to a 6-month imprisonment as well as directed them to pay a fine of Rs.3,000 each. If they failed to pay the fine, they would have to remain in prison for a further period of 2 weeks.

2. I have heard the learned counsel for the appellants. I have also been assisted by the learned Additional Prosecutor General and it was with their able assistance that I have also gone through the entire record. The arguments of the learned counsel are not being reproduced for the sake of brevity but are reflected in my observations below.

3. There are a number of facets to this case. The Bar-Bench relationship is at its core. The appropriateness of the method adopted by the Bar to record its protest and simultaneously the appropriateness of the conduct of the Judge are areas which require thought. Similarly, whether the correct procedure deployed by the Judge in initiating and conducting proceedings that led to the impugned judgment was proper and lawful also requires analysis. I have however concentrated on one aspect of the case which in my view must necessarily be decided as a preliminary issue. This is whether the judgment passed was a valid judgment. All further arguments connected with the incident will only be important if this aspect is decided in the affirmative. In my opinion, the judgment passed was not a valid judgment and my reasons to so conclude are as follows.

4. To re-cap the important dates in the matter. A resolution to boycott all proceedings before the Judge was passed on 18.08.2023. The disorderly conduct of lawyers happened on 21.08.2023. The Notice was issued by the Judge on 28.08.2023. Entire proceedings in the matter were held on 31.08.2023 and the judgment passed on the same date. An important development impacting the case however occurred on 28.08.2023 i.e. the date when the Notice was issued. On this date, the Chief Justice of Sindh ordered the transfer of certain judges from one jurisdiction to another. These transfers also included that of the Judge, who on 28.08.2023 was transferred from his assignment as 1st Additional District and Session Judge, Mirpurkhas to take up an assignment as 1st Additional District and Session Judge, Hala. The order for transfer was with "immediate effect". In essence, the Judge stood relieved of his duties in the Mirpurkhas District upon issuance of the notification on 28.08.2023.

5. Mr. Hashim Laghari, learned counsel appearing for the appellants, argued extensively that the Judge could not have passed the impugned judgment on 31.08.2023 as he had become functus officio on 28.08.2023. One of the judgments cited has been reported as Qazi Mehardin v. Mst. Murad Begum (PLD 1964 SC 446). This was a case originating from a dispute under civil law. In this case, the question before the Court was whether a judgment pronounced by a Single Judge of the High Court, had been written and signed by him after he had handed over the charge and had become a Minister of the Bahawalpur State, was a valid judgment or not. The Supreme Court observed "----it should be held that a Judge who has become functus office, after being relieved of his office, should not be allowed to have anything to do with judicial work of the Court over which he previously presided." It is important to note that the Court also observed that, "The cases, therefore, in which judgments written by persons after transfer or on leave, were held to be valid, would not be sufficient authority for the view that a judgment written by a Judge who had ceased to hold his office would be immune from exception." In my research, I have come across a plethora of judgments in which it has been held that a judge becomes functus officio when he has signed and delivered a judgment. He can only re-visit it to correct a typographical error. Similarly, there is much precedent also of cases where a judge who retired before pronouncing a judgment was held to be functus officio. The case before me is somewhat different to the extent that in this case, the Judge did not retire or cease to be a judge but was transferred to handle the affairs of another jurisdiction. He ceased to be a judge performing his duties in the Mirpurkhas District and transferred to Hala, a Taluka of Matiari District, to perform his duties there. The Judge remained a judge but lost territorial jurisdiction. There is a strong and convincing argument, especially in light of the principle enunciated in the Qazi Mehardin's case, that a transfer of a judge would also make him fall within the ambit of functus officio once he loses territorial jurisdiction."

6. I am also of the view that the principle of coram non judice would kick in the facts of the case before me. Black's Law Dictionary, 11th edition, defines coram non judice as, "1. Outside the presence of a judge. 2. Before a judge or court that is not the proper one or that cannot take legal cognizance of the matter." Similarly, in Latin for Lawyers, 1st Edition (1999) by Lazar Emanuel, it is defined as "a proceeding before, or determination by, a judge who has no authority or jurisdiction to deal with the matter." Merriam-Webster Dictionary, 2023 Edition defines the term to mean "before a judge not competent or without jurisdiction". (underlining has been added).

7. A learned Division Bench of this Court in Dr. Seema Irfan and others v. Federation of Pakistan and others (PLD 2019 Sindh 516) while expanding on lack of jurisdiction, has observed that, "The lack of jurisdiction means lack of power or authority to act in a particular manner or to give a particular kind of relief. It refers to a court's total lack of power or authority to entertain a case or to take cognizance. It may be a failure to comply with conditions essential for exercise of jurisdiction or that the matter falls outside the territorial limits of a court". The Supreme Court of India in (a case arising under the civil law) of Bhoruka Textiles Ltd. v. Kashmiri Rice Industries, (2009) 7 SCC 521, explained the principle of coram non judice. "it is a fundamental principle that a decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties."

8. On 28.08.2023, when the orders of transfer were effected, the Judge stood transferred from Mirpurkhas to Hala. Hence, for all intents and purposes, his mandate for the jurisdiction of Mirpurkhas lapsed and he lost territorial jurisdiction. It is unclear whether the Notice was issued by the Judge prior to or after the receipt of transfer orders. Regardless, as his judicial mandate as a judge in Mirpurkhas expired on 28.08.2023, he could not have proceeded to hold his Court sittings post notification let alone conduct a trial and pass a judgment after that date.

2024 P Cr. LJ 1980

[Sindh]

Before Omar Sial, J

Shoaib Ahmed Shaikh---Applicant

Versus

The State and another---Respondents

Criminal Revision Application No. S-71 of 2023, decided on 26th June, 2023.

Foreign Exchange Regulation Act (VII of 1947)---

----Ss. 5, 8, 22 & 23---Penal Code (XLV of 1860), Ss. 109 & 34---Criminal Procedure Code (V of 1898), S.249-A---Restriction on payments, restrictions on import and export of certain currency and bullion, violation of foreign exchange restrictions, abetment, common intention---Appreciation of evidence---Accused was charged for transferring approximately Rs. 170.70 million abroad through the informal and unregulated channel of hundi with the active connivance and assistance of director and manager of bank concerned---Application of accused seeking his acquittal pursuant to S.249-A, Cr.P.C, was dismissed---Validity---Record reflected that the complaint had been made by complainant in his capacity as a Deputy Director at the State Bank of Pakistan---At trial, complainant had admitted that he had no evidence that he was authorized by the State Bank of Pakistan to make a complaint, however, went on to justify that he derived his authorization from his designation by virtue of a Notification---Complainant however expressed his inability at trial to produce such a Notification---At that time Notification No. F.E.1/2001-SB dated 15.08.2001 was in effect which did not authorize a Deputy Director to make a complaint pursuant to S.23 the Foreign Exchange Regulation Act, 1947---Category of officers who could have made a complaint at that time were (i) Director (ii) Senior Joint Director (iii) Joint Director (iv) Junior Joint Director (v) Assistant Director (vi) Foreign Exchange Officer (vii) Assistant Foreign Exchange Director---Complainant as Deputy Director was not authorized by State Bank of Pakistan to make any complaint on its behalf---Origins of the Pakistan rupees which were allegedly given to exchange company by accused so that US dollars could be credited to vendors' accounts in Dubai was an enigma---Allegedly, accused received US dollars into his account from Dubai, which US dollars were converted to Pakistan rupees in Pakistan and those Pakistani rupees were then given to exchange company to be re-converted into dollars and sent back to Dubai---It was not denied by the State that the Pakistani rupees that accused had was "clean" money---In such situation it was not understandable as to why accused would enter into such a lengthy transaction, if the purpose of such a transaction was paying his vendors in Dubai---It might have been easier for accused to transfer the US dollars from his account in Dubai to the account of his vendors in Dubai rather than adopt a convoluted and financially adverse procedure as alleged---Perhaps there was a reason, however, the record and the prosecution did not have an explanation---Prosecution agreed that apart from a blanket allegation by the F.I.A., no other evidence was collected to substantiate the allegation against accused---Three vendors of accused company, into whose accounts the money was said to have landed, were not questioned in the investigation nor were their statements recorded---No documentary evidence was on record to establish the transfer of money---What suggested sheer mala fide on the part of the F.I.A. was that even though primarily it was the exchange company which who should have been made the target of the allegation, the F.I.A. seemed to have its guns pointed towards the accused---Exchange company's business was admittedly not impacted nor was its license suspended for even a day---Company carried on its business to date---In such state of affairs, the action against accused was spearheaded by the F.I.A. without any valid complaint having been made by the State Bank of Pakistan---Section 23(3) of Foreign Exchange Regulation Act, 1947 was not complied with---Application for acquittal was allowed, in circumstances.

Anwar Mansoor Khan, Haider Waheed, Umaima Anwar Khan and Zeeshan Bashir Khan for Applicant.

Muhammad Amed, Assistant Attorney General along with ASI Farrukh, FIA, CBC for the State.

Dates of hearing: 26th, 30th and 31st May, 2023.

Order

Omar Sial, J.---Shoaib Ahmed Shaikh, as the Chief Executive Officer of Axact (Private) Limited, is accused of transferring approximately Rs. 170.17 million rupees abroad through the informal and unregulated channel of hawala (also interchangeably referred to as hundi). It is alleged that this illegal activity was carried out by Shaikh through Chanda Exchange Company (Private) Limited, with the active connivance and assistance of Mohammad Younus and Mohammad Junaid (who were a Directcr and Branch Manager of Chanda respectively). First Information Report No. 51 of 2015 under sections 5, 8, 22 and 23 of the Foreign Exchange Regulations Act, 1947 read with sections 109 and 34 P.P.C. was registered at the F.I.A.'s Corporate Banking Circle on 14.10.2015.

1. Shaikh moved an application seeking his acquittal under section 249-A Cr.P.C. which was allowed by the learned 5th Additional Sessions Judge, Karachi South on 24.08.2016. The acquittal order was challenged before this Court, which set it aside on 26.02.2018 and directed that the trial against Shaikh and the other two gentle men continues and should be decided within 3 months. The case was not decided within 3 months and in fact very little or no progress took plate for a period of nearly 5 years. Shaikh again moved an application seeking his acquittal pursuant to section 249-A Cr.P.C. before the learned 8th Additional Sessions Judge, Karachi South, however, this time the learned trial court dismissed the application vide order dated 28.03.2023. It is this order which has been called in question in this Court through the current proceedings.

2. I have heard the learned counsel for the applicant as well as the learned Assistant Attorney General. The respective arguments of the counsel are not being reproduced for the sake of brevity, however, are reflected in my observations and findings below.

3. Mr. Khan, learned counsel representing Shaikh, has argued extensively that the case initiated against Shaikh and the others did not comply with the conditions specified in FERA and hence the proceedings ought to be quashed. Mr. Ahmed, the learned Assistant Attorney General categorically agreed that the case had indeed been initiated by the F.I.A. without the requisite procedure for its initiation prescribed under the FERA having been satisfied. Mr. Khan, upon a query as to why it has taken Shaikh 8 years to raise this issue, replied that each time an application seeking acquittal on this ground was filed, Shaikh's counsel has stressed on this aspect of the case however none of the courts addressed it or gave a finding on the same in the previous orders (except the order of the learned 5th Additional Sessions Judge, Karachi Southdated 24.08.2016) and in fact the order impugned also did not address it. A perusal of the orders passed appears to reflect that Mr. Khan is correct in his assertion.

4. It is an admitted position that Chanda is a company duly licensed and authorized by the State Bank of Pakistan to conduct foreign exchange transactions within the ambit of the prevailing law, rules and regulations. The accusation of the State was that Chanda effected the hawala transactions on the instructions of Shaikh and that an equivalent amount in US dollars was used in Dubai to pay 3 different persons. These 3 persons were named Zaki Shawi, Wajid and Ismail Dousary, who were said to be vendors of Axact, the company Shaikh ran.

5. The learned Sessions Court while dealing with the case was acting in its capacity as a Tribunal pursuant to section 23-A of the FERA. According to section 23(1), a contravention of the FERA and any rules, directions or orders made thereunder other than the provisions of section 3, section 3A, section 3AA, section 3B, subsections (2) and (3) of section 4, section 10, subsection (1) of section 12 and clause of subsection (1) and subsection (3) of section 20 or any rule, direction or order made thereunder shall notwithstanding anything contained in the Code of Criminal Procedure, 1898, be tried by a Tribunal constituted by Section 23-A FERA. The current case, being for offences under sections 5, 8 and 22 FERA, would therefore not be impacted by the exclusions mentioned in section 23(1).

6. Section 23(6) of the FERA provides that a Tribunal shall not take cognizance of any offence punishable under the FERA except upon a complaint in writing made by a person authorized by the State Bank of Pakistan in this regard. The proviso to this section 23(6) states that where any such offence is the contravention of any of the provisions of the FERA or any rule, direction or order made thereunder which prohibits the doing of an act without permission, no such complaint shall be made unless the person accused of the offence, has been given an opportunity of showing that he had such permission. It is important to point out that the law as it currently stands currently includes another proviso which stipulates that if a person, not authorized under section 3, 3A or 3AA, is found involved in illegal foreign exchange business, the complaint as required in section 23(6) shall not be required. This proviso was added by Act X of 2020. Sections 3, 3A and 3AA ate applicable to authorized exchange companies. Chanda, the vehicle through which Shaikh allegedly effected the hawala transactions, was an authorized dealer, hence the complaint required pursuant to section 23(6) was essential for the Tribunal to take cognizance. Even otherwise, if it is argued that no complaint from the State Bank of Pakistan was required as far as the case against Shaikh is concerned as he was not an authorized exchange company, may be correct since the date the law was amended in the year 2020. Prior to 2020 i.e. 2015, when his case was registered, a complaint of the State Bank of Pakistan was mandatory in all cases before the Tribunal could take cognizance.

7. As mentioned above, the learned Assistant Attorney General in no uncertain words admitted that cognizance in the case was taken without any complaint having been made by State Bank of Pakistan. Although, when the State admits that the requisite complaint was not made, due weight must be given to its submission and hence very little is left in the matter to be decided, yet in order to be satisfied, I have examined the record closely from this perspective.

8. The record reflects that instead of the State Bank of Pakistan making a complaint, it was the FIA that directed the State Bank to file a complaint under section 23. Adil Jan, Deputy Director of the State Bank, and working in its Exchange Police Department, at trial testified that State Bank had received complaints that Axact was involved in transferring money through hawala and that on 27.08.2015, the FIA had asked the State Bank to make a complaint in this regard. He admitted that "it is correct that I received a letter on 27.08.2015 [sic] the subject inquiry No. 42 of 2015 issued by Altaf Hussain, Additional Director, [sic] is correct and that it was the first information regarding this crime tome." He further went on to categorically admit that "it is correct that I filed the complaint at Ex-3A on the request of the F.I A. made by letter dated 27.08.2015." The "complaint" that Adil Jan referred to was Letter No. EPD/18983-24(83) EC-2015 dated 28.08.2015. This letter was written by Adil Jan to the FIA in which he refers to the letter written by FIA on 27.08.2015 and request that the FIA take necessary action against Chanda and other persons involved in the business of hawala.

9. Even if was claimed by the State, which it is not as it transpired during the hearing, that the letter dated 27.08.2015 is the complaint required by the FERA, even then, the complaint has been made by Adil Jan in his capacity as a Deputy Director at the State Bank of Pakistan. At trial, Adil Jan has admitted that he had no evidence that he was authorized by the State Bank of Pakistan to make a complaint, however, went on to justify that he derived his authorization from his designation by virtue of a notification. Adil Jan however expressed his inability at trial to produce such a notification. Some research by this Court reveals that on 27.03.2018, the Governor of the State Bank of Pakistan vide Notification No. F.E.1/2018-SB, authorized the following officers of Exchange Policy Department of the State Bank and Foreign Exchange Operations Department of the SBP Banking Services Corporation to make complaints of offences punishable under section 23 of the Foreign Exchange Regulation Act, 1947 (VII of 1947): (i) Director (ii) Additional Director (iii) Senior Joint Director (iv) Joint Director (v) Deputy Director and (vi) Assistant Director. This however was not the position prior to 2018 i.e. 2015 when the complaint is said to have been made by Adil Jan. At that time Notification No. F.E.1/2001-SB dated 15.08.2001 was in effect which did not authorize a Deputy Director to make a complaint pursuant to section 23 FERA. The category of officers who could have made a complaint at that time were (i) Director (ii) Senior Joint Director (iii) Joint Director (iv) Junior Joint Director (v) Assistant Director (vi) Foreign Exchange Officer (vii) Assistant Foreign Exchange Director. Adil Jan, as Deputy Director, was not authorized by State Bank of Pakistan to make any complaint on its behalf.

2024 P Cr. LJ 2001

[Sindh (Mirpurkhas Bench)]

Before Omar Sial, J

Mukhtiar---Applicant

Versus

The State---Respondent

Criminal Bail Application No. S-12 of 2023, decided on 22nd September, 2023.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302(b), 311, 201 & 34---Qatl-i-amd, common intention---Bail, refusal of---Accused/petitioner was charged that on his connivance, co-accused committed murder of his wife by strangulation---Accused alleged that the deceased committed suicide by consuming a pesticide---Record showed that a woman and her alleged lover both had been murdered and none from either side was willing to register a case or cooperate with the police---Medical reports issued in the case very clearly showed that the death of the woman was not due to drinking pesticide but perhaps an unnatural death---Ligature mark was obvious on her neck and she also had a lacerated wound on her head---Post-mortem report concluded with the opinion that the woman died due to cardio-respiratory failure due to hanging---It would be seen at trial after evidence had been led to whether death occurred due to hanging or strangulation---At the moment, one thing was clear; the woman did not die due to consuming pesticide, as her family members had initially told the police---All the accused were related to the deceased woman or her husband and lived in the same house or in close proximity---All the family members, including the applicant, remained silent and then pleading ignorance about the circumstances of victim's death, was simply not possible, which casted doubt on their credibility and motives lent credence to the prosecution case---Evidence in the case was weak if one treates a case of honour killing on the same pedestal as other crimes---Perhaps, the applicant would have made out a case for a grant of bail in a crime of a different nature however, cases of honour killings are a category which requires to be adjudicated with a different yardstick---Circumstantial evidence against the applicant was available, albeit weak, yet sufficient to deny bail to him---Bail application was dismissed, in circumstances.

Francis Khokhar for Appellant.

Shahzado Saleem, Additional Prosecutor General Sindh for the State.

Date of hearing: 22nd September, 2023.

Order

Omar Sial, J.---A police party led by A.S.I. Muhammad Aslam Rajput was on patrol duty on 06.05.2023 when it received information that a young woman had committed suicide by drinking pesticide. When the police party reached the house identified by the spy informer, the dead body of the woman was found lying in the house of one Khamiso Shar however the police also saw signs of the woman having been strangulated to death. In spite of requests made by the police, the legal heirs of the deceased woman declined to register an FIR. The police in its discreet inquiries learnt that the young woman had been killed by her husband Ameer Ali Shar with the active connivance of the applicant and some other relatives of the husband. The murderers had then attempted to conceal the murder by making it look like a suicide. When Ameer Ali Shar, the husband, was questioned by the police regarding the murder, he revealed that his wife, the dead woman, had an illicit relationship with a man named Ghulam Mustafa and that he (Ameer Ali) first sent his wife to her brother's house and then proceeded to trace out Ghulam Mustafa and murder him. A separate FIR (No.08 of 2023) was registered against Ameer Ali for that murder. Ameer Ali further disclosed that he then returned home where he along with the applicant (who is said to be his nephew) and some others first told the young woman to consume pesticide herself and upon her declining to do so, she was strangled by all the men. In order to camouflage the murder, some pesticide was forcibly put in the woman's mouth. First Information Report No.26 of 2023 was registered under sections 302, 311, 201 and 34 P.P.C against, inter alia, the applicant. All relatives of both Ghulam Mustafa and the murdered woman declined to register an FIR or cooperate with the police in any manner; hence, the FIR was registered by A.S.I. Mohammad Aslam Rajput on behalf of the State.

1. The applicant sought post-arrest bail before the learned 1st Additional Sessions Judge, Mirpurkhas, however the same was dismissed on 24.07.2023. He has now approached this court.

2. I have heard the learned counsel for the applicant as well as the learned Additional Prosecutor General. Learned counsel has argued that there is not a shred of evidence against the applicant and that he has been nominated in this case on a statement made by Ameer Ali. Counsel however has not explained as to what mala fide Ameer Ali had in naming the applicant as one of the persons who had facilitated him. Learned Additional Prosecutor General on the other hand has vehemently opposed the ground of bail on the ground that this is a case of honor killing. My observations and findings are as follows.

3. Upon a tentative assessment, this appears to be a case of a classic honour killing. A woman and her alleged lover have both been murdered and none from either side is willing to register a case or cooperate with the police. On the contrary, they argue that the woman committed suicide. This is not the first case this court has come across where a similar modus operandi is adopted by the perpetrators. Death is not reported and then when foul play in the death is discovered, nobody from both sides is willing to be witness. As a consequence, due to legal technicalities, the perpetrators go scot-free on account of lack of evidence. The evil of honor killings therefore continues unabated. It is easy to criticize the police by saying that a proper investigation was not done, however, one can fully understand the frustration of the police when evidence is demolished by members of the deceased's own family, the police are not informed of the death and nobody is willing to record a statement.

4. The applicant recorded a section 161 Cr.P.C. statement on 16.05.2023 in which he detailed how the 02 murders occurred. The record reflects that the investigation officer of the case had taken the applicant before the learned Judicial Magistrate, Mirpurkhas on 20.05.2023 for the applicant to record a confession. Before the Magistrate, however, the applicant denied any involvement with the offence but. did say that Ameer Ali had brought the dead body of his wife to their house and told him that he had murdered both, his wife and her alleged lover. The applicant's connivance is reflected by the mere fact that in spite of being aware of the two murders, he remained silent and thus played an active role in concealing the murders. He failed to record any statement in the case until such time as Ameer Ali was arrested for the murder of Ghulam Mustafa and disclosed the applicant's involvement in the crime.

2024 P Cr. LJ 2014

[Sindh]

Before Sana Akram Minhas, J

Khuda Bux---Applicant

Versus

The State---Respondent

Cr. Rev. Application No. 41 and M.A No. 2437 of 2024, decided on 19th March, 2024.

Criminal Procedure Code (V of 1898)---

----S. 540---Penal Code (XLV of 1860), Ss. 409, 420, 467, 468, 471 & 34---Prevention of Corruption Act (II of 1947), S. 5(2)---Summoning of witnesses---Scope---After completing the evidence of prosecution and statement of accused recorded under S.342, Cr.P.C, the prosecution filed an application for verification of the appointment orders of the applicant as teacher from Education Department---Such application was allowed being not opposed by applicant---Pursuant to it, a report was submitted by the Directorate of Schools Education (Primary)---According to that report, the appointment order of applicant was alleged to be fabricated---Applicant filed a similar application for production and verification of his appointment orders from the appointing authority, which was allowed---Pursuant to that order, a report was submitted on behalf of Secretary to Government, which report alleged that the appointment of the applicant for the post of Primary School Teacher was genuine whereas his appointment as High School Teacher was fake---In that backdrop, the applicant moved present application for summoning certain witnesses through Court, which was dismissed by the trial Court---Validity---Need to summon and examine new witnesses arose for the applicant when the trial Court initially granted the prosecution's application and subsequently approved the applicant's request for verification of the applicant's appointment order---Such process resulted in the submission of two separate, yet contradictory, verification reports---In the wake of that development, the applicant moved the Application under S.540, Cr.P.C, for summoning witnesses---Salutary principle of criminal judicial proceedings is to uncover the truth and to reach a just conclusion, ensuring that an innocent individual is not punished due to technicalities, whether on his part or on the part of the court---Further, the criminal justice system is inquisitorial rather than adversarial---Thus, it falls upon the Court to arrive at a just decision in the case---Any evidence deemed essential for that purpose must be presented, though it remains open to challenge regarding its truthfulness through cross-examination---Perusal of the impugned order showed that it entirely focused on and evaluated the applicant's request to summon and re-examine the fifth witness but remained completely silent as regards the summoning of the other four witnesses---In the absence of assigning any reason, the impugned order appeared arbitrary and unjust---Criminal Revision Application was allowed, in circumstances.

The State v. Muhammad Yaqoob 2001 SCMR 308; Abdul Latif Aassi v. The State 1999 MLD 1069 and Muhammad Murad Abro v. The State 2004 SCMR 966 rel.

Zakir Hussain Bughio for Applicant.

Zahoor Shah, APG for the State.

Date of hearing: 19th March, 2024.

Order

Sana Akram Minhas, J.---The Applicant/accused ("Applicant"), currently undergoing trial in a case registered under FIR No.10/2015 (facing charges under sections 409, 420, 467, 468, 471 and 34 of the Pakistan Penal Code, 1860 read with section 5(2) of the Prevention of Corruption Act, 1947) has challenged the order dated 27.1.2024 ("Impugned Order") issued by the learned Special Judge, Anti-Corruption Court (Provincial), Karachi, in Special Case No.22/2015 (The State v. Abdul Wahab Abbasi and others). The Impugned Order (at Court File Pg.17, Annex A), dismisses the Applicant's application ("Underlying Application") (at Court File Pg.123, Annex G), filed under section 540 of the Code of Criminal Procedure, 1898 ("Cr.P.C") for summoning four new witnesses and for re-examining one witness.

1. Learned Counsel for Applicant states that the prosecution after leading its evidence closed its side vide Statement dated 24.9.2022 whereafter the Applicant recorded his statement under section 342, Cr.P.C. Thereafter, the matter was posted for final arguments. Counsel submits that during the course of the final arguments, the prosecution filed an application dated 7.8.2023 under section 94, Cr.P.C (at Court File Pg.39, Annex C) for verification of the appointment orders of the Applicant (Khuda Bux) and another person from the Education Department, arguing that the failure of the Investigation Officer to seek verification during investigation would prejudice the prosecution. The application was not opposed by the Applicant and was allowed by order dated 17.8.2023 (at Court File Pg.41, Annex C-1). Pursuant to it, a report dated 31.8.2023 (at Court File Pg.45, Annex D-1) was submitted by the Directorate of Schools Education (Primary), Hyderabad Region, Hyderabad. According to this report, the appointment order of Applicant was alleged to be fabricated.

2. Thereafter in September 2023, the Applicant filed a similar application (at Court File Pg.51, Annex E) for production and verification of the appointment order of the Applicant from the appointing authority. This application too was allowed by the Trial Court by order dated 13.9.2023 (at Court File Pg.55, Annex E-1). Pursuant to this order, a report dated 02.11.2023 (at Court File Pg.57, Annex F) was submitted on behalf of Secretary to Government of Sindh, which report alleged that the appointment of the Applicant for the post of Primary School Teacher was genuine whereas his appointment as High School Teacher was fake.

3. In this backdrop, the Applicant on 9.12.2023, moved the Underlying Application for summoning certain witnesses through Court, which was dismissed by the Trial Court vide the Impugned Order.

4. It is contended by the Counsel for the Applicant before this Court that the need to summon new witnesses was necessitated by the fact that since two new and contradictory documents (viz. verification reports) had come on record for the first time and were now in field, in order to ascertain their veracity, it would be just and fair that the Applicant was provided an opportunity to cross-examine the authors and/or sources who had submitted the two verification reports.

5. When questioned by this Court regarding the relevance of each of the four (4) new witnesses proposed to be summoned, the Counsel explained that the said witnesses were material for the following reasons:

(i) Proposed witness Abdul Latif Mughal, Director School Education (Primary) has signed the verification report dated 31.8.2023 (at Court File Pg.45, Annex D-1);

(ii) Proposed witness Abdullah Mallah (Deputy Director (ADMN) Directorate of School Education (Elementary, SEC and HSEC) Hyderabad Region, Hyderabad has signed letter dated 23.10.2023 which is referenced in the subsequent verification report dated 2.11.2023 (at Court File Pg.57, Annex F);

(iii) Proposed witness Pandhi Khan Talpur, District Education Officer (Primary) Jamshoro, has written letter dated 19.10.2023 (at Court File Pg.65) (which is addressed to the person mentioned at Sr. No.(i) viz. Abdul Latif Mughal, Director School Education [Primary]);

(iv) Proposed witness Additional Director (Directorate of School Education (Primary) Hyderabad Region, Hyderabad who has signed the letter dated 23.10.2023 (at Court File Pg.61) with regard to production and verification of appointment order of the Applicant.

1. Counsel had also sought recall and re-examination of the Investigation Officer (Imtiaz Ahmed Bandy) but during the course of his arguments before this Court, he states that the Applicant no longer wishes to summon the said Investigation Officer.

2. The learned Additional Prosecutor General (APG), in response, though supported the Impugned Order but failed to provide a compelling or sufficient explanation when questioned by this Court about the potential harm to the prosecution and the prospects of a just conclusion of case if the proposed witnesses were summoned.

3. I have heard the respective Counsel and have perused the record.

4. The need to summon and examine new witnesses arose for the Applicant when the Trial Court initially granted the prosecution's application and subsequently approved the Applicant's request for verification of the Applicant's appointment order. This process resulted in the submission of two separate, yet contradictory, verification reports. In the wake of this development, the Applicant moved the aforesaid Underlying Application under section 540, Cr.P.C for summoning witnesses.

5. A salutary principle of criminal judicial proceedings is to uncover the truth and reach a just conclusion, ensuring that an innocent individual is not punished due to technicalities, whether on his part or on the part of the court. Further, the criminal justice system is inquisitorial rather than adversarial. Therefore, it falls upon the court to arrive at a just decision in the case. Any evidence deemed essential for this purpose must be presented, though it remains open to challenge regarding its truthfulness through cross-examination.

6. The body of developed legal doctrine surrounding section 540, Cr.P.C has established the following core tenets:

(i) The purpose of section 540, Cr.P.C is to empower and enable the court to ascertain the truth of the matter in order to arrive at a just and proper conclusion.

(ii) This section comprises two components one conferring discretionary authority upon the court, and the other imposing a duty upon it. Yet, in exercising discretion, the court must be vigilant against any attempt by litigants to misuse this authority, and should adhere to the guiding principle of serving the interests of justice.

(iii) So also, this discretion must be wielded judiciously since with great power comes a greater need for careful judicial reasoning.

(iv) For purpose of conducting proceedings under this section (whether the first or second part), it is allowable to consider material that has not been formally admitted as evidence, whether it is found in the judicial file, police file or elsewhere.

(v) In order to serve the overarching goal of justice, this section confers wide powers to the court to summon and examine any person as a court witness at any stage of the case and in certain cases imposes a duty on it to summon witnesses who cannot otherwise be brought before the court, when their evidence is considered as crucial by the court for the just resolution of the case.

(vi) The court also possess the authority to examine any individual present, even if he has not been formally summoned as a witness. The ultimate objective is always to uncover the truth.

(vii) Where the evidence is essential for just decision of the case, it is incumbent upon the Court to allow its production and examination.

(viii) The calling of additional evidence is not always conditioned on the defence or prosecution initiating this request through an application but rather it is the duty of the court to ensure complete justice between the parties. Neither the negligence nor the lack of awareness from either side, nor any resulting delays in concluding the case, should impede the pursuit of this objective.

2024 P Cr. LJ 2028

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Kalhoro, J

Arbelo alias Arbab Kosh---Appellant

Versus

The State---Respondent

Criminal Appeals Nos. S-77 and S-78, M.As Nos. 5644 and 5645 of 2023, decided on 31st May, 2024.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 311---Criminal Procedure Code (V of 1898), S. 345---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd---Compounding of the offence---Principles---Incompetency of legal heirs to compound the offence---Accused was charged for committing murder of his step sister by firing due to allegation of her love affair with a boy---During the pendency of appeal, the accused and legal heirs of deceased moved an application seeking compounding of the offence and acquittal of the accused on the basis of compromise---Validity---Admittedly, none of the family members of deceased girl had come forward to report the matter against the accused---Police had to register the FIR on behalf of the State and give evidence in the Court describing the entire episode starting from their arrival at the spot and murder of the deceased within their sight by the accused---Family members of the deceased from the very inception preferred to stay aloof like a silent spectator---Conduct of family members of the deceased throughout was indicative of the fact that either they were accomplice in the offence or too scared of the accused to question his action at any stage---Both the probabilities made them incompetent to compound the offence with the accused and give no objection to his release---An accomplice is not permitted in law to forgive his fellow and ask for his release by waiving right of Qisas or Diyat which due to some natural idiosyncrasy happened to befall on him---Likewise, when a person was too afraid of the accused to even report against him for murdering his stepsister just for having a love affair, his affidavit in the court later on forgiving the latter would be looked at with extra care and caution and with a strong suspicion into the reason compelling him to do so---Because, at no stage that person dared to come forward and tell the whole story and depose against the culprit who murdered his daughter/sister/wife etc---An innocent girl of very young age lost her life at the hands of her stepbrother for no fault of her---Supposed guardians and protectors of deceased at the time of the gruesome incident chose to stay as onlookers, and thereafter maintained an eerie silence till conviction and sentence of the accused---Then they decided to come in the Court not for getting justice for their slain daughter but for securing release of her slayer by compounding the offence and waiving the right of Qisas and Diyat against him---In affidavits, the legal heirs had not tried to articulate a single reason warranting their mysterious omissions throughout in the whole chapter starting from actual act: murder of the girl until filing of applications by them in the Court for release of accused after his conviction in the wake of a full-dressed trial---Court had to see, apart from genuineness and voluntariness of such compromise, the manner in which the offence was carried out; the conduct of legal heirs of the deceased in (not) saving her/him from such brutal end, the lack of effort to seek help of the police for investigation and arrest of the accused; their cooperation with the police for collecting relevant evidence; their efforts to pursue the murderer and to take him to the Court for justice and their relationship with the accused---All these factors and many more others (germane to context of each case) are the relevant facts and circumstances the Court has to keep in mind for deciding fate of compromise between the parties in such cases---In the present case, the legal heirs of murdered girl did nothing to either save her or report the matter to the police for the FIR; or tried cooperating in the investigation and pointed out the relevant facts, nor did they appear in the court at least to depose against the accused---They maintained unnatural silence throughout and never tried to own the murdered girl by participating at any stage in proceedings initiated by the police for bringing the culprit to justice---Suddenly legal heirs of deceased turned around and that too only in favour of the accused---Callous conduct of legal heirs of deceased from the outset towards the murdered girl has made them incompetent to compound her murder and waive right to Qisas and Diyat---In S.345(5), Cr.P.C, it is provided that when the accused has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court before which the appeal is to be heard---Thus, it is obvious that compounding or waiver in the offences such as the one in hand is not a routine matter---Court's leave is also mandatory for letting compounding of such an offence be effective which would essentially mean that the Court could even refuse to grant leave and/or accept to give effect to such a deal, if it found that the offence of murder had been committed on the ground of Karo Kari, Siah Kari and similar other customs or practices---Offence of Karo kari is often justified by the perpetrator as a means to restore family honor and pride---However, it is essential to recognize that such practice is a form of violence and oppression, rooted in patriarchal norms and gender-based discrimination---Moreover, it has devastating impact on victims, families and society as a whole, in addition to its character of being in violation of fundamental human rights, including the right to life, dignity, and equality guaranteed under the Constitution---Applications for compromise were dismissed, in circumstances.

2014 SCMR 1155; 2016 PCr.LJ Note 31; 2023 PCr.LJ Note 81; 2022 MLD 2006; 2012 GBLR 10; 2021 YLR 1109 and 2018 PCR.LJ Note 181 ref.

Mir Dost alias Kiraro and others v. The State 2021 YLR 1109 and Sanobar Khan v. The State 2018 PCr.LJ Note 181 rel.

Saeed Ahmed Panhwar for Appellant in both matters.

Aftab Ahmed Shar, Additional P.G and Imran Mobeen Khan, Assistant P.G for the State.

Date of hearing: 13th May, 2024.

Judgment

Muhammad Iqbal Kalhoro, J.---Appellant Arbelo alias Arbab Kosh was tried by learned Additional Sessions Judge-II, Mirpur Mathelo in Sessions Cases Nos.176 and 389 of 2021, arising out of Crime No. 94 of 2021 (under section 24 Sindh Arms Act, 2013) and Crime No.92 of 2021 (under sections 302 and 311) P.P.C registered at P.S. Wasti Jiwan Shah- Ghotki and vide judgments dated 18.08.2023, he was convicted for offence under section 302(b), P.P.C and sentenced to imprisonment for life as Ta'zir with fine of Rs.10,00000/- (One Million) to be paid to legal heirs of deceased, in default, to suffer S.I for six months more. For offence under section 24 Sindh Arms Act, he was sentenced to suffer R.I for seven years plus fine of Rs.30,000/- and in case of default, to suffer S.I for three months more, with benefit of Section 382-B, Cr.P.C., duly extended to him.

1. As per brief facts of prosecution case, ASI Muhammad Ameen Leghari lodged an FIR on 01.09.2021 alleging therein that on the said date when he along with PC Shahnawaz, PC Allah Ditto, and PC Rab Nawaz, while on patrol duty, received spy information that appellant Arbelo Kosh was attempting to murder his stepsister Mst. Fatima, aged about 19/20 years, on allegation of her affair with one Abdul Majeed Kosh. Upon which, he along with his team rushed to the spot and saw appellant, armed with a gun, dragging a lady from his house and shouting about her affair with a person. Then, in their presence, he shot fires from his gun critically injuring her. She fell down and he, seeing the police, made his escape good. The police promptly stopped the vehicle and came over the injured girl, who identified herself as Fatima before losing her senses. The police noticed a gunshot wound on her left chest with blood oozing out of it. He attempted to shift her to hospital, but she succumbed to injuries and died at the spot. After due formalities there, the police brought the dead body of Fatima at Taluka Hospital, Daharki for a postmortem. Although, the police tried to locate the appellant, but could not find him, and when no one from her family appeared at PS for a report, the said ASI lodged the FIR on behalf of the State against the appellant.

2. In investigation, he was arrested with a gun recovered from his possession, found to be crime weapon in the lab report. After submission of the Challan in the Court, a formal charge was framed against the appellant. He denied it and claimed trial in which the prosecution examined as many as five witnesses, who have produced all necessary documents viz. FIR, relevant memos, postmortem report, FSL report, site plan etc. After their evidence, statement of appellant under section 342, Cr.P.C. was recorded. He denied the evidence against him and professed innocence. However, neither he preferred to examine himself on oath nor led any evidence in defense. Learned trial Court after hearing the parties and appraising the evidence rendered the impugned judgments, in the terms as stated above, which the appellant has challenged by filing two separate appeals, as numbered above.

3. While the appeals were still pending, the appellant and legal heirs of deceased Mst. Fatima filed applications under sections 345(2) and 346(6), Cr.P.C. seeking compounding of the offence and his acquittal on the basis of compromise in Crl. Appeal No.S-78 of 2023. Vide order dated 13.11.2023, these applications were sent to the trial Court for finding out legal heirs of the deceased and genuineness of compromise between them.

4. Learned 2nd Additional Sessions Judge, Mirpur Mathelo has submitted a report dated 04.01.2024 stating that legal heirs of deceased Mst. Fatima, an unmarried girl, were examined by him. They in their statements have voluntarily, without any fear, pressure or any inducement forgiven appellants in the name of Almighty ALLAH and waived their right of Qisas and Diyat.

5. After receiving such report, learned defense counsel and learned Addl. PG were put on notice to assist the court as to whether in this case principle of Fsad-Fil-Arz was attracted as apparently an innocent girl was done to death by her stepbrother on allegations of her love affair with a boy of her cast. And whether on the basis of compromise between her slayer and legal heirs who are equally related to him, and who even did not get upset to lodge the FIR of her murder, the appellant can be set free. Both the learned counsel have addressed the court on these points. Learned defense counsel has favoured acquittal of the appellant by urging that principle of Fsad-Fil-Arz is not attracted in this case and the superior courts in the past in identical situations have accepted the compromise and let go of the assassin. He in order to bring home his point has cited following case law1, while learned Addl. PG has contested his claim by referring to some case law2 with a different view.

6. I have heard the parties and perused the record including the case law cited at bar. In this case, admittedly none of the family members of deceased girl had come forward to report the matter against the appellant. Therefore, ultimately the police had to register the FIR on behalf of the State and give evidence in the court describing the entire episode starting from their arrival at the spot and murder of the deceased within their sight by the appellant. It was based on their evidence the trial court succeeded in determining guilt of the appellant and convicted him in the terms as stated above. The family members of the deceased from the very inception preferred to stay aloof like a silent spectator. Not only they decided to not report against the appellant but also stayed detached from entire investigation by not appearing before the IO to support or otherwise the case against the appellant. They even avoided from appearing in the trial and did not attempt either to approach the court in order to put up their version of incident to see justice is served. Their lackluster conduct throughout is indicative of the fact that either they were accomplice in the offence or too scared of the appellant to question his action at any stage. Both of the probabilities make them incompetent to compound the offence with the appellant and give no objection to his release. An accomplice is not permitted in law to forgive his fellow and ask for his release by waiving right of Qisas or Diyat which due to some natural idiosyncrasy happen to befall on him. Likewise, when a person is too afraid of accused to even report against him of murdering his stepsister just for having a love affair, his affidavit in the court later on forgiving the latter would be looked at with extra care and caution and with a strong suspicion into the reason compelling him to do so. Because, at no stage that person dared to come forward and tell the whole story and depose against the culprit who murdered his daughter/sister/wife etc.

7. Here also the court is faced with the same peculiar situation. It did not happen that parents of the deceased initially felt outraged at her murder by appellant, registered the FIR and deposed against him in the court. Then subsequently out of some parental feelings, they gave in and decided to forgive him and compound the offence. On the contrary, from the very onset their conduct was odious to murdered girl. They did not try to save her or to stop the appellant from carrying out her murder on alleged ground. Then after her murder, they did not try to approach the police for the FIR to ensure commencement of investigation, collection of relevant evidence, etc. for the justice to be served in the public interest. In contrast, they depicted cruel indifference to entire proceedings and stayed away from the trial hoping perhaps that it would pan out ultimately in favour of the appellant in the shape of his acquittal. However, when it did not metalize, they appeared in the court with the affidavits pleading his release because of compromise realizing now it to be the only way to earn his freedom from murder of his sister. In such backdrop, it is normal to question the motive pushing the parents of murdered girl to forgive the appellant, their own son. Ostensibly, this situation is too alarming for a civilized society to overlook. An innocent girl of very young age lost her life at the hands of her stepbrother for no fault of her. Her supposed guardians and protectors at the time of this gruesome incident chose to stay onlookers, and thereafter maintained an eerie silence till conviction and sentence to the appellant. Then they decided to come in the court not for getting justice for their slain daughter but for securing release of her slayer by compounding the offence and waiving the right of Qisas and Diyat against him. In affidavits, the legal heirs have not tried to articulate a single reason warranting their mysterious omissions throughout in the whole chapter starting from actual act: murder of the girl until filing of applications by them in the court for release of appellant after his conviction in the wake of a full-dressed trial.

8. Yet, when we look at the whole story, things start rolling out to give an accurate account of what has eventually ended up in the court in the shape of applications in hand and affidavits in support thereof. Seemingly, the reason why legal heirs of the deceased were non-chalant to her murder entire time was that she was understood by them to be Kari due to her alleged love affair with a boy. Which her family considered a sufficient cause to give carte blanche to her stepbrother to kill her brutally without any qualms or fears for repercussions for his act. Be that as it may, at the same time, let us not forget that section 345, Cr.P.C. permits legal heirs of deceased to compound the offence of her murder with the accused/convict, and there is no embargo in law that the court can enforce for refusing composition for the offence. It is stipulated in subsection (1) thereof that the offences punishable under the sections of the Pakistan Penal Code specified in the first two columns of the table next following may be compounded by the persons mentioned in the third column of that table. Nonetheless, there is a proviso in subsection (2-A) providing that where an offence under chapter XVI of the Pakistan Penal Code has been committed in the name or on the pretext of karo kari, siyah kari or similar other customs or practices, such offence may be waived or compounded subject to such conditions as the court may deem fit to impose with the consent of the parties having regard to the facts and circumstances of the case. The second proviso to section 338-E is in pari materia with the one provided in subsection (2-A) of section 345, Cr.P.C. These provisions of law confirm that when the offence of murder is committed on the ground of karo kari, siyah kari or similar other customs or practices, it cannot be allowed to be compounded without the court first looking at all relevant facts and circumstances to determine its composition in the given situation.

9. When the court is facing such situation, the paramount duty cast upon it would be to see whether such offence can be allowed to be compounded and right of Qisas and Diyat waived in a routine manner like in the cases where a person(s) is not killed as Karo Kari, etc. The phrase in the said provisions that 'such offence may be waived or compounded subject to such conditions as the court may deem fit to impose with the consent of parties having regard to the facts and circumstances of the case' conveys strongly ample authority of the court to even refuse to accept such compromise between the parties if it is warranted in consideration of the given facts and circumstances. Its seems that much emphasis has been put on consideration of facts and circumstances of each case as to be of paramount importance to give effect to compromise between the parties. It is obvious that the authority of the court to impose such conditions as it may deem fit with the consent of the parties for effecting the compromise has been made subservient to having regard to the facts and circumstances of each case. Without resorting to such exercise that entails noting down every possible repercussion which may adversely affect the public interest -- and thus needs to be avoided in all circumstances -- the exercise of authority by the court giving effect to compromise in such cases would be illegal and against the scheme of law. The court has to see, apart from genuineness and voluntariness of such compromise, the manner in which the offence was carried out, conduct of legal heirs of the deceased to save her/him from such brutal end, or in the wake of which their relentless, or lack of it, toil to seek help of the police for investigation and arrest of the accused and their cooperation with the police for collecting relevant evidence, their vigorous efforts to pursue the murderer and to take him to the court for justice, their relationship with the accused. All these factors and many more others (germane to context of each case) are the relevant facts and circumstances the court has to have regard for deciding fate of compromise between the parties in such cases.

2024 P Cr. LJ 2041

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Abdul Mobeen Lakho, JJ

Waqar Ali Awan---Appellant

Versus

The State/NAB---Respondent

Criminal Accountability Appeal No. D-87 of 2017, decided on 17th November, 2022.

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

----Ss. 9 & 10---Corruption and corrupt practices---Appreciation of evidence---Sentence, reduction in---Old age and poor health---Mitigating circumstances---Accused was charged for misappropriating 28261 wheat bags and causing loss of Rs. 89,183,430/- to the government exchequer---As per record, the prosecution had proved its case against the accused beyond reasonable doubt in respect of the offence for which he was charged based on both oral and documentary evidence---However, accused was an old man with poor health condition and he had already undergone substantial part of sentence recorded by the Court---It would be in the ends of justice to reduce the sentence already inflicted upon the accused from fourteen years to the period he had already served while maintaining the sentence of fine of Rs.89, 183, 430/----Appeal was disposed of in the said terms.

Abdul Jabbar and others v. The Director General NAB and others 2021 PCr.LJ 1603 ref.

Muhammad Ashraf alias Chaudhry v. The State 1994 SCMR 667 rel.

(b) Criminal trial---

----Sentencing---Criteria---Sentencing is at the discretion of the Court and is not a mechanical exercise---In exercising its discretion the Court should consider numerous factors such as minimum and maximum sentence which can be imposed on conviction, the role of the accused, and the gravity of the offence, the amount of loss caused to the State, whether the accused shows any kind of remorse, whether the accused is capable of reformation, the age of the accused, the health of the accused, his conduct in jail and how long he has already spent in jail etc.

Muhammad Juman v. The State 2018 SCMR 318 rel.

Mehfooz Ahmed Awan and Farhan Ali Shaikh for Appellant.

Mujeeb-ur-Rehman Soomro and Bahawaluddin Shaikh, Special Prosecutors NAB along with Karim Janwari, Assistant Attorney General, Pakistan for the State.

Date of hearing: 10th November, 2022.

Judgment

Naimatullah Phulpoto, J.---Appellant Waqar Ali Awan was tried by learned Judge, Accountability Court, Sukkur, in Reference No.02 of 2016, for offences under Sections 9 and 10 of National Accountability Ordinance, 1999. Trial Court found him guilty and vide judgment dated 09.06.2017, convicted and sentenced the appellant for 14 years R.I and to pay fine of Rs.89,183,430/- (Rupees Eight Crores, Ninety One Lacs Eighty Three Thousand Four Hundred and Thirty Only). In case of failure thereof, fine shall be recovered as arrears of land revenue in terms of Section 33-E of National Accountability Ordinance, 1999.

1. Brief facts of prosecution case/ reference are that on receipt of information regarding misappropriation of wheat stock by the officials of Food Department in Sukkur and Larkana Regions, an inquiry was authorized, which was subsequently converted to investigation. It is alleged that appellant was posted as Food Inspector/ Incharge at PRC SITE Godown Sukkur at the relevant time. It was found that during the wheat crop 2010-2011 and 2011-2012 misappropriation of 12446 wheat bags was noticed, which caused loss of Rs.37,338,000/- to the public exchequer. According to prosecution case, appellant Waqar Ali Awan misappropriated 28261 wheat bags and caused loss of Rs.89,183,430/- to the Government exchequer thus, committed an offence of corruption and corrupt practices as envisaged under Section 9(a) of NAO, 1999, punishable under Section 10 of the Ordinance. Trial Court framed the charge against the appellant, he pleaded not guilty and claimed to be tried. In order to prove its' case, prosecution examined as many as 16 witnesses, who produced relevant record. Thereafter, prosecution side was closed. Trial Court recorded statement of appellant under Section 342, Cr.P.C in which he denied allegations of misappropriation. He examined himself on oath and produced some documents. However, appellant did not plead evidence in defence. Trial Court, after hearing learned Counsel for the parties and assessment of evidence, convicted and sentenced the appellant as stated above. Appellant challenged his conviction and sentence recorded by learned Accountability Court, Sukkur.

2. Mr. Awan, learned advocate for the appellant candidly conceded that prosecution has proved its' case and on the instructions he does not want to press appeal on merits, prayed for reduction of sentence. It is argued that appellant is advance aged person, his health is deteriorating and he is in custody since 09.06.2017. As per jail roll, he has served 12 years one month and seven days including remissions. However his unexpired portion is 01 year 10 months and 23 days. It is submitted that appellant is first offender and he has suffered agony of investigation and trial. In support of his contentions, he has placed reliance on the cases of Abdul Jabber and others v. The Director General, NAB and others (2021 PCr.LJ 1603).

3. Learned Special Prosecutor NAB based on the mitigating circumstances put forward on behalf of the appellant did not agree to a reduction in sentence for the appellant, however when confronted by the court that why based on the particular facts and circumstances of the case the appellants was not entitled to any reduction in their sentence of imprisonment, he had no answer except to submit that the prosecution had proved its; case against the appellant beyond a reasonable doubt and his sentence was in accordance with law.

4. Having gone through the evidence on record and the impugned judgment we are of the view that the prosecution has proved its case against the appellant beyond a reasonable doubt in respect of the offence for which he was charged based on both oral and documentary evidence and thus the only issue before us is one of sentencing.

5. We note that sentencing is at the discretion of the court and is not a mechanical exercise. It exercising its discretion the court should consider numerous factors such as minimum and maximum sentence which can be imposed on conviction, the role of the accused, the gravity of the offence, in a NAB case the amount of loss caused to the State, whether the accused shows any kind of remorse, whether the accused is capable of reformation, the age of the accused, the health of the accused, his conduct in jail and how long he has already spent in jail etc. In this respect reliance is placed on Muhammad Juman v. State (2018 SCMR 318) which held as under at P322;

2024 P Cr. L J 1

[Lahore]

Before Ali Baqar Najafi and Muhammad Amjad Rafiq, JJ

MUHAMMAD RAHMAT ULLAH---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 73676 of 2022, decided on 14th July, 2023.

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

----Ss. 8, 9, 11-F(2), 11-G & 11-W---Prohibition of acts intended or likely to stir up sectarian hatred, membership of proscribed organization, support and meetings relating to a proscribed organization, projection of proscribed organization---Appreciation of evidence---Benefit of doubt---Delay of one hour and twenty five minutes in lodging the FIR---Accused was charged for distributing banned books, magazines and stickers for propagation of his banned organization---Record showed that Police Station was at a distance of 80 Kilometers from the place of recovery and FIR was registered at 1:45 p.m. within almost one hour and 25 minutes---Even if it was presumed that official witness swiftly left the place of recovery at 12.20 p.m. there was nothing to presume because said witness did not enter appearance in the dock to verify the facts---Earlier such distance of 80 kilometers was covered by the CTD raiding team in 3 hours 10 minutes, despite the fact they went straight to place of occurrence and did not stop anywhere as per statement of witnesses---In such circumstances to know the condition of road and means of transportation which witness used for reaching to the Police Station, testimony of witness was essential; therefore, his non-appearance was fatal to the prosecution case---Appeal against conviction was allowed, in circumstances.

Minhaj Khan v. The State 2019 SCMR 326 rel.

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

----Ss. 8, 9, 11-F(2), 11-G & 11-W---Prohibition of acts intended or likely to stir up sectarian hatred, membership of proscribed organization, support and meetings relating to a proscribed organization, projection of proscribed organization---Appreciation of evidence---Benefit of doubt---Non-recovery of material articles---Accused was charged for distributing banned books, magazines and stickers for propagation of his banned organization---During search of accused no material was collected which could label him as member of banned organization---Said fact had been conceded by witnesses in their depositions while stating that no membership card was recovered from possession of accused---Similarly, Investigating Officer also admitted that neither any organizational card was recovered nor any thing on the lead of accused---Though Investigating Officer claimed to have made an attempt to join the people from the locality where allegedly accused was living and deposed that no one came forward due to his being member of banned organization; but neither he named any person nor statement of any such person was recorded in whose presence he had made such attempt---Though CDR of accused was also brought on record but no suspicious number was tracked to show his link with banned/proscribed organization---Investigating Officer also admitted that he inspected the place of recovery but nothing like CCTV footage was found---Investigating Officer claimed to have associated the nearby shopkeepers for knowing the name of deserted unknown accused but he could collect no material in that respect---Again, name of shopkeeper was not deposed by him nor reference from any investigative material was indicated in that context---Thus, no material was available in support of charge under S. 11-F(2) of Anti-Terrorism Act, 1997---Appeal against conviction was allowed, in circumstances.

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

----Ss. 8, 9, 11-F(2), 11-G & 11-W---Prohibition of acts intended or likely to stir up sectarian hatred, membership of proscribed organization, support and meetings relating to a proscribed organization, projection of proscribed organization---Appreciation of evidence---Benefit of doubt---Recovery of one book and three magazines from the possession of accused---Inconsequential---Accused was charged for distributing banned books, magazines and stickers for propagation of his banned organization---Allegedly, one banned book and three magazines were recovered from the possession of accused, but the book and magazines were not available in the record which was to be responded by the prosecution yet it was found that except such nominal information, neither the title-images of such 4-book or magazines were part of record nor any observation of the Court that after seeing the original, the book and magazines were returned to the prosecution because of being banned or containing hate material---So much so no witness deposed before the Court about the contents of such book or magazines referring to any chapter or pages showing a cause of banning---Thus, such nominal evidence was to be ruled out from consideration which could not connect the accused with commission of offence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 8, 9, 11-F(2), 11-G & 11-W---Prohibition of acts intended or likely to stir up sectarian hatred, membership of proscribed organization, support and meetings relating to a proscribed organization, projection of proscribed organization---Appreciation of evidence---Benefit of doubt---Material extracted or retrieved from mobile phone recovered from possession of accused---Inconsequential---Accused was charged for distributing banned books, magazines and stickers for propagation of his banned organization---Prosecution's stance was that criminal liability of accused could be proved through material extracted or retrieved from mobile phone recovered from his possession on the day of raid---Material placed on record as well as Forensic Science Agency Report with respect to extraction of such material from the mobile phones was examined---Prosecution had also attached with the record a USB allegedly containing images, audios, videos, chat, call log etc., retrieved from the phone---Said evidence could not be used against the accused due to the reason that images retrieved from mobile phone were not put to the accused in his statement under S. 342, Cr.P.C., and USB was not played in the Court during the statement of any witness so as to prove its contents---Extraction of data from a personal mobile phone, even of an accused, without his consent was not a good practice as it was opposed to constitutional guarantee of right to privacy---If the accused was not ready to accord consent, then at least permission from Magistrate should have been taken---Though in present case, Anti-Terrorism Court supervised the processes of investigation whenever needed, but no such permission was found in the record nor prosecution had shown the same, therefore, retrieval of data from mobile phone of accused by Forensic Science Agency without the consent of accused amounted to self-incrimination prohibited under Art. 13 of the Constitution---Such evidence was ruled out from consideration---Appeal against conviction was allowed, in circumstances.

(e) Criminal trial---

----Benefit of doubt---Principle---For extending benefit of doubt, it is not necessary that there should be many circumstances; if there is only one doubt, the benefit of same must go to the accused.

The State through P.G. Sindh and others v. Ahmed Omar Sheikh and others 2021 SCMR 873 and Najaf Ali Shah v. The State 2021 SCMR 736 rel.

Mudassar Naveed Chatha and Mukhtar Ahmed Awan for Appellant.

Rai Akhtar Hussain Kharal, Additional Prosecutor General for the State.

2024 P Cr. L J 55

[Lahore]

Before Sultan Tanvir Ahmad, J

PARVEZ ELAHI---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and 3 others---Respondents

Criminal Miscellaneous No. 40242-M of 2023, decided on 18th September, 2023.

Criminal Procedure Code (V of 1898)---

----Ss. 435, 439-A & 561-A---Penal Code (XLV of 1860), Ss. 420, 468, 471, 161 & 162---Prevention of Corruption Act (II of 1947), S. 5(2)---Cheating, forgery, taking illegal gratification by corrupt or illegal means and criminal misconduct---First physical remand---Refusal---Scope---Accused was denied first physical remand by Magistrate but Lower Appellate Court in exercise of revisional jurisdiction set aside the order---Validity---Order passed by Magistrate refusing remand was a judicial function and under S. 435, Cr.P.C., the Court superior to the one refusing remand could exercise jurisdiction of revision---Magistrate in some apparent haste refused physical remand on very first day when accused was produced before him---Lower Appellate Court rightly intervened after examination of record of proceedings of the inferior Court and after satisfying itself exercised its jurisdiction under S. 435 read with S. 439-A, Cr.P.C.---Matter had been dealt in detail by Lower Appellate Court by giving cogent reasons---High Court declined to interfere in the matter as there was no ground to exercise inherent powers of S. 561-A, Cr.P.C., to give effect to any order under Criminal Procedure Code, 1898 or to prevent abuse of any Court---Revision was dismissed, in circumstances.

Abdul Waheed v. Additional Sessions Judge and others 2017 MLD 1319; Zawar Hussain v. The State and 3 others 2009 PCr.LJ 705; Misbah-Ul-Hassan v. The State and 3 others 2005 PCr.LJ 1709; Riaz Ul Haq and another v. Muhammad Naveed and another 2005 YLR 805; Muhammad Aslam and others v. The State and others Writ Petition No. 3780 of 2010 and Satyahari Choudhury v. The State AIR 1953 Cal. 661 rel.

Asif Mehmood Cheema, Chaudhary Muhammad Farman Manais, Mukhtar Ahmad Ranjha, Safdar Hayat Bosal and Mohsan Rabbani for Petitioner.

Abdul Samad Khan, Additional Prosecutor General, Ghulam Sarwar Nehang, Additional Advocate General, Farrukh Khan Lodhi, Malik Muhammad Tahir, Idrees Bhatti and Salman Asif Warraich, Assistant Advocates General with Jam Salah-ud-Din, Director (Legal), Anti-Corruption, Muhammad Riaz Chaudhary, Deputy Director Legal (Anti-Corruption Headquarter), Abdul Majeed, Deputy Director Legal, Muhammad Asghar, Circle Officer, Sabtain Shah, I.O., Rizwan, Deputy Director Investigation, Gujranwala and Khalid Mehmood, Circle Officer, Lahore, Rana Sir Buland Khan and Mir Haroon-ur-Rashid, Assistant Attorney General for Respondents Nos. 2 and 3.

2024 P Cr. L J 82

[Lahore]

Before Aalia Neelum and Muhammad Amjad Rafiq, JJ

ALI AHSAN alias SUNNY and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 193932, 206624 and Murder Reference No. 164 of 2018, decided on 30th May, 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---Scope---Accused was charged that he along with his co-accused persons committed murder of the son of the complainant by inflicting knife blows---Deposition of Investigating Officer revealed that he took 55 minutes to record the complainant's statement, prepare the inquest report, etc.---After the preparation of the inquest report, etc. within 55 minutes, the Investigating Officer sent the oral complaint to the police station for the recording of FIR---Said fact revealed that before the registration of the FIR, the Investigating Officer conducted a partial investigation---Admittedly, a statement under S. 154, Cr.P.C., of the complainant was not incorporated in the register for FIRs registration---Police Officer deposed during examination-in-chief that on receiving the oral complaint, endorsed and dispatched by the Investigating Officer through Police Constable, he dictated the FIR to the Computer Operator, who typed it without any addition or deletion---Prosecution had not produced the Computer Operator to whom dictation was given by Police Officer, whereafter he typed the FIR---First Information Report was not entered into the register, suggesting that FIR was not chalked out as stated---Evidential value of the FIR would be reduced if it was made after an unexplained delay, particularly when the same was not entered in the printed form as per Police Rules, 1934---Circumstances established that the prosecution had not been able to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Presence of eye-witnesses at the spot not proved---Accused was charged that he along with his co-accused persons committed murder of the son of the complainant by inflicting knife blows---Record showed that the prosecution witnesses stated that due to the severe condition the deceased, then injured, was taken to the THQ Hospital---Presence of the said witnesses was alleged to be doubtful at the spot because if they had been present and witnessed the occurrence, they would have tried to stop the blood oozing from the body of the son of complainant---On the contrary, said witnesses did not provide first aid---Both witnesses admitted that different hospitals were available on the way from the place of occurrence to THQ Hospital, still, they did not take the deceased (then injured) to any nearby hospital for providing medical treatment---Both the said witnesses admitted during cross-examination that they took the deceased, then injured, to THQ Hospital, due to his severe condition---Said act of the prosecution witnesses remained unnatural---Said witnesses opted to take the deceased then injured to the hospital, which was far from the place of occurrence at a distance of 25/26 kilometers, which also threw a cloud of doubt on the presence of both the witnesses, including the complainant---Circumstances established that the prosecution had not been able to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed accordingly.

(c) Criminal trial---

----Witness---Related witness---Scope---Evidence of a witness cannot be discarded only on the ground that he is a related witness, but it is only a rule of prudence---Rule of caution is that the evidence of related witness is scrutinized with some extra caution---Once the Court is satisfied that the witness was present at the scene of occurrence and his evidence inspires confidence, the same cannot be discarded on the sole ground of relationship with the deceased or chance witness.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Chance witnesses---Non-availability of justification for the presence of eye-witnesses at the spot---Accused was charged that he along with his co-accused persons committed murder of the son of the complainant by inflicting knife blows---Record showed that the place of occurrence was thoroughfare and the prosecution witnesses had not got any reason to be present at the place and time of occurrence---Investigating officer deposed during cross-examination that eye-witnesses told him that they had witnessed the occurrence from a distance of 50 feet---Presence of the complainant and the eye-witness at the relevant time of occurrence was belied from the site plan prepared on their pointing---Un-scaled site plan and scaled site plans showed the presence of witnesses at a point and at a distance wherefrom they could not have witnessed the incident---Whereas during the cross-examination, the complainant and the eye witness, improved their statements by stating that they were at 7 feet when a knife blow was given by accused, but the position of the complainant and the eye witness near the deceased, was not shown in the un-scaled site plan---Although, the site plan was not a substantive piece of evidence in terms of Art. 22 of the Qanun-e-Shahadat, 1984, but it reflected the view of the crime scene, and the same could be used to contradict or disbelieve eyewitnesses---All the said circumstances made the presence of the eye-witnesses at the spot doubtful---Circumstances established that the prosecution had not been able to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed accordingly.

Mst. Shamim Akhtar v. Fiaz Akhter and 2 others PLD 1992 SC 211 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Motive not proved---Accused was charged that he along with his co-accused persons committed murder of the son of the complainant by inflicting knife blows---Complainant deposed that motive behind the occurrence was that two days before the occurrence, an altercation took place between deceased and accused persons and due to that reason, accused persons committed murder of the deceased---Eye-witness deposed similar grounds---Complainant during cross-examination deposed that he disclosed the motive part of the occurrence before the police, however he had not mentioned the detail of said motive part of occurrence, i.e. place, time and witnesses of the said altercation---Complainant had not disclosed the reason for said altercation of motive part of the occurrence to the police---Investigating Officer deposed that both eyewitnesses did not describe about the motive of that occurrence in their statements---Thus, the motive for the commission of the crime by the accused was not proved through cogent and convincing evidence---Circumstances established that the prosecution had not been able to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed accordingly.

(f) Criminal trial---

----Motive---Scope---Motive is a double-edged weapon that cuts both ways---If, on the one hand, it provides a reason for the accused to commit the occurrence in question, on the other hand, it equally provides the first informant with a reason to implicate his rival.

(g) 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 from the possession of the accused---Inconsequential---Accused was charged that he along with his co-accused persons committed murder of the son of the complainant by inflicting knife blows---As per the prosecution case, on 16.08.2017, the accused was arrested---On 21.08.2017, upon disclosure of accused, a knife was recovered from the northern room of his residential house---As per the recovery memo knife was kept in a cloth bag, which was hung on the room's western wall---Investigating Officer deposed during examination-in-chief that after proceedings at the place of occurrence, he raided the houses of the accused persons, but they were not traceable---Astonishingly soon after the incident, the accused persons escaped from the place of occurrence, as per the prosecution case, and the Investigating Officer made efforts to effect their arrest---Even otherwise, it did not appeal to reason that the accused might have kept a knife in his house intact to produce it before the Investigating Officer on his arrest---Accused could not be expected to keep the knife in his house when he could have easily disposed of the same---In said circumstances, the recovery of the weapon of offence and a positive report were not of any consequences---Circumstances established that the prosecution had not been able to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed accordingly.

Bashir Ahmed alias Mannu v. The State 1996 SCMR 308 rel.

Nasir Mehboob Tiwana and Bashir Ahmad Khan for Appellants.

Muhammad Waqas Anwar, Deputy Prosecutor General for the State.

Muhammad Ahsan Bhoon and Syed Ali Zubair Karmani for the Complainant.

2024 P Cr. L J 147

[Lahore]

Before Malik Shahzad Ahmad Khan, J

QASIM ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 80274-J of 2022, heard on 4th July, 2023.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Non-availability of justification for the presence of witness at the time and place of occurrence---Chance witnesses---Accused was charged for committing murder of the brother of the complainant---Ocular account of the prosecution was furnished by complainant and an eye-witness--- Both the witnesses were real brothers of the deceased---Said witnesses stated that they were not residents of the village where the occurrence took place rather they were residents of other city situated at a distance of 25/26 kilometers from the place of occurrence---Both the eye-witnesses did not give any specific reason for their visit to the village where the occurrence took place on the relevant day---Complainant conceded that he had neither any business nor residence near the place of occurrence---Eye-witnesses were not residents of the village where the occurrence took place hence they were chance witnesses, therefore, their presence at the spot at the relevant time without establishing any convincing reason was not free from doubt---Appeal against conviction was allowed, in circumstances.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Sufyan Nawaz and another v. The State and others 2020 SCMR 192 and Muhammad Irshad v. Allah Ditta and others 2017 SCMR 142 rel.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of nine hours in conducting postmortem examination upon the dead body of the deceased---Accused was charged for committing murder of the brother of the complainant---According to the prosecution case, the occurrence in this case took place on 20.01.2022 at 03:20 p.m.---Complainant himself mentioned in the FIR that his brother (deceased) after receiving injuries died at the spot but according to post mortem report of the deceased, the dead body of deceased was brought in the hospital on 20.01.2022 at 11:50 p.m., and postmortem examination on the dead body of the deceased was conducted on 21.01.2022 at 12:10 a.m., i.e., after about nine hours from the occurrence---No plausible explanation had been given by the prosecution that as to why the dead body was brought to the hospital and post mortem examination was conducted with such a delay of about nine hours from the occurrence---Said delay in conducting the postmortem examination on the dead body of the deceased was suggestive of the fact that the occurrence was unseen and the delay was consumed in procuring the attendance of fake eye-witnesses---Appeal against conviction was allowed, in circumstances.

Muhammad Ilyas v Muhammad Abid alias Billa and others 2017 SCMR 54; Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327; Sufyan Nawaz and another v. The State and others 2020 SCMR 192; Zafar v. The State and others 2018 SCMR 326 and Muhammad Ashraf v. The State 2012 SCMR 419 rel.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence---Conflict between---Accused was charged for committing murder of the brother of the complainant---In the contents of the FIR, complainant alleged that the accused gave two brick bat blows which landed on the head and chest of deceased whereas in the post mortem report and pictorial diagrams there was only one injury on the head of the deceased---No injury on the chest of the deceased was noted by the concerned Medical Officer---Both the eye-witnesses stated before the Trial Court that the accused inflicted one brick bat blow on the head and three/four brick bat blows on the chest and shoulder of deceased---Said witnesses were duly confronted with their previous statements and improvements made by them in that respect were duly brought on the record---Moreover, the prosecution witnesses made improvements in their statements while appearing before the Trial Court regarding the number of injuries sustained by the deceased on his chest and shoulder and their improved statements was also in conflict with the medical evidence, therefore, their evidence was not worthy of reliance---Appeal against conviction was allowed, in circumstances.

Muhammad Ali v. The State 2015 SCMR 137; Irfan Ali v. The State 2015 SCMR 840; Usman alias Kaloo v. The State 2017 SCMR 622; Nadeem alias Kala v. The State and others 2018 SCMR 153 and Akhtar Ali and others v. The State 2008 SCMR 6 rel.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Unnatural conduct of eye-witnesses---Accused was charged for committing murder of the brother of the complainant---Record showed that the conduct of the prosecution eye-witnesses of the case was highly unnatural---Complainant and eye-witness were both real brothers of deceased---As per prosecution case the complainant was accompanied by eye-witness, other witness (not produced) and the deceased and as such, the complainant party was comprising of 04-adults members, whereas, the accused was alone but surprisingly they did not try to apprehend the accused after the occurrence nor tried to intervene during the occurrence to save the deceased from the accused---Accused was not armed with any formidable weapon at the time of occurrence and he was only armed with a brick bat---Thus, conduct of the prosecution eye-witnesses, who according to their claim witnessed the occurrence, was highly unnatural, therefore their presence at the spot was highly doubtful and their evidence was not worthy of reliance---Appeal against conviction was allowed, in circumstances.

Liaquat Ali v. The State 2008 SCMR 95; Pathan v. The State 2015 SCMR 315 and Zafar v. The State and others 2018 SCMR 326 rel.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Motive not proved---Accused was charged for committing murder of the brother of the complainant---Motive of the occurrence as stated in the FIR was that six days prior to the occurrence a quarrel took place between deceased and the accused but the same was patched up with the intervention of the respectables of the locality---No respectable of the locality, who patched up the matter between the parties appeared before the Trial Court in support of the motive part of the prosecution case---Moreover, the complainant while appearing before the Trial Court admitted during his cross-examination that neither he nor other witnesses witnessed the occurrence of motive---Moreover, in his statement recorded by the Trial Court, complainant did not mention any specific date, time or place of occurrence of the motive, whereas, eye-witness did not utter a single word about the motive of occurrence---No reason of the earlier quarrel between the accused and the deceased had been brought on the record---Thus, the prosecution had failed to prove the alleged motive---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence---Inconsequential---Accused was charged for committing murder of the brother of the complainant---Record showed that a brick bat was recovered on the pointation of accused---However, recovery memo did not show that brick bat was stained with blood---Moreover, the said brick bat was never sent to the office of Forensic Science Agency to see as to whether the same was stained with blood or not, therefore, it was not safe to rely upon the said piece of evidence of the prosecution---Appeal against conviction was allowed, in circumstances.

Nasir Abbas Zafar Malik, defence counsel for Appellant.

Ms. Asiya Yasin, Deputy District Public Prosecutor with Ibrahim, Sub-Inspector for the State.

Complainant in person.

2024 P Cr. L J 165

[Lahore]

Before Tariq Saleem Sheikh, J

AHMAD FARAN SABIR---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 8564/M of 2022, heard on 26th May, 2022.

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

----Ss. 249-A & 561-A---Penal Code (XLV of 1860), S. 489-F---Negotiable Instruments Act (XXVI of 1881), Ss. 5 & 118---Presumptions as to negotiable instrument---Petitioner moved an application under S. 249-A, Cr.P.C., before the Trial Court for his acquittal claiming that the charge against him was groundless and there was no probability of him being convicted of any offence---Said application was dismissed---Decision of the Trial Court was upheld in revision by the Revisional Court---Validity---Petitioner had neither denied his signature on Cheque in question nor the fact that it was drawn on his account---Petitioner had challenged its validity on the premise that it did not conform to the requirements of S. 5 of the Negotiable Instruments Act, 1881---Cheque in question contained the expression "Pay cash or bearer"---In view of the said discourse, the contention was repelled---Allegedly, police had found defence plea of petitioner correct during investigation, which might help him during the trial but not at present stage---Investigating Officer had the mandate only to collect the evidence pertaining to the case he was investigating and to dig out the truth and then submit report in terms of S. 173, Cr.P.C.---Said report, however, was not a piece of evidence itself---If the cheque said "pay cash" and the words "or bearer" were not scored off, the person in possession of the instrument would be presumed to be a holder in due course---In the instant case, respondent No. 2 (complainant) enjoyed the same presumption in respect of Cheque in question which could be rebutted at a regular trial where the parties have equal opportunity to adduce evidence to prove their respective claims and test the credibility of the witnesses of the other side through cross-examination---Sole opinion of the Investigating Officer could not negate that presumption---Section 249-A, Cr.P.C., reflected a compromise between the collective good of the society and the rights of an individual offender---Idea was to spare the offender the rigors of full trial if the Court at any stage found that the charge was groundless and the prosecution was not likely to succeed, however, present case was not a case in which the provisions of S. 249-A, Cr.P.C., could be invoked---Petition had no merit and was therefore dismissed.

Muhammad Sultan v. The State 2010 SCMR 806; North and South Insurance Corporation Limited v. National Provincial Bank Limited, [1936] 1 K.B. 328; Cole v. Milsome, [1951] All ER 311; Orbit Mining and Trading Co. Ltd. v. Westminster Bank Ltd., [1963] 1 QB 794; Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 and Muhammad Bashir v. Station House Officer Okara Cantt. and others PLD 2007 SC 539 rel.

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

----Ss. 249-A & 561-A--- Quashing of proceedings--- Inherent jurisdiction of High Court---Scope---In law, S. 561-A, Cr.P.C., did not confer an alternative or additional jurisdiction on the High Court---Said provisions of law merely preserve its inherent jurisdiction to enable it to make such orders as might be necessary to give effect to an order under the Criminal Procedure Code, 1898 or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice---Said section could not be used to stifle prosecution---High Court should invoke S. 561-A, Cr.P.C., for quashing the proceedings pending before the Trial Court in exceptional circumstances.

Ijaz Feroze and Zia Ullah Khan for Petitioner.

Rana Tasawar Ali Khan, Deputy Prosecutor General for the State.

Abdul Khaliq Safrani and Muhammad Awais Riaz for Respondent No. 2.

2024 P Cr. L J 183

[Lahore (Multan Bench)]

Before Asjad Javaid Ghural and Ali Zia Bajwa, JJ

MUHAMMAD UMAIR---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 364 of 2022, heard on 26th May, 2022.

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

----Ss. 11EE(4), 21-L & Fourth Sched.---Constitution of Pakistan, Art. 10A---Criminal Procedure Code (V of 1898), Ss. 512, 87 & 88---Proscription of person---Conviction in absentia---Fair trial---Scope---Accused placed in Fourth Schedule to the Anti-Terrorism Act, 1997, violating terms of his bond by absconding---Prosecution case was that the name of accused was placed on the list of Fourth Schedule of the Anti-Terrorism Act, 1997, however, by violating the terms and conditions of the surety bonds submitted by him, he proceeded to foreign country and shifted there---Trial of the accused was carried out in his absence---Perusal of the record reflected that the personal attendance of the accused was not dispensed with rather he was tried and convicted in absentia without pleader of his own choice---Right to be represented by counsel of own choice was given by the Constitution of Pakistan, under Art. 10(1)---Further, there was possibility that the accused did not deliberately evade the process of criminal justice system, because his failure to appear before the trial Court, as and when required by the Trial Court, was due to lack of knowledge or some other reasons beyond his control---Even otherwise, if it was assumed that as a means to circumvent the process of criminal justice system, the accused deliberately absconded, even in that eventuality he could not have been tried and convicted in absentia---Rather, Trial Court could merely record evidence against him as envisaged under S. 512, Cr.P.C., after satisfying itself by adhering to the provisions of Ss. 87/88, Cr.P.C., that the accused had, in fact, absconded himself and there was no likelihood of his joining the trial proceedings in near future---Purpose of S. 512, Cr.P.C., was merely to preserve the evidence of a witness for an eventuality where protection was given to the deposition of such witness who might not be alive at the time of appearance of the accused or might have become incapable of giving evidence or attendance of said witness could not be procured without any delay, expense or inconvenience---Trial conducted in absentia violated both constitutional guarantees enshrined under Arts. 4, 8, 9, 10 & 10A of the Constitution of Pakistan, and principles of natural justice---Thus, the trial of the accused in absentia was illegal, unwarranted and of no legal effect---Hence, appeal was allowed by setting aside impugned judgment and case was remanded to the Trial Court for its retrial in accordance with the law.

Hakim Khan v. The State 1975 SCMR 1; PLD 1973 Lah. 365; Muhammad Sharif's case 1974 PCr.LJ 168; Niamat Khan v. Qudrat Shah 2017 MLD 883; Mumtaz v. Moeen 2006 PCr.LJ 1436; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Mir Ikhlaq Ahmad and another v. The State 2008 SCMR 951; Muhammad Arif v. The State 2008 SCMR 829; M.B. Abbasi and another v. The State 2009 SCMR 808; Arbab Khan v. The State 2010 SCMR 755 and Pakistan and others v. Public at Large and others PLD 1987 SC 304 rel.

Malik Riaz Hussain and Syed Jahanzeb for Appellant.

Muhammad Ali Shohab, Deputy Prosecutor General for the State.

2024 P Cr. L J 214

[Lahore]

Before Shehram Sarwar Ch. And Muhammad Tariq Nadeem, JJ

MUHAMMAD SALEEM---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 237968 and Murder Reference No. 340 of 2018, heard on 8th September, 2022.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of seven hours and thirty minutes in lodging FIR---Effect---Accused was charged for committing murder of his wife/sister of the complainant by throttling her neck---As per contents of FIR, the matter was reported to the police about seven hours and thirty minutes after the incident---Distance between police station and the place of occurrence was twelve kilometers---No plausible explanation for the said delay had been brought on record---Even while appearing before the Trial Court the prosecution witnesses did not utter even a single word about the said delay---Thus, delay in setting the machinery of law into motion spoke volumes against the veracity of prosecution version---Appeal against conviction was allowed, in circumstances.

Altaf Hussain v. The State 2019 SCMR 274; Ghulam Abbas and another v. The State and another 2021 SCMR 23 and Pervaiz Khan and another v. The State 2022 SCMR 393 rel.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of nine hours and twenty minutes in conducting post-mortem examination---Effect---Accused was charged for committing murder of his wife/sister of the complainant by throttling her neck---Record showed that the post-mortem examination on the dead body of deceased was conducted with the delay of nine hours and twenty minutes---Thus, it was a case of delayed post-mortem, which casted serious doubts---Such noticeable delay was normally occasioned due to incomplete police papers necessary to be handed over to the Medical Officer to conduct the postmortem examination on the deadbody of the deceased which happened only when the complainant and police remained busy in consultation and preliminary inquiry regarding the culprits in cases of un-witnessed occurrence---Appeal against conviction was allowed, in circumstances.

Sufyan Nawaz and another v. The State and others 2020 SCMR 192; Muhammad Adnan and another v. The State and others 2021 SCMR 16 and Pervaiz Khan and another v. The State 2022 SCMR 393 rel.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Unnatural witnesses---Presence of eye-witnesses at the place and time of occurrence doubtful---Scope---Accused was charged for committing murder of his wife/sister of the complainant by throttling her neck---Ocular account of the incident in issue had been furnished by a witness and complainant---Complainant was the father and the witness was close relative of the deceased---Conduct of the said eye-witnesses was highly unnatural---According to the statements of said witnesses, on the fateful morning, they were in the house where the occurrence took place at 07:00 a.m. and saw that accused throttling the deceased---Question was as to why they had not physically intervened especially when the accused was empty handed---According to their statements, deceased made hue and cry, upon which her father, brother and a close relative were attracted to the place of occurrence---Said witnesses were three male adult members whereas the accused was alone and not armed with any weapon to terrify the prosecution eye-witnesses from saving the deceased---It was not appealable to a prudent mind that if the said eye-witnesses, who were closely related to the deceased, were present at the house of occurrence, then as to why they did not physically intervene to apprehend the accused after the occurrence---Under the circumstances, it could be safely held that both the eye-witnesses were neither present at the spot at the relevant time nor they had witnessed the occurrence---Appeal against conviction was allowed, in circumstances.

Liaqat Ali v. The State 2008 SCMR 95; Pathan v. The State 2015 SCMR 315; Zafar v. The State and others 2018 SCMR 326 and Shaukat Hussain v. The State 2022 SCMR 1358 rel.

(d) 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---Accused was charged for committing murder of his wife/sister of the complainant by throttling her neck---According to the prosecution evidence, at the time of alleged occurrence, five children of the accused and deceased were present at the place of occurrence at the relevant time---Eldest of them was aged 12/13 years but not a single child was produced during the trial as a witness---In the given scenario, abandoning of the said witnesses obviously led to an adverse inference in terms of Art. 129(g) of the Qanun-e-Shahadat, 1984, that had they been produced in the witness box, they might have not supported the prosecution case---If any party withheld the best piece of evidence, then it could fairly be presumed that such party had some sinister motive behind it---Appeal against conviction was allowed, in circumstances.

Pervaiz Khan and another v. The State 2022 SCMR 393 rel.

(e) Criminal trial---

----Dishonest improvements made by witness---Scope---Witness is untrustworthy if he makes dishonest improvements in his statement on a material aspect of the case in order to fill gaps in the prosecution case or to bring his statement in line with the other prosecution evidence.

Naveed Asghar and 2 others v. The State PLD 2021 SC 600 and Khalid Mehmood and another v. The State 2021 SCMR 810 rel.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence---Contradictions---Accused was charged for committing murder of his wife/sister of the complainant by throttling her neck---Prosecution story was negated by the postmortem report wherein three injuries in the shape of bruises were found on the neck of deceased but Medical Officer had stated in her cross-examination that hyoid bone was not broken and ribs as well as cartilages were not damaged---Although cause of death was manual strangulation (throttling) leading to asphyxia, nonetheless, it did not appear to have occurred in the manner suggested in the crime report---Appeal against conviction was allowed, in circumstances.

Shaukat Hussain v. The State 2022 SCMR 1358 rel.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Motive not proved---Accused was charged for committing murder of his wife/sister of the complainant by throttling her neck---Motive behind the occurrence was that there was inter se hostility between accused and deceased, due to which occurrence took place---As per complainant and eye-witness, motive for the occurrence was the quarrel between the spouses, but this was an oral assertion of the complainant and no material evidence in the shape of ocular or documentary evidence 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 but if prosecution set up a motive but failed to prove it, then it was the prosecution who had to suffer and not the accused---Appeal against conviction was allowed, in circumstances.

Muhammad Ilyas and another v. Ameer Ali and another 2020 SCMR 305; Liaqat Ali and another v. The State and others 2021 SCMR 780 and Khalid Mehmood and others v. The State and others 2021 SCMR 810 rel.

(h) Criminal trial---

----Benefit of doubt---Principle---Even a single circumstance creating doubt in a prudent mind would be sufficient to extent benefit of doubt to the accused.

Muhammad Mansha v. The State 2018 SCMR 772; Muhammad Imran v. The State 2020 SCMR 857; Najaf Ali Shah v. The State 2021 SCMR 736; The State through P.G. Sindh and others v. Ahmed Omar Sheikh and others 2021 SCMR 873 and Muhammad Ashraf alias Nikka v. The State 2022 SCMR 1328 rel.

Ms. Sheeba Qaiser for Appellant.

Abdur Rauf, Deputy Prosecutor General for the State.

Muhammad Ayub Sialvi for the Complainant.

2024 P Cr. L J 252

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram and Muhammad Amjad Rafiq, JJ

MUHAMMAD IQBAL and others---Petitioners

Versus

The STATE and another---Respondents

Criminal Appeal No. 55 of 2013, decided on 19th October, 2023.

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

----S. 426(2B)---Supreme Court Rules, 1980, O. XXIII, R. 2---Suspension of sentence---Special leave to appeal granted by Supreme Court---Scope---Provision of S. 426(2B), Cr.P.C., remains applicable only when High Court certifies that case involves a substantial question of law as to interpretation of the Constitution and a person earns a right of appeal to Supreme Court which of course is a "special leave to appeal" as mentioned in S. 426(2B), Cr.P.C---If High court refuses to issue such certificate, the leave to appeal (not special leave to appeal) is available to aggrieved person as mentioned in O. XXIII, R. 2 of Supreme Court Rules, 1980.

Gore Lal and others v. State AIR 1958 All 667; 1958 Cri. LJ 1107 and Madan Lal v. The State AIR 1960 AP 622 rel.

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

----Ss. 200 & 426(2B)---Supreme Court Rules, 1980, O. XXIII, R. 8---Supreme Court Rules, 1956 [since repealed], O. XXIV, R. 5-B---Government of India Act, 1935, Ss. 205 & 209(c)---Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit Qatl-i-amd and rioting armed with deadly weapons---Suspension of sentence---Historic review---Accused persons were convicted in private complaint case for committing Qatl-i-amd and were sentenced to imprisonment for life---Accused persons sought suspension of their sentences---Validity---Through S. 205 of Government of India Act, 1935, when High Court certified to file appeal before Federal Court which was a special leave to appeal to Federal Court and when by virtue of S. 209(3) of Government of India Act, 1935, Federal Court was authorized to stay execution of any sentence on filing an appeal from judgment of High Court, there was no necessity to insert subsection (2B) in S. 426, Cr.P.C. because purpose was already served---As such the provision was introduced in year 1946 for those convicts for whom special leave to appeal to His Majesty in Council was granted by High Court and it was learnt that Court of His Majesty in Council was 6000 miles away, therefore, it was expected that by the time appeal was filed, lest convict should not serve out his entire sentence---His Majesty in Council remained part of Federal Court Rules, because on granting leave to appeal by the Federal Court one could file appeal before His Majesty in Council against Judgment of Federal Court---Federal Court under O. XIX, R. 7 of Federal Court Rules, 1950, was authorized to stay execution of sentence pending appeal against judgment of High Court---With the promulgation of Constitution of Pakistan, 1956, remedy before His Majesty in Council was eliminated but appellate forum for High Court was designated as Supreme Court---Similarly, under O. XXIV, R. 5-B of Supreme Court Rules, 1956 and O. XXIII, R. 8, of Supreme Court Rules, 1980, power to stay execution of any sentence was available to the Supreme Court at the time when petition for leave to appeal was filed or leave was granted by Supreme Court---There was no need to have recourse to High court for suspension of sentence---Word 'may' used in S. 426(2B), Cr.P.C., made it discretionary to grant bail to the seekers and High Court could well refuse the same---High Court declined to invoke jurisdiction under S. 426(2B), Cr.P.C.---Petition was dismissed, in circumstances.

Lala Jairam Das and others v. Emperor AIR (32) 1945 Privy Council 94 and Talib Hussain v. The State and others PLD 2014 Lah. 574 ref.

Ahmad Sher alias Sheri Bhatti v. The State and others 2014 PSC (Crl.) 411; Muhammad Zulfiqar v. The State and others (Criminal Petition No. 252-L of 2014); Niaz Been and others v. The State PLD 2018 Pesh. 131; Adil Mansoor v. The State and 2 others 2017 MLD 1046 and Muhammad Ijaz v. The State and another 2013 PCr.LJ 1102 rel.

Rana Muhammad Nadim Kanju for Petitioners.

2024 P Cr. L J 306

[Lahore]

Before Malik Shahzad Ahmad Khan and Muhammad Waheed Khan, JJ

MUHAMMAD AZAM and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 132397, 135890 and Murder Reference No. 9 of 2018, heard on 7th March, 2023.

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

----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Site plan contradicting prosecution version---Accused were charged for committing murder of the brother of the complainant by firing---Complainant claimed that he was cutting the fodder from his land when the assailants attacked upon his brother---Scaled and un-scaled site plan showed that dead body of the deceased was lying in field, which was shown under cultivation of the deceased as tenant and the said land was shown to be owned by one Mr. "N"---Claim of the eye-witnesses was that they were ploughing field but the name of the complainant was neither mentioned as a tenant nor as an owner because one Mr. "I" was shown as owner of the said land---Although complainant had alleged that the said land was under the possession of the complainant as he had got the same on lease but no such fact was mentioned on both the site plans---According to the prosecution version, the complainant along with other witness was ploughing the said field but as per site plan, the Investigating Officer and Draftsman observed and noted a crop in that field and they neither observed any sign of ploughing nor mentioned availability of any tractor in the site plan---Similarly, according to the record and version of witnesses, there was a different crop in the field, where deceased was done to death---Distance between point where the dead body was found and point where the witnesses were available was shown as 88 feet, so, it was impossible for witnesses to see the incident, which according to the prosecution took place in the field having 5/6 feet high crop---Complainant had admitted that no sickle of the deceased or cutting fodder was shown available at the crime scene---Circumstances established that the prosecution remained unable to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

(b) Criminal trial---

----Site plan---Scope---Although, site plan can never be considered as substantive piece of evidence but its importance cannot be denied to determine the locations of the incident as well as the position of the witnesses particularly in those matters, where presence or otherwise of the witnesses has been challenged.

Muhammad Ahmad and another v. The State and others 1997 SCMR 89 rel.

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

----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Chance witness---Non-availability of justification for the presence of eye-witness at the spot---Accused were charged for committing murder of the brother of the complainant by firing---Record showed that the second eye-witness was not the resident of the village of the complainant and the deceased---Complainant while deposing before the trial Court himself admitted that said witness was resident of other village---Such address was also given by said witness while deposing before the trial Court---Said witness just stated before the trial Court that he along with two other witnesses was present at the field and were ploughing agricultural land of complainant but no reason whatsoever had been explained by the said witness qua his visit to the deceased or the complainant---So, such witness in all eventualities could not be considered a natural witness and he could be categorized as chance witness---Circumstances established that the prosecution remained unable to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Contradictions between ocular account and medical evidence---Accused were charged for committing murder of the brother of the complainant by firing---In the scaled site plan, the distance between accused with that of deceased was shown as three feet and according to the prosecution case, he was armed with .12 bore repeater gun but on going through the testimony of Medical Officer and postmortem report of the deceased, sixteen firearm wounds were observed by the Medical Officer during the autopsy of the deceased, out of which fifteen were declared as having inverted margins (entry wounds) but none of the wounds carried any blackening, burning, charring or tattooing---Meaning thereby that the medical evidence was not in line with the prosecution case rather it contradicted the same as far as the distance of assailants and the deceased was concerned---Circumstances established that the prosecution remained unable to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Co-accused acquitted on the basis of same set of evidence---Accused were charged for committing murder of the brother of the complainant by firing---Record showed that evidence of the prosecution had been belied and discarded by the Trial Court to the extent of five acquitted co-accused, especially to the extent of a co-accused, who allegedly fired gun shot on the person of the deceased, which hit him on his chin and right and left arms---So, in the prevailing circumstances, strong and independent corroborative evidence was required in support of the ocular account to maintain the conviction of the accused---No doubt previous enmity could be a reason for the accused to commit the alleged crime but the same could equally be a reason for the complainant side to falsely implicate the accused in the present case as motive was always considered to be a double edged weapon---Circumstances established that the prosecution remained unable to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

Sahib Masih and others v. The State 1982 SCMR 178 rel.

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

----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Absconsion of the accused not established---Accused were charged for committing murder of the brother of the complainant by firing---According to the record, the accused was apprehended by the police on 03.08.2015 almost about one year and ten months after the alleged occurrence and during the interregnum, he had been declared proclaimed offender---Although the prosecution had exhibited the documents of proclamation proceedings initiated against the accused but when confronted, complainant had admitted that neither the process server had appeared before the trial Court nor any report qua the execution of notices had been brought on record---Prosecution had apprised that Constable had been given up being unnecessary---Meaning thereby that the prosecution failed to prove the factum of abscondence and proclamation proceedings under Ss. 87/88, Cr.P.C., as per dictate of law---So, such piece of evidence was of no avail for the prosecution---Circumstances established that the prosecution remained unable to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence from the possession of the accused and crime empties from the spot---Inconsequential---Accused were charged for committing murder of the brother of the complainant by firing---Prosecution case was that Investigating Officer had secured 12 empty cartridges of .12 bore gun and 9 empties of .44 bore rifle from the crime scene and the same were sent to Forensic Science Agency and on arrest of the accused, he got recovered repeater .12 bore gun and the same was also sent and the report tendered by the said agency only confirmed its working condition and no matching report with the crime empties was available on record---Thus, the recovery of weapon of offence was inconsequential in all eventualities, hence, rendered no corroboration to the ocular account---Circumstances established that the prosecution remained unable to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

(h) Criminal trial---

----Benefit of doubt---Principle---Any reasonable doubt qua the veracity of the prosecution case or guilt of the accused when accruing will be resolved in favour of the accused in all eventualities.

Tariq Pervez v. The State 1995 SCMR 1345; Ayub Masih v. The State PLD 2002 SC 1048; Muhammad Akram v. The State 2009 SCMR 230; Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652; Munir Ahmad and another v. The State and others 2019 SCMR 79 and The State through P. G. Sindh and others v. Ahmed Omar Sheikh and others 2021 SCMR 873 rel.

Malik Asif Ahmad Nissoana and Muhammad Bilal Ijaz for Appellant (Defence counsel).

Muhammad Waqas Kahoot for the Complainant (also in Criminal Apppeal No. 135890 of 2018).

Munir Ahmad Sial, Deputy Prosecutor General for the State.

2024 P Cr. L J 351

[Lahore]

Before Ali Zia Bajwa, J

ARSALAN RAZA---Petitioner

Versus

JUSTICE OF PEACE and others---Respondents

Writ Petition No. 9549 of 2021, heard on 7th September, 2022

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B, 154, 156 & 157---Police Rules, 1934, R. 24.4---Constitution of Pakistan, Art. 199---Constitutional petition---First Information Report, registration of---Principle---Inquiry before registration of case---Scope---Petitioner was aggrieved of dismissal of his application under S. 22-A(6), Cr.P.C. by Ex-officio Justice of Peace refusing to issue direction to register a criminal case against accused persons---Validity---Provision of S. 157, Cr.P.C. read with R. 24.4 of Police Rules, 1934 could not be employed before registration of criminal case under S. 154, Cr.P.C.---When information of cognizable offence was received by Station House Officer (SHO), he could not embark upon inquiry to examine reliability or credibility of such information to refuse registration of criminal case---Station House Officer was under statutory duty to register criminal case and then to proceed with investigation, if he had reason to suspect commission of an offence---Station House Officer was empowered under S. 156, Cr.P.C. to investigate, subject to proviso (b) to S. 157(1), Cr.P.C. read with R. 24.4 of Police Rules, 1934, whereby investigating officer had ample power to dispense with investigation altogether---High Court set aside order passed by Ex-officio Justice of Peace as the same was illegal and unwarranted---High Court directed SHO to register criminal case on the information of petitioner, clearly disclosing commission of cognizable offence, already furnished to him---Constitutional petition was allowed, in circumstances.

State of Haryana and others v. Bhajan Lal and others 1992 Supp (1) SCC 335; Zulfiqar Ali alias Dittu and another v. The State 1991 PCr.LJ 1125 and Abdul Rehman Malik v. Synthia D. Ritchie, Americans National and others 2020 SCMR 2037 rel.

Abdul Razzaq Mirza for Petitioner.

Muhammad Nawaz Ch., A.A.G. with Khawar SI/SHO for the State.

2024 P Cr. L J 385

[Lahore]

Before Sardar Muhammad Sarfraz Dogar and Ali Zia Bajwa, JJ

SHAHADAT ALI and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 1303, 2096 of 2019 and Capital Sentence Reference No. 15-N of 2018, decided on 3rd May, 2023.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Dispatch of sample for test or analysis---Safe custody and transmission of samples for forensics not established---Prosecution case was that 7200 grams opium in six packets was recovered from the vehicle driven by accused---Record showed that the reports submitted by Testing Laboratorywas legally laconic---Deposition of complainant reflected that he had not handed over the sample parcels to the Moharrar in the Police Station for keeping the same in safe custody rather retained the same with him till its transmission in the office of Testing Laboratory---In the testimony of Moharrar, he acknowledged the receiving of sample parcels along with the case property from the complainant and its entrustment to Constable for its transmission to the office of Testing Laboratory for analysis---Both the complainant and Moharrar alleged that they had sent the sample parcels to the office of Testing Laboratory but the reports of laboratory totally spoke otherwise that the samples were received in the said office "By Hand"---Reports did not bear name of any person, who submitted the sample parcels in the said office---Safe custody and as well as transmission of sample parcels from the place of occurrence to the Police Station and office of Testing Laboratory was missing, in circumstances---Appeal against conviction was accordingly allowed.

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

----S. 9(c)--- Possession of narcotics--- Chain of safe custody of samples---Significance---Significantly, the chain of custody began with the recovery of the seized drug by the Police and included the separation of the representative sample(s) of the seized drug and their dispatch to the Narcotics Testing Laboratory---Chain of custody was pivotal and the prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure---Any break in the chain of custody or lapse in the control of possession of the sample would cast doubts on the safe custody and safe transmission of the samples and would impair and vitiate the conclusiveness and reliability of the report of the Government Analyst, thus, rendering it incapable of sustaining conviction.

The State through Regional Director ANF v. Imam Bakhsh 2018 SCMR 2039 rel.

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

----Ss. 9 & 36---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 5 & 6---Possession of narcotics---Reports of Government analyst---Protocols used, non-indication of---Effect---Prosecution case was that 7200 grams opium in six packets was recovered from the vehicle driven by accused---Complete mechanism had been given in Rr. 5 & 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001; the Chemical Examiner was required to adopt complete procedure and then the report was to be submitted after referring necessary protocols and mentioning the tests applied and their results---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 opium or charas---Said agency had failed to provide the details that how much quantity he had tested and 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 Testing Laboratory would lose its sanctity and it could not be relied upon for the purposes of conviction---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; Muhammad Hashim v. The State PLD 2004 SC 856 and Ameer Zeb v. The State PLD 2012 SC 380 rel.

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

----Ss. 9 & 32---Confiscation and release of vehicle in narcotic cases---Scope---Prosecution case was that 7200 grams opium in six packets was recovered from the vehicle driven by accused---Section 32 of the Control of Narcotic Substances Act, 1997, deals with the final confiscation or release of the vehicle to the owner, after the conclusion of the trial, if he proves that he had no knowledge about the offence, which allegedly had been committed in the vehicle---Not only that, an innocent owner of the vehicle was entitled to the return of the vehicle but the burden has been placed on the prosecution to establish that the owner had the knowledge of his vehicle being used in the crime---As far as the question of knowledge was concerned, undisputedly it was required to be proved by leading evidence and the Trial Court could form such opinion after having taken into consideration the facts of the case---In the present case, the prosecution alleged that the narcotics was concealed in the secret cavities of the car but Court while granting acquittal to the accused disbelieved the entire prosecution story---Admittedly the vehicle was not in the ownership of the accused and the same was just used by him---Admittedly the owner of the vehicle had not been challaned to Court to stand trial as co-accused---Moreover, it was nowhere alleged or proved on record that the owner of the vehicle had any direct or indirect connection with the commission of offence under trial---In such back drop the vehicle was not liable to be confiscated under Ss. 32 & 33 of the Control of Narcotic Substances Act, 1997---Even otherwise there was no other claimant of the car in question---Thus, the Trial Court had rightly observed that the recovered car be returned to its original owner---Appeal filed by Anti-Narcotics Force (ANF) was dismissed.

Allah Ditta v. The State 2010 SCMR 1181; Muhammad Hanif v. The State and others 2011 SCMR 1471 and Allah Ditta v. The State 2010 SCMR 1181 rel.

Khalid Masood Sandhu for Appellant.

Muhammad Irfan Malik, Special Prosecutor for ANF for the State.

2024 P Cr. L J 422

[Lahore]

Before Tariq Saleem Sheikh, J

HAMZA KHALID---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 72452/B of 2023, decided on 7th December, 2023.

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

----S. 5---Inquiry and investigation---Distinction---Legislature has used two terms in S. 5 of Federal Investigation Agency Act, 1974 i.e. "inquiry" and "investigation", without providing specific definition---While both these terms are commonly considered interchangeable, they carry distinct meanings in the legal context--- Inquiry can be termed as the first step towards investigation.

Adamjee Insurance Company Ltd. v. Assistant Director, Economic Enquiry Wing 1989 PCr.LJ 1921 rel.

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

----S. 5(5)---Seizure of case property---Power, exercise of---Scope---Powers granted by S. 5(5) of Federal Investigation Agency Act, 1974, are applicable exclusively during investigation and do not extend to inquiry stage---Federal Investigation Agency (FIA) is empowered to invoke S. 5(5) of Federal Investigation Agency Act, 1974, in urgent situations where officer is genuinely of the opinion that property which is subject matter of investigation is likely to be removed, transferred, or otherwise disposed of before an order for its seizure is obtained from appropriate authority---Officer claiming authority under S. 5(5) of Federal Investigation Agency Act, 1974, does not have unfettered powers who has to act in good faith and refrain from arbitrary actions---There must be circumstances justifying necessity for swift intervention---Property sought to be seized should have a nexus with investigation of alleged offence---To assert jurisdiction under S. 5(5) of Federal Investigation Agency Act, 1974, officer concerned must document the facts and reasons in the case diary (to the extent possible), laying foundation for his decision/ opinion.

Merriam-Webster's Dictionary of Law 17th Printing Harrisonburg VA (2014), p. 337; Ray v. City of Philadelphia, 25 A.2d 145, 344 Pa. 439 (1942); Northeastern Gas Transmission Co. v. Benedict, 89 A.2d 379, 139 Conn. 36; Dolgobinda Paricha v. Nimai Charan Misra AIR 1959 SC 914; Star Rolling Mills v. C.I.T. 1974 PTD 200; Khawaja Muhammad Sharif v. Federation of Pakistan and others PLD 1988 Lah. 725 and Barium Chemicals Ltd. and another v. Company Law Board and others AIR 1967 SC 295 rel.

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

----S. 5(5)---Seizure of assets---Remedy against---Proceedings under S. 5(5) of Federal Investigation Agency Act, 1974, are subject to confirmation by Court of competent jurisdiction---Any person aggrieved by such proceedings may seek redress before that court---If officer concerned of Federal Investigation Agency (FIA) is found to have committed any misconduct, legal action can be initiated against such officer under the relevant laws and he may also face disciplinary action within his department.

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

----Art. 18---Facts in issue and relevant facts, evidence of--- Evidence obtained illegally---Scope---According to Art. 18 of Qanun-e-Shahadat, 1984, criterion is whether the evidence is relevant to facts in issue---Unless there is an express or necessarily implied prohibition in the Constitution or other laws, evidence obtained through illegal search or seizure is not liable to be excluded---Ordinarily, the same principle applies in both civil and criminal proceedings.

Justice Qazi Faez Isa and others v. President of Pakistan and others PLD 2022 SC 119 and Muhammad Ijaz Ahmad Chaudhry v. Mumtaz Ahmad Tarar and others 2016 SCMR 1 rel.

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

----Ss. 497 & 103---Emigration Ordinance (XVIII of 1979), S. 18---Passports Act (XX of 1974), S. 6---Federal Investigation Agency Act, 1974 (VIII of 1975), S. 5(5)---Human trafficking and forging of documents---Bail, refusal of---Habitual offender---Previous convict---Raid and search---Official witnesses---Accused was arrested for human trafficking while preparing counterfeit documents---Plea raised by accused was that Federal Investigation Agency (FIA) raided house of accused without search and seizure warrant and no public witness was associated with the proceedings---Validity---Accused did not dispute FIA's jurisdiction over offences under Passports Act, 1974 and Emigration Ordinance, 1979---Raid conducted at around 3:30 a.m. was based on source information---No court was available at that time to which officials could have applied for a search warrant---Considering the urgency involved, any procedural irregularities or illegalities in the process should be condoned, especially when accused did not allege any malice on the part of officials---Accused could demonstrate during trial if actions caused him any prejudice---There was no violation of S. 103, Cr.P.C. while conducting the raid, as police witnesses were as good as any other witness from the general public unless they had any animosity towards the accused and had motive to implicate him falsely---Federal Investigation Agency team apprehended the accused on the spot with fake foreign passports, foreign driving licences, computers, printers, scanners and other machines, counterfeit stamps, visa stickers, monograms and other articles---Ingredients of offences under S. 18 of Emigration Ordinance, 1979, and S. 6 of Passports Act, 1974 were satisfied---Provision of S. 18 of Emigration Ordinance, 1979, fell within the prohibitory clause of S.497, Cr.P.C.---Accused was previously convicted in another case for same offence and was sentenced to imprisonment and fine, who had repeated the offence---Bail was refused, in circumstances.

Najib Rahim v. Federation of Pakistan and others PLD 2017 Sindh 53; Kuruma v. R. 1955 AC 197 : (1955) 1 All ER 236 : (1955) 2 WLR 223 (PC); Radhakishan v. State of U.P. 1963 Supp (1) SCR 408: AIR 1963 SC 822: (1963) 1 Cri LJ 809; Pooran Mal v. Director of Inspection (1974) 1 SCC 345 : 1974 SCC (Tax) 114; Dr. Partap Singh v. Director of Enforcement (1985) 3 SCC 72 : 1985 SCC (Cri) 312 : 1985 SCC (Tax) 352; I.T.O. v. Seth Brothers (1969) 2 SCC 324; Bisvil Spinners (Pvt.) Ltd. v. Pakistan through the Secretary, Ministry of Finance, Islamabad, and others PLD 1992 SC 96; Fida Jan v. The State 2001 SCMR 36; State through A.-G, Sindh, Karachi v. Hemjoo 2003 SCMR 881; Arshad Mahmood v. The State PLD 2008 SC 376; Syed Zulfiqar Shah v. The State 2022 SCMR 1450; Collector of Sales Tax and Central Excise (Enforcement) and another v. Mega Tech. (Pvt.) Limited 2005 SCMR 1166; Federation of Pakistan and others v. Master Enterprises (Pvt) Ltd. 2003 PTD 1034; S. M. Yousuf and others v. Collector of Customs and others PLD 1968 Kar. 599; Ihsan Yousaf Textile Mills (Pvt.) Ltd. v. Federation of Pakistan and others 2003 PTD 2037; Megna Textiles Mills v. Collector of Customs 2004 PTD 1339; Food Consults (Pvt.) Ltd. and others v. Collector (Central Excise and Sales Tax), Lahore and others 2004 PTD 1731; Muhammad Azam v. The State PLD 1996 SC 67; Muhammad Hanif v. The State 2003 SCMR 1237; Riaz Ahmad alias Raju v. The State 2004 SCMR 988; Naseer Ahmad v. The State 2004 SCMR 1361 and Zafar v. The State 2008 SCMR 1254 rel.

Ch. Khursheed Anwar Bhinder assisted by Imran Qadir Bhinder for Petitioner.

Zain Qazi, Assistant Attorney General with Shafique Ahmad Bhatti/Inspector FIA for the State.

2024 P Cr. L J 463

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram and Muhammad Amjad Rafiq, JJ

MUHAMMAD ARSLAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 584 and Murder Reference No. 46 of 2022, heard on 4th October, 2022.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Chance witnesses---Non-availability of justification for the presence of eye-witnesses at the time and place of occurrence---Accused was charged for committing murder of his wife/daughter of complainant by firing---Motive behind the occurrence was matrimonial dispute between accused and deceased---Ocular account of the incident had been furnished by father and maternal uncle of the deceased---Record showed that the said witnesses were admittedly not the residents of the place of occurrence---According to the prosecution witnesses, they were residing at a place which was admittedly at some distance from the place of occurrence---Investigating Officer of the case deposed that both the prosecution witnesses did not have their residences or their places of employment near or around the place of occurrence---In that manner, both the prosecution witnesses could be validly termed as chance witnesses and therefore under a bounden duty to provide a convincing reason for their presence at the place of occurrence, at the time of occurrence and were also under a duty to prove their presence by producing some physical proof of the same---Notable that the said witnesses failed miserably to provide any consistent evidence as to the reason for their arrival at the place and time of occurrence---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)---

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Call Data Record of the cell phone of deceased not produced---Effect---Accused was charged for committing murder of his wife/ daughter of complainant by firing---Complainant admitted that neither during the investigation of the case nor before the trial Court, he had mentioned the number of the mobile phone device used by deceased from which he had received the call---Complainant also admitted during cross-examination that he did not even mention his own phone number on which he had received the call of deceased during the course of the investigation---Complainant, during cross-examination, investigation of the case and even before the Court did not produce any evidence in the shape of Call Data of the mobile phone number under his use or under the use of deceased to establish that he had indeed received the telephonic call of deceased and after receiving the said call he and other witness had proceeded to the place of occurrence---Furthermore, the Investigating Officer of the case also did not collect any evidence during the investigation of the case so as to prove that complainant had indeed received a phone call of deceased---Mobile phone device through which the deceased had called complainant was also not found present at the place of occurrence nor was produced by any witness during the investigation of the case nor was produced before the trial Court---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Non-recovery of motorcycle used by witnesses---Consequential---Accused was charged for committing murder of his wife/daughter of complainant by firing---Though it was claimed by the eye-witnesses that they had gone to the place of occurrence on one motorcycle; however, during the course of the investigation as well as before the trial Court, the said motorcycle allegedly used by the said witnesses to arrive at the place of occurrence was not produced---Investigating Officer of the case visited the place of occurrence after the occurrence and remained there for a considerable time---During the course of his stay at the place of occurrence, the Investigating Officer of the case did not take into possession the motorcycle allegedly used by the said witnesses to arrive at the place of occurrence along with the other recoveries, though there was no occasion for the said motorcycle not to have been present at the place of occurrence or not being taken into possession by the Investigating Officer during his visit at the place of the occurrence, if the same was available---Said motorcycle which was used by the said witnesses was not even produced during the entire period of investigation nor was produced before the Trial Court---Non-production of the motorcycle and the failure of witnesses as well as the Investigating Officer of the case to produce the same before the trial Court led to only one conclusion and that being that no such motorcycle was available---Had a motorcycle been used by the said witnesses to arrive at the place of occurrence, then the same must have been available at the place of occurrence, at the time of arrival of the Investigating Officer of the case and the same would necessarily have been taken into possession by the Investigating Officer of the case but it was not and it proved that a false claim was made by the said witnesses that they had arrived at the place of occurrence on a motorcycle---Very inception of the prosecution case was therefore put in doubt---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 Ali v. The State 2015 SCMR 137; Muhammad Rafiq v. State 2014 SCMR 1698; Usman alias Kaloo v. State 2017 SCMR 622 and Nasrullah alias Nasro v. The State 2017 SCMR 724 rel.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Unnatural conduct of the accused---Accused was charged for committing murder of his wife/daughter of complainant by firing---Eye-witnesses claimed that the occurrence took place exactly at the same time when they had arrived at the place of occurrence---Said narrative of the prosecution witnesses that the accused kept waiting for the arrival of the witnesses at the place of occurrence and thereafter committed the same was unnatural and could not be believed---Thus, it was opposed to human conduct that an assailant would keep waiting for the arrival of the witnesses prior to the commission of the offence---Being perceptive of the fact that by pending the matter the accused ran the risk of the arrival of the witnesses and their deposing against him, even then he kept waiting for their arrival---Such behaviour, on part of the accused, as deposed by the prosecution witnesses ran contrary to the natural human conduct and behavior---Prosecution witnesses were not present at the time of occurrence, at the place of occurrence and had not witnessed 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 accordingly allowed.

State through Advocate-General, Khyber Pakhtunkhwa, Peshawar v. Hassan Jalil and others 2019 SCMR 1154 and Muhammad Imran v. The State 2020 SCMR 857 rel.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Unnatural conduct of the eye-witnesses---Accused was charged for committing murder of his wife/daughter of complainant by firing---Record showed that the alleged eye-witnesses along with given up prosecution witness made no effort either to save the deceased or to apprehend the accused when they were three in number and could have easily restrained the accused, who according to the prosecution witnesses had thrown the weapon used by him during the occurrence, in the presence of the witnesses before fleeing away from the place---It was unnatural and unbelievable that the alleged eye-witnesses along with given up prosecution witness did not even move a limb to protect their near and dear one---No person having ordinary prudence would believe that such closely related witnesses would watch the proceedings as mere spectators for as long as the occurrence continued without doing anything to rescue the deceased or to apprehend the assailant---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.

Pathan v. The State 2015 SCMR 315; Shahzad Tanveer v. The State 2012 SCMR 172 and Liaquat Ali v. The State 2008 SCMR 95 rel.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Accused was charged for committing murder of his wife/daughter of complainant by firing---Record showed that the Investigating Officer of the case arrived at the place of occurrence on his own---Oral statement of complainant was recorded by the Investigating Officer of the case, at the place of occurrence---Most damningly for the prosecution case, the Investigating Officer of the case made contradictory statements with regard to his arrival at the place of occurrence and his arrival at the hospital---Initially, the Investigating Officer of the case, stated that he arrived at the place of occurrence after getting the information of the same at the Police Station, remained there till 05.00 p.m. and subsequently went to the hospital, however also admitted that he had gone to the hospital as early as 01.40 p.m.---Contrary to the whole prosecution case, according to the statement of defence witness/IT Statistical Officer, the record maintained at the hospital showed that the deceased was brought to the hospital in an injured condition on 06.02.2022 at 01:55 p.m. and was also given treatment and such record was produced before the Court---Coupled with the said facts, the admission of the eye-witness that his statement under S. 161 of the Cr.P.C was not recorded on the day of occurrence brought further doubt in the prosecution case---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

Abdul Jabbar alias Jabbari v. The State 2017 SCMR 1155 rel.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt--- Delay of seven hours in conducting the postmortem examination upon the dead body of the deceased not explained---Accused was charged for committing murder of his wife/daughter of complainant by firing---Record showed that the occurrence took place at about 12.30 p.m. on 06.02.2020, but the post-mortem examination of the dead body of the deceased was conducted after much delay---According to Medical Officer, she conducted the post-mortem examination of the dead body of the deceased at 07.15 p.m. on 06.02.2020 i.e. after 07 hours of the occurrence and after 07 hours of recording of the oral statement of complainant by Investigating Officer---Medical Officer, who conducted the post-mortem examination of the dead body of deceased and prepared the post-mortem examination report, gave the time between death and post-mortem examination as being six hours---According to Medical Officer, she received the police documents at 07.00 p.m. on 06.02.2020 and thereafter she conducted the post-mortem examination---Said witness explained during cross-examination that the post-mortem examination of the dead body of the deceased was delayed due to the fact that the police papers were not handed over till 07.00 p.m.---Despite the claim of the prosecution that the formal FIR had been recorded at 01.45 p.m. on 06.02.2020, five more hours were taken to submit the complete documents to the Woman Medical Officer after the registration of the formal FIR---Reason which was apparent for the delayed conducting of the post-mortem examination of the dead body of daughter of complainant was that by that time the details of the occurrence were not known and the said time was used not only to procure the attendance of the witnesses but also to fashion a false narrative of the occurrence---No explanation was offered to justify the delayed receipt of complete documents from the police and the delay in the post-mortem examination---Furthermore, it was also not explained by the prosecution why the dead body was not sent to the hospital for as many as five hours after the occurrence when the hospital was at a distance of 1.5 kilometers from the place of occurrence---Said facts clearly established that the witnesses claiming to have seen the occurrence were not present at the time of occurrence and the delay in the post-mortem examination was used to procure their attendance and formulate a dishonest account, after consultation and planning---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.

Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327; Mian Sohail Ahmed and others v. The State and others 2019 SCMR 956 and Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068 rel.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Unnatural death of wife occurring in the house of her husband/accused---Accused was charged for committing murder of his wife/daughter of complainant by firing---Prosecution alleged that when any person died an unnatural death in the house of accused, then some part of the onus laid on him to establish the circumstances in which such unnatural death had occurred---Validity---It was the duty of the prosecution to prove the accused's guilt subject to any statutory exception---No matter what the charge, the principle that the prosecution must prove the guilt of the accused was the law and no attempt to whittle it down could be entertained---In case of present nature, the accused could not have been convicted for the alleged murder merely because he happened to be one of the residents of the place of occurrence---Eye-witnesses admitted that the accused had his siblings and parents living with him, however, claimed that they used to reside in a separate adjacent house---Investigating Officer of the case, during cross-examination, stated that there was no other house situated next to the house of the accused and therefore in a manner admitted that the parents and siblings of the accused were also the residents of the same house where the occurrence took place---Thus, an accused person could not be convicted merely because he did not explain the circumstances in which the deceased (wife) had lost her life---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 Jamshaid and another v. The State and others 2016 SCMR 1019; Arshad Khan v. The State 2017 SCMR 564; Nazeer Ahmed v. The State 2016 SCMR 1628; Asad Khan v. The State PLD 2017 SC 681 and Abdul Majeed v. The State 2011 SCMR 941 rel.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of pistol and bullet from the place of occurrence---Inconsequential---Accused was charged for committing murder of his wife/daughter of complainant by firing---Record showed that a pistol was recovered from the place of occurrence---However, the recovery of the pistol from the place of occurrence offered no corroboration of the ocular account for the reason that the said pistol was never recovered from the possession of the accused---Moreover, the Investigating Officer of the case, submitted that it was the team of Forensic Science, which had taken into possession the pistol and handed over the sealed parcel to him, however, during the course of trial no one from the said team of Forensic Science appeared as a witness before the trial Court in support of the said fact---Investigating Officer admitted during cross-examination that he did not record the statement of any such member of the said team during the investigation of the case---Moreover, the piece of bullet recovered from the place of occurrence was also found not suitable for comparison by the Forensic Science Agency---Thus, the recovery of the pistol from the place of occurrence did not further the case of the prosecution in any manner---In view of the said facts, the recovery of the pistol could not be used as a circumstance against the accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt--- Motive not proved--- Effect--- Accused was charged for committing murder of his wife/daughter of complainant by firing---Motive of the occurrence as stated by complainant in his oral statement was that the deceased was suffering from violence at the hands of the accused---However, the eye-witnesses failed to prove the motive of the occurrence as stated by them---Admitted by the eye-witnesses that deceased had contracted marriage with the accused of her own free will and consent and FIR was registered against the accused for abduction of deceased but the said FIR was cancelled after deceased made a statement in favour of the accused that he had not abducted her rather she of her own free will and consent had contracted marriage with him---No evidence on record that deceased was facing any threat to her life at the hands of the accused prior to the occurrence rather, to the contrary, she was living with the accused till her tragic death---Said fact proved that the accused and the deceased were having a happy and a healthy marital life and hence there did not exist any reason for the accused to have murdered his loving wife---Prosecution witnesses failed to provide evidence to determine the truthfulness of the motive alleged and the fact that the said motive was so compelling that it could have led the accused to have committed the qatl-i-amd of the deceased---Moreover, there was a poignant hush with regard to the particulars of the motive alleged---No independent witness was produced by the prosecution to prove the motive as alleged---Even otherwise a tainted piece of evidence could not corroborate another tainted 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 accordingly allowed.

Muhammad Javed v. The State 2016 SCMR 2021 rel.

(k) Criminal trial---

----Medical evidence---Conviction---Scope---Conviction cannot be upheld on the basis of medical evidence alone.

Hashim Qasim and another v. The State 2017 SCMR 986 and Naveed Asghar and 2 others v. The State PLD 2021 SC 600 rel.

(l) Criminal trial---

----Benefit of doubt---Principle---Not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit would be extended to accused not as a matter of concession but as of right.

Muhammad Mansha v. The State 2018 SCMR 772 and Najaf Ali Shah v. The State 2021 SCMR 736 rel.

Muhammad Usman Sharif Khosa for Appellant.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

Tahir Mehmood for the Complainant.

2024 P Cr. L J 504

[Lahore]

Before Malik Shahzad Ahmad Khan and Farooq Haider, JJ

MUHAMMAD SARWAR and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 56707, 50403 and Murder Reference No. 275 of 2019, decided on 6th November, 2023.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay of one hour in lodging FIR---Not consequential---Accused was charged that he along with his co-accused committed murder of the brother of the complainant by firing---Record showed that the occurrence took place on 12.02.2017 at 12:30 p.m.---Matter was reported to the police and the FIR was also lodged on the same day i.e. on 12.02.2017 at 01:30 p.m., i.e., within a period of 01 hour from the occurrence---Distance between the police station and the place of occurrence was 1-kilometer---Even deceased who initially sustained injuries during the occurrence and later on, died, was also medically examined on the same day i.e., on 12.02.2017 at 12:47 p.m., i.e., within a period of 17 minutes from the occurrence---Keeping in view the time of occurrence, the place of occurrence, its distance from the police station and the time of medical examination of the injured (later on deceased), there was no deliberate or conscious delay in reporting the matter to the police and the FIR was promptly lodged---Circumstances established that the prosecution had proved its case against the accused however, due to some mitigating circumstances, the sentence was altered from death to imprisonment for life---Appeal 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---Accused was charged that he along with his co-accused committed murder of the brother of complainant by firing---Ocular account of the prosecution was furnished by two witnesses including complainant---Occurrence took place in a cricket ground, at place "G"---Complainant was real brother of deceased and also resident of place "G"---Likewise, other witness was also resident of place "B" but in the same city---Both the eye-witnesses had plausibly explained the reason of their presence at the spot at the relevant time by stating that they were playing cricket along with deceased in a cricket ground at the time of occurrence---Occurrence in this case took place in broad day light i.e., at 12:30 noon and as such, there was no chance of any mis-identification of the accused during the occurrence---Both the eye-witnesses were cross-examined at length but their evidence could not be shaken and they corroborated each other on all material aspects of the case---Evidence of eye-witnesses was confidence inspiring and trustworthy---Record transpired that there was no conflict between the ocular account and the medical evidence of the prosecution to the extent of role played by the accused during the occurrence---In the contents of the FIR, as well as, in their statements, prosecution eye-witnesses stated that after sustaining firearm injury on the right side of the abdomen, deceased fell on the ground in injured condition and thereafter, the accused made two more fire shots on the deceased however, the same did not hit him---Under the circumstances, there was every possibility that one out of the two additional fire shots made by the accused had hit the deceased but the same could not be noticed by the prosecution eye-witnesses due to falling of the deceased on the ground, as well as, on account of sensation and panic created due to the firing by the accused---Moreover eye-witness could not give the photo picture of each and every injury sustained by the deceased due to the panic and sensation developed at the time of occurrence due to the firing---Circumstances established that the prosecution had proved its case against the accused however, due to some mitigating circumstances, the sentence was altered from death to imprisonment for life---Appeal was dismissed accordingly.

Ellahi Bakhsh v. Rab Nawaz and another 2002 SCMR 1842 and Abdur Rauf v. The State and another 2003 SCMR 522 rel.

(c) 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 evidence of natural witnesses---Not consequential---Accused was charged that he along with his co-accused committed murder of the brother of complainant by firing---Allegedly, gardeners of the ground were present at the spot at the relevant time and they were the most natural witnesses of the occurrence but the prosecution had withheld their evidence and as such, an adverse inference under Art. 129(g) of the Qanun-e-Shahadat, 1984, might be drawn against the prosecution---However, it was the quality and not the quantity of evidence which weighed with the Courts regarding the decision of a criminal case therefore, non-production of the gardeners of the ground in the witness box was not fatal to the prosecution case---Even otherwise, the people/witnesses not related to the deceased/complainant party did not appear in the witness box to avoid enmity with the accused party and their non-appearance in the witness box was not fatal to the prosecution case---Circumstances established that the prosecution had proved its case against the accused however, due to some mitigating circumstances, the sentence was altered from death to imprisonment for life---Appeal was dismissed accordingly.

Zakir Hussain v. The State 2008 SCMR 222 and Abdul Haq and another v. The State 2015 SCMR 1326 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence on the pointation of accused---Safe custody of weapon not established---Accused was charged that he along with his co-accused committed murder of the brother of complainant by firing---Insofar as the recovery of pistol on pointing out of the accused and positive report of Forensic Science Agency was concerned, it was noted that Head Constable, who was Moharrar of Malkhana of the police station, had not uttered a single word that any parcel of pistol was handed over to him and thereafter, he kept the same in safe custody at the Malkhaana and finally handed over the said parcel to any prosecution witness for its onward transmission to the office of Forensic Science Agency---Thus, the safe custody of the parcel of pistol, allegedly recovered on pointing out of the accused, had not been proved in this case therefore, recovery of pistol and positive report of Forensic Science Agency were of no avail to the prosecution---Circumstances established that the prosecution had proved its case against the accused however, due to some mitigating circumstances, the sentence was altered from death to imprisonment for life---Appeal was dismissed accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive not proved---Sentence, reduction in---Accused was charged that he along with his co-accused committed murder of the brother of complainant by firing---According to the prosecution case, motive behind the occurrence was that few days prior to the occurrence, a quarrel took place between deceased and the accused party on account of fight of children---No specific date, time and place of the said quarrel had been mentioned by any of the prosecution witness---None of the prosecution witnesses stated that they were present at the time of said quarrel---Vague and general motive was alleged by the prosecution which had not been proved in this case---Circumstances established that the prosecution had proved its case against the accused however, due to some mitigating circumstances, the sentence was altered from death to imprisonment for life---Appeal was dismissed accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, quantum of---Mitigating circumstances---Accused was charged that he along with his co-accused committed murder of the brother of complainant by firing---Record showed that the recovery of pistol on pointing out of the accused had been disbelieved due to the reasons that safe custody of the said recovery had not been proved by the prosecution---Prosecution evidence qua motive had been disbelieved being vague and general one---No specific date, time and place of the prior quarrel had been mentioned by any of the prosecution witness---None of the prosecution witnesses stated that they were present at the time of said quarrel---Under the circumstances, the death sentence awarded to the accused was quite harsh and the sentence of imprisonment for life would meet the ends of justice---Hence, the conviction of the accused under S. 302(b), P.P.C awarded by the Trial Court was maintained but his sentence was altered from death to imprisonment for life---Appeal was dismissed accordingly.

Barrister Aiyan Ali Bhutta for Appellants.

Munir Ahmad Sial and Nuzhat Bashir, Deputy Prosecutor General for the State.

Syed Farhad Ali Shah for the Complainant.

2024 P Cr. L J 539

[Lahore]

Before Ali Baqar Najafi and Raheel Kamran, JJ

SHAFFAT IBRAHIM KHAN---Petitioner

Versus

CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU and others---Respondents

Writ Petition No. 58871 of 2022, decided on 5th January, 2024.

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

----S. 32---Criminal Procedure Code (V of 1898), S. 417---Appeal against acquittal---Principle---Acquittal carries double presumption of innocence and the same can be reversed only when found blatantly perverse, illegal, arbitrary, capricious or speculative, shocking or reflected impossibility.

Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others 2017 SCMR 1710 and Muhammad Shafi alias Kuddoo v. The State and others 2019 SCMR 1045 rel.

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

----S. 23---Constitution of Pakistan, Arts. 23, 24 & 199---Constitutional petition---Property rights---Transfer after acquittal---Petitioner purchased property in question after acquittal of accused---Petitioner assailed restriction imposed by authorities on transfer of property in question in his name---Validity---There was no legal impediment in the way to seek removal of any restriction placed on the property purchased by petitioner from an accused, who succeeded in earning an acquittal from Trial Court and that was maintained by High Court in appeal---When final judgment in Trial Court was announced, restriction under S. 23 of National Accountability Ordinance, 1999, had come to an end and become inoperative---Acquitted accused was free to transfer property in question in exercise of his rights guaranteed by Arts. 23 & 24 of the Constitution---High Court declined to refuse a relief to petitioner in absence of any order passed by Supreme Court restricting transfer of property, merely on the assertion that NAB had filed petition for leave to appeal---High Court directed respondent to remove restriction placed on property in question, enter name of petitioner in his official record and provide him a copy of GLR in accordance with law---Constitutional petition was allowed accordingly.

Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607; Muhammad Iqbal Khan Noori and others v. National Accountability Bureau and others PLD 2021 SC 916 and Mirza Shaukat Baig and others v. Shahid Jamil and others PLD 2005 SC 530 ref.

Muhammad Tayyab Gull for Petitioner.

Tahir Mehmood Ahmed Khokhar, Deputy Attorney General for Pakistan for Respondents.

Muhammad Waseem Javed, Special Prosecutor for NAB.

2024 P Cr. L J 578

[Lahore]

Before Sardar Muhammad Sarfraz Dogar, J

TALIB---Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Secretary, Home Department, Civil Secretariat, Lahore and 2 others---Respondents

Writ Petition No. 25111 of 2019, decided on 17th February, 2022.

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

----Ss. 35 & 382-B---Penal Code (XLV of 1860), Ss. 57 & 302(b)---Concurrent/consecutive running of sentences---Pre-sentence imprisonment---Scope---Petitioner/convict was awarded life imprisonment on two counts but sentences were not ordered to run concurrently---Validity---Grant of benefit of S. 382-B, Cr.P.C, is mandatory and in normal circumstances cannot be refused to accused for the period he remained or was detained in custody as an under-trial prisoner at the time of awarding him sentence of imprisonment by Trial Court---High Court directed that sentences of life imprisonment on two counts would run concurrently and jail authorities were to look into the matter to pass appropriate order for release of petitioner/convict from jail, if not required in any other case---High Court gave benefit of S. 382-B, Cr.P.C to petitioner/convict---Constitutional petition was allowed accordingly.

Mst. Shahista Bibi and another v. Superintendent, Central Jail, Mach and 2 others PLD 2015 SC 15; Sajjad Ikram and others v. Sikandar Hayat and others 2016 SCMR 467; Ishfaq Ahmad v. The State 2017 SCMR 307; Javed Shaikh v. The State 1985 SCMR 153; Juma Khan and another v. The State 1986 SCMR 1573; Muhammad Ittefaq v. The State 1986 SCMR 1627; Khan Zaman and another v. The State 1987 SCMR 1382; Faridullah Shah and another v. The State 1990 PCr.LJ 1945; Shah Hussain v. The State PLD 2009 SC 460; Faiz Ahmad and another v. Shafiq-ur-Rehman and another 2013 SCMR 583; Muhammad Sharif v. The State 2014 SCMR 668; Bashir alias Bashir Ahmad and another v. The State 1998 SCMR 1794; Ehsan Elahi and others v. Muhammad Arif and others 2001 SCMR 416 and Rahib Ali v. The State 2018 SCMR 418 rel.

(b) Criminal law---

----Criminal justice system---Sentencing---Scope---Sentencing is one of the most important facets of administration of criminal justice system---Apart from statutory restrictions, appropriate sentence is a matter for discretion of sentencing judge---Decisions of Courts on points of substantive law are binding on Court itself and the Courts subordinate thereto---Decisions on sentencing are no more than examples of how Court has dealt with a particular offender in relation to a particular offence---Criminal jurisprudence has developed to some extent except the principles of uniformity of sentence for a particular category of crime but they are not authoritative in a strict sense---Limitation or curtailment of sentencing may be regulated by legislative provisions and other modes of fettering discretion in awarding of punishment may also result from the principles stated by judicial pronouncement---In English and American Laws, component of justice model is the constriction of judicial discretion by promulgation of standards with which judge must substantially comply---Main three strategies are: (a) enactment directly by legislature of a detailed set of principles of sentencing, indicating a normal or presumptive sentence for given classes of case, with specified aggravations and mitigations, leaving sentencing judge very limited discretion; (b) promulgation of standards, by a Commission composed of judges and other interested persons, which would be more detailed than a direct legislative enactment, less exposed to change but at the same time more flexible and capable of amendment in the light of experience; and (c) evolution of guidelines based on an empirical study of current sentencing practice within the jurisdiction concerned---In most of the systems, discretion is vested with Courts in matters of sentencing and passing other related orders---Continuous efforts are made to avoid disparity of sentencing as individualization of sentencing undermines uniformity of sentencing practice and creates disharmony detrimental to public confidence---Under the penal system, discretion is exercised by the Courts awarding sentence.

Sentencing and the Penal System Text and Materials by Christopher Harding and Laurence Koffman published by Sweet and Maxwell, (London) 1988) rel.

Muhammad Hamza Haider, Rafiq A. Sheikh and Mian Muhammad Salman Idrees for Petitioner.

2024 P Cr. L J 596

[Lahore]

Before Anwaarul Haq Pannun, J

MUHAMMAD RAMZAN---Petitioner

Versus

The STATE and 4 others---Respondents

Criminal Revision No. 33626 of 2023, decided on 29th May, 2023.

Criminal Procedure Code (V of 1898)---

----S. 466---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Release of lunatic pending trial---Scope---Application filed by the petitioner under S. 466(1), Cr.P.C., for declaring him lunatic and releasing him on bail after his medical examination from mental health institution was dismissed---Scope---Section 464, Cr.P.C, envisaged that, during an inquiry or a trial, if the Court has a reason to believe that the accused is of unsound mind and consequently incapable of making his defence, the fact of unsoundness of mind of accused shall be inquired into---While forming a prima facie tentative opinion, the Court may give due consideration to its own observations in relation to the conduct and demeanor of an accused person---Failure of party to raise such plea during trial did not debar the Court from forming an opinion "on its own" regarding the capability of accused person to face the proceedings of trial---Record showed that the Trial Court ably had asked numerous questions to accused, replied by him rationally and satisfactorily to form prima facie tentative opinion as to whether the accused was incapable of understanding the proceedings of trial or making his defence, therefore the Trial Court being legally not necessarily obliged to hold any inquiry regarding his medical examination about his mental illness, unsoundness of mind and incapacity to stand trial, correctly refused his request and had rightly passed the impugned order, which called for no interference---Petition was dismissed accordingly.

Sofia Bano and another v. Home Department, Government of Punjab through its Secretary and others PLD 2021 SC 488 and Shahbaz Ahmad v. The State and others 2021 PCr.LJ 1100 rel.

Mohsin Ashfaq, Kamran Asif and Sher Zaman Cheema for Petitioner.

Ms. Rahila Shahid, Deputy District Public Prosecutor for the State.

2024 P Cr. L J 617

[Lahore]

Before Sardar Muhammad Sarfraz Dogar, J

MANSAB ALI and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 220945-J and Criminal Revision No. 218894 of 2018, decided on 13th June, 2023.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of 6/7 hours in conducting the postmortem examination upon the dead body of the deceased not explained---Accused was charged for committing murder of the son of complainant---Record showed that the occurrence took place on 30.08.2016 at about 10:00 a.m. in an area situated at a distance of 6-miles towards south from Police Station---Detail of crime was reported by complainant through written application presented before S.I. in the Police Station at about 11:45 a.m. which shortly thereafter was transcribed into FIR---Though, it appeared that the case was arising out of a prompt FIR, however, review of record reflected that it was not so---In that regard, it was noticed that although dead body of the deceased was received in the dead house at 12.00 p.m. on 30.08.2016, but postmortem examination on the dead body of deceased was conducted at 4.00 p.m.---As per postmortem report the time between the death and postmortem examination was 6-7 hours---So it was a case of delayed postmortem, which casted serious doubt that the FIR was recorded with promptitude, and an inference could be drawn that the intervening period was consumed in fabricating the prosecution story after the preliminary investigation, otherwise there was no justification for submitting the documents at 3.30 p.m. and conducting the postmortem examination with the delay of 6-7 hours instead of conducting the postmortem examination at 12.00 p.m. when the dead body of the deceased was received in the hospital---Noticeable delay in post mortem examination of the dead body was generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses before preparing police papers necessary for the same---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was accordingly allowed.

Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652; Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068; Safdar Mehmood and others v. Tanvir Hussain and others 2019 SCMR 1978; Ulfat Hussain v. The State 2018 SCMR 313; Nazir Ahmad v. The State 2018 SCMR 787 and Muhammad Yaseen v. Muhammad Afzal and another 2018 SCMR 1549 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Chance witnesses---Non-availability of justification for the presence of witnesses at the spot---Accused was charged for committing murder of the son of complainant---Ocular account of the incident in issue was presented before the Trial Court by complainant and another witness---Both the said witnesses were not only very closely related to deceased but they were also chance witnesses---Complainant was the real mother of deceased whereas other witness was a brother of the complainant and a paternal uncle of the deceased---Said witnesses failed to bring any evidence on the record establishing their presence close to the deceased at the relevant time---Occurrence in the present case took place far away from the houses of the said witnesses which was apparent from the statement of complainant---In such circumstances, presence of the eye-witnesses on the crime spot at the fateful time seemed to be per chance as they were not supposed to be present on the spot at the early hours of the day but at a place where they resided, carried on business or ran day to day life affairs---Even otherwise, the stated reason for presence of the eye-witnesses with the deceased at the relevant time had never been established before the Trial Court through any independent evidence---In such circumstances, the presence of both the eye-witnesses appeared to be a laboured story to justify presence at place of occurrence, more importantly when the acclaimed presence of both eye-witnesses was out of their routine, rather was a sheer coincidence---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was accordingly allowed.

Ibrar Hussain and another v. The State 2020 SCMR 1850; Mst. Mir Zalai v. Ghazi Khan and others 2020 SCMR 319 and Naveed Asghar and 2 others v. The State PLD 2021 SC 600 rel.

(c) Criminal trial---

----Chance witness---Scope---In ordinary parlance, a chance witness is the one who in the normal course is not supposed to be present on the crime spot unless he/she offers cogent, convincing and believable explanation, justifying his/ her presence there.

(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---Driver of vehicle used to shift dead body to the hospital not presented as witness---Accused was charged for committing murder of the son of complainant---According to the medical evidence the deceased died instantaneously, but in spite of that they took the deceased to hospital who had already died instead of reporting the matter to the police for setting the machinery of law in motion, which spoke volume on the veracity of the eye-witnesses---During the cross-examination both the eye-witnesses claimed that they shifted the deceased to the hospital on a car/wagon, but they could not disclose the registration number of the car or wagon or name of the driver of that vehicle which made the presence of both the eye-witnesses at the place of occurrence doubtful---Though Investigating Officer claimed that the complainant had produced one driver who shifted the deadbody to hospital along with the complainant party, but astonishingly the driver of the said wagon had not been produced by the prosecution during the trial which gave rise to an adverse inference that had he been entered the witness-box he would have deposed against the prosecution---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was accordingly allowed.

Nadeem alias Kala v. The State 2018 SCMR 153 and Haroon Shafique v. The State and others 2018 SCMR 2118 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Blood stained clothes of eye-witnesses not produced---Accused was charged for committing murder of the son of complainant---Both the witnesses had claimed that while handling the deceased their clothes had been smeared with the blood of the deceased but admittedly no such blood-stained clothes of the said eye-witnesses had been secured or produced which otherwise could prove conveniently that they took the deceased to the hospital---Significantly both the said witnesses during the cross-examination stated that their clothes were smeared with blood but in the same breath they took somersault by stating that they washed the same---Said omission on the part of the eye-witnesses struck at the roots of the case of the prosecution and spoke volumes about their dishonest and false claim---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was accordingly allowed.

Nadeem alias Kala v. The State and others 2018 SCMR 153; Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 and Mst. Mir Zalai v. Ghazi Khan and others 2020 SCMR 319 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Contradiction between ocular account and medical evidence---Accused was charged for committing murder of the son of complainant---According to the theory of crime advanced by prosecution, deceased fell prey to inescapable clutches of death after receiving only firearm injuries---Eye-witnesses remained consistent while deposing so, however, they did not utter even a single word qua the receiving of blunt weapon injuries---On the other hand, postmortem report of deceased revealed that as many as fifteen injuries were found on the person of the deceased, out of which nine were firearm injuries while six were caused by blunt weapons---Question arose that if at all the occurrence was witnessed by complainant and eye-witness then why no reference was made to those blunt weapon injuries---So much so, neither in the crime report nor in their depositions before the court, any accused was alleged to be armed with any club, rod stick, etc---Said fact gained more importance when seen in the context that the alleged eye-witnesses were not mentioned either in column No. 4 or at page 4 of the inquest report as being the ones who were present at the time of preparation of the said inquest report by the Investigating Officer---Said witnesses were also not the ones who had identified the dead body of the deceased at the time of the postmortem examination---All the said omissions were conspicuous by their absence---In absence of physical proof or the reason for the presence of the witnesses at the crime scene, the same could not be relied upon--- As per site plan of the place of occurrence point No. 1 was the place where the deceased had received injuries, whereas, point No. 4 was the place from where the deceased was fired at by the accused---Distance from point No. 1 to point No. 4 was six feet, whereas, as per postmortem report blackening and burning on all the entry wounds was visible, therefore, ocular account furnished by the two eye-witnesses was not in consonance with the medical evidence which clearly contradicted the statements of the eye-witnesses---Blackening appeared on the dead body in case the deceased had received injuries at a distance of 4 feet according to medical jurisprudence---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was accordingly allowed.

Muhammad Rafique v. State 2014 SCMR 1698; Nasrullah alias Nasro v. The State 2017 SCMR 724; Abdul Jabbar and another v. The State 2019 SCMR 129 and Tajamal Hussain Shah v. The State and another 2022 SCMR 1567 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Motive not proved---Accused was charged for committing murder of the son of complainant---Motive as alleged by the prosecution was that the deceased had quarreled with the accused persons, due to which accused had a grudge with him and committed his murder---Record showed that no detail of the quarrel which was the motive part of the occurrence had been given either in written complaint or inquest report---It was not discernible from the record that what was the cause of that quarrel, who was the witness of that quarrel and who had separated them---Neither the matter was reported to the police nor any Panchayat was convened for patch-up---Motive part of the occurrence, being word of mouth, could not get corroboration from any other independent source of the evidence, which remained unproved and shrouded in mystery as well---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was accordingly allowed.

(h) Criminal trial---

----Motive---Scope---Once motive is setup by the prosecution, but thereafter it fails to prove the same, then prosecution must suffer the consequences and not the defence.

Amir Muhammad Khan v. The State 2023 SCMR 566; Tajamal Hussain Shah v. The State and another 2022 SCMR 1567; 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.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of incriminating articles---Inconsequential---Accused was charged for committing murder of the deceased---Record showed that the attesting witness to all the recoveries of incriminating articles, i.e. recovery of pistol 30 bore, recovery of empty cartridges and possession of blood of the deceased secured from the place of occurrence through cotton, was Mr. "A" whose testimony had already been disbelieved as a whole---Corroboratory evidence must come from independent source providing strength and endorsement to the account of the eye-witnesses, therefore, eye-witnesses, in the absence of extraordinary and very exceptional and rare circumstances, could not corroborate themselves by becoming attesting witness/witnesses to the recovery of crime articles---In other words, eye-witnesses could not corroborate themselves but corroboratory evidence must come from independent source and should be supported by independent witnesses other than eye-witnesses---Thus, the recoveries in the present case were equally of no judicial efficacy--- Furthermore, in column No. 23 of the Inquest Report no crime empty had been shown present there, albeit in the recovery memo and in the site plan, the said empties had been shown recovered lying very close to the dead body of the deceased---Said deliberate omissions created reasonable doubt about the recovery---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was accordingly allowed.

Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Co-accused acquitted on same set of evidence---Effect---Accused was charged for committing murder of the son of complainant---Record showed that the co-accused of the present accused was acquitted of the charge by the Trial Court by extending benefit of doubt to him, as such the eye-witnesses produced by the prosecution were capable of falsehood---Case of present accused was based on the same set of evidence and further the acquittal of the co-accused had not been challenged---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 corroborated by corroboratory evidence coming from independent source and unimpeachable in nature, but this was not available in the present case---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was accordingly allowed.

Pervaiz Khan and another v. The State 2022 SCMR 393; Abdul Ghafoor v. The State 2022 SCMR 1527 and Sajjad Hussain v. The State and others 2022 SCMR 1540 rel.

Barrister Muhammad Yar Khan Daha and Junaid Fareed Khan Daha for Appellants.

Abid Saqi and Rai Faisal Nauman Bhatti for the Complainant.

Ikram Ullah Khan Niazi, Deputy Prosecutor General for the State.

2024 P Cr. L J 645

[Lahore]

Before Muhammad Amjad Rafiq, J

BILAL AZAM---Appellant

Versus

MUHAMMAD HAQ NAWAZ and another---Respondents

Criminal Revision No. 22527 of 2020, heard on 17th June, 2022.

Criminal Procedure Code (V of 1898)---

----S. 401(4-A)---Penal Code (XLV of 1860), Ss. 337-N(2), 337-A(iii), 337-L(2), 447, 511, 427, 147 & 149---Shajjah-i-hashimah, rash and negligent act, criminal trespass, attempt to commit offence, mischief causing damage to the amount of fifty rupees, rioting and unlawful assembly---Inherent power of High Court---Quashing of conditional order---Scope---Trial Court while declining post arrest bail to the petitioner on merits, ordered for his release on bail by extending benefit of S. 337-N(2), P.P.C., subject to deposit of "arsh" amounting to Rs.2,35,000/- ---Validity---As per subsection (4-A) of S. 401, Cr.P.C, Criminal Court can pass conditional order to restrict the liberty of any person or to impose any liability upon him or his property---Obviously, bail is the matter which restricts the liberty of a person, therefore, if the circumstances warrant, a condition can be imposed while granting bail to an accused but such condition should not be illegal or unreasonable, it must be accepted and be one to be fulfilled by him or one independent of his will---Imposing a condition while granting bail is rooted in the system and occasionally helps the parties to avoid rigors of criminal process or facilitates them to settle their issues privately through Alternate Dispute Resolution process and that process is the need and demand of the time---Revision petition was dismissed accordingly.

Haji Maa Din and another v. The State 1998 SCMR 1528; Ali Akhtar v. The State and another 2013 PCr.LJ 487; Attaullah v. Abdur Razaq and another PLD 2002 SC 534 and The State v. Muhammad Umar alias Chotoo 2003 PCr.LJ 216 ref.

Ali Muhammad v. The State PLD 2009 Lah. 312; Shahid Sultan Durrani v. The State and others 2021 SCMR 827; Faizan Rehmat v. The State 2021 PCr.LJ 235; Maryam Nawaz Sharif v. Chairman NAB PLD 2020 Lah. 205; Gul Muhammad v. Abdul Rashid 2016 YLR 2845; Inayat Ullah v. The State 2015 PCr.LJ 1575; Allah Nawaz v. The State 2010 YLR 1200; Cool Industries (Pvt.) Ltd. through Manager v. Shafique Ahmed 2010 MLD 435; Waseem Zia v. The State 2007 YLR 249; Inamul Haq v. Judge, Special Court, Lahore PLD 2005 Lah. 79; Muhammad Saeed v. Superintendent, Central Jail, Faisalabad 2000 PCr.LJ 2; Muhammad Ayub v. Mst. Nasim Akhtar and another 1984 PCr.LJ 160; Fatah Muhammad v. The State PLD 1973 Lah. 874 and Mst. Chan Bibi v. The State 1993 PCr.LJ 1317 rel.

Mian Zulfiqar Ali for Petitioner.

Muhammad Moin Ali, Deputy Prosecutor General for the State.

Mubashir Iqbal Tarar for the Complainant.

2024 P Cr. L J 658

[Lahore]

Before Muhammad Amjad Rafiq, J

ALI NAWAZ---Appellant

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 8329-B of 2023, decided on 6th June, 2023.

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

----Ss. 19(3), 23, 32, Third Sched., Entry No.4, Serial No. (iii)---Criminal Procedure Code (V of 1898), Ss. 497, 526, 528---Penal Code (XLV of 1860), Ss. 324, 109, 148 & 149---Pakistan Arms Ordinance (XX of 1965), S. 13(2a)---Firing in Court premises---Post-arrest bail---Jurisdiction---Transfer of case from a Court of ordinary jurisdiction to Anti-Terrorism Court---Scope---During proceedings of the case, it was observed that place of occurrence in the present case was a court premises and injury had been caused by firing---Entry-4 of the Third Schedule of the Anti-Terrorism Act, 1997 clearly indicated that offences mentioned thereunder were exclusively triable by the Anti-Terrorism Court---Under said entry at Serial No. iii, offence of firing in the court premises was mentioned, therefore, despite the offence being result of personal vendetta where offence of terrorism was not attracted, it shall be triable by the Anti-Terrorism Court---Challan of present case had been put before the Court of Magistrate who though did not have jurisdiction but commenced the trial and entertained the bail petition as well---Counsel for the accused-petitioner submitted that he would not press the petition provided the case be transferred to Anti-Terrorism Court, so that he could move the bail petition before such Court---Though by virtue of S. 32 of Anti-Terrorism Act, 1997, an Anti-Terrorism Court is deemed to be a Court of Sessions but as the case was entrusted to the Magistrate by the Sessions Judge under S. 17 of Cr.P.C. and was also empowered to withdraw a case from the Court of Magistrate under S. 528 of Cr.P.C, therefore, Magistrate shall stay the proceedings and will submit case, with a brief report explaining its nature, to the Sessions Judge for onward transmission to the Anti-terrorism Court for its opinion---An Anti-Terrorism Court for that purpose was deemed as Magistrate authorized under S. 190, Cr.P.C. which gave powers to take cognizance of an offence on police report, private complaint and upon his own information---On taking cognizance by the Anti-Terrorism Court, it could decide the jurisdiction either to assume it under S. 19(3) of Anti-Terrorism Act, 1997, or take action under S. 23 of the said Act for transfer of case back to Court of ordinary jurisdiction and thereafter concerned Court of Magistrate could recommence the trial from the stage it was stayed under S. 346, Cr.P.C.---Course for transfer of case under S. 526, Cr.P.C. was also available, if the case was being tried by a Magistrate or Court of Session---High Court under S. 526(3), Cr.P.C. is empowered to transfer the case from Court of ordinary jurisdiction to Anti-Terrorism Court---Criminal miscellaneous petition was allowed and case was transferred to the Court of Anti-Terrorism Court---Accused could move bail petition before the Anti-terrorism Court---Bail application was disposed of accordingly.

Ghulam Hussain and others v. The State and others PLD 2020 SC 61; Rao Fahd Ali Khan v. The State and another 2014 PCr.LJ 1071; Mir Ali v. The State and another 2020 PCr.LJ 1060; Ali Akbar and another v. The State PLD 1995 Kar. 10; Azhar Hussain and others v. Government of Punjab and others 1992 PCr.LJ 2308; Allah Din and 18 others v. The State and another 1994 SCMR 717; Rana Abdul Ghaffar v. Abdul Shakoor and 3 others PLD 2006 Lah. 64; Mir Zaman v. Zubair and another 2003 PCr.LJ 1086; Fida Hussain v. Additional Sessions Judge, Jampur, District Rajanpur and another 2006 PCr.LJ 1551; Muhammad Hanif v. The Crown PLD 1956 Lah. 394; Ghulam Hussain and others v. The State 1985 PCr.LJ 2334; Y.K. Lee v. D.I.G. Sargodha and 4 others 2007 YLR 1554; Muhammad Akbar Khan and 3 others v. S.H.O. P.S. Garhi Khairo, District Jacobabad and others 2017 PCr.LJ 1280 and Muhammad Jawad Hamid v. Mian Muhammad Nawaz Sharif and others PLD 2018 Lah. 836 rel.

Sardar Nadeem Abbas Dogar for Petitioner.

Rai Akhtar Hussain Kharal , Additional Prosecutor General; Muhammad Moeen Ali, Deputy Prosecutor General and Ms. Noshe Malik, Deputy Prosecutor General with Hafeez, ASI for Respondents.

2024 P Cr. L J 671

[Lahore]

Before Ali Baqar Najafi and Farooq Haider, JJ

MANSAB ALI---Appellant

Versus

The STATE and others---Respondents

Criminal Revision No. 17417 of 2022, decided on 25th April, 2022.

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

----Ss. 23 & 7---Penal Code (XLV of 1860), Ss. 365-A, 392, 376(ii) & 376(iii)---Kidnapping or abduction for extorting property, valuable security, etc., robbery, kidnapping or abducting a person under the age of fourteen, rape, act of terrorism---Application for transfer of case from Anti-Terrorism Court to the ordinary court was dismissed---Validity---Complainant lodged FIR alleging that accused persons kidnapped her along with her daughter, committed rape with them, snatched mobile phone and hard cash and ran away---As per contents of the FIR, Court had not noticed any demand of property (movable or immovable) valuable security or compelling of the complainant or her daughter to comply with any other demand in cash or otherwise---Moreover, it was not the case of the prosecution that the assailants demanded some money and upon their failure put them in illegal confinement and committed zina-bil-jabr---Under S. 365-A, P.P.C., the element of extortion from the person or kidnapping or abducting for the purpose of any property movable or immovable, valuable security or other demand, whether cash or otherwise for obtaining release of any kidnapped or abducted person is made---Such elements were not available in the present FIR, therefore, S. 365-A, P.P.C., was not be attracted---In the instant case, there was no demand of ransom of cash either from the complainant or her relative---Irrational interpretation of the word "any other demand" by extending it to compel a woman for a sexual intercourse could not be adopted by the Court particularly when offences under S. 365-B, P.P.C. & S. 376, P.P.C. exclusively deal with the offence of rape; and sexual intercourse with a woman against her will by putting her under fear of death, etc.---Criminal revision was allowed, in circumstances, by setting aside order passed by the Judge, Anti-Terrorism Court, resultantly, the trial of case was to be referred back by the Judge, Anti-Terrorism Court, to Sessions Judge who shall either himself or entrust it to any Additional Sessions Judge, for its trial.

Junaid Rehman and others v. The State and others PLD 2011 SC 1135; Faheema Ahmed Farooqui v. The State 2008 SCMR 1572; Muhammad Nabi and 4 others v. The State 2006 SCMR 1230; State through Advocate-General, Sindh v. Mooso 2006 SCMR 1257; The State v. Nazir Ahmad and others 1999 SCMR 610 and State through Advocate-General, Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1 rel.

Ch. Waseem Ahmed Gujjar for Petitioner.

2024 P Cr. L J 685

[Lahore]

Before Tariq Saleem Sheikh, J

MUHAMMAD IRFAN and another---Petitioners

Versus

ADDITIONAL SESSIONS JUDGE/EX-OFFICIO JUSTICE OF PEACE and 4 others---Respondents

Writ Petition No. 46486 of 2021, decided on 29th July, 2022.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B & 561-A---Penal Code (XLV of 1860), S. 337-H(1)---Inherent powers of High Court under S. 561-A, Cr.P.C.---Powers of Ex-officio Justice of Peace---Son of respondent aged 6-year hit a high tension live wire of WAPDA lying on the public road for many days which caused him grievous hurt---Respondent claimed that petitioners (officials of electric supply company) were responsible for the incident and liable to be persecuted under S. 337-H(1), P.P.C---Ex-officio Justice of Peace issued direction for the registration of FIR---According to the petitioners (officials of electric supply company), it was an accident which occurred when a thunderstorm struck the city and damaged the electricity pole near respondent's house---Validity---Police report fully supported petitioner's version and added that they shut down the feeder as soon as they learnt about the damage to the pole, thus negated the allegation of respondent that petitioners were negligent in discharging their duties---Ex-officio Justice of Peace had passed the impugned order without considering the said report---Ex-officio Justice of Peace was not bound to seek report from the police when an application under S. 22-A, Cr.P.C., was presented to him but when he did he must give reasons if he was not inclined to rely on it---Section 337-H(1), P.P.C. was not attracted to the facts and circumstances of the instant case---Petition was accepted and the impugned order was set aside, in circumstances.

People v. Wells 186 Misc. 979, 66 N.Y.S.2d 161 (1946); R. v. Bateman [1925] All ER 45; Andrews v. Director of Public Prosecutions [1937] AC 576; Riddell v. Reid [1942] 2 All ER 161; R. v. Caldwell [1981] 1 All ER 961; R. v. Lawrence [1981] 1 All ER 974; R. v. Prentice and another [1993] 4 All ER 935; R. v. Adomako [1995] 1 AC 171; Jacob Mathew v. State of Punjab and another AIR 2005 SC 3180; Kurban Hussein Mohamedalli Rangawalla v. State of Maharashtra AIR 1965 SC 1616; Emperor v. Omkar Rampratap (1902) IV Bom LR 679; Attorney General's Reference No.2 of 1999 [2000] 3 All ER 182; Standard Chartered Bank and others v. S. Directorate of Enforcement and others AIR 2005 SC 2622; Mureed Hussain v. Additional Sessions Judge and 3 others 2014 PCr.LJ 1146 and Rylands v. Fletcher [1868] UKHL 1 rel.

Muhammad Haroon Gondal for Petitioners.

Mukhtar Ahmad Ranjha, Assistant Advocate General for Respondents Nos.2 and 3.

Hafiz Ahmad Raza Brailvi for Respondent No.4.

Nemo for Respondent No.5 (Proforma Respondent).

2024 P Cr. L J 696

[Lahore]

Before Malik Shahzad Ahmad Khan, J

RAFAQAT ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 36587 of 2019, heard on 7th March, 2023.

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

----Ss. 302, 147 & 148---Qatl-i-amd, rioting, rioting armed with deadly weapon---Appreciation of evidence---Benefit of doubt---Delay of six hours and fifteen minutes in lodging FIR---Consequential---Accused were charged for committing murder of the son of the complainant by inflicting danda and sota blows---According to the prosecution's own case, the occurrence in the present case took place in the house of the accused at 01:00 a.m., on the intervening night of 08/09.06.2018 but the FIR was lodged on 09.06.2018 at 07:15 a.m., and as such, there was delay of 06 hours and 15 minutes in lodging the FIR---Distance between the police station and the place of occurrence was 5-kilometers---Complainant had stated during his cross-examination that he had the facility of car at his disposal on the night of occurrence through which he shifted deceased from the place of occurrence to the hospital---Under the circumstances, the said gross delay in reporting the matter to the police had created doubt regarding the truthfulness of the prosecution story---Thus, the FIR was not promptly lodged in the present case therefore, possibility of deliberations and concoctions in the prosecution story could not be ruled out---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

Akhtar Ali and others v. The State 2008 SCMR 6; Nazeer Ahmad v. Gehne Khan and others 2011 SCMR 1473 and Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127 rel.

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

----Ss. 302, 147 & 148---Qatl-i-amd, rioting, rioting armed with deadly weapon---Appreciation of evidence---Benefit of doubt---Delay of ten hours and forty minutes in conducting postmortem examination upon the dead body of the deceased---Consequential---Accused were charged for committing murder of the son of the complainant by inflicting danda and sota blows---Record showed that postmortem examination on the dead body of deceased was conducted on 09.06.2018 at 11:40 a.m., i.e., with the delay of 10 hours and 40 minutes from the occurrence---Said delay was suggestive of the fact that the prosecution eye-witnesses were not present at the spot at the relevant time and the said delay was consumed in procuring the attendance of fake eye-witnesses---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

Muhammad Ilyas v. Muhammad Abid alias Billa and others 2017 SCMR 54 and Zafar v. The State and others 2018 SCMR 326 rel.

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

----Ss. 302, 147 & 148---Qatl-i-amd, rioting, rioting armed with deadly weapon---Appreciation of evidence---Benefit of doubt---Ocular account not proved---Accused were charged for committing murder of the son of the complainant by inflicting danda and sota blows---Ocular account of the prosecution case was furnished by the complainant and other eye-witness---Prosecution case was that on the night of occurrence, the complainant on hearing the noise of hue and cry, woke up and went to the roof of acquitted accused who was his neighbor, wherefrom, he witnessed the occurrence, but during his cross-examination, complainant stated that his house was not situated in the street in which the house of the accused persons was situated---Said witness further stated that if one had to go from his house to the house of the accused persons then he had to enter his street and then to the street of the accused persons---Story narrated by the complainant during his cross-examination had negated the story narrated by him in the FIR---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302, 147 & 148---Qatl-i-amd, rioting, rioting armed with deadly weapon---Appreciation of evidence---Benefit of doubt---Unnatural conduct of eye-witnesses---Accused were charged for committing murder of the son of the complainant by inflicting danda and sota blows---Conduct of the prosecution eye-witnesses in the present case was highly unnatural---According to the prosecution case, the complainant party was comprising of three adult male members---Complainant was real father of deceased and he stated during his cross-examination that an eye-witness was his paternal cousin---Prosecution case was that the accused and his co-accused were armed with 'dandas' at the time of occurrence and as such, the accused persons were not armed with any formidable weapon like gun, pistol etc. but the eye-witnesses kept on standing like silent spectators and allowed the accused and his co-accused to inflict, as many as, 17 injuries on the body of deceased---Said witnesses did not try to rescue deceased from the accusedand his co-accused during the occurrence or to apprehend them at the spot, after the occurrence---Such conduct of the prosecution eye-witnesses was highly unnatural which further showed that they were not present at the spot at the relevant time---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

Liaquat Ali v. The State 2008 SCMR 95; Pathan v. The State 2015 SCMR 315 and Zafar v. The State and others 2018 SCMR 326 rel.

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

----Ss. 302, 147 & 148---Qatl-i-amd, rioting, rioting armed with deadly weapon---Appreciation of evidence---Benefit of doubt---Ocular and medical evidence---Conflict between---Accused were charged for committing murder of the son of the complainant by inflicting danda and sota blows---Record showed that there was conflict between ocular account and the medical evidence of the prosecution---Medical Officer, who conducted postmortem examination on the dead body of deceased found 17 injuries on his body---According to his evidence, some injuries were the marks of burns and electric shocks but none of the prosecution eye-witnesses stated in his evidence that as to how the said injuries were received by deceased---Had the prosecution witnesses been present at the spot at the relevant time then they should have explained the said injuries on the body of the deceased---Notable that no electric wire or any other weapon which could cause burn marks or electric shock marks, had been recovered from the possession of the accused---Noteworthy that Medical Officer had neither mentioned the probable time that elapsed between the injuries and death, as well as, probable time that elapsed between death and postmortem examination in the postmortem report nor he mentioned the said details in his evidence recorded by the trial Court---Said witness frankly conceded during his cross-examination that he normally mentioned the duration between the injuries and death and between death and postmortem examination in the postmortem reports---Under the circumstances, it was not determinable in the case that what was the probable time of occurrence when deceased received injuries on his body---In such circumstances the ocular account of the prosecution did not support the medical evidence---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

Irfan Ali v. The State 2015 SCMR 840 and Usman alias Kaloo v. The State 2017 SCMR 622 rel.

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

----Ss. 302, 147 & 148---Qatl-i-amd, rioting, rioting armed with deadly weapon---Appreciation of evidence---Benefit of doubt---Motive not proved---Accused were charged for committing murder of the son of the complainant by inflicting danda and sota blows---Motive behind the occurrence was that few days earlier to the occurrence, hot words were exchanged between deceased and co-convict---No specific date, time and place of the motive occurrence had been brought on the record by any of the prosecution witnesses---No reason of the earlier quarrel which took place between deceased and co-convict had been stated by any of the prosecution witnesses---Vague motive was alleged by the prosecution which had not been proved in the case and the Trial Court had rightly disbelieved the motive part of the prosecution case---Moreover, the prosecution story of motive did not appeal to a prudent mind because if there was any earlier quarrel between the deceased and co-convict, then what was deceased doing in the house of accused persons at the odd hours of night (01:00 a.m.)---Prosecution evidence in that respect was completely silent, which made the prosecution story doubtful---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302, 147 & 148---Qatl-i-amd, rioting, rioting armed with deadly weapon---Appreciation of evidence---Benefit of doubt---Recovery of 'danda' on the pointation of the accused---Inconsequential---Accused were charged for committing murder of the son of the complainant by inflicting danda and sota blows---Record showed that danda was recovered on the pointation of the accused---Said 'danda' was recovered after the joint disclosure of the accused along with his co-convict and as such, the said recovery became doubtful in the eyes of law---Noteworthy that the said 'danda' was not stained with blood and as such, there was nothing on record to connect the said recovery with the occurrence---Moreover, the recovered 'danda' was of common pattern and was available in the markets easily and as such, the same could be planted against the accused---Under the circumstances, it was not safe to rely upon such recovery of 'danda' against the accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302, 147 & 148---Qatl-i-amd, rioting, rioting armed with deadly weapon---Appreciation of evidence---Benefit of doubt---Co-accused acquitted on same set of evidence---Accused were charged for committing murder of the son of the complainant by inflicting danda and sota blows---Record showed that accused along with acquitted co-accused persons was assigned the joint role of inflicting 'danda' blows on the body of deceased by the prosecution eye-witnesses---Co-accused persons had been acquitted by the Trial Court whereas, appeal filed against the acquittal of the said co-accused had already been dismissed---Under the circumstances, the prosecution evidence which had been disbelieved against the acquitted co-accused could not be believed against the present accused without independent corroboration, which was very much lacking in the present case---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

Akhtar Ali and others v. The State 2008 SCMR 6; Muhammad Ali v. The State 2015 SCMR 137; Muhammad Akram v. The State 2012 SCMR 440 and Ulfat Hussain v. The State 2018 SCMR 313 rel.

(i) Criminal trial---

----Police opinion---Scope---Police opinion becomes irrelevant after recording of prosecution evidence by the Trial Court.

Muhammad Ahmad (Mahmood Ahmed) and another v. The State 2010 SCMR 660 rel.

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

----Ss.302, 147 & 148---Criminal Procedure Code (V of 1898), S.342---Qatl-i-amd, rioting, rioting armed with deadly weapon---Appreciation of evidence---Benefit of doubt---Inculpatory and exculpatory parts of statement of accused---Scope---Accused were charged for committing murder of the son of the complainant by inflicting danda and sota blows---Record showed that the accused had nowhere admitted in his statement or in the suggestions given to the prosecution eye-witnesses that he committed the murder of deceased rather he stated that on the night of occurrence when deceased entered his house to commit the rape of sister of co-convict, they raised hue and cry, whereupon, a mob gathered at the spot and gave beating to deceased---Evidently, the accused did not admit that he gave beating to deceased on the night of occurrence---First and foremost duty of the prosecution was to prove its case and if the prosecution failed to prove its case then statement of an accused was to be accepted or rejected in toto---Legally it was not permissible to accept inculpatory part of the statement of an accused and to reject exculpatory part of the said statement---If after rejection of the prosecution evidence, statement of the accused was accepted in toto then no offence was made out against the present accused---Noteworthy that acquitted co-accused persons also made statements on the same lines as that of the statement of present accused recorded under S. 342, Cr.P.C. and the same suggestions were given by defence to the prosecution eye-witnesses---Since, the co-accused persons had been acquitted by the Trial Court and appeal against acquittal had already been dismissed therefore, the present accused could not be convicted and sentenced merely on the basis of his statement or suggestions given by his counsel to the prosecution witnesses---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

Muhammad Asghar v. The State PLD 2008 SC 513 rel.

(k) 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.

Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Basharat Hussain Gondal for Appellant.

Nisar Ahmad Virk, Deputy Prosecutor General for the State.

Mujtaba Hassan Tatla and Aftab Ahmad Toor for the Complainant.

2024 P Cr. L J 729

[Lahore]

Before Aalia Neelum and Farooq Haider, JJ

BILAL HASSAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 19109 and Murder Reference No. 81 of 2019, decided on 23rd January, 2023.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of three hours and thirty minutes in lodging the FIR---Consequential---Accused was charged for committing murder of the brother of complainant and causing firearm injuries to his wife by firing---Record showed that the occurrence occurred at 03.30 a.m. (night), and the distance between the place of occurrence and the police station was 5/6 kilometers---Complainant took three hours and thirty minutes to report the incident to the police at the police station---In the prosecution evidence, there was a severe flaw to precisely fix the time when the incident was reported to the police---Said aspect of the matter was sufficient to cast doubt about the authenticity of the FIR---Inordinate delay of three hours and thirty minutes from the time of the commission of the offence remained unexplained and rendered the whole of the prosecution version doubtful---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

Iftikhar Hussain and another v. The State 2004 SCMR 1185 rel.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Benefit of doubt---Non-recovery of Shalwar/trouser of injured---Consequential---Statement of injured not recorded---Accused was charged for committing murder of the brother of complainant and causing firearm injuries to his wife by firing---Admittedly, the incident occurred inside the deceased's house at odd night hours---Eye-witnesses failed to explain why Shalwar/trouser of injured was not secured by the Investigating Officer during the investigation or handed over by the Medical Officer---Non-handing over the Shalwar of injured had much significance in the instant case---As per the prosecution case, injured opened the door of the house after accused knocked the same---It did not appeal to the prudent mind that a woman without Shalwar/trousers would come forward to do any work in our social setup---Prosecution's case mainly revolved around the injured, who opened the door---Investigating Officer moved an application for permission to record the statement of injured which was allowed by the Medical Officer, but even then, the statement of injured was not recorded---During the trial, injured expired---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Benefit of doubt---Conflict between the statements of witnesses---Accused was charged for committing murder of the brother of complainant and causing firearm injuries to his wife by firing---Record showed that the eye-witness deposed that the accused made the first fire shot on the person of his father, which hit on the front of his chest and he fell; after that, his wife, to save the deceased, came forward and accused made another fire shot, which hit his wife and she became injured---There was conflict between the statements of both witnesses regarding the fact that who was hit by the first fire made by the accused---In that background, the mode and manner of the incident as deposed by the witnesses seemed doubtful---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of eleven hours and forty five minutes in conducting the postmortem examination upon the dead body of the deceased not explained---Accused was charged for committing murder of the brother of complainant and causing firearm injuries to his wife by firing---Record showed that the Medical Officer received the application for postmortem at 03:00 p.m.---Per the postmortem report, the dead body was received in the mortuary at 05:00 a.m. on 22.02.2016, whereas the doctor received complete documents at 03:05 p.m. on 22.02.2016---Thus, there was a delay in the postmortem examination of about 11 hours and 45 minutes, which was supported by a doctor's statement---No plausible explanation was on record as to why the postmortem of the dead body was delayed for 11 hours and 45 minutes---Said aspect of the matter was sufficient to cast doubt about the authenticity of the FIR, which created serious doubt about the genuineness of the prosecution story---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence---Conflict between---Accused was charged for committing murder of the brother of complainant and causing firearm injuries to his wife by firing---Record showed that there was conflict between the ocular account and medical evidence---Report of Medical Officer revealed that from the upper level, a fire shot was made by the accused, which hit the deceased---As per the prosecution witnesses, i.e., the accused made a straight fire, which hit on the front of the chest of the deceased and he received an injury in standing position---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence from the possession of accused---Inconsequential---Accused was charged for committing murder of the brother of complainant and causing firearm injuries to his wife by firing---Record showed that a rifle 244-bore was recovered from the possession of the accused with positive report of Forensic Science Agency---As per the prosecution case, on 03.03.2016, the accused was arrested from his Dera and upon his disclosure, rifle 244-bore and three live bullets were recovered---Investigating Officer secured the same through a recovery memo---Head Constable stated that on 22.02.2016, the Investigating Officer secured ten crime empties of 244-bore through recovery memo, which were handed over to the Moharrar---Forensic Science Agency Report revealed that a parcel of 44-bore rifle was submitted on 04.03.2016, and a parcel of ten 44-caliber cartridges was submitted on 01.03.2016 by Police Officer---Given the admission of prosecution witnesses that on the day of occurrence, i.e., 22.02.2016, the accused was in police custody and Investigating Officer collected five crime empties it created doubt about the recovery of rifle 244-bore on 03.03.2016 and its positive report---Such circumstances, the recovery of the weapon of offence and a positive report were not of any consequence---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Benefit of doubt---Motive not proved---Accused was charged for committing murder of the brother of complainant and causing firearm injuries to his wife by firing---Motive behind the occurrence was that the complainant's sister gave her personal Haveli to deceased, which raised a grudge in the mind of the accused, due to which he committed the said occurrence---Although, the prosecution had alleged motive for committing the incident by the accused, however, the prosecution in that regard produced no evidence---Prosecution had been unable to establish a motive in the case---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

(h) Criminal trial---

----Benefit of doubt---Principle---Benefit of every doubt is to be extended in favour of the accused.

Muhammad Akram v. The State 2009 SCMR 230 and Ayub Masih v. The State PLD 2002 SC 1048 rel.

Muhammad Irfan Malik, Ch. Abdur Rehman Sahi and Ch. Waleed Abdullah for Appellant.

Rana Ahsan Aziz, Additional Prosecutor General for the State.

Ayaz Ahmad Butt for the Complainant.

2024 P Cr. L J 756

[Lahore]

Before Tariq Saleem Sheikh, J

HUMAIR YOUSAF---Petitioner

Versus

STATION HOUSE OFFICER and 3 others---Respondents

Writ Petition No. 46941 of 2021, decided on 12th August, 2022.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Penal Code (XLV of 1860), S. 489-F---Dishonoring of cheque---Right of hearing to accused---Ex-officio Justice of Peace, duty of---Scope---Petitioner was aggrieved of order passed by Ex-officio Justice of Peace directing S.H.O. of police station concerned to register criminal case for issuing cheques which were dishonored on presentation---Validity---Ex-officio Justice of Peace does not have absolute duty to hear accused while deciding an application under S. 22-A(6), Cr.P.C.---Ex-officio Justice of Peace may afford accused audience only if circumstances demand and no hard and fast rule can be laid down in such respect---Ex-officio Justice of Peace cannot conduct a "mini-trial" while hearing a complaint regarding non-registration of criminal case---Any mandate to hold a detailed inquiry to ascertain veracity of allegations militates against very scheme of Cr.P.C.---Payment of two cheques was stopped by the drawer while the third was returned for the reason that the account was closed---"Stop payment" or "closure of account" does not, per se, take the case out of the ambit of S. 489-F, P.P.C.---Such circumstance made it imperative for Ex-officio Justice of Peace to hear the other side, therefore, petitioner had been prejudiced---High Court set aside order for registration of FIR and remanded the matter to Ex-officio Justice of Peace for decision afresh---Constitutional petition was allowed accordingly.

Younas Abbas and others v. Additional Sessions Judge, Chakwal, and others PLD 2016 SC 581; Abad Ali alias Imran and another v. City Police Officer, Faisalabad and 6 others PLD 2021 Lah. 274; Dawood Abdul Ghafoor v. Justice of Peace and others 2021 PCr.LJ 1527; M. Anwar Barrister-at-Law v. The Station House Officer, Civil Lines Police Station, Lahore, and another PLD 1972 Lah. 493; Saeed Ahmad and others v. Naseer Ahmad and others PLD 2000 Lah. 208; Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539; Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lah. 470; PLJ 2003 Fed. St. 281; Fazal Muhammad Chaudhari v. Ch. Khadim Hussain and 3 others 1997 SCMR 1368; Sardar Muhammad Nawaz v. Mst. Firdous Begum 2008 SCMR 404; Chairman, State Life Insurance Corporation and others v. Hamayun Irfan and 2 others 2010 SCMR 1495; National Bank of Pakistan v. Nasim Arif Abbasi and others 2011 SCMR 446; Dr. Zahid Javed v. Dr. Tahir Riaz Chaudhary and others PLD 2016 SC 637; H.W.R. Wade & C.F. Forsyth, Administrative Law, Eleventh Edition, p.31; Namit Sharma v. Union of India [2013] 13 SCR 1; Commissioner of Income Tax, East Pakistan v. Fazlur Rahman PLD 1964 SC 410; The University of Dacca through its Vice-Chancellor v. Zakir Ahmad PLD 1965 SC 90; Anisa Rehman v. PIAC and another 1994 SCMR 2232; Abdul Haque Indhar and others v. Province of Sindh and 3 others 2000 SCMR 907; Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another PLD 2010 SC 483; High Flying Solar Development Pakistan Ltd. and others v. National Electric Power Regulatory Authority and others 2016 CLC 1805; Abdul Hafeez Abbasi and others v. Managing Director, PIAC, Karachi, and others 2002 SCMR 1034; Abdul Waheed and 4 others v. City District Government 2014 PLC (C.S.) 820; Karachi City Cricket Association, Karachi v. Mujeebur Rahman, Chairman Adhoc Committee, Pakistan Cricket Board PLD 2003 Kar. 721; Dharampal Satyapal Ltd. v. Deputy Commissioner of Central Excise, Gauhati, and others [2015 (8) SCC 519; Mureed Hussain v. Additional Sessions Judge/Justice of Peace Jampur and 3 others 2014 PCr.LJ 1146; Malik Muhammad Usman v. The State and others PLD 1965 (W.P.) Lahore 229; Dosso's case PLD 1958 SC (Pak) 533; Ch. Nisar Ali Khan v. Federation of Pakistan and others PLD 2013 SC 568 and Shahid Orakzai and another v. Pakistan through Secretary Law, Ministry of Law, Islamabad and another PLD 2011 SC 365 rel.

Kh. Haris Ahmad and Muhammad Zubair Khalid for Petitioner.

Mukhtar Ahmad Ranjha, Assistant Advocate General for Respondents Nos.1 and 2.

Tariq Kamal Qazi and Sharjeel Adnan Sheikh for Respondent No.3.

2024 P Cr. L J 786

[Lahore]

Before Sardar Muhammad Sarfraz Dogar, J

MEHMOOD AHMAD---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE/EX-OFFICIO JUSTICE OF PEACE, NAROWAL and 5 others---Respondents

Writ Petition No. 73916 of 2022, decided on 23rd November, 2022.

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

----Ss. 22-A & 22-B---Ex-officio Justice of Peace, powers of---Adequate remedy---Scope---Petitioner assailed the order passed by Justice of Peace whereby he had declined the request for issuance of direction for registration of FIR---Validity---If the FIR was refused to be registered by the police then other remedies were available for the aggrieved party; firstly, by approaching the Sessions Judge/Ex-Officio Justice of Peace, for exercising of power under S. 22-A(6), Cr.P.C; secondly, by approaching the Magistrate for exercising of power under S. 156(3), Cr.P.C; and lastly, by filing a direct complaint under S. 200, Cr.P.C.---Allegedly, the petitioner in the first instance approached the concerned SHO for registration of the FIR but he was refused, thereafter the petitioner had availed the second remedy of filing application under Ss. 22-A & 22-B, Cr.P.C. before Ex-Officio Justice of Peace/Sessions Judge, where his application was dismissed---Petitioner had not availed two other remedies available for him for redressal of his grievance---In such circumstances, invoking of writ jurisdiction in the presence of adequate remedy being available was not desirement of law---In the case in hand, alleged forged agreement to sell was used by the proposed accused in a civil suit for specific performance of agreement to sell, which was admittedly decreed, against which application under S. 12(2), C.P.C. of the petitioner was pending but the operation of the judgment and decree had not been suspended---Moreover, Criminal Court was barred to take cognizable of the matter relating to civil agreement which was already under challenge before the civil Court---Petition was dismissed in limine.

Jamal Khan v. Secretary Home Department 2021 SCMR 468; Ghulam Ali alias Sadoro and others v. S.H.O., Police Station Veehar, District Larkana and others 2003 YLR 2168 and Muhammad Shafi v. Deputy Superintendent of Police and others PLD 1992 Lah. 178 rel.

(b) Administration of justice---

----Civil and criminal proceedings---Same subject---Stay of criminal proceedings---Principles---Where the ultimate criminal liability depends on the fate of civil lis, the criminal proceedings are, by operation of law, required to be stopped.

Akhlaq Hussain Kayani v. Zafar Iqbal Kayani and others 2010 SCMR 1835 rel.

Barrister Muhammad Imran Ch. for Petitioner.

2024 P Cr. L J 808

[Lahore (Multan Bench)]

Before Muhammad Amjad Rafiq, J

MUHAMMAD ASLAM---Appellant

Versus

The STATE and another---Respondents

Criminal Revision No. 206 of 2021, decided on 12th October, 2023.

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

----Art. 152---Corroborating evidence of relevant fact---Explanatory questions---Scope---There is no explicit bar to permit such explanatory questions in cross-examination---Corroboration, in order to be of any value, must be on material particulars and facts relied on for corroboration must be established by reliable and independent evidence---Facts must be such as to lend assurance to the crucial issue which is in question.

Smt. Sarla Devi wife of Dwarkaprasad v. Birendrasingh son of Beni Singh and others AIR 1961 MP 127 and Paramban Mammadu and others v. Unknown AIR 1951 Mad 737 rel.

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

----Ss. 302, 337A(i), 337L(2), 148 & 149---Qanun-e-Shahadat (10 of 1984), Arts. 133, 152 & 155---Qatl-i-amd, shajjah-i-khafifah, other hurts and rioting armed with deadly weapons---Cross-examination---Refreshing of memory, procedure of---Defence version---Dispute was with regard to cross-examining Medical Officer with regard to Medico Legal Certificates and Radiologist Report regarding injuries caused to accused persons and showing the documents to refresh his memory---Complainant contended that the Medical Officer appeared as prosecution witness and he could not be cross-examined to facts which were not relied upon by prosecution in its case---Validity---Medical officer under Art. 155(1) of Qanun-e-Shahadat, 1984 could see Medico Legal Certificates and as per Art. 155(2) of Qanun-e-Shahadat, 1984, also the Radiologist report in the same fashion to refresh his memory for responding to the questions put by accused---After refreshing the memory, Medical Officer can testify for relevant facts connected with circumstances including date, time and place of such medico-legal examination---High Court directed summoning Medical Officer again as prosecution witness, whereupon accused would cross-examine him with respect to facts relating to medico-legal examination of four accused persons including other relevant facts---Pursuant to Art. 150 of Qanun-e-Shahadat, 1984, if prosecution would seek permission to ask any question from the Medical Officer, Court could allow or withhold permission as the situation arises---After close of prosecution evidence, accused would tender such Medico Legal Certificates and Radiologist report in his defence evidence---Revision was allowed accordingly.

Mahar Habib Ullah Garwah for Petitioner.

Adnan Latif Sheikh, Deputy Prosecutor General for the State.

2024 P Cr. L J 829

[Lahore]

Before Aalia Neelum and Muhammad Waheed Khan, JJ

MUHAMMAD NASIR alias BHOLA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 44570 and Murder Reference No. 104 of 2019, decided on 10th April, 2023.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of one hour and thirty five minutes in reporting the matter to the police---Consequential---Accused was charged for committing murder of the sister of complainant by firing---Motive behind the occurrence was that the accused was forcing deceased to enter into a marriage, but due to her refusal, the accused murdered her---Incident took place on 08.11.2018 at 03.00 p.m.---Police station was at a distance of 4.5 kilometers from the place of occurrence---Prosecution had not given a reason for the delay in lodging the FIR---However, it could be found from the FIR that it was not mentioned therein that the complainant went to the police station to report the incident, nor was it mentioned that on hearing about the incident, police reached the spot and complainant reported the incident to the police---Complainant did not explain the reason for not lodging the report with the police of the incident of murder of his sister, which took place in the house of his sister in his presence---Delay in lodging the FIR often resulted in consultation and deliberation, which was creature of an afterthought---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)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Chance witnesses---Presence of complainant and eye-witnesses at the spot doubtful---Accused was charged for committing murder of the sister of complainant by firing---In the present case, the deposition of the Investigating Officer revealed that on receiving information about the murder, he reached the place of occurrence at 04:10 p.m., even then, the complainant, took 25 minutes to report the incident---Thus, it was found from the evidence of the complainant that he had reported the incident of murder of his sister, which occurred in her house in his and eye-witnesses' presence at 04:35 p.m. on 08.11.2018 with the delay of one hour and 35 minutes, which created doubt about the presence of the complainant and eye-witnesses---Complainant admitted that he was a resident of another Chak and on 08.11.2018 at about 03:00 p.m., he along with eye-witnesses went to see his sister/ deceased---Per the prosecution case, the deceased was residing at some other place---Per the prosecution's case, the distance between the residence of deceased and complainant was 30 minutes on a motorbike---Thus, the complainant and eye-witnesses were chance witnesses---Medical Officer, during the external examination of the body of the deceased, specifically mentioned about the deceased "mouth opened, eyes closed"---If the prosecution witnesses attended to the deceased soon after the occurrence, there was no reason for the mouth to be open---Circumstances established that the prosecution failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

(c) Criminal trial---

----Chance witness, evidence of---Scope---Evidence of chance witness could be accepted---Evidence of chance witness could only be relied upon if the proof had a ring of truth and was cogent, credible, and trustworthy---Similarly, the conduct of the chance witness was also a relevant factor while appreciating his evidence.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Contradictions between statements of witnesses---Accused was charged for committing murder of the sister of complainant by firing---Record showed that there were contradictions between the statements of the prosecution witnesses who informed the police about the incident---Complainant deposed during his cross-examination that he did not make call to the Rescue Service---Contrary to the deposition of the complainant, the eye-witness deposed during cross-examination that call to Rescue Service was made by complainant---Statements of complainant, eye-witness and Investigating Officer created doubt about who informed the police about the incident---Circumstances established that the prosecution failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Infirmities in the prosecution case---Accused was charged for committing murder of the sister of complainant by firing---Investigating Officer deposed during examination-in-chief that after referring the written complaint to the police station through Constable at 04:35 p.m., he inspected the dead body of the deceased and prepared injury statement, inquest report and handed over the dead body of the deceased along with relevant documents to a Constable---In column No.3 of the inquest report, the date and time of receiving death information were mentioned as "8.11.2018 at 04:00 p.m."---Unexplained discrepancies in the timings and reference of FIR in the column of brief history in the inquest report must be considered---As per the prosecution case, inquest proceedings were conducted at 04:00 p.m. on 8.11.2018---On the face of the inquest report and in the column of a brief history of the case, there was overwriting on the number of FIR---Bare reading of the number of FIR revealed that the FIR number was 875/18, which was overwritten as 876/18---Facts indicated that the prosecution story was still in the embryo and had not been given any shape---First Information Report was recorded later after due deliberations and consultations and then ante-timed to give it the color of a promptly lodged FIR---Second external check that was equally important was sending a copy of the FIR along with the dead body for postmortem examination and its reference in the inquest report---Circumstances established that the prosecution failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of fifteen hours and fifteen minutes in conducting the postmortem examination upon the dead body of the deceased not explained---Accused was charged for committing murder of the sister of complainant by firing---Constable, who took the dead body of the deceased for postmortem examination, deposed that the dead body was placed in the mortuary at 06:20 p.m.---Per the prosecution case, a written complaint was handed over to the Investigating Officer, at 04:35 p.m.---If it was so, it was required to be explained by the Investigating Officer by plausible evidence on the record as to how the inquest was undertaken at 04:00 p.m. and after the preparation of the inquest report, injury statement, the Investigating Officer entrusted the dead body of the deceased to a Constable for taking to the mortuary for postmortem examination---Formal FIR was chalked out at 05:00 p.m., whereas reference to the same was given in the column of a brief history of inquest report---However, there was overwriting on the number of the FIR in the injury statement and inquest report---Moreover, it also got support from the testimony of Medical Officer, who conducted post-mortem on 09-11-2018 at 8:15 am upon the dead body of the deceased---As per the prosecution case, FIR was registered at 05:00 p.m., and the dead body was placed in the mortuary at 06:20 p.m. along with documents---Medical Officer reaffirmed during cross-examination that she received the dead body on 08.11.2018 at 6:20 p.m. and received complete police papers on 08.11.2018 at 08:00 p.m.---Said fact created doubt about the time of registration of FIR---Complainant submitted that due to the non-availability of a lady doctor, a postmortem could not be conducted soon after receiving the dead body and the documents from the police---Deposition of Medical Officer negated the plea of the complainant, when she stated that she received the dead body of the deceased at 06:20 p.m. and complete documents at 08:15 p.m. on 08.11.2018.---Medical Officer admitted her presence and availability in the evening of 08.11.2018, but the prosecution did not explain the delay in conducting the postmortem examination---Medical Officer conducted autopsy on the dead body of deceased at 08:15 am on 09.11.2018, with a delay of about 15 hours and fifteen minutes from the time of registration of FIR---Prosecution did not explain the delay in conducting the postmortem examination---Said facts themselves were sufficient to create serious doubt about the prosecution story---Circumstances established that the prosecution failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Defective investigation---Accused was charged for committing murder of the sister of complainant by firing---Investigating Officer had conducted the investigation of the case in a faulty manner---Investigating Officer had not mentioned the distance between different points in the un-scaled site plan prepared on 08.11.2018---Whereas, the distance between different points had been mentioned in the scaled site plans prepared by draftsman on 10.11.2018---Scaled site plans were prepared to bring the prosecution version in line with the postmortem examination report---As per the postmortem report, there was burning, blackening, and tattooing on the injuries---Admittedly, an autopsy was conducted on 09.11.2018, and the draftsman visited the place of occurrence on 10.11.2018, and after that, he prepared site plans---So, mentioning distance by the draftsman in scaled site plans became immaterial---Investigating Officer's conduct and investigation were not above board---Circumstances established that the prosecution failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence on the disclosure of the accused---Inconsequential---Accused was charged for committing murder of the sister of complainant by firing---As per the prosecution case, on 16.11.2018, the accused was arrested---On 19.11.2018, upon his disclosure, pistol 30-bore was recovered from his residence---Investigating Officer secured the same through a recovery memo---Investigating Officer deposed during examination-in-chief that on 19.11.2018, he handed a sealed parcel of the recovered pistol to Moharrar for keeping it in safe custody in the Malkhana---Contrary to the deposition of the Investigating Officer, Moharrar deposed during examination-in-chief that the Investigating Officer sent the sealed parcel said to contain pistol 30 bore for safe custody, but Moharrar did not name the person who handed over said sealed parcel to him---Besides, the complainant deposed during cross-examination that accused was arrested by the police on the day of occurrence---Statement of the complainant threw clouds of doubt on the recovery of the pistol 30-bore---In these circumstances, the recovery of the weapon of offence and a positive report was not of any consequence---Circumstances established that the prosecution failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

Ms. Sumaira Hussain and Ms. Mariam Aisha Sherazi for Appellant.

Muhammad Waqas Anwar, Deputy Prosecutor General for the State.

Rana Muhammad Amjad for the Complainant.

2024 P Cr. L J 977

[Lahore (Multan Bench)]

Before Muhammad Amjad Rafiq, J.

Muhammad Aslam---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No. 255 of 2023, decided on 24th October, 2023.

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

----Ss. 91 & 351---Word "may" used in S.91 of the Cr.P.C.---Scope---Said word when read in the light of S.351 of the Cr.P.C. makes it clear that if the Court deems appropriate it can commit the accused to custody for the purpose of trial.

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

----Ss. 91, 351 & 344---Summoning of accused by Trial Court to face trial----Ensuring future appearance before the Court----Requirement----Court may require the accused to furnish a bond with or without sureties for his future appearance before the Court during trial or commit him to custody as per S.351 of the Cr.P.C. if evidence is available against the accused---Such detention shall then be regulated under S.344 of the Cr.P.C., in order to remand him to custody from time to time and at an appropriate stage his request for bail under S.497, Cr.P.C. can be entertained---When a bond is taken under S. 91 of Cr.P.C. question of bail does not arise because "bail is only for continued appearance of a person and not to prevent him from committing certain acts".

James Joseph for Petitioner.

Adnan Latif Sheikh, Deputy Prosecutor General for the State.

Malik Nazar Hussain Ponta, for Respondent No. 2.

Date of hearing: 24th October, 2023.

Judgment

Muhammad Amjad Rafiq, J.---This revision petition calls in question, the order dated 07.06.2023 passed by the learned Additional Sessions Judge, Muzaffargarh, whereby application filed by the petitioner for recalling of order dated 07.03.2023 was dismissed.

1. The facts of the case framed Muhammad Imran/respondent No.2 as accused of FIR No. 48/21 dated 08.02.2021 under sections 302/34/109 P.P.C. Police Station Mahmood Kot, District Muzaffargarh, with a joint role of causing injuries with knife on the person of Muhammad Arif deceased father of the complainant. Initially, Muhammad Imran was found innocent during investigation, therefore, he withdrew his petition for pre-arrest bail on 10.03.2021 from the Court presided by Additional Sessions Judge/MCTC, Kot Adu. Consequently, his name was placed in column No. 2 of report under section 173 Cr.P.C. (the Code) while co-accused Muhammad Tariq was challaned in column No.3 of said report. Later due to change of investigation, DSP entrusted with investigation opined against the respondent at his back, which was intervened through filing a Writ Petition No. 7347/21; upon which investigation was entrusted to DIG Dera Ghazi Khan and in the meantime, respondent No.2 had also filed another petition for pre-arrest bail but withdrew the same on 28.10.2021 from the Court presided by Additional Sessions Judge, Muzaffargarh because the investigation was pending but surprisingly a report under section 173 the Code dated 17.03.2023 was prepared at the back of respondent No.2 showing him as absconder for proceedings under section 512 of the Code, and it was forwarded to the Court on 18.03.2023, but by the time trial was in progress and on the application of petitioner/complainant for summoning of accused/respondent No. 2, he was summoned to face trial by virtue of order dated 07.02.2023 and consequent thereupon he was before the Court on 07.03.2023 well before filing of report styled as under section 512 of the Code. Copies under section 265C of the Code was delivered to him on the same day and he was taken on trial.

2. Learned Counsel for the petitioner states that without granting bail to an accused he cannot be taken on trial while accepting his bond under section 91 of the Code for his appearance, and was of the view that section 91 of the Code is only applicable to the proceedings in a private complaint case. It was controverted by learned counsel for the respondent by relying on judgments cited in the impugned order. However, learned DPG has stated that though State has not assailed that order but respondent No.2 being absconder in a case of murder must not have been taken on trial just on his executing a bond under section 91 of the Code. If this practice persists or is given a go, then offenders would prefer to be at large till their summoning by the Court for trial, and just by executing a bond they would simply avoid their arrest, which would affect and hamper the investigation.

3. Heard; record perused.

4. Before dilating upon the legal query involved in the case, it is necessary to see how the learned trial Court attended the situation. The order dated 07.03.2023 was when assailed before the learned trial Court, it while declining the request to recall the same passed the impugned order dated 07.06.2023 with following observations: -

"Record goes to reveal that initially report under section 173 Cr.P.C. was submitted to the extent of Tariq accused while placing his name in column No. 3. Subsequently, on 21.05.2021 report under section 173 Cr.P.C. was submitted to the extent of accused Muhammad Imran and Ghulam Hussain while placing their names in its column No. 2, therefore, said accused persons were not summoned by the court till that time. On 09.06.2021 charge was framed only against the accused Muhammad Tariq. On 01.02.2023, examination in chief of two prosecution witnesses was recorded. In the light of recorded evidence andfinding sufficient incriminating material against accused Imran he was also summoned to face the trial vide order dated 27.02.2023. Upon his first appearance in the court, the court while relying upon 2017 YLR 1296 (Pesh), 2014 SCMR 1762 and 2015 SCMR 56 directed the accused to furnish his surety bonds under section 91 of Cr.P.C. for his future appearance in the court. The accused Muhammad Imran is appearing before this court regularly. The complainant has failed to assign any valid reason for recalling of order dated 07.03.2023 passed by this court. Hence the petition in hand is devoid of merits stands dismissed."

1. Responding to the questions raised by learned counsel for the petitioner that as to whether applicability of section 91 of the Code is limited to trial in private complaint only or it as a part of sub-chapter-D of Chapter VI, of the Code, "Other Rules regarding Processes" being of general nature is applicable to State case as well, the case reported as "SARWAR and others v. The STATE and others" (2014 SCMR 1762) is referred, wherein Hon'ble Supreme Court while referring sections 91, 190 and 204 of the Code, has held that after taking cognizance of an offence by the Court through any of three modes as mentioned in section 190, followed by commencement of proceedings under section 204, it has power to take bond from the accused under section 91 of the Code, in order to secure his presence during the trial. This view also finds its place in following cases reported as "Barkatullah v. The State and another" (2017 YLR 1296); "Mustafa and others v. The State" (2009 YLR 1375); Noor Muhammad Ijaz v. Nadeem and 3 others" (PLD 2006 Lahore 227); For reference section 91 of the Code is reproduced as under:-

91. Power to take bond for appearance. When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summon or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court.

In the case cited above as 2014 SCMR 1762 while approving case reported as "Mazhar Hussain Shah v. The State" (1986 P Cr.LJ 2359) and affirming case reported as "Syed Muhammad Firdaus and others v. The State" (2005 SCMR 784) and "Reham Dad v. Syed Mazhar Hussain Shah and others" (Criminal Appeal No.56 of 1986), Hon'ble Supreme Court has held that it is not necessary that an accused of non-bailable offence must be granted bail before asking him to execute bond with or without sureties under section 91 of the Code because provisions of sections 91 and 497 of the Code are meant for different situations.

"(i) A process is issued to an accused person under section 204, Cr.P.C. when the court taking cognizance of the offence is of the "opinion" that there is "sufficient ground" for "proceeding" against the accused person and an opinion of a court about availability of sufficient ground for proceeding against an accused person cannot be equated with appearance of "reasonable grounds" to the court for "believing" that he "has been guilty" of an offence within the contemplation of subsection (1) of section 497, Cr.P.C. Due to these differences in the words used in section 204 and section 497, Cr.P.C. the intent of the legislature becomes apparent that the provisions of section 91, Cr.P.C. and section 497, Cr.P.C. are meant to cater for different situations."

In the said judgment, however, it was suggested that on summoning under section 204 of the Code, accused can apply for his pre-arrest bail which may or may not be granted depending upon the circumstances of the case but even in such a case upon appearance of the accused before the Court, the Court in its discretion can require him to execute a bond with or without sureties for his future appearance.

1. When a bond is taken under section 91 of the Code, question of bail does not arise because "bail is only for continued appearance of a person and not to prevent him from committing certain acts" as held by Supreme Court of India in a case reported as "Madhu Limaye v. Sub-Divisional Magistrate, Monghyr and others" (1971 AIR 2486). Likewise, in a cited case "Sarwar and others v. The State and others" (2014 SCMR 1762), it was held by Hon'ble Supreme Court of Pakistan that issuance of warrant, bailable or non-bailable is meant only to procure attendance of an accused person before the Court and not for any other purpose.

2. Now I take up the contention of learned DPG that if bond under section 91 of the Code is accepted without asking for bail in each and every case of non-bailable offence, then offenders would not join the investigation rather prefer to be at large till their summoning by the Court for trial. It is misconception that the Court in every case in an omnibus manner shall direct the offender to execute a bond on his appearance before the Court to face the trial. The word "may" used in section 91 of the Code is when read in the light of section 351 of the Code, makes it clear that if the Court deems appropriate can commit the accused to custody for the purpose of trial. Section is reproduced as under:-

351. Detention of offenders attending Court. (1) Any person attending a Criminal Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of inquiry into or trial of any offence of which such Court can take cognizance and which, form the evidence, may appear to have been committed and may be proceeded against as though he had been arrested or summoned.

2024 P Cr. L J 1014

[Lahore]

Before Ali Zia Bajwa, J.

Jamila Bibi---Petitioner

Versus

Station House Officer and 3 others---Respondents

Writ Petition No. 79470-H of 2023, decided on 5th January, 2024.

Criminal Procedure Code (V of 1898)---

----S.491---Constitution of Pakistan, Art. 199---Police Order (22 of 2002), Art.167---Police Rules, 1934, R.22.48---Illegal detention of a person in police custody---Although arrest of detenu by police was incorporated in Station Diary but the Diary was maintained in sheer violation of Art. 167 of Order, 2002 and Rules, 1934---Station Diary is of the utmost importance to determine the transparency and fairness in the process of arrest and detention.

Police Order (22 of 2002)----

----Art.167---Police Rules, 1934, Rr. 22.48 & 22.49---Constitution of Pakistan, Arts. 4, 9, 10, 10-A, 13 & 14---Station Diary (Roznamcha)---Significance of---Maintenance of computerized records---Scope---Station Diary is the most significant document designed to keep a check on the enormous powers bestowed upon the police authorities---It is a chronological record of happenings of police station---Maintenance of Station Diary in accordance with the relevant law goes a long way to provide a mechanism against illegal arrest and detention as ensured under the Constitution---Maintenance of computerized records of Station Diary is a tool to shield the illegalities committed by police officials---High Court issued directions to concerned police authorities regarding the maintenance of Station Diary.

Ch. Shahid Pervaiz Kahloon for Petitioner.

Shahid Nawab Cheema, Assistant General Punjab with Syed Ali Nasir Rizvi, DIG (Operations) Lahore, Imran Kishwar DIG (Investigation) Lahore, Waqar SHO, Akram ASI and Murtaza ASI for the State.

Najeeb Faisal Chaudhary as Amicus Curiae.

Date of hearing: 11th December, 2023.

Judgment

Ali Zia Bajwa, J.--- By dint of the instant Constitutional Petition filed under Article 199 of the Constitution of The Islamic Republic of Pakistan, 1973 (hereinafter 'the Constitution') read with Section 491 of the Code of Criminal Procedure, 1898 (hereinafter 'Cr.P.C') the petitioner seeks recovery of the detenues namely Shahbaz Ali, Asim and Tahir Imran, from the illegal, improper and unauthorized custody of respondents Nos.3 and 4.

1. Arguments heard and the record available on the file perused.

2. After the filing of the instant petition, vide Order dated 04.12.2023, the Bailiff of this Court was deputed to recover the aforementioned detenues. In pursuance of that order, the Bailiff inspected the premises of Police Station Baghbanpura, Lahore where Shehbaz Ali detenu was found locked up in connection with the case FIR No.2171/2023, dated 02.05.2023, registered under Section 356 of the Pakistan Penal Code, 1860 with the aforementioned police station. It was informed by the police officials that the rest of the two detenus were neither required in any criminal case nor they were in their custody. The Station Diary of the said police station was also produced before the Court, which reflected that although the arrest of Shahbaz Ali/detenu was incorporated therein but that Diary was maintained in sheer violation of Article 167 of the Police Order, 2002 (hereinafter 'the Order') and the Punjab Police Rules, 1934 (hereinafter 'the Rules'). As the matter pertains to the life and liberty of the citizens, a notice was issued to the Inspector General of Police, Punjab to explain afore-stated state of affairs.

3. Rule 22.45 of the Rules requires the maintenance of different registers at a Police Station. This Rule enlists 25 types of books to be maintained at the Police Station. The Station Diary or Daily Diary (hereinafter 'Station Diary') is mentioned at serial No.2 which is commonly known as "Roznamcha" and maintenance of the same is a matter under discussion. The Station Diary is the most significant document retained at a Police Station, which has been designed to keep a check on the enormous powers bestowed upon the police authorities. The Station Diary is maintained under Article 167 of the Order and Rules 48 and 49 of Chapter 22, Volume III of the Rules, Article 167 and Rules 22.48 have been provided as infra: -

"167. Maintenance of Daily Diary at a police station.-(1) A register of Daily Diary shall be maintained at every police station in such form as shall, from time to time, be prescribed and to record therein the names of all complainants, persons arrested, the offences charger against them, the weapons or property that shall have been taken from their possession or otherwise, and the names of the witnesses who shall have been examined.

(2) The District and Sessions Judge of the district may call for and inspect such Diary.

22.48. Register No. II. -(1) The Daily Diary shall be maintained in accordance with section 44 of the Police Act. It shall be in Form 22.48(1) and shall be maintained by means of carbon copying process. There shall be two copies. One will remain in the police station register and the other shall be despatched to a Gazetted Officer to be designated by the Superintendent of Police or to the Superintendent of Police himself evely day at the hour fixed in this behalf.

Shortly befbre the close of each quarter, books containing the proper number of pages for the ensuing three months shall be issued to police stations by the Superintendent. The Superintendent shall fix the hours at which station diaries shall be daily closed with reference to the hour of despatch of the post or messenger.

(2) The daily diary is intended to be complete record of all events which take place at the police station. It should, therefore, record not only the movements and activities of all police officers, but also visits of outsiders, whether official or non-official, coming or brought to the police station for any purpose whatsoever.

(3) All entries in the station diary shall be made by the officer in charge of the police station or by the station clerk Literate officers making a report shall read the report recorded and append their signatures. Every matter recorded in such diary shall be so recorded as soon as possible; each separate entry shall be numbered and the hour at which it was made shall commence each such entry. If the hour at which the information, or otherwise, containing such entries reaches the police station differs from the hour at which such entry was made, both hours shall be stated. As soon as entry has been made in the diary, a line shall be drawn across the page immediately below it.

(4) The opening entry each day shall give the name of each person in custody, the offence of which he is accused, and the date and hour of his arrest, the name of each accused person at large on bail or recognizance and the date of his release on such security.

The last entry each day shall show (a) the balance of cash in hand as shown in the cash account, and (b) the balance of the cattle-pound account."

1. A Station Diary is a register required to be maintained to record day-to-day events that take place in a Police Station. Rule 22.49 of he Rules elaborates the matters to be entered in Station Diary. For effective monitoring of daily work schedules in a Police Station, to monitor such works in a regulated manner and to ensure that duties are discharged by the police officer as it would involve balancing the rights of people, be that of the accused or that of the victim of crimes or the society in general, said "Diary" is to be maintained at all Police Stations. The Station Diary is used to record every major and minor incident occurring within the jurisdiction of the Police Station in chronological order. Station Diary is the main record of the affairs of the Police Station and should contain everything of importance relating to the working of the Police Station. Some of the entries in the Station Diary are amplified and recorded in other books as well but all the important things must be entered in this book. The Station Diary is a chronological record of the happenings at the Police Station and for fixing the time of any particular action of the police, the entry in the Station Diary provides an important source of evidence. It ensures transparency and fairness in the proceedings carried out by the police officers relating to their duties in a Police Station. It rules out the arbitrariness and whimsical exercise of powers by a police officer.

2. Details of information of cognizable offences or investigations already given in the First Information Book and the case diaries need not be reported in the Station Diary, but a gist of the information and a record of occurrences in the Police Station in connection with those cases, such as the receipt of information, the arrest of the accused persons, the production of a prisoner, the affecting of searches, seizures or the departure for or return from, of investigating officers, particulars such as identification parades and inspections held or attended, attendance at courts including submission of reports and charge sheets in the court, town patrols, assistance to officers of other Police Stations, etc., should be entered.

3. In cases where the question of illegal detention of a person in police custody is involved, Station Diary is of utmost importance to determine the transparency and fairness in the process of arrest and detention. Any violation of statutory law that results in illegal arrest and detention shall also be violative of Articles 4, 9, 10, 10-A, 13 and 14 of the Constitution. Under Article 4 of the Constitution public functionaries including police are bound to act in good faith, honestly and within the precincts of their power so that persons concerned should be treated in accordance with law. Article 9 of the Constitution guarantees that no person would be deprived of life or liberty save in accordance with law; while Article 10 of the Constitution provides safeguards as to arrest and detention. Article 10-A, which guarantees the right to have a fair trial to all citizens, also comes to rescue an arrested and detained person as it also applies to all the pre-trial proceedings including arrest and detention during an investigation. Articles 13 and 14 of the Constitution protect an accused against self-incrimination and torture. Any violation of law during the arrest and detention of a person would breach the constitutional guarantees and would lead to grave legal consequences.

4. Maintenance of Station Diary in accordance with the relevant law goes a long way to provide a mechanism against illegal arrest and detention as ensured under the Constitution. Introducing any device to bypass the mandatory requirements of the Rules shall amount to disregarding the constitutional guarantees. Through Notification No. 43604/DIG/I.T dated 15-12-2017, issued by the Provincial Police Officer, Punjab with the approval of the Provincial Government, it was directed to make an Amendment in Rules 22.3 and 22.4 of the Rules. Through this Amendment in the Rules, in addition to the hard copy of the Police Registers, a soft copy (electronic copy) shall also be maintained. It has been observed by this Court that in a number of cases pertaining to arrest and detention, maintenance of computerized record of Station Diary is used as a tool to shield the illegalities committed by police officials.

5. The cognizance was taken by the worthy Chief Justice of this Court in the case titled Mst. Asmat Parveen v. The State and another (PLD 2021 Lahore 105) and it was ruled that there is a pearl of wisdom underlying maintaining the manual Station Diary to rule out the possibility of any fabrication or alteration, which can easily be incorporated in the soft copy. It was further observed that in all eventualities a soft copy could never be a substitute for a manual record of police registers. It was directed to the Inspector General of Police, Punjab to maintain the manual record of Station Diary and in addition to that, a soft copy of the same shall also be prepared. Maintenance of a hard copy of the Station Diary is also indispensable as it can easily be produced before the Courts for examination to spotlight the illegalities committed by police officials. Examination of the soft copy of the entire record of Station Diary of a Police Station is also not convenient because any alteration or fabrication therein cannot be determined without a complete forensic analysis which might take extensive time. Leaving the scope of the power of Provincial Police Officer under Article 112 of the Order, regarding making an Amendment in the Rules, to be deliberated in some other appropriate case, it is observed that it shall be mandatory for the concerned police officials to maintain the manual copy of Station Diary and in addition to that a soft copy shall also be prepared. A report on behalf of the Inspector General of Police, Punjab has been filed, which reflects that Station Diary, in every Police Station, shall be maintained in accordance with the Rules. The Station Diary shall also be maintained digitally in addition to its manual record.

6. A self-explanatory procedure has been provided in Rules 22.48 and 22.49 of the Rules regarding the maintenance of Station Diary, which further needs no elaboration. However, I am persuaded to issue clear directions to the concerned police authorities regarding the maintenance of Station Diary, as infra: -

I. In every Police Station, a Station Diary shall be maintained in accordance with Article 167 of the Order and Rules 22.48 and 22.49 of the Rules. A strict adherence to the aforesaid provisions of law shall be ensured without further fail.

II. Maintaining a computerized record of Station Diary is the need of the hour but the same cannot be permitted to be used to open a new venue to cover or legitimize the illegalities committed by the delinquent police officials, therefore, the computerized record of Station Diary shall be prepared in addition to the manual record. In case of any conflict between the two, the preference shall be given to the manual Station Diary.

III. Any wrong entry in the Station Diary by a police officer shall ordinarily entail his dismissal from the service as per Rule 22.50 of the Rules. Zero tolerance in this regard should be shown by the supervisory officers and in case of failure on the part of the supervisory officer to do the needful, he shall be accountable for the same.

IV. Properly printed books, to maintain the Station Diary, containing the proper number of pages, should be issued to every Police Station by the concerned Superintendent of Police. Only duly issued books shall be used for maintaining the Station Diary to rule out the possibility of any fabrication and alteration in the same. A Station Diary without page numbers creates room for modification and alteration.

2024 P Cr. L J 1037

[Lahore]

Before Ali Baqar Najafi and Muhammad Amjad Rafiq, JJ.

Mian Arif Said---Petitioner

Versus

Province of Punjab through Additional Chief Secretary, Home Department, Lahore and 8 others---Respondents

W.P. No. 37087 of 2023, decided on 26th June, 2023.

(a) Constitution of Pakistan---

---- Art.199---Constitutional petition---Object, purpose and scope---Object and scope of Art. 199 of the Constitution is enforcement of a right and not establishment of a right---Such right must not only be clear and complete simplicitor but there must be an actual infringement of such right---Constitutional jurisdiction cannot be expanded on a solitary resolution or treatment for un-doing a wrong doing, anguishes, or suffering of a party, regardless of having an equally efficacious, alternate and adequate remedy provided under the law which cannot be bypassed to attract Constitutional jurisdiction---Powers of High Court under Art. 199 of the Constitution are different than Supreme Court under Art. 187 of the Constitution---While exercising the powers, parameters of jurisdiction must be kept in mind according to which only the powers conferred by the Constitution have to be exercised subject to the Constitution only where there is no adequate remedy available.

Sana Jamali v. Mujeeb Qamar and another 2023 SCMR 316; Dossani Travels Pvt. Ltd. and others v. Messrs Travel Shop (Pvt) Ltd. and others PLD 2014 SC1 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maxim "ubi jus ibi remedium" (when there is a right there is a remedy)--- Alternate and efficacious remedy, availability of---Scope---Maxim ubi jus ibi remedium (when there is a right there is a remedy), is recognized in the command of jurisdictive procedure---Courts show restraint directing the parties to first take recourse to alternative and equally efficacious mechanism and framework of remedy provided rather than to take departure in order to surpass or circumvent such remedy.

Government of the Punjab through Secretary, Schools Education Department, Lahore and others v. Abdur Rehman and others 2022 SCMR 25 rel.

(c) Constitution of Pakistan---

----Art. 199---Qanun-e-Shahadat (10 of 1984), Arts. 117, 120 & 129(e)---Constitutional petition---Mala fide against government---Proof---Onus to prove---Presumption---Alternate and efficacious remedy---Petitioners assailed their arrests on the plea of mala fide on the part of authorities---Validity---Onus is always upon the person alleging as there is a presumption of regularity in all official acts and until that was rebutted, the actions cannot be challenged---Specific pleadings must be made with reference to particular mala fide and the same is not interchangeable with any other kind of mala fide---Person alleging mala fide against government should not be allowed a roving enquiry into the files of government for fishing out some kind of a case---Under the concept of separation of powers, investigation of a criminal case falls in the domain of police---If independence of judiciary is hallmark of democratic dispensation then on the other hand independence of investigation agency is equally important to the concept of rule of law---Undue interference in each other's role destroys the concept of separation of powers and may go towards defeating of jurisdiction---Bypassing whole procedure and methodology would not help the petitioners---There were certain alternate remedies available to petitioners which they could resort to---High Court declined to declare arrest and detention of detenus as illegal---Constitutional petition was dismissedm, in circumstances.

The State v. Nasir Javed Rana, Civil Judge, 1st Class/Magistrate Section 30, Rawalpindi PLD 2005 SC 86; Asma Khatoon v. Syed Shabbir Hussain Shah, A.C.M. & F.C.M. Court-IV Karachi West and 2 others PLD 1996 Kar. 51; Senator Asif Ali Zardari v. The State 2000 MLD 921; Dossani Travels Pvt. Ltd and others v. Messrs Travel Shop (Pvt) Ltd. and others PLD 2014 SC1; Sana Jamali v. Mujeeb Qamar and another 2023 SCMR 316; Government of the Punjab through Secretary, Schools Education Department, Lahore and others v. Abdur Rehman and others 2022 SCMR 25; Fazal Elahi v. The Crown PLD 1953 FC 35; Ibrahim Bhak v. The State PLD 1955 FC 113; Muhammad Bashir Alam v. The State PLD 1958 SC1; Lal Pasand v. The State PLD 1981 SC 142; Muhammad Afzal v. The State 1982 SCMR 129; Ghulam Rasul v. The State 1998 SCMR 557; Shafqat Mehmood v. The State 2011 SCMR 537; Sabir Ali alias Fauji v. The State PLD 2011 SC 401; Javed Khan alias Bacha v. The State 2017 SCMR 524; PLD 2019 SC 488; Mian Sohail Ahmed v. The State 2019 SCMR 956; Muhammad Yaqoob v. The State 1989 PCr.LJ 2227; Kirir v. The State PLD 1996 Karachi 246; Shafique Ahmed v. The State 2002 PCr.LJ 518; Wahid Iqbal v. The State 2003 PCr.LJ 1928; Muhammad Imran v. The State 2009 PCr.LJ 997; Mansoor Ahmad alias Shahzad alias Sheeri v. The State 2012 YLR 2481; Ameer Bux v The State 2012 PCr.LJ 500; Nadeem v. The State PLD 2021 Lah. 415; Fidaullah v. The State 2016 PCr.LJ 1584; Adnan v. The State 2018 MLD 43; Fazal Elahi v. The Crown PLD 1953 FC 35; Muhammad Altaf v. The State 2002 SCMR 189 and Ramachandran v. The State of Kerala 2012 SCMR 1152. rel.

The Federation of Pakistan through the Secretary Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others PLD 1974 SC 151;. Muhammad Hanif v. The State 2019 SCMR 2033 and Safia Bibi v. The Superintendent of Camp/Central Jail, Lahore and another 1996 PCr.LJ 1455 ref.

Kh. Adnan Ahmed for Petitioner (in W.P. No. 37087 of 2023).

Sameer Khosa for Petitioner (in W.P. No. 36750 of 2023).

Iftikhar Ullah Dhillon for Petitioner (in W.P. No. 36897 of 2023).

Safdar Abbas Khan for Petitioner (in W.P. No. 36923 of 2023)

Ch. Ghulam Sarwar Nehang, Addl. A.G. Sittar Sahil, Falaksher Bakhsh Gill, Idrees Bhatti and M. Farrukh Khan, A.A.Gs.. for Respondents

Order

This order shall dispose of the instant writ petition as well W.P. No. 36750 of 2023 titled "Jahanzeb Amin and others v. Province of Punjab and others" W.P. No. 36897 of 2023 titled "Ahsan Malik v. Govt. of Punjab and others", and W.P. No. 36923 of 2023 titled "Rizwan Zia Khan v. The State and others" as common questions of law and facts have been raised therein.

1. Through these Constitutional petitions under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioners have challenged the continued illegal custody/ detention of the detenue/wife of the petitioner (in W.P. No. 37087 of 2023) namely, Huma Saeed, as well as wife of the petitioner (in W.P. No. 36750 of 2023) namely, Khadia Shah, with respondent No.4/Superintendent Central Jail, Kot Lakhpat, Lahore seeking further direction to produce them before this Court and then set them at liberty. In W.P. No. 36897 of 2023 the detenue namely, Zubair Malik and brother of the petitioner in W.P. No. 36897 of 2023 namely, Rizwan Zia Khan, are also sought to be released and set at liberty. It was further prayed that order dated 31.05.2023 passed by Judge Anti-Terrorism Court-III, Lahore whereby it gave the judicial remands be declared as illegal, without lawful authority, Coram non judice in the eyes of law and of no legal effect having been passed in blatant disregard of the judgements reported as The State v. Nasir Javed Rana, Civil Judge, 1st Class/Magistrate Section 30, Rawalpindi (PLD 2005 Supreme Court 86) Asma Khatoon v. Syed Shabbir Hussain Shah, A.C.M. and F.C.M. Court-IV Karachi West and 2 others (PLD 1996 Karachi 51) and Senator Asif Ali Zardari v. The State (2000 MLD 921). It is still further prayed that the test identification parade conducted on 01.06.2023 is sham, bogus, fraudulent in nature and, therefore, be declared void ab-initio, inoperative, inalienable to the fundamental rights of the detenues. He also prayed for setting aside of the order dated 03.06.2023 passed by respondent No. 7 /Administrative Judge, Anti-Terrorism Court, Lahore whereby the physical remand of the detenue for 5 days was granted as well as the order dated 08.06.2023 whereby further physical remand was given for photogrammetric tests and recovery of mobile phones.

2. Brief facts giving rise to the filing of the present Writ Petitions are that the detenues (mentioned therein) were arrested from their houses on 23.05.2023 in connection with FIR No. 96 dated 10.05.2023 registered at Police Station Sarwar Road, Lahore at the instance of respondent No.6/Muhammad Ishfaq Rana, Deputy Superintendent of Police, North on the allegation, inter alia, of rioting, chanting anti-State slogans, staging violent protests by the political activist/ supporters of Pakistan Tehreek-e-Insaf (PTI) on 09.05.2023 and marching towards and converged at Jinnah House located in Cantt, Lahore from different directions whereafter it was ransacked and burnt. The case of the petitioners are that the detenues are innocent as they all hold the State institutions of Islamic Republic of Pakistan in highest esteem and could not possibly think of indulging in any anti-State activities or participation in any violent protest etc.

3. The case of the petitioner (in W.P. No. 37087 of 2023) is that since detenue namely, Mrs. Huma Saeed, resides almost at a stone's throw distance from the alleged place of occurrence she, on watching the live coverage on electronic media televised on different channels, went near the place of occurrence out of sheer curiosity and noticed that different roads leading towards the said venue were swarmed by the host of people marching by foot as well as on vehicles. She just stood empty-handed at the pavement of the road opposite to Jinnah House for a while as a bystander/ spectator but when she preempted the law and order situation started getting worst, she immediately left for her home much before the sun set whereafter riots erupted in and around the vicinity of the said venue in Cantt.

4. According to all the petitioners, their detenues were neither political activists nor had affiliation with any political party, therefore, their mere presence alongside the pavement on the stated places does not bring home guilt against them in the absence of any pre-consulted or joint criminality of intention with the alleged participators which proves the absence of Corpus Delicti for want of positive evidence to connect them with the occurrence. The trumped-up identification parade would not be of any evidentiary value as the detenues could not be saddled with any vicarious liability in the absence of any positive evidence.

5. On factual premise, the detenues were produced before the Judge ATC-I, Lahore on 24.05.2023 by respondent No.7/ investigating officer through an application requesting for the grant of judicial remand for identification parade whereafter 6 days judicial remand was given with a view to conduct the test identification parade and to produce her before the court on 30.06.2023. When the test identification parade was not conducted until 30.05.2023, it is the case of the petitioners, their further detention in the jail was in violation of their fundamental rights under Articles 4, 9 and 10-A guaranteed under the Constitution. On 30.05.2023, respondent No.7 hampered the court proceedings and requested the extension of time to comply with the said order but did not produce the detenue before the court. On 31.05.2023, sub-ordinate of respondent No.4/ Superintendent Kot Lakhpat Jail, Lahore through an application/ warrant paper dated 30.05.2023 did attend the court of respondent No.8 to seek extension of judicial remand. However, associate of the learned counsel for the petitioner (W.P. No. 37087 of 2023) namely, Raees Ahmed, Advocate present inside the court room saw police official carrying with him the application/ warrant who took the photograph of the warrants form at 09:33 a.m. which revealed the pasting/ affixing of the photograph of the detenue (Huma Saeed) on the left top corner. Likewise, on 02.06.2023 he again took the photograph of the warrant from mobile phone at 08:46 a.m. which also revealed her photographs. This affidavit, according to learned counsel, fulfills the requirement of Articles 46-A and 164 Qanun-e-Shahadat Order, 1984. According to the petitioners on 02.06.2023 the detenues were not produced and on 03.06.2023 they were brought in the court premises at 08:30 a.m. and shifted them to the lock up situated inside the court premises and when they remained confined till 03:15 p.m. the detenues were produced before the Administrative Judge, ATC and then again after marking their presence they were bungled into the prison. An application was made for the physical remand of the detenue to conduct photogrammetric and audio-sonic test besides the recovery of mobile phone from their possession. According to the learned counsel, under Rule 25.56 of the Police Rules, 1934 the application was to be moved by the Investigating Officer and it is reliably learnt that mobile phone of the detenues had already been taken by the I.O. As there was no need for the physical remand, therefore, it was resisted but was unlawfully granted. It is the case of the petitioner that in the absence of any supplementary statement the remand could not be granted. According to the learned counsel, the said identification parade is void ab-initio.

6. Learned counsel for the petitioners argued that neither the names of the detenues were mentioned in the said FIR nor any descriptions of their person were disclosed with particular reference to the features; no overt act was attributed to them; illegal detention of the detenues is in violation of Articles 9, 10-A and 14 of the Constitution; one Naveed posted at Police Station Millat Park, took the detenues from their houses on the pretext of some incriminating material which was not brought before the court, hence prays for the relief claimed for.

7. Conversely, the learned law officer contends that the occurrence is unprecedented in the history yet all the legal rights of the accused persons have been duly protected despite their hateful acts committed against the public properties having sentiment symbolic values. The physical remands were obtained when required under the law. The non-production of the detenues on 30.05.2023 was beyond the control of I.O. since he had presented the file before this Court and to produce them simultaneously was not humanly possible and that no prejudice has been caused to the detenues. Even then they were produced before the trial court as required under Section 344 Cr.P.C. and that the I. O. was not lethargic in performing his legal duties. Adds that the superior Courts have time and again observed that courts should not interfere in the investigation. It is also submitted that judicial remand can be granted for maximum period of 15 days and so the case with physical remand by the Anti-Terrorism Court. According to him, the test identification parade has been conducted for the accused persons which is corroborative piece of evidence and not a substantial/conclusive evidence. Maximum safeguards have been privded to conceal the identity of the detenues. According to him, as per the practice, in 95% cases the allegation to disclose the identity is always levelled but their veracity is determined at the relevant time. The fair trial shall be ensured to the accused person. Places reliance upon Dossani Travels Pvt. Ltd and others v. Messrs Travel Shop (Pvt) Ltd. and others (PLD 2014 Supreme Court 1) Sana Jamali v. Mujeeb Qamar and others (2023 SCMR 316) and Government of the Punjab through Secretary, Schools Education Department, Lahore and others v. Abdur Rehman and others (2022 SCMR 25).

8. It is notable that when initially Writ Petition No. 37087 of 2023 was filed on 31.05.2023 the prayer was only to the extent of challenging the illegal detention and setting the detenues at liberty but later vide application bearing C.M. No. 1 of 2023 under Order 11 Rule 17, C.P.C. was allowed and amended memo of writ petition was placed on record. Likewise, in Writ Petition No. 36887 of 2023 similar applications were allowed.

9. It is further noteworthy that Huma Saeed and Zubair Malik, have been granted bail for sure and the other detenues namely, Khadija Shah and Rizwan Zia Khan, are statedly behind the bars.

10. Arguments heard. Record perused.

11. After hearing the learned counsels for the parties, the learned law officers and perusing the record, it is straightway observed that FIR No. 96 of 2023 dated 10.05.2023 under Sections 302, 324, 395, 436, 452, 440, 427, 353, 186, 290, 291, 153, 152, 148, 149, 147, 109, 505, 120-B P.P.C. read with Section 7 of Anti-Terrorism Act, 1997 was registered at Police Station Sarwar Road, Lahore on the allegation that on 09.05.2023 at 05:00 p.m. information was passed on through the police that 1400 to 1500 workers of PTI armed with weapons, dandas, sotas, bricks, petrol bombs included Mian Mahmood-ur-Rasheed and Mian Aslam Iqbal, both armed with fire arm weapon were leading the mob. They moved from Upper Mall Road through Rahat Bakery towards Jinnah House and started destroying the public property, creating terrorism, vandalism and resorted to firing and the mob was raising slogans

They extended threats that their leadership namely, Imran Khan, Shah Mahmood Qureshi, Farrukh Habib, Hamad Azhar, Musarrat Jamshed Cheema, Jamshed Cheema, Zubair Niazi, Akhtar Zaman, Murad Saeed, Ali Amin Gandapur and others have ordered them to make a horrible example of the Military installations and the government buildings. They were directed to desist from their illegal design but they ignored and attacked upon the police officers with their respective weapons and injured many of them. According to the police, they all were identified by the police in the light. The injured police officials were sent to the hospital and meanwhile, 400/500 persons had broken the door of Jinnah House and forcibly entered there and started torturing the employees present therein. Meanwhile, the fire of Mian Mahmood-ur-Rasheed had hit Abdul Qadeer and the fire of Mian Aslam Iqbal, hit another person namely, Muhammad Abdullah Wazir, who died. The charged people had removed the equipments, furniture and other expensive items from Jinnah House and then set them on fire which valued about Rs. 1,50,00,000/-, hence this FIR.

1. On 23.05.2023, the above said detenues were arrested and on 29.05.2023 were produced before the Administrative Judge, ATC Lahore. On the request of the Investigating Officer Khadija Shah and Huma Saeed, in custody of the police/muffled faces were sent for the judicial remand for 6 days to conduct their test identification parade. The I.O. was directed to keep their faces muffled when exposed to the public. He was further directed to file an application to fix a date for identification parade. On 30.05.2023 the said detenues could not be produced before the ATC court and a rapt in this behalf was written. On 31.05.2023 the remand paper was placed before the duty/ Administrative Judge, ATC, Lahore since Ms. Abher Gul Khan, Administrative Judge ATC, Lahore was on leave. The I.O. stated that the accused persons could not be produced before the ATC court due to the fact that identification parade is in progress in jail premises and record of the case is also with I.O. present inside the jail premises. The learned counsel for 125 suspects argued about illegal custody of their clients. They also stated that a Writ Petition No. 35551 of 2023 titled "Arshad Virk v. Inspector General of Police etc" had been filed and that the record has been produced before this Court. The learned court, therefore, had given no comments about their non-production on 30.05.2023 before the court. It was, however, observed that since the suspects were behind the bars, therefore, Investigating Officer as well as the Area Magistrate were required to expedite the proceedings of test identification parade. The accused, therefore, were directed to present them before the Anti-Terrorism Court on 02.06.2023.

2. Meanwhile, the present Writ Petition was filed on 01.06.2023 and it was directed to be enlisted for 05.06.2023 on which Writ Petition No. 36923 2023 titled Rizwan Zia Khan v. The State and others was also filed.

3. The learned counsel for the petitioners have greatly emphasized on conducting of test identification parade and also on non-production of the accused on 30.05.2023 before the Anti-Terrorism Court. It is notable that neither the proceedings of test identification parade are placed before this Court to ascertain their veracity nor it is denied by the learned counsel that on 30.05.2023 Writ Petition No. 35551 of 2023 titled Arshad Virk v. Inspector General of Police etc has been pending before this Court in which the order was passed to the following effect:-

"30.05.2023 Mr. Ali Imran Rao, Advocate for the petitioner.

M/s Ghulam Sarwar Nehang, Addl. Advocate General, Muhammad Akram Khaksar, Assistant Advocate General and Sittar Sahil, Assistant Advocate General.

In view of the fact that the alleged detenue has been arrested in case/FIR No. 96 dated 10.05.2023, under Sections 302/34/395/436/ 452/440/505/109/147/148/149/152/153/290/ 291/186/353/427, P.P.C. and 7 of ATA, 1997, Police Station Sarwar road, learned counsel for the petitioner in order to avail alternate remedy does not press this petition, however reserved the right of agitating the excess/high handedness made by the respondents.

1. Disposed of accordingly."

2024 P Cr. L J 1054

[Lahore]

Before Malik Shahzad Ahmad Khan and Farooq Haider, JJ.

Mst. Gulnaz Ajmal---Applicant

Versus

The STATE---Respondent

Criminal Appeal No. 72371-J of 2019 and Murder Reference No. 297 of 2019, decided on 28th November, 2023.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of two hours &thirty five minutes in lodging the FIR---Consequential---Accused was charged for committing murder of her husband and four children by inflicting churri blows---Occurrence took place during the night in the house of deceased which was at a distance of about two kilometers from the concerned police station---As per case of the prosecution, complainant along with two witnesses came at the place of occurrence at 03.30 a.m. when occurrence was already over---Complainant went for reporting the occurrence, met a Sub-Inspector (SI), got his statement recorded before him at 05.45 a.m. which was sent to police station and FIR was chalked out at 06.05 a.m.---Complainant also had a motorcycle---Thus, it could not be termed as promptly registered case and such state of affairs suggested that possibility of deliberation, consultation and concoction could not be ruled out---If 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---Appeal against conviction was allowed, in circumstances.

Mst. Asia Bibi v. The State and others PLD 2019 SC 64; Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068; Muhammad Adnan and another v. The State and others 2021 SCMR 16 and Ghulam Mustafa v. The State 2021 SCMR 542 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Presence of eyewitnesses at the time and place of occurrence not proved---Chance witnesses---Accused was charged for committing murder of her husband and four children by inflicting churri blows---Admittedly, prosecution did not produce any witness of the occurrence during trial of the case---Complainant and two other witnesses reached at the spot after the occurrence---Said witnesses were neither residents of the house of the occurrence nor of said vicinity rather the complainant and other witnesses were residents of another colony---As per statement of the complainant, distance between his residence and place of occurrence was about five/six kilometers---Whereas, distance between residence of other eyewitness and place of occurrence was about three and half kilometers---Said witnesses were chance witnesses and thus they were required to explain and establish plausible as well as valid reasons regarding their stated arrival and presence at the place of occurrence---Though, as per statement of complainant, their close relative died and for his Fateha Khawani, they had to go along with deceased in the early morning and for that purpose, complainant along with witnesses came to the house of deceased at about 03.30 a.m.---This meant that the sole cause of arrival of witnesses including complainant at place of occurrence and seeing accused holding knife in her hand was that they had to go for Fateha Khawani of their close relative---Though, complainant during his cross-examination before the Court stated that their relative was hit by fire shot on 09.07.2018 at about Asar Prayer time and he died due to said firearm injury at about 11.00/12.00 p.m., yet prosecution neither produced copy of any FIR or Rupt regarding infliction of firearm injuries to the relative of complainant or copy of his Death Registration Certificate showing date of his death---So, evidence of eye-witnesses, who could not explain/establish any valid reason/cause regarding their stated arrival at the stated time, at the place of occurrence, was suspect evidence and could not be accepted without pinch of salt---Appeal against conviction was allowed, in circumstances.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652; Mst. Mir and another v. The State 2020 SCMR 1850 and Sarfraz and another v. The State 2023 SCMR 670 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Extra-judicial confession---Doubtful---Accused was charged for committing murder of her husband and four children by inflicting churri blows---Extra-judicial confession was statedly made by the accused before three witnesses---It was not understandable that what compelled the accused and why she allegedly confessed the crime, particularly before the persons, who being closely related to the deceased were expected to cause her more harm than good and they immediately became witnesses against her---Said aspect raised doubt about genuineness of such piece of evidence---Appeal against conviction was allowed, in circumstances.

Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 and Nasir Javaid and another v. The State 2016 SCMR 1144 rel.

(d) Criminal trial---

----Extra-judicial confession---Evidentiary value---Extra-judicial confession is the weakest type of evidence and it can only be taken into consideration if, firstly it rings true and then finds support from other strong and tangible evidence of unimpeachable character.

Imran alias Dully and another v. The State and others 2015 SCMR 155 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Night time occurrence---Source of light not established---Accused was charged for committing murder of her husband and four children by inflicting churri blows---According to the case of prosecution mentioned in fard bayan and FIR, complainant along with witnesses reached the house of occurrence, and saw that accused had knife in her hand, but glowing of any light at that time was not mentioned in the FIR and even during investigation neither any electric light/bulb was shown in the site plan of the place of occurrence nor taken into possession by the Investigating Officer---Appeal against conviction was allowed, in circumstances.

Haroon Shafique v. The State and others 2018 SCMR 2118; Mian Sohail Ahmed and others v. The State and others 2019 SCMR 956 and Safdar Mehmood and others v. Tanvir Hussain and others 2019 SCMR 1978 rel.

(f) Criminal trial---

----Medical evidence---Scope---Medical evidence was merely supportive/confirmatory type of evidence---Medical evidence could tell about locale, nature, magnitude of injury and kind of weapon used for causing injury but it could not tell about identity of the assailant who caused the injury.

Sajjan Solangi v. The State 2019 SCMR 872 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of crime weapons and blood stained clothes---Inconsequential---Accused was charged for committing murder of her husband and four children by inflicting churri blows---As per case of prosecution, accused got recovered blood stained knife and blood stained hatchet lying near dead bodies at the place of occurrence---Accused also got recovered blood stained clothes which she was wearing at the time of occurrence---Though prosecution claimed that blood stained knife and blood stained clothes of the accused were recovered yet in fard bayan as well as in the FIR it was not mentioned that knife held by accused as well as clothes of the accused were blood stained---As per statement of eyewitness, hands and clothes of the accused were also blood stained whereas Investigating Officer, who arrested the accused at 07.45 a.m. on the same day, stated in his statement that her hands, feet and clothes were not stained with blood, meaning thereby that accused washed her hands and also changed her clothes but then why did she not wash the knife and hatchet---When witnesses were at the place of occurrence, then why did they let the accused place knife with dead bodies as well as change her blood stained clothes and to leave the house/place of occurrence---Inquest reports were prepared at the place of occurrence but availability/presence of blood stained knife and blood stained hatchet there was not mentioned in any inquest report---Such state of affairs created reasonable doubt about the recovery of knife and hatchet---Though blood stained earth, blood stained clothes of the deceased persons, blood stained knife, blood stained hatchet and blood stained clothes of the accused were sent to the Forensic Science Laboratory, yet any report regarding matching of blood group of blood available on knife, hatchet and clothes of the accused with blood group of blood available on soil and clothes of any of the deceased had not been produced by the prosecution---Any report regarding availability of finger prints of the accused on the handle of knife as well as handle of hatchet had also not been produced---Appeal against conviction was allowed, in circumstances.

Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 and Muhammad Asif v. The State 2017 SCMR 486 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Motive not proved--- Accused was charged for committing murder of her husband and four children by inflicting churri blows---As per claim of the complainant mentioned in the statement, deceased used to torture accused daily and due to that grudge, she had committed murder of her husband and children with knife and hatchet---However, any document or independent witness was not produced by the prosecution during investigation or trial of the case to prove/establish that there was any dispute or quarrel between the spouses prior to the occurrence---Even complainant during his cross-examination had categorically admitted that no quarrel ever took place between accused and her deceased husband prior to the occurrence---No reason/justification whatsoever for commission of murder of four minor children of the deceased by their mother/accused had not come on the record---Furthermore, said motive had also not been believed by the Trial Court---So, motive could not be proved by the prosecution---Appeal against conviction was allowed, in circumstances.

(i) Criminal trial---

----Benefit of doubt---Principle---Single dent/circumstance in case of prosecution is sufficient for acquittal.

Abdul Ghafoor v. The State 2022 SCMR 1527 rel.

Mian Muhammad Ramzan, Qamar Haneef Ramay and Miss Mehreen Akbar Monga for Appellant.

Munir Ahmad Sayal, Additional Prosecutor General for the State.

Anwar Umer for the Complainant.

Date of hearing: 23rd November, 2023.

Judgment

FAROOQ HAIDER, J.---This single judgment will dispose of Crl. Appeal No.72371-J/2019 filed by Mst. Gulnaz Ajmal (appellant) against her “conviction and sentence” and Murder Reference No.297/2019 sent by trial court, as both the matters have arisen out of one and the same judgment dated: 17.09.2019 passed by learned Addl. Sessions Judge, Khushab/trial court.

1. Mst. Gulnaz (appellant) was tried in case arising out of FIR No.276/2018 dated: 11.07.2018 registered under Section: 302, P.P.C. at Police Station: City Jauharabad, District: Khushab whereas trial court after conclusion of the trial, vide impugned judgment dated: 17.09.2019 has convicted and sentenced the appellant as under: -

| | | | --- | --- | | Conviction | Sentence | | Under Section: 302 (b) P.P.C. | “Death” as Taz’ir on five counts for commission of Qatl-i-Amd of Muhammad Ajmal, Muhammad Fahad, Abdullah, Ghulam Aiysha and Aasma Bibi along with payment of compensation of Rs.5,00,000/- for each count to the legal heirs of the deceased under Section: 544-A Cr.P.C. and in default of payment of compensation amount to further undergo S.I. for six months for each count and the compensation amount recoverable as arrears of land revenue. |

1. Brief facts, as per statement/ (Ex.PEE) got recorded by Muhammad Akram (complainant/PW-7) before Arshad Mehmood S.I. (PW-13) on 11.07.2018 at 05:45 a.m., on the basis of which above mentioned FIR. (Ex.PEE/1) was registered, are that complainant/PW-7 is resident of Zaman Colony, Jauharabad and a labourer; marriage of his brother namely Muhammad Ajmal solemnized with Mst. Gulnaz in the year 2007, who have four children (1) Muhammad Fahad aged about 13-years (2) Abdullah 1½ (3) Ghulam Ayesha aged about 10-years (4) Aasma Bibi aged about 6-years, who along with his wife and children is living in his own house at Riaz Town, Jauharabad; close relative of the complainant died in Chauha () and for his Fateha Khawani , they have to go along with brother Muhammad Ajmal in the early morning and for this purpose, complainant along with Shaukat Ali and Muhammad Irfan (brother) came from Zaman Colony, Jauharabad to Riaz Town, Jauharabad at the house of his brother Muhammad Ajmal at about 03:30 a.m.; gate of the Haveli of the house was open; when they all three entered into Haveli, they saw Mst. Gul Naz Bibi (/sister-in-law of the complainant) was holding a knife () in her hand and Muhammad Ajmal (brother), Fahad, Abdullah (paternal nephews of the complainant), Ghulam Ayesha, Aasma Bibi (paternal niece of the complainant) were lying smeared with blood; Gul Naz Bibi ( /sister-in-law of the complainant) said that her husband Muhammad Ajmal used to torture her daily and due to this grudge, she has committed murder of her husband and children with knife () and hatchet; blood stained hatchet was also lying along with dead body; Mst. Gul Naz Bibi (/sister-in-law of the complainant) has committed murder of Muhammad Ajmal (brother), Fahad, Abdullah, Ghulam Ayesha and Aasma with knife () and blows of hatchet; after leaving Muhammad Irfan (brother) and Shaukat Ali to guard the dead body, complainant was coming to report, however met with Arshad Mehmood S.I.

After completion of investigation, challan report under Section: 173 Cr.P.C. was submitted in the Court; appellant was formally charge sheeted but she pleaded not guilty and claimed trial whereupon prosecution evidence was summoned; after recording of prosecution evidence, appellant was examined under Section: 342 Cr.P.C. but she refuted the allegations levelled against her; she neither opted to appear as her own witness under Section: 340(2) Cr.P.C. nor produced any evidence in her defence.

Trial Court after conclusion of trial has convicted and sentenced the appellant as mentioned above through the impugned judgment dated: 17.09.2019.

1. Learned counsel for the appellant has submitted that conviction recorded and sentence awarded to the appellant through impugned judgment are against the ‘law and facts’ of the case; ocular account is neither trustworthy nor corroborated/supported by any other independent evidence; prosecution has remained unable to prove its case. Learned counsel for the appellant finally prayed for acquittal of the appellant.

2. Learned Additional Prosecutor General and learned counsel for the complainant have supported the impugned judgment and prayed for dismissal of the appeal.

3. Arguments heard. Record perused.

| | | | --- | --- | | | | | --- | | | |

1. It has been noticed that occurrence allegedly took place during the night of 11.07.2018 in the house of Muhammad Ajmal (deceased) situated at Riaz Town, Jauharabad, which according to Column No.4 of the FIR. (Ex.PEE/1) is at a distance of about 2-kilometers from the concerned police station i.e. City Jauharabad, District: Khushab, however, as per case of prosecution, Muhammad Akram (complainant/PW-7) along with Shaukat Ali (given-up PW) and Muhammad Irfan (PW-8) came at the place of occurrence at 03:30 a.m. when occurrence was already over, complainant went for reporting the occurrence, met Arshad Mehmood S.I. (PW-13), got recorded his statement to him at 05:45 a.m. which was sent to police station and FIR. (Ex.PEE/1) was chalked out at 06:05 a.m.; it is relevant to mention here that complainant (PW-7) was also having motorcycle and relevant portions of his statement in this regard are as under: -

“In the night of occurrence, I and my brother Irfan left our home at about 3.00 a.m. on motorcycle. We went to the house of Shaukat and took him with us. We reached at the house of Shaukat at about 3.20 a.m. night.”

(emphasis added)

“I left the place of occurrence at about 5.30 a.m. to report the matter to police. The police met me near the main tower in Burhan Town. The police was on patrol duty on official vehicle at that time.”

| | | | --- | --- | | | | | --- | | | |

| | | | --- | --- | | | | | --- | | | |

Therefore, it cannot be termed as promptly registered case and this state of affairs suggests that possibility of deliberation, consultation and concoction cannot be ruled out. It is well settled that when there is delay in reporting the incident to the police, then prosecution is under obligation to explain such delay and failure to do that will badly reflect upon the credibility of prosecution version. In this regard, guidance has been sought from the case of “Mst. Asia Bibi v. The State and others” (PLD 2019 Supreme Court 64); relevant portion from paragraph No.29 of said case law is hereby reproduced: -

“There is no cavil to the proposition, however, it is to be noted that in absence of any plausible explanation, this Court has always considered the delay in lodging of FIR to be fatal and castes a suspicion on the prosecution story, extending the benefit of doubt to the accused. It has been held by this Court that a FIR is always treated as a cornerstone of the prosecution case to establish guilt against those involved in a crime; thus, it has a significant role to play. If there is any delay in lodging of a FIR and commencement of investigation, it gives rise to a doubt, which, of course, cannot be extended to anyone else except to the accused…”

By now it is well settled that First Information Report lays foundation of the criminal case and when it has not been promptly recorded and no reasonable explanation regarding its delayed recording has come on the record, then it is fatal for the case of prosecution; in this regard, guidance has been sought from the case of “Muhammad Rafique alias Feeqa v. The State” (2019 SCMR 1068), Muhammad Adnan and another v. The State and others” (2021 SCMR 16) and “Ghulam Mustafa v. The State” (2021 SCMR 542).

| | | | --- | --- | | | | | --- | | | |

Admittedly, prosecution did not produce any eye-witness of the occurrence during trial of the case; complainant (PW-7), Muhammad Irfan (PW-8) and Shaukat Ali (given-up PW) reached at the spot after the occurrence; in this regard, relevant portion of statement of complainant (PW-7) is reproduced: -

“When we reached at the place of occurrence, all the deceased had been died.”

| | | | --- | --- | | | | | --- | | D | |

As per own case of the prosecution mentioned in Fard Bayan (/ (Ex.PEE) and FIR (Ex.PEE/1), when Muhammad Akram (complainant/ PW-7), Muhammad Irfan (PW-8) and Shaukat Ali (given-up PW) at about 03:30 a.m. (night) came into the house of occurrence, they saw that Mst. Gulnaz Bibi (now appellant) was having knife () in her hand who said that Muhammad Ajmal used to torture her daily, for said grudge, she has murdered her husband and children while slaughtering/ them with knife () and hatchet (); so, complainant (PW-7), Muhammad Irfan (PW-8) and Shaukat Ali (given-up PW) are witnesses of extra-judicial confession of the appellant; they were neither residents of the house of the occurrence nor of said vicinity i.e. Riaz Town, Jauharabad rather complainant (PW-7) and Muhammad Irfan (PW-8) were residents of Zaman Colony, Jauharabad whereas Shaukat Ali (given-up PW) was resident of Qazi Colony, Jauharabad; it is relevant to mention here that as per statement of the complainant/PW-7, distance between Zaman Colony and Riaz Town is about five/six kilometers; in this regard, relevant portion of his statement is reproduced as under: -

| | | | --- | --- | | | | | --- | | | |

“The distance between Zaman Colony and Riaz Town is about five/six kilometers.”

Whereas, according to Muhammad Irfan (eye-witness/PW-8), Zaman Colony is at a distance of three and half kilometers from Riaz town; in this regard, relevant portion of his statement is mentioned as under: -

“Zaman Colony is at a distance of three and half kilometers from Riaz Town.”

| | | | --- | --- | | | | | --- | | | |

So, both these witnesses produced in this case by the prosecution were chance witnesses and thus they were required to explain and establish plausible as well as valid reason regarding their stated arrival and presence at the place of occurrence. Though as per statement/ (Ex.PEE) got recorded by Muhammad Akram (complainant/PW-7), their close relative died in Chauha () and for his Fateha Khawani , they had to go along with Muhammad Ajmal (now deceased) in the early morning and for this purpose, he (complainant) along with Shaukat Ali and Muhammad Irfan (PW-8) came to the house of his brother Muhammad Ajmal at about 03:30 a.m.; meaning thereby that the sole cause of arrival of witnesses including complainant at place of occurrence and seeing appellant holding knife () in her hand was that they had to go in Fateha Khawani of their close relative. Though complainant/PW-7 during his cross-examination before the Court stated that their relative namely Muhammad Imran was hit by fire shot on 09.07.2018 at about Asar Prayer time and he died due to said firearm injury at about 11:00/12:00 p.m. (night); in this regard, relevant portion of his statement is mentioned as under: -

“Our relative Muhammad Imran was hit by fire shot on 09.07.2018 at about Asar prayer time but he died due to said firearm injury at about 11.00/12.00 p.m (night)”

(emphasis added)

| | | | --- | --- | | | | | --- | | | |

yet prosecution neither produced copy of any FIR or Rupt () regarding infliction of firearm injuries to Muhammad Imran (aforementioned relative of the complainant) or copy of his Death Registration Certificate showing date of his death, during investigation of the case nor got exhibited the same during trial of the case; though it was claim of said witnesses that for going to Fateha Khawani , they came to the house of occurrence yet for said purpose why they came at 03:30 a.m. (night), is the question which raises eyebrows; their further claim was that door of house of the occurrence was open when they came and entered into the house and relevant portion of statement of complainant/PW-7 is reproduced below: -

| | | | --- | --- | | | | | --- | | F | |

“When we reached at the house of Ajmal, the small door of main gate was open.”

Similarly, relevant portion of statement of Muhammad Irfan (PW-8) is mentioned as under:

“When we reached at the place of occurrence, the main gate of the house was narrowly open.”

| | | | --- | --- | | | | | --- | | | |

It is also a mystery and raises question that why during night at said stated time i.e. 03:30 a.m., door of the house was open? Prosecution remained unable to offer any valid explanation regarding these claims and said most relevant questions remained unanswered on part of prosecution. Therefore, above-claimed “cause” regarding arrival of complainant and other witnesses at the place of occurrence at odd hours of night could not be proved. So, evidence of both aforementioned cited witnesses, who could not explain/ establish any valid reason/cause regarding their stated arrival at the stated time, at the place of occurrence, is “suspect” evidence and cannot be accepted without pinch of salt; guidance in this regard has been sought from the case of “Mst. Sughra Begum and another v. Qaiser Pervez and others” (2015 SCMR 1142) and relevant portion from paragraph No.14 of said case law is hereby reproduced: -

“14. A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt.”

Further guidance on the subject has been sought from the case of “Muhammad Ashraf alias Acchu v. The State” (2019 SCMR 652), “Mst. Mir and another v. The State” (2020 SCMR 1850) and “Sarfraz and another v. The State” (2023 SCMR 670).

Muhammad Akram (PW-7) and Muhammad Irfan (PW-8) are real brothers of Muhammad Ajmal (one of deceased of the case) and paternal uncles of remaining four deceased whereas Shaukat Ali (given-up PW) is uncle of complainant but after seeing appellant holding knife () in her hand and further after her stated confession regarding the occurrence before them, they did not apprehend her; in this regard, relevant portion of statement of complainant/PW-7 is reproduced below:-

“We did not try to apprehend Mst. Gulnaz.”

As per statement of Muhammad Irfan (PW-8), there was blood on the hands, knife () and clothes of Mst. Gulnaz Bibi at that time and she sat down in the room; relevant portion of his statement in this regard is mentioned as under: -

“There was blood on the hands, churri and the clothes of Mst. Gulnaz at that time. Mst. Gulnaz sat down in her room.”

However, at the time of arrest of appellant by Kazim Hussain S.I. (PW-12), her hands, feet and clothes were not blood stained; relevant portion of statement of Kazim Hussain S.I. (PW-12) is reproduced below: -

“Her hands, feet and wearing clothes were not stained with blood at the time of her arrest.”

As per prosecution’s version, Muhammad Akram (complainant/PW-7) while leaving Muhammad Irfan (PW-8) and Shaukat Ali (given-up PW) at the spot, proceeded to police station; in this regard, relevant portion of statement of complainant/PW-7 is mentioned as under: -

“I left Muhammad Irfan, my brother and Shaukat Ali my uncle at the guard of dead bodies and proceeded to the police station.”

Similarly, relevant portion of statement of Muhammad Irfan (PW-8) is reproduced below: -

“Leaving us near the dead bodies, Akram went to the police at 6/6.30 a.m. We remained sitting in the courtyard of the house till the arrival of the police.”

When they (witnesses) were there, then why they let appellant to place knife () near the dead body and go from the place of occurrence to the street because she was arrested from the street; in this regard, relevant portion of statement of Kazim Hussain S.I. (PW-12) is reproduced as under: -

“I arrested Gulnaz accused in the street near the place of occurrence. She was seen by us at a distance of 20/25 feet. She did not try to run away.”

If hands, clothes of the appellant and knife () held by her were stained with blood, then why they (witnesses) let her to wash the hands and change the clothes? This entire conduct of aforementioned witnesses does not appeal to common prudent man rather shows that none of them was present there at the stated time and version stated by them is tailored/concocted.

| | | | --- | --- | | | | | --- | | | |

Before discussing extra-judicial confession statedly made by the appellant before Muhammad Akram (PW-7), Muhammad Irfan (PW-8) and Shoukat Ali (given up witness), it is appropriate to examine the motivating factors for making extra judicial confession and in this regard, guidance has been sought from the case of “Sajid Mumtaz and others v. Basharat and others” (2006 SCMR 231), relevant portions of said case law are being reproduced: -

“19. It is but a natural curiosity to ask as to why a person of sane mind should at all confess. No doubt the phenomenon of confession is not altogether unknown but being a human conduct, it had to be visualized, appreciated and consequented upon purely in the background of a human conduct.

1. Why a person guilty of offence entailing capital punishment should at all confess. There could be a few motivating factors like: (i) to boast off, (ii) to ventilate the suffocating conscience and (iii) to seek help when actually trapped by investigation…………….”

“22. As observed by the Federal Court, we would reiterate especially referring to this part of the country, that extra-judicial confessions have almost become a norm when the prosecution cannot otherwise succeed. Rather, it may be observed with concern as well as with regret that when the Investigating Officer fails to properly investigate the case, he resorts to padding and concoctions like extra-judicial confessions……….”

| | | | --- | --- | | | | | --- | | | |

Now when extra judicial confession allegedly made by the appellant in the case is examined on the touchstone of aforementioned factors, then it is not understandable that what compelled the appellant and why she allegedly confessed the crime, particularly before the persons, who being closely related to the deceased were expected to cause her more harm than good and they immediately became witness against her, this aspect also raises doubt about genuineness of this piece of evidence; in this regard, guidance has also been sought from the case of “Azeem Khan and another v. Mujahid Khan and others” (2016 SCMR 274); relevant portion from the same is being reproduced below: -

| | | | --- | --- | | | | | --- | | | |

“This, in our considered opinion, appears to be a concocted story. He being the relative of the complainant and also running the business in the same market, where the complainant do the same business, the appellant Mujahid Khan would have never opted for disclosing such a gruesome crime to him, when by then the complainant party and the Investigating Agency, both were clueless about the crime of murder of the deceased and also about the actual culprits. This part of the evidence is nothing but a tailored story, which was arranged with, the help of the Investigating Agency thus, it is of no legal worth and being absolutely unreliable is excluded from consideration.”

Furthermore, case of “Nasir Javaid and another v. The State” (2016 SCMR 1144) can also be safely referred and relevant portion from Page No. 1150 is being reproduced: -

“Next is the evidence of extra-judicial confessions. Evidence of this type because of its being concocted easily is always looked at with doubt and suspicion. It could be taken as corroborative of the charge if it, in the first instance, rings true and then finds support from other evidence of unimpeachable character. If the other evidence lacks such attribute, it has to be excluded from consideration. Extra-judicial confessions of the appellants when examined in this light neither ring true nor agree with truth nor fit in with the surrounding circumstances of the case. The circumstances disclosed therein that the complainant made their lives miserable, implicates them in criminal cases and insulted their mother are not supported by the prosecution evidence. According to the statement of PW-13, the appellants were driven by their immense sense of guilt to make extra-judicial confessions. But why should they make extra-judicial confessions before PW-13, who being closely related to the complainant was expected to do them more harm than good”

(emphasis added)

Aforementioned state of affairs clearly suggests that said piece of evidence is neither believable nor reliable rather same has been just introduced after finding no other evidence in the case; even otherwise “extra-judicial Confession” is the weakest type of evidence and it can only be taken into consideration if firstly it rings true and then finds support from other strong and tangible evidence of unimpeachable character; in this regard, case of “Imran alias Dully and another v. The State and others” (2015 SCMR 155) can be safely referred: relevant portion is being reproduced: -

| | | | --- | --- | | | | | --- | | | |

“ (d) Needless to remark that extra judicial confession has never been considered sufficient for recording conviction on a capital charge unless it is strongly corroborated by tangible evidence coming from unimpeachable source therefore, in our view, this piece of evidence is entirely insufficient to carry conviction on such a charge, more so, when it is badly tainted one and appears to be the job of the investigating officers who normally indulge in such like police chicanery.”

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According to case of prosecution mentioned in Fard Bayan (/Ex.PEE) and FIR. (Ex.PEE/1), complainant (PW-7) along with aforementioned witnesses (mentioned in the FIR.) reached in the house of occurrence, saw that Mst. Gulnaz Bibi (now appellant) was having knife () in her hand but glowing/litting of any light at that time is not mentioned in the FIR. (Ex.PEE/1) and even during investigation, neither any electric light/bulb was shown in the site plan (Ex.PHH) of the place of occurrence nor taken into possession by the Investigating Officer; in this regard, relevant portion of statement of Kazim Hussain S.I. (Investigating Officer/PW-12) is mentioned as under: -

“It is correct that I did not mention the presence of electric lights in my site plan Ex.PHH.”

which fact further goes against the prosecution; in this regard, guidance has been sought from the case of “Haroon Shafique v. The State and others” (2018 SCMR 2118), “Mian Sohail Ahmed and others v. The State and others” (2019 SCMR 956) and “Safdar Mehmood and others v. Tanvir Hussain and others” (2019 SCMR 1978).

Now coming to the arrest of the appellant because as per complainant’s version mentioned in the FIR. (Ex.PEE/1), he (PW-7) along with Muhammad Irfan (PW-8) and Shaukat Ali (given-up PW) came and found Mst. Gulnaz (now appellant) at the place of occurrence with knife(), he (PW-7) left Muhammad Irfan (PW-8) and Shaukat Ali (given-up PW) at the place of occurrence and himself went to inform police and then came back with police, during this period, Muhammad Irfan and Shaukat Ali (witnesses) remained in the house of occurrence; he (PW-8) did not state in his statement before the Court that during this period, Mst. Gulnaz Ajmal (now appellant) changed her blood stained wearing clothes and then went outside from said house to the street. But it is own case of the prosecution that appellant was not arrested from the house of occurrence rather when complainant came back with police, appellant was found in street and arrested from there. Now question does arise that how and when she left the house of occurrence and reached in the street after changing her blood stained wearing clothes when Muhammad Irfan and Shaukat Ali (witnesses) throughout this period remained there. Prosecution is silent on this vital aspect of the case and this silence is fatal and vitiates the truthfulness of prosecution version.

When all aforementioned factors are taken into consideration in totality, then ocular account furnished by Muhammad Akram (complainant/ PW-7) and Muhammad Irfan (PW-8) regarding their coming into the house of occurrence at 03:30 a.m. (night), seeing Mst. Gulnaz Bibi (now appellant) carrying knife () in her hand and confessing the occurrence before them, is neither confidence inspiring nor truthful; hence, same cannot be relied and is hereby discarded.

| | | | --- | --- | | | | | --- | | | |

As far as medical evidence is concerned, it is trite law that medical evidence is mere supportive/confirmatory 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; therefore, same is also of no help to the prosecution in peculiar facts and circumstances of the case, in this regard, case of “Sajjan Solangi v. The State” (2019 SCMR 872) can be safely referred.

| | | | --- | --- | | | | | --- | | | |

Now coming to recovery of knife(), hatchet () and blood stained clothes of the appellant; as per case of prosecution, appellant got recovered blood stained knife (()/P-14) and blood stained hatchet (/ P-15) lying near dead bodies at the place of occurrence; she also got recovered blood stained clothes (P-12, P-13) which she was wearing at the time of occurrence. Though prosecution claims that blood stained knife () and blood stained clothes of the appellant were recovered yet in Fard Bayan (/Ex.PEE) as well as in the FIR. (Ex.PEE/1), it is not mentioned that knife () held by appellant as well as clothes of the appellant were “blood stained”; as per statement of Muhammad Irfan (PW-8), hands and clothes of the appellant were also blood stained (as reproduced above) whereas Kazim Hussain S.I. (PW-12), who arrested the appellant at 07:45 a.m. on the same day, stated in his statement that her hands, feet and wearing clothes were not stained with blood (relevant portion of his statement has been also already reproduced), meaning thereby that she washed her hands and also changed her clothes but then why she did not wash knife () and hatchet ()? When Muhammad Irfan (PW-8) and Shaukat Ali (given-up PW) were at the place of occurrence, then why they let the appellant to place knife () with dead bodies as well as change her blood stained clothes and to leave the house/place of occurrence? Inquest reports (Ex.PB, Ex.PF, Ex.PK, Ex.PO and Ex.PS) were prepared at the place of occurrence but availability/presence of blood stained knife () and blood stained hatchet there is not mentioned in any Inquest Report and Column No.22 as well as Column No.23 of the Inquest Reports (mentioned above) are blank; in this regard, relevant portion of statement of Kazim Hussain (PW-12) is reproduced below: -

| | | | --- | --- | | | | | --- | | | |

“It is correct that the columns Nos. 22 and 23 of all inquest reports are blank.”

| | | | --- | --- | | | | | --- | | | |

This state of affairs creates reasonable doubt about the recovery of knife () and hatchet () and in this regard, guidance has been sought from the case of “Mst. Rukhsana Begum and others v. Sajjad and others” (2017 SCMR 596), relevant portion whereof is being reproduced:-

“In column No. 23, no crime empty has been shown present there, albeit in the recovery memo and in the site plan, these empties had been shown recovered lying very close to both dead bodies. This deliberate omission, creates reasonable doubts about the recovery.”

(emphasis added)

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Though blood stained earth, blood stained clothes of the deceased persons, blood stained knife (), blood stained hatchet and blood stained clothes of the appellant were sent to the Punjab Forensic Science Agency, Lahore yet any report regarding matching of blood group of blood available at knife (), hatchet and clothes of the appellant with blood group of blood available on blood stained soil and blood stained clothes of any of the deceased has not been produced by the prosecution; so, in this regard, case of “Muhammad Asif v. The State” (2017 SCMR 486) can be safely referred; relevant portion from said case law is hereby reproduced below: -

“18. Before parting with this judgment, we deem it essential to point out that, mere sending the crime weapons, blood stained to the chemical examiner and serologist would not serve the purpose of the prosecution nor it will provide any evidence to inter link different articles.

19. We have noticed that the Punjab Police invariably indulge in such a practice which is highly improper because unless the blood stained earth or cotton and blood stained clothes of the victim are not sent with the same for opinion of serologist to the effect that it was human blood on the crime weapons and was of the same group which was available on the clothes of the victim and the blood stained earth/cotton, such inconclusive opinion cannot be used as a piece of corroboratory evidence.”

| | | | --- | --- | | | | | --- | | | |

Any report regarding availability of finger prints of the appellant on the handle of knife () as well as handle of hatchet () has also not been produced.

So much so Kazim Hussain S.I. (PW-12) admitted that he did not get any D.N.A. comparison test of knife (), hatchet, blood stained clothes of the accused and last worn clothes of deceased persons as well as blood stained soil, etc.; in this regard, relevant portion of his statement is reproduced as under: -

“It is correct that I did not get DNA comparison test of recovered churri, hatchet, bloodstained clothes of the accused Gulnaz, and last worn clothes of the deceased persons as well as blood stained soil etc.”

In view of afore-mentioned discussed factors, recovery (mentioned above) is of no evidentiary value. Furthermore, aforementioned articles were secured through recovery memo (Ex.PFF) and Ex.PGG), attested by Muhammad Akram (PW-7) and Shaukat Ali (given-up PW). Though recovery is a corroborative piece of evidence and it has to corroborate the ocular account yet it is trite law that recovery witness cannot corroborate himself and corroboration must come from independent source i.e. evidence of other witness; in this regard case of “Mst. Zahida Saleem v. Muhammad Naseem and others” (PLD 2006 Supreme Court 427), “Mst. Sughra Begum and another v. Qaiser Pervez and others” (2015 SCMR 1142) and “Mst. Rukhsana Begum and others v. Sajjad and others” (2017 SCMR 596), can be referred; relevant portion from “Mst. Zahida Saleem’s case (supra) is reproduced as under: -

“In the present case the prosecution had produced P.W.6 and P.W.7 to prove the motive, ocular account and recovery. In the instant case the eye-witnesses and the recovery witnesses being the same, as mentioned above, the question of corroboration would be a mere farce. Whenever any corroboration is required, it emplies that it should be an independent one. If the corroboration is also through the same witness whose statement is required to be corroborated it will be no corroboration in the eye of law in these circumstances, we are of the opinion that both the Court below were justified to ignore the recoveries.

This is not a case wherein one accused by making indiscriminate firing with the help of sophisticated firearm/automatic weapon killed more than one person rather slaughtering five (5) persons by a single female accused with knife()/hatchet () is alleged in this case which aspect itself necessitates close scrutiny of the facts/circumstances as well as available material. Perusal of report of Punjab Forensic Science Agency, Lahore bearing Sr. No.0000650042 (available at Page No.38 of the Paperbook) shows that four (4) specimens i.e. item Nos.1 to 4 comprising of suspected fluid, flour and food taken from pots (utensils) available at the place of occurrence were sent to laboratory; Dethyltoluamide[sic] was detected in item No.01 and item No.04 whereas Drugs/poisons were not detected in specimens in item No.02 and item No.03; relevant portion of the report is scanned below: -

| | | | --- | --- | | Item No. | Description of Evidence | | 01 | One sealed parcel containing one sealed jar of specimen (suspected fluid) taken from cup of tea, Exhibit # 03, CS # CS-SGD-750, dated # 11/07/18. | | 02 | One sealed parcel containing one sealed jar of specimen (suspected tea type fluid) taken from pan at crime scene, Exhibit # 04, CS # CS-SGD-750, dated # 11/07/18. | | 03 | One sealed parcel containing one sealed jar of specimen (suspected flour) taken from plate under bed, Exhibit # 05, CS # CS-SGD-750, dated # 11/07/18. | | 04. | One sealed parcel containing one sealed jar of specimen (suspected food) taken from plates and cooking pan present in room near bed, Exhibit # 06, CS # CS-SGD-750, dated # 11/07/18. |

Test(s) Performed:

(a) Qualitative identification test for drugs and pesticides was performed on specimens in item # 01, 02, 03 and 04 using gas chromatography-mass spectrometry technique.

Results and Conclusion:

Dethyltoluamide was detected in specimens in item # 01 and item # 04.

Drugs/poisons were not detected in specimens in item # 02 and 03.

It is relevant to mention here that Dethyltoluamide mentioned in aforementioned report is actually “Diethyltoluamide”, which is N, N Diethyl-meta-toluamide, also called as “DEET” and oldest/most effective as well as common active ingredient in commercial insect repellants having chemical formula as C12 H17 NO. As per aforementioned report, it was found in the suspected fluid taken from cup of tea and in the suspected food taken from plates and cooking pan but its toxic effects were not mentioned in the report.

As per report of Punjab Forensic Science Agency, Lahore (Ex.PMM, available at Page No.44 of the paperbook), specimens of stomachs with contents of all the five deceased were received by said laboratory as item No.01 to 05, however, Drugs/poisons were not detected in said stomach contents; relevant portion of said report is hereby scanned below: -

| | | | --- | --- | | Item No. | Description of Evidence | | 01 | One sealed parcel containing one sealed jar of specimen (stomach with contents) of Aasma D/O Muhammad Ajmal, PMR # 7/2018, dated: 11/07/18. | | 02 | One sealed parcel containing one sealed jar of specimen (stomach with contents) of Ayesha D/O Muhammad Ajmal, PMR # 8/18, dated: 11/07/18. | | 03 | One sealed parcel containing one sealed jar of specimen (stomach with contents) of Muhammad Fahad son of Muhammad Ajmal, PMR # 9/18, dated: 11/07/18. | | 04. | One sealed parcel containing one sealed jar of specimen (stomach with contents) of Muhammad Abdullah son of Muhammad Ajmal, PMR # 10/2018, dated: 11/07/18. | | 05. | One sealed parcel containing one sealed jar of specimen (stomach with contents) of Muhammad Ajmal son of Muhammad Sher, PMR # 11/18, dated: 11/07/18. |

Test(s) Performed:

(a) Screening tests for cyanide and phosphine were performed on stomach contents in item # 01, 02, 03, 04 and 05 using colorimetric technique.

(b) Screening tests for drugs of abuse (benzodiazepines and opiates) were performed on stomach contents in item # 01, 02, 03, 04 and 05 using ELISA technique.

(c) Qualitative identification test for basic drugs (lidocaine), doxylamine, amitriptyline, notriptyline, levrphanol, promethazine, diphenhydramine, imipramine, oxycodone, methamphetamine, brompheniramine, doxepin, clomipramine, tramadol, mirtazapine, clozapine, venlafaxine, cyclobenzaprine, sertraline, diazepam, midazola, zolpidem and alprazolam) was performed on stomach contents in item # 01, 02, 03, 04 and 05 using gas chromatography-mass spectrometry technique.

Results and Conclusion:

Drugs/poisons were not detected in stomach contents in item # 01, 02, 03 04 and 05.

Dr. Fozia Ameer (PW-1), who conducted postmortem examination over dead bodies of Ayesha (deceased) and Aasma (deceased) stated before the Court as under:-

“There is nothing significant in the reports received from PFSA (Punjab Forensic Science Agency).”

“It is correct that according to PFSA reports no poison etc. was found in samples sent to Forensic/Chemical analysis.”

Similarly, Dr. Zia-ur Rehman (PW-2) who conducted post-mortem examination of dead bodies of Muhammad Ajmal, Muhammad Abdullah and Muhammad Fahad stated before the Court as under: -

“There is nothing significant in the reports received from PFSA (Punjab Forensic Science Agency).”

“It is correct that no poison etc. was detected in samples sent to PFSA, Lahore for Forensic/Chemical analysis. There was no sign of injury caused by resistance of deceased was noted by me during my examination.”

In the above circumstances, slaughtering five (5) persons by a single woman is also a question mark.

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As far as motive is concerned, as per claim of the complainant mentioned in the statement/ (Ex.PEE), Muhammad Ajmal (husband of the appellant) used to torture her daily and due to this grudge, she has committed murder of her husband and children with knife () and hatchet; however, any document or independent witness was not produced by the prosecution during investigation or trial of the case to prove/establish that there was any dispute or quarrel between the spouses prior to the occurrence even complainant/PW-7 during his cross-examination has categorically admitted that any quarrel never took place between Gulnaz Bibi (appellant) and her husband Muhammad Ajmal (one of the deceased) prior to the occurrence; in this regard, relevant portion of his statement is reproduced as under: -

“Never any quarrel took place between Gulnaz Bibi and Muhammad Ajmal deceased prior to the occurrence.”

| | | | --- | --- | | | | | --- | | | |

Even any reason/justification whatsoever for commission of murder of four minor children of the deceased by their mother i.e. appellant has not come on the record. Furthermore, aforementioned motive has also not been believed by the trial court. So, motive could not be proved by the prosecution.

| | | | --- | --- | | | | | --- | | | |

1. It is well established principle of law that single dent/circumstance in case of prosecution is sufficient for acquittal; in this regard, case of “Abdul Ghafoor v. The State” (2022 SCMR 1527) can be safely referred.

2. Nutshell of the above discussion is that prosecution has been totally/ completely failed to prove its case against the appellant; though occurrence took place in the house of appellant yet mere for the said reason, she cannot be held guilty and in this regard, case of “Nasrullah alias Nasro v. The State” (2017 S C M R 724), “Asad Khan v. The State” (PLD 2017 Supreme Court 681) and “Muhammad Pervaiz v. The State and others” (PLD 2019 Supreme Court 592) can be safely referred and relevant portion from latter case law is reproduced as under: -

“Homicidal death is not in dispute; appellant’s plea that dacoits intruded the household and strangulate the deceased has not found favour with the Courts below. The appellant has also not denied his presence, however these factors by themselves cannot hypothesize presumption of appellant’s guilt in the absence of positive proof. Silence or implausible explanation cannot equate with failure within the contemplation of Article 121 of Qanun-e-Shahadat Order, 1984, thus does not absolve the prosecution to drive home the charge by itself on the strength of positive proof. It would be grievously unsafe to convict suspects on presumptions or upon failure to establish their innocence. Possibilities are infinite and do not necessarily include the guilt alone.”

1. In view of, what has been discussed above, Criminal Appeal No.72371-J/2019, filed by Mst. Gulnaz Ajmal (appellant), is allowed; conviction recorded and sentence awarded to the appellant through impugned judgment dated: 17.09.2019 is hereby set aside. Appellant is acquitted of the charge, she shall be released from the jail forthwith, if not required in any other case.

2. Resultantly, death sentence awarded to Mst. Gulnaz (appellant) is NOT CONFIRMED and Murder Reference (M.R. No.297 of 2019) is answered in NEGATIVE.

3. It goes without saying that if blood group of the deceased is mentioned in the post-mortem examination report, it would be helpful for ascertaining blood group of the blood available on (i) blood stained soil/earth or cotton secured from the place of occurrence, (ii) blood stained clothes of the deceased and (iii) blood stained weapon/article recovered in the case as well as for D.N.A. test. Therefore, Registrar of this Court will send a copy of this judgment to Secretary Health, Govt. of the Punjab, Inspector General of Police, Punjab, Prosecutor General, Punjab and Director General of Punjab Forensic Science Agency, Lahore for doing needful in this regard.

JK/G-2/L Appeal allowed.

2024 P Cr. L J 1081

[Lahore]

Before Muhammad Tariq Nadeem, J.

Hajra Javaid Makhdoom---Petitioner

Versus

Muhammad Tehmas Nasir and 3 others---Respondents

Writ Petition No. 59534 of 2022, decided on 19th December, 2023.

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

----Ss. 249-A , 417(2), 439 & 439-A---Muslim Family Laws Ordinance (VIII of 1961), S.6(5)---Contracting second marriage without permission of first wife---Order of acquittal, assailing of---Remedy---Criminal revision not maintainable---In complaint proceedings, an application under S.249-A of the Criminal Procedure Code, 1898 (Cr.P.C), filed by the respondent was allowed on the assertion that he had already divorced the complainant---Complainant filed a criminal revision under S.439-A, Cr.P.C., before the Court of Session, which was dismissed---Petitioner/complainant filed constitutional petition against both the said orders ---Question was whether the order of acquittal under S.249-A, Cr.P.C., was amenable to criminal revision or the same was assailable before the High Court through a petition for special leave to appeal as provided under S.417(2), Cr.P.C.---Held that while providing appeal in case of acquittal under S.417 of Cr.P.C., S.417(2), Cr.P.C., stipulates that “If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court”---Likewise by virtue of S.439(5), Cr.P.C., there is bar on the revisional jurisdiction of the court in cases where remedy of appeal is provided under the Cr. P.C.---Thus ,acquittal order passed under S.249-A, Cr.P.C., is not amenable to revisional jurisdiction as enshrined in S.439-A, Cr.P.C---Criminal revision before the Court of Sessions was not competent, because, an order of acquittal can only be assailed by way of remedy provided under S.417(2), Cr.P.C., and not otherwise---No illegality or perversity was noticed in the impugned order passed by the Sessions Court, dismissing the criminal revision filed by the complainant---Constitutional petition was dismissed in limine, in circumstances.

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

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

----Ss.249-A & 417(2)---Constitution of Pakistan, Art. 199---Order of acquittal, assailing of---Constitutional petition---Maintainability---When the statute has provided a specific alternate remedy of appeal against acquittal under S.417(2) of the Criminal Procedure Code , 1898, then a constitutional petition under Art. 199 of the Constitution is not competent against the order of acquittal under S.249-A, of the Criminal Procedure Code, 1898.

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

----Ss. 249-A , 417, 418, 439 & 439-A---Order of acquittal, assailing of---Remedy---Criminal revision not maintainable---Appeal is filed on question of law and facts in the light of S.418, Cr.P.C., whereas in criminal revision only correctness, legality and propriety of any finding, sentence or order is to be seen---Criminal revision is not competent against the order of acquittal, because, it is prohibited according to S.439(4)(a) Cr.P.C.

Dr. Khalid Ranjha for Petitioner.

Order

Muhammad Tariq Nadeem, J.---Through this writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has voiced his grievance as under:-

“In view of the above circumstances, it is most respectfully prayed that the above titled writ petition may kindly be allowed and the case be referred back to learned magistrate for retrial and there after for criminal revision before learned ASJ.

Any other adequate relief which this Honorable Court deems fit just and proper may also be awarded to the petitioner in order to meet the ends of justice.”

1. Tersely, the facts of the case are that the petitioner had instituted a private complaint under section 6(5) of the Muslim Family Laws Ordinance, 1961, before the learned Judicial Magistrate, Sargodha, against respondent No.1 with the allegation that he had contracted second marriage without her permission and, thus, committed an offence. After recording cursory evidence, learned Judicial Magistrate, Sargodha, summoned respondent No.1 to face the trial in terms of section 6(5) of the Ordinance ibid. Respondent No.1 joined the proceedings of the case and during the pendency of said proceedings, he filed an application under section 249-A, Cr.P.C. with the assertion that the allegation of contracting second marriage without the permission of petitioner was totally against the facts and the private complaint had been filed by petitioner just to blackmail him. In fact, he had already divorced the petitioner which was effected on 06.07.2021 and thereafter he contracted second marriage. It was further asserted by the petitioner that there was no probability of his conviction in the private complaint, for the reason, he may be acquitted of the charge under section 249-A, Cr.P.C. This application was accepted by learned Magistrate Section-30, Sargodha, vide order dated 18.05.2022. Aggrieved by the above-mentioned order, the petitioner filed a criminal revision under section 439-A, Cr.P.C. before the court of learned Sessions Judge, Sargodha, which was entrusted to the court of learned Additional Sessions Judge, Sargodha, who, after hearing the learned counsel for the petitioner as well as learned Assistant District Public Prosecutor, dismissed the same vide order dated 16.07.2022. The petitioner has challenged both the orders of learned fora below through the instant writ petition with the prayer that the case may be referred back to learned Judicial Magistrate for re-trial and criminal revision may also be remanded back to learned Additional Sessions Judge.

2. It is inter alia contended by learned counsel for the petitioner that against the order of acquittal under section 249-A, Cr.P.C. a criminal revision in terms of section 439-A, Cr.P.C. was competent, because, acquittal order had not been passed on merits. Learned counsel for the petitioner has placed reliance upon the case-law titled as “The State through Advocate-General, Sindh High Court of Karachi v. Raja Abdul Rehman” (2005 SCMR 1544).

3. I have heard the learned counsel for the petitioner at length on the above short point and also gone through the documents appended with this petition.

4. Although petitioner has not challenged any specific order in the prayer clause as well as in the caption of instant writ petition yet he has prayed for the remand of case to the trial court as well as criminal revision to the court of Additional Sessions Judge. I am afraid that the prayer of the petitioner is misconceived, because, matter cannot be referred back to both the fora below at the same time. Even otherwise, supplication of the petitioner is without the backing of law. After going through the documents available with the file, I have noticed that the petitioner had filed a private complaint under section 6(5) of the Muslim Family Laws Ordinance, 1961, against respondent No.1, wherein respondent No.1 filed an application under section 249-A, Cr.P.C. which was accepted by the trial court vide order dated 18.05.2022 whereby respondent No.1 was acquitted mainly on the ground that he had already divorced the petitioner before contracting second marriage. Being aggrieved, the petitioner filed criminal revision against the acquittal of respondent No.1, which was dismissed by Additional Sessions Judge, Sargodha, vide order dated 16.07.2022 with the following observations:-

“3. According to assistance of learned counsel for the petitioner, learned ADPP, and record reveals that through impugned order learned lower court acquitted the respondent No.2, under section 249-A Cr.P.C, and present petitioner challenged the acquittal of respondent No.2, through instant revision petition. Order of acquittal under section 249-A Cr.P.C, not amenable to revision in view of remedy available to the petitioner under section 417 (2) Cr.P.C. Subsection (5) of section 439-A Cr.P.C, clearly provide that where in a court an appeal lies and no appeal is brought, not proceeded by way of revision shall be entertain at the instance of petitioner who could have appealed. Learned ADPP also added that instant revision is not proceedable. Hence, instant revision petition is accordingly dismissed. The certified copy of this order be sent to the learned Lower Court for information. The file of this revision petition be consigned to record room after its due completion.”

1. The question, whether the order of acquittal under section 249-A, Cr.P.C. was amenable to criminal revision or the same was assailable before this Court through a petition for special leave to appeal as provided under section 417(2) Cr.P.C. has not been satisfactorily answered by learned counsel for the petitioner. For reference, section 417(2) Cr.P.C. is reproduced as infra:-

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“417. Appeal in case of acquittal: (2) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.”

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Likewise by virtue of section 439(5), Cr.P.C. there is bar on the revisional jurisdiction of the court in the cases where remedy of appeal is provided under the Code ibid. Sections 439 and 439-A, Cr.P.C. are described as infra for the purpose of clarity:-

“439. High Court’s powers of revision: (1) In the case of any proceeding the record of which has been called for by itself, […] or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 423, 426, 427 and 428 or on a Court by section 338, and may enhance the sentence, and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in manner provided by section 429.

(2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.

(3) Where the sentence dealt with under this section has been passed by Magistrate […], the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accused has committed, than might have been inflicted for such offence by Magistrate of the first class.

(4) Nothing in this section shall be deemed to authorize a High Court:

(a) to convert a finding of acquittal into one of conviction, or

(b) to entertain any proceedings in revision with respect to an order made by the Sessions Judge under section 439-A.]

(5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.

(6) Notwithstanding anything contained in this section, any convicted person to whom an opportunity has been given under subsection (2) of showing cause why his sentence should not be enhanced, shall, in showing cause, be entitled also to show cause against his conviction.”

“439-A. Sessions Judge’s powers of revision: (1) In the case of any proceeding before a Magistrate the record of which has been called for by the Sessions Judge or which otherwise comes to his knowledge, the Sessions Judge may exercise any of the powers conferred on the High Court by section 439.

(2) An Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under this Chapter in respect of any case which may be transferred to him under any general or special order of the Sessions Judge].

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1. Another intriguing aspect of this case which cannot be ignored is that whether a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is competent against the order of acquittal under section 249-A, Cr.P.C, in this regard, I am of the firm view that when the statute has provided a specific alternate remedy of appeal against acquittal, constitutional petition is not competent against such an order, therefore, the writ petition in hand is not maintainable in the eyes of the law.

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1. So far as the wisdom laid down by the Supreme Court of Pakistan in case-law titled as “The State through Advocate-General, Sindh High Court of Karachi v. Raja Abdul Rehman (2005 SCMR 1544) is concerned, although it has been held in the aforementioned case-law that the order of acquittal of accused under section 249-A, Cr.P.C. would not have the same sanctity as order of acquittal on merits and the principles applicable to second category of acquittal would not apply to first category of acquittal, but I am of the view that it does not mean that the acquittal order passed under section 249-A, Cr.P.C. is amenable to revisional jurisdiction as enshrined in section 439-A, Cr.P.C. After going through the above mentioned case-law, it manifests that even in the said case also, appeal in terms of section 417, Cr.P.C. was filed before the Sindh High Court against the acquittal of accused under section 249-A, Cr.P.C. which was dismissed in limine and the same was challenged before the Supreme Court of Pakistan. In this way, it is abundantly clear that the case-law relied upon by learned counsel for the petitioner is not helpful to him.

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1. It is noteworthy that criminal appeal and revision have different features. Appeal is filed on question of law and facts in the light of section 418, Cr.P.C. whereas in criminal revision only correctness, legality and propriety of any finding, sentence or order is to be seen. A criminal revision is not competent against the order of acquittal, because, it is prohibited according to section 439(4)(a) Cr.P.C.

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1. Aftermath of above discussion is that the criminal revision before the court of learned Additional Sessions Judge was not competent, because, an order of acquittal can only be assailed by way of remedy provided under section 417(2), Cr.P.C. and not otherwise, therefore, there is no illegality or perversity in the order passed by learned Additional Sessions Judge, who has rightly dismissed the criminal revision. Resultantly, this constitutional petition has no force and the same is hereby dismissed in limine.

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MQ/H-1/L Petition dismissed

2024 P Cr. L J 1098

[Lahore]

Before Aalia Neelum, J.

Sheraz Ahmad and another---Petitioners

Versus

The State and another---Respondents

Criminal Revision No. 69407 of 2022, decided on 31st January, 2023.

Penal Code (XLV of 1860)---

----Ss. 295-A, 295-B, 295-C, 298-C, 109 & 34---Prevention of Electronic Crimes Act (XL of 2016), S. 11---Application of the petitioners for not charge sheeting them for the offences of P.P.C was dismissed---Validity---Record revealed that petitioners Nos.1 and 2 were booked for offences under S. 11 of PECA, 2016, read with S. 295-A, 295-B, 295-C, 298-C, 34, 109, P.P.C, in case FIR registered by the police of Police Station Cyber Crime Reporting Centre---From the contents of the report under S.173 of Cr.P.C, the allegations against the petitioners were that they, by using their WhatsApp group shared the translation of the Holy Quran, which had been banned and the propagation to other people of such kind of material was illegal---By doing that act maliciously, the petitioners outraged the religious feelings of Muslim citizens of Pakistan to advance sectarian hatred among them---Offences under Section 11 of PECA, 2016, and S. 295-A, 295-B, 295-C & 298-C, P.P.C, could not be tried separately because the offences falling under S.11 of PECA, 2016, and under S.295-A, 295-B, 295-C & 298-C, P.P.C., were interlinked---Fact of the matter was that the Court established under PECA, 2016, was designated to adjudge the offence of hate speech under S.11 of PECA, 2016---Allegations had given rise to different offences committed by the petitioners in the same transaction and in that manner, they could not be separated---Similarly, the same set of persons were proposed to stand as witnesses along with common documents, like FIR, recovery memos, statements of PWs recorded under S.161 of Cr.P.C, etc., to prove the charge of using Whatsapp group by the petitioners and sharing the translation of the Holy Quran, which had been banned and the propagation to other people of such kind of material was illegal---If the allegations were placed before two Courts through separate reports under S.173 of Cr.P.C, there would be a possibility of conflicting decisions---Above all, it would put in peril both sides for undergoing the ordeal of separate trials regarding the same transaction and would frustrate spirit of S.4(c) & 235-A of Cr.P.C---Petition was accordingly dismissed.

Sheraz Khan v. The State and others, 2022 PCr.LJ 203 and A.N.F. v. Muhammad Faizan and others PLD 2022 Lah. 700 ref.

A.N.F. v. Muhammad Faizan and 2 others PLD 2022 Lah.700 rel.

Sh. Usman Karim-ud-Din for Petitioners.

Asad Ali Bajwa, Deputy Attorney General and Muhammad Latif, Assistant Attorney General with Naveed S.I/F.I.A for the State.

Mian Shakeel Ahmad, AAG and Syed Abdul Ali Jaffari, AAG.

Rana Ahsan Aziz, Addl. Prosecutor General.

Nemo for the Complainant.

Date of hearing: 9th December, 2022.

Judgment

Aalia Neelum, J.---This revision petition is directed against the order 08.10.2022 passed by the learned Addl. Sessions Judge, Lahore, whereby the application filed by the petitioners for not charge sheeting them for the offences of the Pakistan Penal Code was declined.

1. Briefly, the facts of the case are that the petitioners were facing the trial in case FIR No.C-88 dated 20.06.2019, registered under section 11 of The Prevention of Electronic Crimes Act, 2016 (hereinafter referred to as PECA, 2016) read with sections 295-A, 295-B, 295-C, 298-C, 34, 109 of The Pakistan Penal Code, 1860. During the pendency of the trial, the petitioners moved the applications for not charge sheeting them for the offences of the Pakistan Penal Code, in view of the order passed by this Court in Crl. Misc. No.44216-B/2021 titled “Sheraz Khan v. The State, etc.” reported as 2022 PCr.LJ 203. The learned trial court, relied on the judgment passed by the Division Bench of this Court in Crl. Appeal No.206/2021, titled “A.N.F. v. Muhammad Faizan and 2 others” reported as PLD 2022 Lahore 700 and dismissed the petitioner’s application. Hence, this criminal revision.

2. I have heard the arguments advanced by both sides and have also minutely gone through the record made available.

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1. From the record, it reveals that petitioners Nos.1 and 2 were booked for offences under section 11 of PECA, 2016 read with sections 295-A, 295-B, 295-C, 298-C, 34, 109, P.P.C. in case FIR No.C-88/2019, registered on 20.06.2019 by the police of Police Station Cyber Crime Reporting Centre. From the contents of the report under section 173 of Cr.P.C, the allegations against the petitioners are that they, by using their WhatsApp group “Sindh Salamat” shared the translation of the Holy Quran, which has been banned and the propagation to other people of such kind of material is illegal. By doing this act maliciously, the petitioners outraged the religious feelings of Muslim Citizens of Pakistan to advance sectarian hatred among them. The petitioners were booked for committing offences under section 11 of PECA, 2016, read with sections 295-A, 295-B, 295-C, 298-C, 34, 109 P.P.C. For reference, Section 11 of The Prevention of Electronic Crimes Act, 2016 is reproduced as under: -

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11-Hate speech: Whoever prepares or disseminates information, through any information system or device, that advances or is likely to advance interfaith, sectarian, or racial hatred shall be punished with imprisonment for a term which may extend to seven years or with a fine or with both.

The ingredients for an offence under section 11 of PECA, 2016 are that the accused has prepared or disseminated information that advanced or is likely to advance interfaith, sectarian, or racial hatred and the accused disseminated information through any information system or device. The offences under sections 295-A, 295-B, 295-C and 298-C, P.P.C. are reproduced hereunder for ready reference: -

295-A. Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs: -

Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of [the citizens of Pakistan], by words, either spoken or written, or by visible representations insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to [ten years], or with fine, or with both.

295-B. Defiling, etc., of copy of Holy Quran:-

Whoever willfully defiles, damages or desecrates a copy of the Holy Quran or of an extract therefrom or uses it in any derogatory manner or for any unlawful purpose shall be punishable with imprisonment for life.

295-C. Use of Derogatory remarks, etc., in respect of the Holy Prophet:-

Whoever by words, either spoken or written, or by visible representation, or by an imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine.

298-C. Person of Quadiani group, etc., calling himself a Muslim or preaching or propagating his faith:-

Any person of the Quadiani group or the Lahori group (who call themselves ‘Ahmadis’ or by any other name) who, directly or indirectly, poses himself as a Muslim, or calls, or refers to, his faith as Islam, or preaches or propagates his faith, or invites others to accept his faith, by words, either spoken or written, or by visible representations, or in any manner whatsoever outrages the religious feelings of Muslims, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.

The purpose of the Prevention of Electronic Crimes Act, 2016 is to provide new investigative powers hitherto unavailable such as search and seizure of digital forensic evidence using technological means, production orders for electronic evidence, electronic evidence preservation orders, partial disclosure of traffic data, real-time collection of data under certain circumstances and other enabling powers which are necessary to investigate cyber-crime cases effectively, etc. The Prevention of Electronic Crimes Act, 2016 has been promulgated to prevent unauthorized acts with respect to information systems and to provide mechanisms for related offences as well as procedures for investigation, prosecution, trial, and international cooperation with respect thereof and for matters connected therewith or ancillary thereto. The Federal Government of Pakistan under Section 29 of PECA, 2016 read with Section 51 of the PECA, 2016 notified the Prevention of Electronic Crimes Investigation Rules, 2018 to carry out the purpose of PECA 2016. Section 51 of PECA 2016 is hereby reproduced: -

“The Federal Government may, by notification in the official Gazzate, establish or designate a law enforcement agency as the investigation agency for the purposes of investigation of offences under this Act.”

Rule 2 of the Prevention of Electronic Crimes Investigation Rules, 2018 defines “Investigating Agency” means the Federal Investigating Agency established under the Federal Investigation Agency Act, 1974 (VIII of 1975). Whereas Section 1 (ix) of PECA, 2016 defines “Court” means the Court of competent jurisdiction designated under PECA, 2016. The rules framed by the Federal Government under Section 29 of PECA, 2016 read with Section 51 of the PECA, 2016 reveal that the courts dealing with the cases of the Federal Investigating Agency will deal with the matters. Unless any other expression is used in this act, the rule made there under but not defined in this act shall have the same meaning assigned to the expressions in the Pakistan Penal Code, 1860. Section 2(2) of the Prevention of Electronic Crimes Act, 2016 reads as under: -

1. Definitions:

(1) -------------

(2) Unless the context provides otherwise, any other expression used in this Act or rules made there under but not defined in this Act shall have the same meanings assigned to the expressions in the Pakistan Penal Code, 1860 (Act XLV of 1860), the Code of Criminal Procedure, 1898 (Act V of 1898) and the Qanun-e-Shahadat, 1984 (P.O. No. X of 1984), as the case may be.

Section 4 (c) of the Code of Criminal Procedure, 1898, includes any head of the charge when the charge contains more heads than one, which is hereby reproduced as under:-

“Charge”----“Charge” includes any head of charge when the charge contains more heads than one.

Section 235(1) of the Code of Criminal Procedure, 1898 provided that:

Trial for more than one offence:

(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.”

Section 235(2) of the Code of Criminal Procedure, 1898, provided that:

(2) Offence falling within two definitions:

If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with and tried at one trial for; each of such offences.

The argument of the learned counsel for the petitioners is that the offence falling under Section 11 of PECA, 2016 is to be tried by court established under Section 44(1) of PECA 2016. Offences falling under sections 295-A, 295-B, 295-C and 298-C P.P.C. are to be tried by the ordinary court as both offences fall within the jurisdiction of two separate courts established under special law and general law. The short controversy for decision in the present case is whether the offences falling under Section 11 of PECA, 2016 and the offences falling under sections 295-A, 295-B, 295-C and 298-C P.P.C. can be tried together or not. It was specifically mentioned in Section 235(2) and Section 4(c) of the Cr.P.C says that charge contains more than one head and that if the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with and tried at one trial for, each of such offences. Moreover, Section 235 of the Code speaks of more offences than one committed in the course of the same transaction. As per the allegations leveled in the crime report, the alleged acts constitute offences falling under Section 11 of PECA, 2016, and the offences falling under sections 295-A, 295-B, 295-C and 298-C, P.P.C. The ingredients of Section 11 of PECA, 2016, and under sections 295-A, 295-B, 295-C and 298-C, P.P.C. are interlinked, supplementing each other and they are not inconsistent inter-se. Section 28 of PECA, 2016 provided that:

“The provisions of the Pakistan Penal Code, 1860 to the extent not inconsistent with anything provided in this Act, shall apply to the offences provided in this Act.”

Section 50 of The Prevention of Electronic Crimes Act, 2016 signifies the jurisdiction related to the other laws. Section 50 of The Prevention of Electronic Crimes Act, 2016 reads as under: -

1. Relation of the Act with other laws.--(1) The provisions of this Act shall have effect not in derogation of the Pakistan Penal Code, 1860 (Act XLV of 1860), the Code of Criminal Procedure, 1898 (Act V of 1898), the Qanun-e-Shahadat, 1984 (P.O. No. X of 1984), the Protection of Pakistan Act, 2014 (X of 2014) and the Investigation for Fair Trial Act, 2013 (I of 2013)

(2) Subject to subsection (1), the provisions of this Act shall have effect notwithstanding anything to the contrary contained in any other law on the subject for the time being in force.

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So, the offences under section 11 of PECA, 2016, and sections 295-A, 295-B, 295-C and 298-C of the Pakistan Penal Code, 1860 cannot be tried separately because the offences falling under Section 11 of PECA, 2016, and under sections 295-A, 295-B, 295-C and 298-C P.P.C. are interlinked. There is a clear distinction between the “same transaction” and “a similar transaction”. (Bold and underline for emphasis). The continuity of action is not in the sense that one act follows the other without any connection but in the sense of an intimate connection between the different acts. Accused persons committing offences of the same kind but separately may not be regarded as having committed those offences in the course of the same transaction. The series of acts which constitutes a transaction must of necessity be connected with one another and if some of them stand out independently they would not form part of the same transaction but would constitute a different transaction or transactions. The fact of the matter is that the court established under PECA 2016 is designated to adjudge the offence of hate speech under Section 11 of PECA 2016. I have already mentioned above that the allegations have given rise to different offences committed by the petitioners in the same transaction and in this manner, they cannot be separated. Similarly, the same set of persons was proposed to stand as witnesses along with common documents, like FIR, recovery memos, statements of PWs recorded under section 161 of Cr.P.C, etc., to prove the charge of using Whatsapp group by the petitioners and sharing the translation of the Holy Quran, which has been banned and the propagation to other people of such kind of material is illegal. If the allegations were placed before two courts through separate reports under section 173 of Cr.P.C, there would be a possibility of conflicting decisions. Above all, it would put in peril both sides for undergoing the ordeal of separate trials regarding the same transaction and would frustrate spirit of sections 4(c) and 235-A of Cr.P.C. This view has been taken by the learned Division Bench of this Court, which has been reported as “A.N.F. v. Muhammad Faizan and 2 others” (PLD 2022 Lahore 700).

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1. Given the above, learned counsel for the petitioners has failed to point out any illegality or irregularity in the impugned order passed by the learned trial court, which would justify interference by this Court. A resultant, instant petition being devoid of any force, stands dismissed.

JK/S-46/L Petition dismissed.

2024 P Cr. L J 1111

[Lahore (Bahawalpur Bench)]

Before Asjad Javaid Ghural and Muhammad Amjad Rafiq

The State---Appellant

Versus

Muhammad Imran---Respondent

Criminal Appeal No. 275 of 2020, decided on 19th December, 2023.

(a) Limitation---

---Scope---Law of limitation being lex fori creates a right in favour of the parties, therefore, cannot be ignored by treating it mere a technicality.

Gen. (R.) Parvez Musharraf v. Nadeem Ahmed (Advocate) and another PLD 2014 SC 585; Kiramat Khan v. IG, Frontier Corps and others 2023 SCMR 866; Chief Engineer, Gujranwala Electric Power Company (GEPCO), Gujranwala v. Khalid Mehmood and others 2023 SCMR 291; Muhammad Sharif and others v. MCB Bank Limited and others 2021 SCMR 1158; Haji Wajdad v. Provincial Government through Secretary Board of Revenue Government of Balochistan, Quetta and others 2020 SCMR 2046; Ghulam Hussain Ramzan Ali v. Collector of Customs (Preventive), Karachi 2014 SCMR 1594 and Messrs Blue Star Spinning Mills Ltd. v. Collector of Sales Tax and others 2013 SCMR 587 rel.

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

----S.417---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 48---Limitation Act (IX of 1908), Art.157---Appeal against acquittal---Limitation---State preferred appeal against the acquittal order/judgment passed by the Trial Court on an application under S. 265-K, Cr.P.C., moved by the accused (respondent)---Allegedly, the appeal had been filed beyond the period of limitation---Record showed that it was claimed that period of limitation for filing of appeal against acquittal by the State was six months as per Art. 157 of the Limitation Act, 1908---However, the appeal against acquittal was not being regulated under S.417, Cr.P.C, rather was filed under S.48 Control of Narcotic Substances Act, 1997, which was a special law and was to be read with period of limitation provided therein---However, no period of limitation was mentioned for filing of appeal under S.48 of the Control of Narcotic Substances Act, 1997; therefore, subject to S.29 of the Limitation Act, it could safely be held that Art. 157 of the Limitation Act would well be available to the State for filing of appeal against acquittal---Present appeal had been filed beyond the period of limitation of six months, which was time barred by 13 days and it could not condoned under S.5 of the Limitation Act, which was not available for proceedings under special law---Appeal was dismissed being time barred.

Collector of Customs, Custom House, Lahore and another v. Messrs Wasim Radio Traders, Lahore and others 2023 SCMR 1716 and Government of Balochistan through Chief Secretary Quetta and others v. Dr. Muhammad Tariq Jafar and others 2020 SCMR 1689 ref.

Collector of Customs, Custom House, Lahore and another v. Messrs Wasim Radio Traders, Lahore and others 2023 SCMR 1716; Government of Balochistan through Chief Secretary Quetta and others v. Dr. Muhammad Tariq Jafar and others 2020 SCMR 1689; The State v. Said Raheem and others PLD 2016 Lahore 560; Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286; Shehzad Ali Shah v. Special Judge Rent, Lahore and others PLD 2020 Lahore 354; Messrs Spirit Industries (Private) Limited through authorized representative v. Nastgional Tarrif Commission, Islamabad and 2 others 2021 PTD 647; State (NAB) v. Muhammad Aslam Bajwa and others 2016 PCr.LJ 1189; Asmat v. Sahib Rokhan and 7 others PLD 2023 Pesh. 64; Government of the Punjab v. Muhammad Saleem PLD 1995 SC 396; Khuda Bakhsh and others v. Muzafar through L.Rs. and others 2007 SCMR 1032; Government of Pakistan through Ministry of Works and another v. Messrs Malbrow Builders, Contractors, Sialkot 2006 SCMR 1248; Pakistan through Secretary, Ministry of Defence v. Messr Azhar Brothers Limited 1990 SCMR 1059; Chief Secretary, Government of Sindh, Karachi and another v. Muhammad Rafique Siddiqui 2004 PLC (C.S.) 962; Collector, Land Acquisition, Chashma Right Bank Canal Project, Wapda, D.I. Khan and others 2002 SCMR 677; Lahore High Court, Lahore, through Registrar v. Nazar Muhammad Fatiana and others 1998 SCMR 2376; Central Board of Revenue, Islamabad through Collector of Customs, Sialkot Dry Port, Samberial, District Sialkot and others v. Messrs Raja Industries (Pvt.) Ltd, Through General Manager and 3 others 1998 SCMR 307; Federation of Pakistan through Secretary, Ministry of Finance v. Niaz Ahmad 1997 PLC (C.S.) 750 and Dr. Muhammad Javed Shafi v. Syed Rashid Arshad and others PLD 2015 SC 212 rel.

(c) Appeal against acquittal---

----Double presumption of innocence---Scope---Once an acquittal was recorded in favour of accused facing criminal charge he enjoyed twice the presumption of innocence, and such acquittal right could not be undone by ignoring the law of land applicable on the subject.

Hussain Bakhsh v. Allah Bakhsh and others1981 SCMR 410; Nazar v. The State 1968 SCMR 715; Jalal Khan and another v. Lakhmir and another 1968 SCMR 1345; Muhammad Khan v. Sultan and others 1969 SCMR 82; Piran Ditta v. The State and 2 others 1970 SCMR 282 and Nur Muhammad v. The State 1972 SCMR 331 rel.

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

Sardar Abdul Basit Khan, for Muhammad Imran accused/respondent produced by Fiaz Hussain and Zia Sub-Inspectors.

Order

This is an appeal filed by the State against the acquittal of Muhammad Imran accused/respondent vide judgment dated 10.08.2019 passed under section 265-K Cr.P.C. by Additional Sessions Judge/CNSA Court/MCTC, Sadiq Abad in case FIR No. 333/2019 dated 19.06.2019 under section 9-C of the Control of Narcotic Substances Act, 1997, Police Station Bhong, Sadiq Abad, District Rahim Yar Khan. Though this appeal was admitted for regular hearing vide order dated 06.04.2021, yet limitation being question of law is required to be attended first; as per application under section 5 of the Limitation Act, 1908, State has prayed for condonation of delay in filing of appeal.

1. The learned Deputy Prosecutor General submits that the question of law involved in this appeal is also the subject matter of some other appeals pending before this Court which were filed within the period of limitation; he while relying on cases reported as "Collector of Customs, Customs House, Lahore and another v. Messrs Wasim Radio Traders, Lahore and others" (2023 SCMR 1716); "Government of Balochistan through Chief Secretary Quetta and others v. Dr. Muhammad Tariq Jafar and others" (2020 SCMR 1689) states that when an identical question of law is involved in appeals filed within time and the time barred then the delay must be condoned in the interest of justice. Further submits that there is cumbersome process for obtaining sanction from the government to file an appeal which takes a longer time, therefore, State may be given preferential right in condonation of delay. He continued on submitting that limitation does not run against a void order and the judgment of the learned lower court is bereft of legal recognition; finally argued that period of limitation for State to file appeal against acquittal is six months in view of Article 157 of the Limitation Act.

2. Heard.

3. We have examined the judgment reported as "Collector of Customs, Customs House, Lahore and another v. Messrs Wasim Radio Traders, Lahore and others" (2023 SCMR 1716) wherein importers have challenged the Valuation Ruling issued by Customs department under section 25A of the Customs Act, 1969 affecting all the importers alike; similarly in case reported as "Government of Balochistan through Chief Secretary Quetta and others v. Dr. Muhammad Tariq Jafar and others" (2020 SCMR 1689), Supreme Court of Pakistan condoned the delay only on the ground that three appeals were preferred against the same judgment out of which two were time barred, but here before this Court appeals against acquittals in different judgments are pending, therefore, the case law referred by the learned law officer has no relevance on the matter before us.

4. The contention of learned DPG that limitation does not run against a void order is repelled because it is now settled that law of limitation being lex fori creates a right in favour of the parties, therefore, cannot be ignored by treating it mere a technicality. A fourteen members' judgment reported as "Gen. (R.) Parvez Musharraf v. Nadeem Ahmed (Advocate) and another" (PLD 2014 SC 585) confirmed the view that limitation would run even against a void order, therefore, we are not required to look into the contours of impugned judgment of learned trial Court. The above judgment of Supreme Court of Pakistan was later followed by the Court in different cases reported as "Kiramat Khan v. IG, Frontier Corps and others" (2023 SCMR 866), "Chief Engineer, Gujranwala Electric Power Company (GEPCO), Gujranwala v. Khalid Mehmood and others" (2023 SCMR 291), "Muhammad Sharif and others v. MCB Bank Limited and others" (2021 SCMR 1158), "Haji Wajdad v. Provincial Government through Secretary Board of Revenue Government of Baluchistan, Quetta and others" (2020 SCMR 2046), "Ghulam Hussain Ramzan Ali v. Collector of Customs (Preventive), Karachi" (2014 SCMR 1594) and "Messrs Blue Star Spinning Mills Ltd. v. Collector of Sales Tax and others" (2013 SCMR 587).

5. It was claimed that period of limitation for filing of appeal against acquittal by the State is six months as per Article 157 of the Limitation Act. We have examined that this appeal against acquittal is not being regulated under section 417 of Code of Criminal Procedure, 1898, rather was filed under section 48 of the Control of Narcotic Substances Act, 1997 which is a special law and is to be read for period of limitation provided therein. Other side has referred the case reported as "The State v. Said Raheem and others" (PLD 2016 Lahore 560) that the limitation for filing an appeal under section 48 of the Control of Narcotic Substances Act, 1997 is 30 days and special law prevails over the provisions of general law; therefore, Article 157 of the Limitation Act shall not apply. We have attended this contention but found that no period of limitation is mentioned for filing of appeal under section 48 of the Control of Narcotic Substances Act, 1997; therefore, while relying on case reported as "Allah Dino and another v. Muhammad Shah and others" (2001 SCMR 286), wherein it was held that any law which does not contain any period of limitation the whole Limitation Act shall be applicable upon it; therefore, subject to section 29 of the Limitation Act, it can safely be held that Article 157 of the Limitation Act would well be available to the State for filing of appeal against acquittal; but we have examined that even the appeal has been filed beyond the period of limitation of six months, which is time barred by 13 days and we cannot condone it under section 5 of the limitation Act which is not available for proceedings under special law. This has also been explained in the above judgment (2001 SCMR 286) that pursuant to section 29 (2) of the Limitation Act, Section 5 of the said Act shall not be applicable to special law. To further thrash this legal provision, we have read section 29 of the Limitation Act in toto, which is reproduced as under: -

"29. Savings. --- (1) Nothing in this Act shall affect section 25 of the Contract Act, 1872.

(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law.

(a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and

(b) the remaining provisions of the Act shall not apply."

The above section makes it clear that in a special law application of Sections 4, 9 to 18 and 22 shall ipso facto apply if they are not specifically excluded from that law, whereas, as per clause (b) above the remaining sections of the Act shall not be applicable in any manner, which obviously includes Section 5 of the Act, therefore, this Court has no jurisdiction to invoke section 5 of the Limitation Act for condoning delay in any appeal against acquittal filed under the Control of Narcotic Substances Act, 1997. Reliance in this respect is further placed on the cases reported as "Shehzad Ali Shah v. Special Judge Rent, Lahore and others" (PLD 2020 Lahore 354), "Messrs Spirit Industries (Private) Limited through authorized representative v. Nastgional Tarrif Commission, Islamabad and 2 others" (2021 PTD 647), "State (NAB) v. Muhammad Aslam Bajwa and others" (2016 PCr.LJ 1189) and "Asmat v. Sahib Rokhan and 7 others" (PLD 2023 Peshawar 64).

1. The argument of learned Deputy Prosecutor General for treating the State somewhat preferentially in the matters about condonation of delay, finds the answer in the case reported as "Government of the Punjab v. Muhammad Saleem" (PLD 1995 SC 396) where the Supreme Court of Pakistan while holding that delay of each and every day is to be explained, also held that the Government cannot be treated differently than a private litigant on the question of limitation under section 5 of the Limitation Act. Similarly, delay in obtaining sanction from government is also no ground to seek condonation on this score. Reliance is on cases reported as "Khuda Bakhsh and others v. Muzafar through L.Rs. and others" (2007 SCMR 1032); "Government of Pakistan through Ministry of Works and another v. Messrs Malbrow Builders, Contractors, Sialkot" (2006 SCMR 1248), "Pakistan through Secretary, Ministry of Defence v. Messr Azhar Brothers Limited" (1990 SCMR 1059), "Chief Secretary, Government of Sindh, Karachi and another v. Muhammad Rafique Siddiqui" (2004 PLC (C.S.) 962), "Collector, Land Acquisition, Chashma Right Bank Canal Project, Wapda, D.I. Khan and others" (2002 SCMR 677), "Lahore High Court, Lahore, through Registrar v. Nazar Muhammad Fatiana and others" (1998 SCMR 2376), "Central Board of Revenue, Islamabad through Collector of Customs, Sialkot Dry Port, Samberial, District Sialkot and others v. Messrs Raja Industries (Pvt. ) Ltd, Through General Manager and 3 others" (1998 SCMR 307) and "Federation of Pakistan through Secretary, Ministry of Finance v. Niaz Ahmad" (1997 PLC (C.S.) 750. In the light of above it is held that where Government/State is provided six months' limitation period for filing an appeal against acquittal, which is sufficient to recourse to legal remedy, then after period of limitation even delay of one day should not be condoned.

2. The law of limitation requires that a person must approach the Court and take recourse to legal remedies with due diligence, without dilatoriness and negligence and within the time provided by law, as against choosing his own time for the purpose of bringing forth a legal action at his own whim and desire. Because if that is so permitted to happen, it shall not only result in the misuse of the judicial process of the State, but shall also cause exploitation of the legal system and the society as a whole. This is not permissible in a State which is governed by law and Constitution. Reliance is on case reported as "Dr. Muhammad Javed Shafi v. Syed Rashid Arshad and others" (PLD 2015 Supreme Court 212).

3. Last but not the least, according to established principle of the criminal administration of justice once an acquittal is recorded in favour of accused facing criminal charge he enjoys twice the presumption of innocence, and such acquired right cannot be undone by ignoring the law of land applicable on the subject. The Supreme Court of Pakistan in case reported as "Hussain Bakhsh v. Allah Bakhsh and others" (1981 SCMR 410) while referring the cases reported as "Nazar v. The State" (1968 SCMR 715), "Jalal Khan and another v. Lakhmir and another" (1968 SCMR 1345), "Muhammad Khan v. Sultan and others" (1969 SCMR 82), "Piran Ditta v. The State and 2 others (1970 SCMR 282), and "Nur Muhammad v. The State (1972 SCMR 331) has held that under our law, an acquittal can be challenged in certain circumstances, but if it is not challenged within the period allowed by law, it becomes final. In these circumstances it is only just and proper that a petition against acquittal must not be entertained if it is filed beyond time, unless it be shown that the petitioner was prevented from moving the same by an act of the acquitted accused; or by some circumstance of a compelling nature beyond the control of the petitioner.

4. On the touchstone of above case law, we have gone through the reasons mentioned in the application seeking condonation of delay in filing the appeal and the same have not been found tenable/legal in any manner so as to entertain the appeal. Consequently, the application under section 5 of the Limitation Act, 1908 is dismissed; in consequence thereof, the main appeal also meets with the same fate.

JK/S-60/L Appeal dismissed.

2024 P Cr. L J 1135

[Lahore]

Before Ali Baqar Najafi and Farooq Haider, JJ.

Mansab Ali---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No. 17417 of 2022, decided on 25th April, 2022.

Penal Code (XLV of 1860)---

----Ss. 365-A, 376(2), 376(3) & 392--- Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 23--- Criminal Procedure Code (V of 1898), S. 439---Abduction of ransom, rape, dacoity and terrorism--- Anti-Terrorism Court, jurisdiction of---Scope---Accused was aggrieved of order passed by Anti-Terrorism Court declining to transfer the case to Court of ordinary jurisdiction---Validity--- Demand of ransom for release of either property, cash or otherwise was the ingredients which must be present to attract provisions of S.365-A, P.P.C.---There was no demand of ransom of cash either from complainant or her relative---Irrational interpretation of word "any other demand" by extending it to 'compel a woman for a sexual intercourse' could not be adopted by High Court---Offences under Ss.365-B & 376, P.P.C., exclusively dealt with the offenses of rape, sexual intercourse with a woman against her will by putting her under fear of death etc.---High Court directed Anti-Terrorism Court to transfer the case to Court of Sessions Judge to try the case himself or entrust it to some other Additional Sessions Judge---Resultantly order in question was set aside---Revision was allowed accordingly.

Junaid Rehman and others v. The State and others PLD 2011 SC 1135; Faheema Ahmed Farooqui v. The State 2008 SCMR 1572; Muhammad Nabi and 4 others v. The State 2006 SCMR 1230; The State through Advocate-General, Sindh v. Mooso 2006 SCMR 1257; The State v. Nazir Ahmad and others 1999 SCMR 610 and The State through Advocate-General, Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1 rel.

Ch. Waseem Ahmed Gujjar for the Petitioner.

Rai Akhtar Hussain, DPG with Sanaullah, ASI for the State.

Order

Through this Criminal Revision under Section 435 read with Section 439 Cr.P.C. order dated 07.03.2022 passed by the Judge, Anti-Terrorism Court No.III, Lahore has been challenged whereby application under Section 23 of the Anti-Terrorism Act, 1997 filed by the petitioner for the transfer of trial of case FIR No. 2685 dated 23.08.2021 registered under Sections 365-A, 392, 376(ii), 376(iii), P.P.C. and 7 of the Anti-Terrorism Act, 1997 at Police Station Chung, Lahore to ordinary court was dismissed.

1. Brief facts giving rise to the filing of this revision petition are that FIR No. 2685/21 under Sections 365-A, 392, 376(2), 376(3), P.P.C. and 7 of the Anti-Terrorism Act, 1997 was lodged at Police Station Chung, Lahore on 23.08.2021 on the allegation that on 23.08.2021 at 3:00 p.m. the complainant along with her 15 years old daughter namely, Iram, came to Lahore from her house Hassan Shah, Tehsil Mailsi District Vehari on a bus and disembarked at Thokar Niaz Baig bypass at 10:00 p.m. They took green coloured Auto Rickshaw bearing registration No. LEU-4882/013 to go to the house of her sister namely, Shameem wife of Muhammad Mazhar, situated at Sadar Cantt Hud Officers Colony. The driver, accompanied by another man, took them to H Block LDA Avenue-I in the darkness of night. These two persons committed Zina bil-jabr with her as well as her daughter. Meanwhile, a car stopped near them upon which they started making hue and cry whereupon the culprits ran away leaving their Rickshaw and taking her mobile phone and Rs. 5000/- with them. One boy made a call on 15 which was attended by the police. The assailants could be identified, hence the FIR.

2. On the same date, vide case diary No. 1 dated 23.08.2021 Sections 376(ii), 376(iii), 365-A, 392, 34, P.P.C. were added, therefore, the challan was submitted before Anti-Terrorism Court. Meanwhile, on 17.01.2022 petitioner filed an application before the Anti-Terrorism Court No.III, Lahore for transfer of trial of the said criminal case to the ordinary court which was dismissed while observing that assailants extended the threats of dire consequences and compelled both ladies on gun point for sexual intercourse with them. It was also observed that complainant and her daughter were threatened that if their demand was not fulfilled and if they raised hue and cry, they will not be spared and will be murdered. According to the learned Judge, the victims were removed from one place to another under threat of loss of life in case of non-fulfilment of demand made by the assailants.

3. We have again looked on the contents of the FIR, but have not noticed any demand of property (movable or immovable) valuable security or to compelling the complainant or her daughter to comply with any other demand in cash or otherwise. It is not the case of the prosecution that the assailants demanded some money and upon their failure, put them in illegal confinement and committed Zina bil-jabr. If the interpretation made by the learned Judge, Anti-Terrorism Court No.III, Lahore is allowed, we are afraid that in every Zina bil-jabr case Section 365-A, P.P.C. might be added. Forcing a woman to illicit intercourse has already been made an offence under Pakistan Penal Code, 1860 for life imprisonment. Section 365-B, P.P.C. is reproduced as under:-

"365-B Kidnapping, abducting or inducing woman to compel for marriage etc.- Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced, or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment for life, and shall also be liable to fine; and whoever by means of criminal intimidation as defined in this Code, or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid."

Besides, under Section 376, P.P.C., such an act is made a separate offence. Section 376, P.P.C. is reproduced as under:-

376. Punishment for rape.__(1) Whoever commits rape shall be punished with death or imprisonment of either description for a term which shall not be less than ten years or more than twenty-five years and shall also be liable to fine.

(1A) Whoever commits an offence punishable under subsection (1) or subsection (2) or section 377 or section 377B and in the course of such commission causes any hurt punishable as an offence under section 333, section 335, clauses (iv), (v) and (vi) of subsection (3) of section 337, section 337C, clauses (v) and (vi) of section 337F shall be punished with death or imprisonment for life and fine.

(2) When rape is committed by two or more persons in furtherance of common intention of all, each of such persons shall be punished with death or imprisonment for life.

(3) Whoever commits rape of a minor or a person with mental or physical disability shall be punished with death or imprisonment for life and fine.

(4) Whoever being a public servant including a police officer, medical officer or jailor, taking advantage of his official position, commits rape shall be punished with death or imprisonment for life and fine.

1. Under Section 365-A, P.P.C., the element of extortion from the person or kidnapping or abducting for the purpose of any property movable or immovable, valuable security or other demand whether cash or otherwise for obtaining release of any kidnapped or abducted person was made punishable with death or imprisonment for life. The elements referred above are not available in the FIR, therefore, Section 365-A, P.P.C. would not be attracted.

2. To reach on a conclusion that whether the facts narrated in the FIR does constitute abduction for extorting property, valuable security etc. as defined under Section 365-A, P.P.C., the purpose must be to compel either the abductee or any other individual person to give the property, either movable or immovable or even valuable security, cash or otherwise as demand for his/her release. Such demand may be illegal act, commission of a crime etc. either from the abductee or anyone interested in the free mobility of the abductee. To understand the tenor of abduction for ransom, Section 365-A, P.P.C. is reproduced as under:-

"365-A. Kidnapping or abduction for extorting property, valuable security, etc. Whoever kidnaps or abducts any person for the purpose of extorting from the person kidnapped or abducted, or from any person interested in the person kidnapped or abducted, any property, whether movable or immovable, or valuable security, or to compel any person to comply with any other demand, whether in cash or otherwise, for obtaining release of the person kidnapped or abducted, shall be punished with (death or) imprisonment for life and shall also be liable to forfeiture of property."

and the abduction is constituted if a person is forcibly compelled or induced through deceitful means just to go from any place. Section 362, P.P.C. is reproduced as under:

"362. Abduction. Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person."

What constitute an abduction for ransom is actual payment of ransom and its proof are essential. The offence under Section 365-A, P.P.C. is constituted if there is an abduction for extortion of ransom or the ransom is demanded for the release as defined under Section 2(n) of the Anti-Terrorism Act, 1997. Reliance is placed upon Junaid Rehman and others v. The State and others (PLD 2011 Supreme Court 1135). Relevant para 6 is reproduced as under:-

"6. From a bare reading of the provisions of section 365-A, P.P.C. and section 2(n) of the Anti-Terrorism Act, 1997 it is quite evident that in order to constitute an offence of abduction for ransom actual payment of ransom and proof thereof are not sine qua non and the said offence also stands constituted if there is an abduction and the purpose of abduction is extortion of ransom (section 365-A, P.P.C.) or ransom is demanded for release of the abductee (section 2(n) of the Anti-Terrorism Act, 1997). Section 365-A, P.P.C. reads as follows:

"365-A. Kidnapping or abduction for extorting property, valuable security, etc.--Whoever kidnaps or abducts any person for the purpose of extorting from the person kidnapped or abducted, or from any person interested in the person kidnapped or abducted, any property, whether movable or immovable, or valuable security, or to compel any person to comply with any other demand, whether in cash or otherwise, for obtaining release of the person kidnapped or abducted, shall be punished with death or imprisonment for life and shall also be liable to forfeiture of property."

Section 2(n) of the Anti-Terrorism Act, 1997 provides as under:

"(n) "kidnapping for ransom" means the action of conveying any person from any place, without his consent, or by force compelling or by any deceitful means inducing him, to go from any place, and unlawfully detaining him and demanding or attempting to demand, money, pecuniary or other benefit from him or from another person, as a condition of his release."

In the similar manner, the offence under Section 365-A, P.P.C. is constituted when the abductee is recovered from the accused and the ransom has passed on to him as held in Faheema Ahmed Farooqui v. The State (2008 SCMR 1572). Relevant extract of para 10 is reproduced as under:-

"10….. The evidence produced by the prosecution is highly discrepant and suffers from serious infirmities and contradictions and except the bare allegations in the FIR., there is nothing incriminating on the file to connect the appellant with the commission of crime. It may be observed that neither Fahad Hamdani, alleged abductee has been recovered from the custody of the appellant nor there is evidence regarding passing of the ransom amount to the appellant. The mere assertion; of the complainant that appellant had a hand in the affair and he is author of the crime, without a positive attempt on his part to substantiate the same, is of no consequence. We find force in the submission of learned Counsel for the appellant that no cause of abduction or kidnapping is made out and ingredients of offences punishable under section 365-A, P.P.C. and section 7(e) of the Anti-Terrorism Act, 1997 are not attracted in this case……"

Sometime mere demand of ransom for the release of the abductee constituted the offence under Section 365-A, P.P.C. as held in Muhammad Nabi and 4 others v. The State (2006 SCMR 1230) and The State through Advocate-General, Sindh v. Mooso (2006 SCMR 1257). The statement of the abductee is given value if it is made after his release against payment of ransom as held in The State v. Nazir Ahmad and others (1999 SCMR 610). Relevant extract from para 15 is reproduced as under:-

"…..In case of kidnapping or abduction unless there are strong reasons to discredit testimony of abductee/kidnapee, his statement carries substantial evidentiary value……

"….. The version of Hassan Mehboob when looked in the entire perspective and recovery of ransom amount which led to his release, appear to be truthful sufficient convincing and confidence inspiring….."

The object of abductee is of prime importance and a direct demand of ransom to relative of the abductee by particular member of this organized crime was not the requirement to constitute offence. Under Section 365-A, P.P.C. since such criminals operates in a group having different assigned roles. Reliance is placed upon The State through Advocate-General, Sindh, Karachi v. Farman Hussain and others (PLD 1995 Supreme Court 1).

1. The above referred judgments strongly suggest that abduction, demand of ransom for release; of either property, cash or otherwise was the ingredients which must be present to attract the provisions of Section 365-A, P.P.C. However, in the instant case, there was no demand of ransom of cash either from the complainant or her relative. The irrational interpretation of the word "any other demand" by extending it to compel a woman for a sexual intercourse cannot be adopted by this Court particularly when offence under Section 365-B, P.P.C. and Section 376, P.P.C. exclusively deal with the offence of rape; sexual intercourse with a woman against her will by putting her under fear of death, etc.

2. For the above stated reasons, this criminal revision is allowed, order dated 07.03.2022 passed by the Judge, Anti-Terrorism Court No.III, Lahore is set aside. Resultantly, the trial of case FIR No. No. 2685 dated 23.08.2021 registered under Sections 365-A, 392, 376(ii), 376(iii), P.P.C. and 7 of the Anti-Terrorism Act, 1997 at Police Station Chung, Lahore shall be referred back by the learned Judge, Anti-Terrorism Court No.III, Lahore to learned Sessions Judge, Lahore who shall either himself or will entrust it to any learned Additional Sessions Judge, Lahore for its trial.

MH/M-133/L Revision allowed.

2024 P Cr. L J 1143

[Lahore]

Before Muhammad Waheed Khan, J.

Rana Muhammad Yousaf Khan Advocate---Petitioner

Versus

The STATE and 3 others---Respondents

Criminal Miscellaneous No. 61551-M of 2022, decided on 13th January, 2023.

Criminal Procedure Code (V of 1898)---

----Ss. 249-A & 561-A---Telegraph Act (XIII of 1885), S. 25-D---Inherent powers of High Court---Quashing of order---Acquittal of accused---Application under S. 249-A, Cr.P.C., filed for the acquittal of the accused same was dismissed, revision was filed but same was also dismissed---Validity---Petitioner alleged that no incriminating material was on record as such he be acquitted from the charge---Record showed that the charge against the petitioner was that he extended threats of dire consequences from his cell number on the mobile phone of complainant but admittedly, neither cell phone nor its Subscriber Identity Module (SIM) nor the mobile phone of the complainant was taken into possession by the Investigating Agency during the course of investigation---Sole reliance of the prosecution in the case was on the audio C.D allegedly preparedby a prosecution witness---Said witness, after copying the audio from the mobile phone of the complainant while pasting the same at the C.D---Since the C.D was prepared after copying the original voice from the mobile phone, it lost its authenticity because the same was not the original device on which the voice of the accused was recorded---Moreover, the same was not provided by the complainant to the police rather by the said witness after copying the same from the mobile phone of the complainant---Thus, the preparation of the C.D., in any way, did not fulfill the criteria as provided by the Supreme Court---Best course in this case would have been that the Police should have taken into possession the mobile phone of the complainant on which the threatening call was received and got it forensically tested after comparing it with the voice of the petitioner/accused but that attempt was not made by the Investigating Agency to reach to some proper conclusion---Evidence, i.e., the compact disc having audio could not be used against the petitioner as the same was not prepared/generated in view of the parameters determined by the Supreme Court---According to the contents of FIR, co-accused, clerk of accused, also allegedly extended threats of dire consequences to the complainant by using his mobile Phone---Similarly, other co-accused also extended threats and also abused the complainant---Said two co-accused persons were declared as innocent by the police---Admittedly, such findings of the police had never been challenged by the complainant at any higher forum of police hierarchy---So, it was manifestly clear that the charges leveled against the petitioner by complainant were groundless and analyzing and viewing the incriminating evidence/material, allegedly with which prosecution was equipped, there was no probability of the petitioner/accused being convicted---Petition was allowed, in circumstances.

Ishtiaq Ahmed Mirza and 2 others v. Federation of Pakistan and others PLD 2019 SC 675 and Member (Administration), Federal Board of Revenue and others v. Mian Khan PLD 2021 SCMR 1077 rel.

Petitioner in person.

Rana Shahid Mehmood Khan for Respondent No. 2.

Tariq Siddique, Additional Prosecutor General and Muhammad Naveed Umer Bhatti, Deputy Prosecutor General for the State.

Date of hearing: 8th December 2022.

Judgment

MUHAMMAD WAHEED KHAN, J.---By invoking inherent jurisdiction of this Court in terms of Section 561-A Cr.P.C., the petitioner/accused Rana Muhammad Yousaf Khan, Advocate has challenged the vires of order dated 16.04.2022 passed by the learned Magistrate Section 30, Gojra (respondent No.4), wherein, application filed by the petitioner under Section 249-A of Code of Criminal Procedure, 1898 (Cr.P.C) was turned down and order dated 15.08.2022, whereby, Criminal Revision filed against the order dated 16.04.2022 was dismissed by the learned Additional Sessions Judge, Gojra, District T.T.Singh, (respondent No.3), who upheld the order of learned Judicial Magistrate.

1. Complainant namely, Sheikh Abdul Waheed (respondent No.2), lodged FIR No. 877/2020 dated 17.10.2020 under Section 25-D of the Telegraph Act 1885, at Police Station, City Gojra, District T.T.Singh against the petitioner and the trial of above said case is pending adjudication before the Court of first instance and during trial proceedings petitioner filed an application under section 249-A Cr.P.C. for his acquittal but said forum dismissed his application vide order dated 16.04.2022. Said decision was challenged by the petitioner before the learned Additional Sessions Judge, Gojra, by filing Criminal Revision Petition which also met with the same fate vide order dated 15.08.2022.

2. Learned counsel for the petitioner is not available today but the petitioner present in Court, who is also an advocate, submits that he is ready to advance arguments himself. In support of this petition, the petitioner contends that except one Compact Disc (CD) of a Call Data which was allegedly procured by the Police vide recovery memo dated 19.11.2020, the prosecution is not equipped with any other incriminating material/evidence on record. During the course of investigation, neither the mobile phone of the accused/petitioner from which the call was allegedly made nor the mobile phone of the complainant was taken into possession by the investigating agency. As far as the recovery of Compact Disc (CD) is concerned, the same was produced before the Police by one of the prosecution witness namely, Kamran son of Muhammad Ashgar and admittedly, no forensic report qua the veracity and genuineness of said C.D is available on record. Similarly, co-accused persons namely Hafiz Muhammad Shafiq and Mst. Ghazala Bibi were declared innocent by the Police and their innocence by the Police has not been challenged by the complainant at any Higher Forum of Police hierarchy; petitioner lastly submits that since the charge against him is groundless and there is no probability of his conviction in any manner, so, by accepting instant petition, he be acquitted of the charge.

3. On the other hand, learned Law Officer assisted by the learned counsel for the complainant has candidly admitted that except Compact Disc (CD) the memo of which is annexed with this petition at Page No.36, there is no other incriminating evidence available with the prosecution and also admitted that said C.D has not been forensically got analyzed/tested by the Police. It was further apprised to the Court that report under section 173 Cr.P.C. against the petitioner is pending adjudication for the last about two years in which not a single witness has been recorded by the prosecution so far.

4. I have heard the petitioner in person as well as learned Law Officer assisted by learned counsel for the complainant and have gone through the available record with their assistance and noticed that petitioner had basically sought his acquittal from the learned Trial Court under section 249-A Cr.P.C. For ready reference Section 249-A is reproduced as under:-

249-A. Power of Magistrate to acquit accused at any stage: Nothing in this Chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence.

On going through the above provision of law, it is clear that no embargo has been imposed upon the accused to file such application seeking his acquittal at any stage of the case and only certain conditions have been described therein, firstly, that the Court has to give the right of hearing to the prosecutor and the accused and if reaches to the conclusion that the charge against the accused is groundless or there is no probability of accused being convicted of any offence, he shall be acquitted of the charge through an order in which such reasons have to be recorded for reaching to the conclusion that charge(s) against the accused is/are baseless. There is no cavil with the proposition that powers under Sections 249-A and 265-K Cr.P.C available to the learned Trial Court are similar to powers of High Court under section 561-A of Cr.P.C.

1. As observed in this case, the charge against the petitioner was that he extended threats of dire consequences from his cell No.0302-7004605 at the mobile phone of complainant 0309-9107899 but admittedly, neither cell phone or its Subscriber Identity Module (SIM) nor the mobile phone of the complainant was taken into possession by the Investigating Agency during the course of investigation. Sole reliance of the prosecution in this case is, on the audio C.D allegedly prepared by above said Kamran. The relevant provision regarding evidence prepared through modern devices is Article 164 of QANUN-E-SHAHADAT ORDER, 1984 which is reproduced for ready reference;-

164. Production of evidence that has become available because of modern devices, etc.: In such cases as the Court may consider appropriate, the Court may allow to be produced any evidence that may have become available because of modern devices or techniques.

However, in the light of Article 164 supra the august Supreme Court of Pakistan in case of "Ishtiaq Ahmed Mirza and 2 others v. Federation of Pakistan and others" (PLD 2019 Supreme Court 675), has laid down the following criteria regarding admissibility of an audio tape or video in evidence before a Court of law and the mode and manner of proving same before the Court:

(i) No audio tape or video could be relied upon by a court until the same was proved to be genuine and not tampered with or doctored.

(ii) A forensic report prepared by an analyst of the Provincial Forensic Science Agency in respect of an audio tape or video was per se admissible in evidence in view of the provisions of section 9(3) of the Punjab Forensic Science Agency Act, 2007.

(iii) Under Article 164 of the Qanun-e-Shahadat Order, 1984 it laid in the discretion of a court to allow any evidence become available through an audio tape or video to be produced.

(iv) Even where a court allowed an audio tape or video to be produced in evidence, such audio tape or video had to be provided in accordance with the law of evidence.

(v) Accuracy of the recording must be proved and satisfactory evidence, direct or circumstantial, had to be produced so as to rule out any possibility of tampering with the record.

(vi) An audio tape or video sought to be produced in evidence must be the actual record of the conversation as and when it was made or of the event as and when it took place.

(vii) The person recording the conversation or event had to be produced.

(viii) The person recording the conversation or event must produce the audio tape or video himself.

(ix) The audio tape or video must be played in the Court.

(x) An audio tape or video produced before a court as evidence ought to be clearly audible or viewable.

(xi) The person recording the conversation or event must identify the voice of the person speaking or the person seen or the voice or person seen may be identified by any other person who recognized such voice or person.

(xii) Any other person present at the time of making of the conversation or taking place of the event may also testify in support of the conversation heard in the audio tape or the event shown in the video.

(xiii) The voices recorded or the persons shown must be properly identified.

(xiv) The evidence sought to be produced through an audio tape or video had to be relevant to the controversy and otherwise admissible.

(xv) Safe custody of the audio tape or video after its preparation till production before the court must be proved.

(xvi) The transcript of the audio tape or video must have been prepared under independent supervision and control.

(xvii) The person recording an audio tape or video may be a person whose part of routine duties was recording of an audio tape or video and he should not be a person who has recorded the audio tape or video for the purpose of laying a trap to procure evidence.

(xviii) The source of an audio tape or video becoming available had to be disclosed.

(xix) The date of acquiring the audio tape or video by the person producing it before the Court ought to be disclosed by such person.

(xx) An audio tape or video produced at a late stage of a judicial proceeding may be looked at with suspicion.

(xxi) A formal application had to be filed before the Court by the person desiring an audio tape or video to be brought on the record of the case as evidence.

In another celebrated judgment of the august Supreme Court of Pakistan in case of "Member (Administration), Federal Board of Revenue and others v. Mian Khan" (PLD 2021 SCMR 1077), the Apex Court through its esteemed judgment has observed as following:-

"It is an admitted fact that no regular inquiry was conducted by the petitioner Department and the same was dispensed with on the ground that the other evidence in the shape of CCTV footage is so authentic that major penalty can be imposed upon the respondent in the absence of regular inquiry and while imposing the major penalty CCTV footage was made the sole criterion to proceed against the respondent. It is an apathy that the said CCTV footage was never sent to the office of Forensic Science Laboratory for its authenticity. In the absence of any forensic report qua the authenticity of the CCTV footage, the same cannot be considered a legal basis for proceeding against a person. In the case of Ishtiaq Ahmed Mirza v. Federation of Pakistan (PLD 2019 SC 675) this Court has held that with the advancement of science and technology, it is now possible to get a forensic examination, audit or test conducted through an appropriate laboratory so as to get it ascertained as to whether an audio tape or a video is genuine or not and as such or video has been edited, doctored or tampered with or not because advancement of science and technology has also made it very convenient and easy to edit, doctor, superimpose or Photoshop a voice or picture in an audio tape or video, therefore, without a forensic examination, audit or test, it is becoming more and more unsafe to rely upon the same as a piece of evidence in a court of law. We have noticed that the CCTV footage was even not produced before the learned Federal Service Tribunal. Even otherwise, mere producing of CCTV footage as a piece of evidence without any forensic test is not sufficient to be relied upon unless and until corroborated and proved to be genuine. The passengers, who allegedly gave the bribe, had also not been associated with the departmental proceedings. No question of law of public importance within the meaning of Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973, has been raised either in this petition to warrant interference by this Court.

1. After going through the 'memo of possession' of audio C.D, it is noticed that same was prepared by one Kamran, a witness of the case, after copying the audio from the mobile phone of the complainant while pasting the same at the C.D. Since the C.D was prepared after copying the original voice from the mobile phone, it loses its authenticity because the same was not the original device where the voice of the accused was recorded. Moreover, it was not provided by the complainant to the police rather by the afore-said witness after copying the same from the mobile phone of the complainant. Thus, the preparation of this C.D, in any way, does not fulfill the criteria as provided by the Hon'ble Supreme Court of Pakistan in the afore referred judgments. The best course in this case could be that the Police should have taken into possession the mobile phone of the complainant on which the threatening call was received and got it forensically tested after comparing with the voice of the petitioner/accused but this attempt was not made by the Investigating Agency to reach some proper conclusion. In my view, this evidence, i.e, the Compact Disc having audio cannot be used against the petitioner as the same was not prepared/generated in view of the parameters as mentioned above in the afore-referred judgments.

2. The other aspect of the case is that according to the contents of FIR, co-accused Hafiz Muhammad Shafiq, clerk of accused Muhammad Yousaf, Advocate, also allegedly extended threats of dire consequences to the complainant by using his mobile Phone No.0300-6683182. Similarly, co-accused Mst. Ghazala also extended threats and also called his name/abused the complainant. These two co-accused persons were declared as innocent by the Police and learned Law Officer assisted by learned counsel for the complainant frankly, admitted that these findings of the Police had never been challenged by the complainant at any higher forum of Police hierarchy.

3. So, for the reasons discussed supra, it is manifestly clear that the charges levelled against the petitioner by respondent No.2 Sheikh Abdul Waheed are groundless and analyzing and viewing the incriminating evidence/material, allegedly with which prosecution is equipped, there is no probability of the petitioner/accused being convicted. Now if the trial is allowed to proceed further that would be travesty of justice, sheer mis-use of process of law and wastage of precious time of Court as the petitioner has already suffered rigours and agony of protracted investigation and trial, since lodging of the FIR in question, which had been lodged on 17.10.2020. Resultantly, while exercising inherent jurisdiction conferred upon this Court under section 561-A Cr.P.C, this petition is allowed and the order of the learned Magistrate dated 16.04.2022 to the extent of dismissing the application of the petitioner under Section 249-A Cr.P.C and judgment dated 15.08.2022 of the learned Additional Sessions Judge, Gojra, District T.T.Singh in Criminal Revision Petition are set aside and petition filed by the petitioner under section 249-A Cr.P.C is allowed and trial proceedings before learned Trial Court are hereby quashed and the petitioner Muhammad Yousaf is acquitted of the charge.

JK/M-39/L Petition allowed.

2024 P Cr. L J 1168

[Lahore]

Before Tariq Saleem Sheikh, J.

Zubaida Khanum---Petitioner

Versus

District Police Officer and 15 others---Respondents

Writ Petition No. 18561 of 2021, decided on 12th April, 2023.

Criminal Procedure Code (V of 1898)---

----S. 22-A(6) (3)---Ex-officio Justice of Peace, powers of---Scope---Petitioner preferred application under S.22-A, subsection (6) sub-clause (3), Cr.P.C., against Police Officials with regard to action against illegal act and for recording cross-version---Police Officials alleged that son of petitioner was apprehended while selling narcotic's and 4180 grams of charas, scale and wattak amount of Rs. 5700/- were recovered from his possession; that meanwhile brother of accused and others equipped with lethal weapons arrived, opened fire on the police officials, thus FIR under S.9(c) of Control of Narcotic Substances Act, 1997 and under Ss.324, 353, 186, 337-H(2), 148 & 149, P.P.C was registered---Petitioner contended in her petition that Police Officials forcibly entered her house and ransacked it; sons of petitioner tried to stop them, but they beat them; and Police Officials stole cash amounting to Rs. 30,000/- and gold jewellery from her house---Ex-officio Justice of Peace issued direction to the District Police Officer to inquire into the matter himself or through a senior Police Officer and proceed under the law---SDPO submitted report against the version of the petitioner---Validity---Occurrence mentioned in the petitioner's application under S.22-A(6) Cr.P.C., was manifestly a cross-version of FIR registered by police---Anyhow, it could not be considered as information of a different incident regarding the commission of a cognizable offence that would warrant registering a separate FIR---Police FIR was registered under S.9(c) of the Control of Narcotic Substances Act, 1997 and Ss. 324, 353, 186, 337-H(2), 148 & 149, P.P.C---Prosecution was required to submit two challans in the case, one under the Control of Narcotic Substances Act, 1997 and the other under P.P.C, because they were triable by separate Courts---Trial Court tried accused for the offence under S.9(c) of the Control of Narcotic Substances Act, 1997 and acquitted him---If Police FIR had only been under the said offence, petition might have been dismissed right away---Court would have refused the petitioner relief even though she promptly approached the Ex-Officio Justice of Peace to register her cross-version (i.e. eighteen days after filing of Police FIR and there was also no subsequent delay on her part---However, in the present case, the FIR was partially still alive because son of petitioner and others were charged with the Penal Code offences as well, but the challan had not been submitted before the Magistrate to their extent---Petitioner claimed that her son was shot in the upper part of the right thigh---District Standing Medical Board examined the injured and its members unanimously opined that his injury seemed to be fabricated---Provincial Standing Medical Board re-examined the injured under Court orders and affirmed the findings of District Standing Medical Board---Ex-officio Justice of Peace performed quasi-judicial functions under S.22-A(6), Cr.P.C., therefore, before issuing any direction on a complaint for non-registration of a criminal case, Ex-Officio Justice of Peace must satisfy himself that there was sufficient justification for it---Ex-officio Justice of Peace must address himself to the facts of the case and where he disagreed with the police report, he should give reasons for his disagreement---Ex-officio Justice of Peace could not just ignore the report of police---In the instant case, neither the police report nor the medical evidence supported the petitioner's cross-version---Therefore, request of petitioner for registration of cross-version could not be granted---Petition was accordingly dismissed.

Sughran Bibi v. The State PLD 2018 SC 595; Kari Choudhary v. Sita Devi and others (2002) 1 SCC 714; Upkar Singh v. Ved Prakash and others (2004) 13 SCC 292; Babubahi v. State of Gujarat and others (2010) 12 SCC 254; Surender Kaushik and others v. State of Uttar Pradesh and others (2013) 5 SCC 148; P. Sreekumar v. State of Kerala and others (2018) 4 SCC 579; Raza v. The State PLD (2020) SC 523; Nathi Lal and others v. State of U.P. (1990) SCC (Cri) 638; State of Karnataka v. Hosakeri Ningappa and another 2012 ILR Karnataka 509; Muhammad Sadiq v. The State and another PLD 1971 SC 713; Abdul Rehman Bajwa v. Sultan and others PLD 1981 SC 522; Nur Elahi v. The State and others PLD 1966 SC 708; M. Rehman and others v. Narayanganj Company (Private) Ltd. PLD 1971 SC 1; Abid Hussain v. The State and others 2022 PCr.LJ 83; Altaf Ahmed Makhdoom v. Inspector General of Police Punjab and 2023 PCr.LJ 1; Bahadur Khan v. Muhammad Azam and others 2006 SCMR 373; Mureed Hussain v. Additional Sessions Judge/Justice of Peace Jampur and others 2014 PCr.LJ 1146; Khizar Hayat and others v. Inspector General of Police (Punjab) and others PLD 2005 Lah. 470 and Younas Abbas and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581 rel.

Zafar Iqbal Chohan, assisted by Rashid Amin and Qamar Abbas Duggal for Petitioner.

Mukhtar Ahmad Ranjha, Additional Advocate General and Rana Tasawar Ali Khan, Deputy Prosecutor General, with Prof. Dr. Arif Rasheed Malik, Surgeon Medico-Legal Punjab, Lahore and Farrukh/SI for Respondents Nos. 1 and 3.

Rai Bashir Ahmad assisted by Shahid Ali for Respondents Nos. 2 and 4-6.

Amicus curiae: Barrister Haider Rasul Mirza, Advocate Supreme Court.

Date of hearing: 23rd December, 2022.

Judgment

Tariq Saleem Sheikh, J.---This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), is directed against the order dated 5.3.2021 passed by the Ex-officio Justice of Peace, Depalpur (the "Impugned Order").

The facts

1. Faisal Hussain/SI lodged FIR No. 42/2021 dated 22.1.2021 at Police Station Baseerpur, Tehsil Depalpur, District Okara, for offences under section 9(c) of the Control of Narcotics Substances Act, 1997 (CNSA), and sections 324, 353, 186, 337-H(2), 148 and 149 P.P.C. He stated that on 22.1.2021 at 10:30 a.m., he was patrolling with other police officials when he received source information that the Petitioner's son, Muhammad Sohail alias Sahaila, was seen selling narcotics near his house. The police party hastened to that place, apprehended him, and recovered 4180 grams of charas, scale, and Wattak amount of Rs.5700/-from his possession. Meanwhile, Sohail's brother Irfan alias Fana, Naeem alias Khan Baba (also known as Khalid Iqbal alias Chuchi), Atif son of Goggi, and 8/9 other unknown persons equipped with lethal weapons arrived. They opened fire on the cops intending to murder them and attempted to liberate Sohail and snatch the contraband charas. Hussain/SI further stated that Irfan and his cohorts had also committed an offence by obstructing the police from performing their duties and using criminal force against them.

2. The Petitioner has a cross-version. She alleges that on 22.1.2021 at 10:30 a.m., she was at home with Sohail alias Sohaila and another son, Irfan alias Fana. Respondents Nos. 2 and 5 to 16 (police officers and Razakars) forcibly entered her house and ransacked it. When Sohail and Irfan tried to stop them, they beat them. She further alleges that Respondents Nos. 5 to 16 stole cash amounting to Rs.30,000/- and gold jewellery from her house and, in the end, took Sohail and Irfan with them. Irfan managed to escape the grasp of the cops and boarded his motorcycle parked in the street to flee. Respondent No.2 (Akhtar Khan, the then SHO) shot at him, striking his right thigh. Respondents Nos.2 to 16 then left, taking Irfan's unregistered Honda CD-70 motorcycle. The Petitioner's family called 1122 for medical aid and rushed Irfan to the RHC Hospital Baseerpur.

3. On 8.2.2021, the Petitioner moved an application under section 22-A(6) of the Code of Criminal Procedure, 1898 (hereinafter referred to as the "Code" or "Cr.P.C.") before the Ex-officio Justice of Peace, Depalpur. She stated that in 2015 the officials of Baseerpur and other police stations illegally arrested her four sons, namely, Pervaiz Ahmad, Amir, Muhammad Bilal, and Muhammad Sohail alias Sohaila. She filed a habeas petition in the High Court for their recovery but, in the meantime, the police killed Pervaiz Ahmad and Amir in a fake encounter. However, her other two sons were recovered. The Petitioner further stated that her daughter Aneesa Fatima had filed a private complaint against 16 police personnel under sections 302, 364, 395, 109, 148 and 149, P.P.C. regarding the aforementioned killing. The Additional Sessions Judge summoned the accused for trial vide order dated 16.1.2020. They challenged that order in the High Court through Crl. Revision No.13328/2020, which was dismissed. Thereupon, the police began registering false cases against the Petitioner and other family members with mala fide intent to pressurize them to withdraw the aforesaid private complaint.

4. The Petitioner contended that Respondents Nos.2 and 5 to 16 had committed a cognizable offence and prayed that a direction be issued to the Respondent SHO to register FIR against them. The Ex-officio Justice of Peace, vide Impugned Order dated 5.3.2021, disposed of the Petitioner's application with a direction to the District Police Officer, Okara, to inquire into the matter himself or through a senior police officer not lower than the rank of Deputy Superintendent of Police and proceed under the law.

5. In a subsequent development, the Additional Sessions Judge, Depalpur, tried Muhammad Sohail for an offence under section 9(c) of the CNSA in case FIR No. 42/2021 and acquitted him vide judgment dated 24.6.2021.

Inquiry report of the DSP/SDPO, Depalpur

1. The DPO Okara marked the inquiry to the DSP/SDPO, Depalpur. He found that FIR No. 42/2021 was correct, and the Petitioner's version regarding the incident of 22nd January 2021 was false. He confirmed that Faisal Hussain/SI genuinely arrested her son Muhammad Sohail for keeping 4180 grams of charas. He also found that the Petitioner's other son Irfan alias Fana, and his associates made a straight firing on the police party and tried to have Sohail released from their custody but failed. In the end, they fled by running through the narrow streets.

2. According to the DSP/SDPO, the Petitioner's family members are habitual offenders. They are engaged in the illicit drug trade and involved in several criminal cases, including murders and dacoities. On 29.12.2015, two of the Petitioner's sons, Pervaiz and Amir, were killed in a police encounter. They were proclaimed offenders in case FIR No. 37/2015 dated 20.1.2015 registered under sections 302, 364, 148, 149 P.P.C. read with section 7 of the Anti-Terrorism Act, 1997, regarding the abduction and murder of Muhammad Shoaib/ASI of Police Station Baseerpur.

The submissions

1. Mr. Zafar Iqbal Chohan, Advocate, contends that the Petitioner's application under section 22-A(6) Cr.P.C. discloses the commission of a cognizable offence. Therefore, her cross-version should be recorded in case FIR No. 42/2021 following the law laid down by the Supreme Court of Pakistan in Sughran Bibi v. The State (PLD 2018 SC 595). He submits that the Petitioner applied to the Ex-officio Justice of Peace for registration of her cross-version on 8.2.2021, i.e. eighteen days after the filing of FIR No. 42/2021. Therefore, there was no delay on her part. She cannot be non-suited merely because the challan under section 9(c) of the CNSA was fast-tracked, and Muhammad Sohail's trial for that offence has concluded. Mr. Chohan further contends that denying the Petitioner relief would violate her rights under Articles 4 and 10-A of the Constitution. Article 4 categorically states that every citizen, and every other person for the time being in Pakistan, has an inalienable right to enjoy the protection of the law and to be treated according to the law. Article 10-A guarantees everyone the right to a fair trial, whether the accused or the complainant party. Mr. Chohan acknowledges that a private complaint is an adequate and effective alternative for a cross-version but states that it cannot be refused if a person has a case.

2. Mr. Mukhtar Ahmad Ranjha, Additional Advocate General, contends that the Petitioner's family members are hardened criminals. They are involved in the illicit drug trade and commit dacoities. The Petitioner's cross-version is false and concocted. The report of the DSP/SDPO also establishes this fact. Mr. Ranjha further contends that Sughran Bibi has settled that second FIR cannot be registered for the same occurrence. It only allows for the recording of cross-version, which cannot even be done at this stage because the trial of FIR No.42/2021 has concluded. The said FIR does not exist. The only remedy available to the Petitioner is that of a private complaint.

3. Advocate Rai Bashir Ahmad, the counsel for Respondents Nos. 2 and 4 to 6, has adopted the arguments of the Additional Advocate General with a little addition. He submits that medical evidence does not support the Petitioner's version, proving it false and concocted. Hence, this petition may be dismissed.

4. This Court appointed Barrister Haider Rasul Mirza as amicus curiae. He submits that Muhammad Sohail's defence in FIR No. 42/2021 was the same as his mother's narration in her application under section 22-A(6) Cr.P.C. He told the same story while recording his statement under section 342 Cr.P.C. during the trial of that case. The other accused persons in the FIR (his brothers and other sons of the Petitioner), namely, Muhammad Naeem Qamar, Irfan alias Fana, and Atif Javed, took the same stance in their pre-arrest bail application bearing Crl. Misc. No. 5256/B/2021, which this Court granted on 23.2.2021. In the circumstances, it is reasonable to believe that on 22.1.2021, when Muhammad Sohail was arrested, his version was also the same. Even though the Investigating Officer did not write it, the State committed itself to the version set out in the FIR. It believed it to be true and sought his prosecution. Mr. Mirza argues that the Petitioner's claim that her version was never considered or evaluated is incorrect. Directing the State to register a new FIR - or a cross-version - of the same occurrence, reinvestigate it and conduct a new prosecution in absolute contradiction of the earlier process would be nonsensical and imbecile. The learned amicus curiae further argues that the Petitioner can prosecute Respondents Nos. 2 and 4 to 6 on her cross-version through a private complaint, which is an adequate and efficacious remedy.

Opinion

1. The Petitioner's plea in her application under section 22-A(6) Cr.P.C. and FIR No. 42/2021 lodged by Faisal Hussain/SI share many similarities. Both parties agree that the occurrence took place on 21.1.2021 at 10:30 a.m. The location of the incident and the police officials involved are all the same. Both the accounts of the occurrence mention the Petitioner's sons with the common feature that one of them, Muhammad Sohail, was arrested - which she claims constituted an abduction. The shooting incident is also mentioned in both narrations, albeit differently. The Petitioner accuses the police of inflicting firearm injuries while they allege that Irfan fired upon the raiding party. Therefore, the incident described in the Petitioner's application under section 22-A(6) Cr.P.C. is unmistakably a cross-version of FIR No. 42/2021. It is not information about a separate incident.

2. It is necessary to examine the following two legal questions before attending to the factual aspects of the case:

(i) Can second FIR be registered on a new/different version of the same incident involving the commission of a cognizable offence?

(ii) Can a cross-version be recorded in a case after the conclusion of the trial?

The first question

1. The courts in India distinguish between lodging two FIRs regarding the same incident and a counter FIR. In Kari Choudhary v. Sita Devi and others [(2002) 1 SCC 714], the Indian Supreme Court held that there could not be two FIRs against the same accused regarding the same episode. However, competing versions normally take the form of two different FIRs, and the same agency can investigate both. In Upkar Singh v. Ved Prakash and others [(2004) 13 SCC 292], the Supreme Court stated that filing a "counter-complaint" about the same incident is permissible, and there would be serious implications if it were disallowed. Santosh Hegde J. wrote:

"This will be clear from the hypothetical example given herein below, i.e., if in regard to a crime committed by the real accused, he takes the first opportunity to lodge a false complaint, and the same is registered by the jurisdictional police, then the aggrieved victim of such crime will be precluded from lodging a complaint giving his version of the incident in question. Consequently, he will be deprived of his legitimate right to bring the real accused to the book. This cannot be the purport of the Code."

1. In Babubahi v. State of Gujarat and others [(2010) 12 SCC 254], the Supreme Court held that an FIR under section 154 of the Indian Code of Criminal Procedure is a very important document because it sets the machinery of criminal law in motion and marks the beginning of the investigation. It is quite possible that the officer in charge of a police station may receive multiple pieces of information about an incident involving one or more cognizable offences. He does not have to file a new FIR for each such information. After the investigation into the facts stated in the FIR begins, all other information, whether oral or written, given to the officer in charge of a police station will be treated as statements under section 162 of the Indian Code of Criminal Procedure. The Supreme Court further said that when determining whether two FIRs pertain to the same incident or two or more parts of the same transaction, the judge should consider the facts and circumstances that gave rise to both FIRs and apply the test of sameness. The second FIR is liable to be quashed if the answer is affirmative. On the other hand, if it is established that the version in the second FIR is different or they relate to two separate incidents/crimes, the second FIR is permissible. If the accused in the first FIR presents a different version or counter-claim regarding the same occurrence, both FIRs must be investigated. In Surender Kaushik and others v. State of Uttar Pradesh and others [(2013) 5 SCC 148], the Supreme Court concluded as follows after thoroughly examining the case law:

"From the aforesaid decisions, it is quite luminous that the lodgment of two FIRs is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. It does not encompass filing of a counter-FIR relating to the same or connected cognizable offence. What is prohibited is any further complaint by the same complainant and others against the same accused subsequent to the registration of the case under the Code, for an investigation in that regard would have already commenced, and allowing registration of further complaint would amount to an improvement of the facts mentioned in the original complaint. As is further made clear by the three-Judge Bench in Upkar Singh, the prohibition does not cover the allegations made by the accused in the first FIR alleging a different version of the same incident. Thus, rival versions in respect of the same incident do take different shapes, and in that event, lodgment of two FIRs is permissible."

1. In P. Sreekumar v. State of Kerala and others [(2018) 4 SCC 579], the Supreme Court ruled that there is no legal bar on filing a second FIR where it is in the nature of a counter-complaint. Such FIR can be entertained and tried on merits according to the law.

2. In Pakistan, there was a lack of judicial consensus on registering a second FIR. Finally, in Sughran Bibi v. The State (PLD 2018 SC 595), a 7-member Bench of the Supreme Court rendered an authoritative decision which also addressed the ancillary question of how the police should record and investigate new/different versions of the same incident if a second FIR cannot be registered. The apex Court held that the FIR is essentially an "incident report" because it informs the police for the first time that an occurrence involving the commission of a cognizable offence has taken place. Once the FIR is registered, the occurrence is regarded as a "case", and every step in the ensuing investigation under sections 156, 157, and 159 Cr.P.C. is a step taken in that case. The Investigating Officer should not be swayed by the contents of the FIR, and he is under no obligation to establish that version. He must instead find out the truth. He should gather information from those who appear to be familiar with the details of the incident. A fresh FIR is not required for each new piece of information he obtains during the process or the discovery of a new circumstance relevant to the commission of the offence. Such further information or knowledge is part of the ongoing investigation into the same case, which began with the registration of the FIR. After completing the investigation, the Investigating Officer should file a report under section 173 Cr.P.C. on the real facts that he discovers, regardless of the version of the incident advanced by the first informant or any other version brought to his notice by any other person.

3. In Sughran Bibi, the Supreme Court iterated that the power to investigate is related to the offence and is not limited to the facts mentioned in the FIR. If the information received by the police about the commission of a cognizable offence also includes details of how and by whom it was committed, or anything regarding its background, that is only the informant's version of the incident. The Investigating Officer should not accept it unqualifiedly as the whole truth. Moreover, all versions of the incident are recorded under section 161 Cr.P.C., whether supplemental or divergent, and all of them are part of the same "case" that originated with the registration of the FIR as aforesaid.

4. It is pertinent to mention that the accused's version of the events also comes under section 161 Cr.P.C. In Raza v. The State (PLD 2020 SC 523), the apex Court held:

"18. The expression 'any person' has to be understood in the context of section 161 Cr.P.C. It requires a police officer making an investigation to examine any person supposed to be acquainted with the facts and circumstances of the case. This expression is extensive and, in its plain and ordinary meaning, includes all persons who are supposed to be acquainted with the facts and circumstances of the case and not only the witnesses but also those who are alleged to have committed the offence under investigation in a case …"

"19. It is common that in most cases, a version of the same occurrence different from the one recorded in FIR is given by the accused, as it happened in the present case. And, in view of the law declared in Sughran Bibi, it can be said with certainty that such version of an accused is to be, and is, recorded under section 161 Cr.P.C."

1. The restriction under section 154 Cr.P.C. that FIRs can be registered only regarding cognizable offences does not apply to cross-versions. It is for the obvious reason that they are recorded under section 161 Cr.P.C., as mandated by Sughran Bibi. However, registration of a cross-version does not obligate the Investigating Officer to arrest the accused immediately. There must be sufficient justification for it. The following excerpt from Sughran Bibi is relevant:

"Ordinarily, no person is to be arrested straightaway only because he has been nominated as an accused person in an FIR or in any other version of the incident brought to the notice of the investigating officer by any person until the investigating officer feels satisfied that sufficient justification exists for his arrest and such justification he is to be guided by the relevant provisions of the Code of Criminal Procedure, 1898, and the Police Rules, 1934. According to the relevant provisions of the said Code and the Rules, a suspect is not to be arrested straight away or as a matter of course, and unless the situation on the ground so warrants, the arrest is to be deferred till such time that sufficient material or evidence becomes available on the record of investigation prima facie satisfying the investigating officer regarding the correctness of the allegations levelled against such suspect or regarding his involvement in the crime in issue."

1. The Code is silent on the procedure for the trial of counter-cases. Nonetheless, the general practice is that they are tried concurrently by the same court, which renders judgment in each case simultaneously. The logic behind this practice is that there is a high risk of conflicting decisions if two cases involving different versions of the same incident are not tried together. In Nathi Lal and others v. State of U.P. [1990 SCC (Cri) 638], the Supreme Court of India ruled as follows on the issue of the trial of cross cases:

"We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same learned Judge must try both the cross cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each case, he can rely only on the evidence recorded in that case. The evidence recorded in the cross case cannot be looked into. Nor can the judge be influenced by whatever is argued in the cross-case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But both the judgments must be pronounced by the same learned Judge one after the other."

1. In State of Karnataka v. Hosakeri Ningappa and another (2012 ILR Karnataka 509), two counter-cases arising from the same incident were tried separately by the same Sessions Judge, and both ended in acquittal. The judgment of acquittal in one of them attained finality while the State preferred an appeal in the second before the High Court. The question arose as to whether the entire trial gets vitiated or whether it is only an irregularity which does not vitiate the trial process or the order of acquittal. A Full Bench of the Karnataka High Court held that if the counter-cases are not tried simultaneously, the proceedings do not get ipso facto vitiated. But, where the irregular procedure adopted by the trial court has caused prejudice to the accused and has occasioned a failure of justice, the proceedings and the trial vitiates. Otherwise, the defect is curable. The Andhra High Court followed this dictum in The State of A.P. v. Mittapalli Sudhakar Reddy and others.

2. In Muhammad Sadiq v. The State and another (PLD 1971 SC 713), the trial of a challan case under sections 148, 302, 307, 149, P.P.C. had concluded, and the Sessions Judge had set a date for delivering his judgment. A Magistrate of the First Class was holding the trial of a counter-complaint case filed by one of the accused in the challan case and stemming from the same occurrence. In this backdrop, the accused in the challan case applied under section 561-A Cr.P.C. for restraining the Court of Sessions from announcing judgment in the challan case until the hearing of the complaint case was complete. The High Court acceded to this prayer and stayed the announcement of the judgment by the Sessions Judge. The Supreme Court of Pakistan held that the Code is silent about the procedure for the trial of counter-cases arising out of the same occurrence. While it is the general practice to try the counter-cases side by side by the same court till their conclusion and to pronounce the judgment in each case simultaneously, it is not an absolute rule that must always be followed. The facts and circumstances of a particular case may warrant a different procedure for the ends of justice. The Supreme Court accepted the appeal, set aside the High Court's order and directed the Sessions Judge to pronounce the judgment. In Abdul Rehman Bajwa v. Sultan and others (PLD 1981 SC 522), the Supreme Court reaffirmed the above view, distinguishing Nur Elahi v. The State and others (PLD 1966 SC 708) and M. Rehman and others v. Narayanganj Company (Private) Ltd. (PLD 1971 SC 1).

3. I would conclude the discussion on the first issue by stating that after the Hon'ble Supreme Court's ruling in Sughran Bibi, there is no scope for recording a second FIR for the same incident, even for a cross-version.

The second question

1. Registration of a cross-version necessitates reinvestigation or further investigation. Whether a case can be reinvestigated or further investigated after the submission of the final report under section 173 Cr.P.C. (particularly after the accused is/are indicted) is quite contentious. There are two seemingly irreconcilable streams of decisions on this point. In Abid Hussain v. The State and others (2022 PCr.LJ 83) and Altaf Ahmed Makhdoom v. Inspector General of Police Punjab and others (2023 PCr.LJ 1), this Court thoroughly examined the case-law and ruled that the Supreme Court's dictum laid down in Muhammad Akbar v. The State and another (1972 SCMR 335) is the binding authority because a 4-member Bench handed down that decision while all others have come from the Benches of low numerical strength. In Muhammad Akbar, the apex Court held that "there is nothing in the Code of Criminal Procedure to prevent the Investigating Officer from submitting a subsequent report in supersession of his earlier one, either on his own initiative or on the direction of the superior police officer."

2. Although reinvestigation or further investigation is permissible, it cannot be done routinely. There are several limitations, one of which is that it cannot be when the trial is over. Bahadur Khan v. Muhammad Azam and others (2006 SCMR 373) is a case in point. According to the facts, Dilawar Khan was driving a Datsun pickup when he hit Raza and killed him. Raza's family alleged that it was a murder rather than an accident. Consequently, they shot Dilawar in retaliation a few months later. Bahadar Khan lodged FIR in respect of that occurrence. The trial court convicted accused Muhammad Arif and sentenced him to death but acquitted co-accused Muhammad Akram and Mir Hassan of the charge. The High Court acquitted Arif and convicted Akram and Mir Hassan, and sentenced them to life. The Supreme Court set aside Mir Hassan's conviction but upheld Akram's conviction and sentence. Subsequently, the prosecution submitted challan under sections 212, 120-B/34, P.P.C. against two more persons, Muhammad Azam and Abdullah Khan, in the court which conducted the previous trial. The Additional Sessions Judge convicted Muhammad Azam under section 212, P.P.C. and acquitted Abdullah, his co-accused. Bahadur Khan contended before the Supreme Court that the facts constituting the offence under sections 212 and 120-B/34 P.P.C. came to light during the investigation of another case having nexus with the murder case of Dilawar Khan. Therefore, on completion of the investigation, a challan, which was in continuation of the one filed earlier, was submitted to the trial court that decided the murder case. Bahadur argued that the subsequent challan was competent and the Additional Sessions Judge had rightly convicted Muhammad Azam. There was no prohibition on the police to reinvestigate or further investigate the lateral aspects of the case which came to light subsequently. They could submit a new report under section 173 Cr.P.C. The apex Court nixed the argument holding as follows:

"[There is no legal bar on] reinvestigation of a criminal case even after submission of the final report under section 173 Cr.P.C., and the police can carry out the fresh investigation and submit its report to the court. But this would not mean that in a case in which earlier, after completion of the investigation, challan was submitted for the trial of an offence on which an accused/accused persons have been tried, and the case finally decided up to the level of the High Court and by this Court, as the case may be, to entertain the subsequent challan submitted as the result of reinvestigation/further investigation of the case by the police on the happening of a subsequent incident and to proceed with the trial of the case in the normal course oblivious of the facts of the case decided earlier by such court, and, the facts and circumstances including incriminating material necessitated submission of the subsequent challan in the case already having been decided and attained finality."

1. No law allows recording a statement under section 161 Cr.P.C. once a case is decided. After the Supreme Court's ruling in Sughran Bibi that all versions after filing the FIR are recorded under section 161 Cr.P.C., reinvestigation or further investigation in a concluded case is impossible.

2. I would sum up the law on the issue as follows: Sughran Bibi merely prohibits the registration of a second FIR, not a cross-version. Therefore, so long as the trial has not concluded, it can be permitted, even at a belated stage, to prevent a miscarriage of justice. If the (original) FIR has been taken to its logical end, the only option for the individual who wishes to prosecute another on his cross-version is to file a private complaint. Here, I agree with Mr Mirza, the amicus curiae, that when the police present the report under section 173 Cr.P.C. (challan), the State commits itself to the version set out therein and, believing it to be true, seeks the accused's trial. It would be ludicrous to direct the State to register a new FIR - or a cross-version - of the same occurrence, reinvestigate it and launch another prosecution in absolute contradiction of the earlier process.

3. I may emphasize that a private complaint is an adequate and efficacious remedy. The following excerpt from Sughran Bibi is quite instructive:

"By virtue of the provisions of section 202(1), Cr.P.C. a court seized of a private complaint can 'direct an inquiry or investigation to be made by any Justice of Peace or by a police officer or by such other person as it thinks fit.' If, in a given case, the court seized of a private complaint deems it appropriate to direct an investigation to be carried out in respect of the allegations made, then the powers available during an investigation, enumerated in Part V, Chapter XIV of the Code of Criminal Procedure, 1898 read with section 4(1)(1) of the same Code, including the powers to arrest an accused person and to effect recovery from his possession or at his instance. Such powers of the investigating officer recognize no distinction between an investigation in a State case and an investigation in a complaint case."

1. Of course, there may be instances where the police refuse to take a person's cross-version, and he seeks legal redress against them, such as moving the Ex-officio Justice of Peace under section 22-A(6) Cr.P.C. However, due to procedural delays, the trial in the FIR case concludes before the decision on his cross-version request. In that scenario, although the individual is not to blame for the delays, a combined application of the principles settled in Sughran Bibi and Bahadur Khan would preclude recording his cross-version. His only recourse would be a private complaint.

The case at hand

1. The occurrence mentioned in the Petitioner's application under section 22-A(6) Cr.P.C. is manifestly a cross-version of FIR No. 42/2021. It cannot be considered as information of a different incident regarding the commission of a cognizable offence that would warrant registering a separate FIR.

2. First Information Report No. 42/2021 was registered under section 9(c) of the CNSA and sections 324, 353, 186, 337-H(2), 148 and 149, P.P.C. The prosecution was required to submit two challans in this case - one under the CNSA and the other under P.P.C.-because they are triable by separate courts. The Additional Sessions Judge tried Muhammad Sohail for the offence under section 9(c) of the CNSA and acquitted him vide judgment dated 24.6.2021. If FIR No. 42/2021 had only been under this offence, this petition might have been dismissed right away for the reasons given in paragraph 31 above. This Court would have refused the Petitioner relief even though she promptly approached the Ex-officio Justice of Peace to register her cross-version (i.e. eighteen days after filing FIR No. 42/2021), and there was also no subsequent delay on her part. However, in the present case, the aforesaid FIR is partially still alive because Irfan alias Fana and others were charged with the Penal Code offences, but the challan has not been submitted before the Magistrate to their extent. In the circumstances, one may argue that the principle settled in Bahadur Khan is inapplicable.

3. The DPO Okara marked the inquiry to the DSP/SDPO, Depalpur, who has not supported the Petitioner's version. She claims that Irfan was shot in the upper part of the right thigh. On 10.2.2021, the District Standing Medical Board examined him, and its members unanimously opined that his injury seemed to be fabricated for the following reasons:

i) According to the injured, he was hit by SMG from a distance of 25-30 feet, but the effective range of SMG, according to Encyclopaedia Britannica, is 180 metres. So, SMG bullet fired from 30 feet is unlikely to stop in superficial soft tissue.

ii) Bullet is lying parallel to the bone without hitting the bone or any hard surface. It is unlikely to be deflected.

iii) Clothes are not produced before DSMB even after repeated reminders.

iv) Placement of the bullet in the right thigh (soft tissue) does not correspond to have been inflicted/during a spontaneous scuffle.

1. On 22.8.2022, the Provincial Standing Medical Board re-examined Irfan under court orders and reaffirmed the above findings of the District Board.

2. A Single Judge of this Court held in Mureed Hussain v. Additional Sessions Judge/Justice of Peace Jampur and others (2014 PCr.LJ 1146) that the Ex-officio Justice of Peace was not bound to seek a report from the police in every case. He was competent to decide an application under Section 22-A(6) Cr.P.C. without it. In an earlier case, Khizar Hayat and others v. Inspector General of Police (Punjab) and others (PLD 2005 Lah. 470), a Full Bench of this Court observed that it was appropriate for him to call for a report to understand why the police refused to register a case. The Court said:

"It is prudent and advisable for an Ex-officio Justice of Peace to call for comments of the officer in charge of the relevant police station in respect of complaints of this nature before taking any decision of his own in that regard so that he may be apprised of the reasons why the local police have not registered a criminal case in respect of the complainant's allegations. It may well be that the complainant has been economizing with the truth, and the comments of the local police may help in completing the picture and making the situation clearer for the Ex-officio Justice of Peace, facilitating him in issuing a just and correct direction, if any."

1. The Supreme Court has authoritatively ruled in the case of Younas Abbas and others v. Additional Sessions Judge, Chakwal and others (PLD 2016 SC 581) that the Ex-officio Justice of Peace performs quasi-judicial functions under section 22-A(6) Cr.P.C. Therefore, before issuing any direction on a complaint for non-registration of a criminal case, he must satisfy himself that there is sufficient justification for it. He must address himself to the facts of the case, and where he disagrees with the police report, he should give reasons for his disagreement. He can't just ignore it.

2. In the instant case, neither the police report nor the medical evidence supports the Petitioner's cross-version. Therefore, her request for its registration cannot be granted. This petition is dismissed.

JK/Z-8/L Petition dismissed.

2024 P Cr. L J 1190

[Lahore (Multan Bench)]

Before Ali Baqar Najafi, J.

Dr. Atia Naz---Petitioner

Versus

Muhammad Ilyas Shah and others---Respondents

Criminal Revision No. 37080 of 2022, decided on 8th December, 2022.

Penal Code ( XLV of 1860 )---

----S. 499, Eighth Exception---Criminal Procedure Code (V of 1898), Ss.265-K, 435, 439 & 561-A---Defamation---Essential ingredients/ aspects---Mens rea---Good faith---Scope---Petitioner was aggrieved of her summoning in a private complaint proceedings---Assertion of the respondent/complainant was that the petitioner in different documents, including habeas/guardian petition for a, had alleged that he (complainant) was a Ahmadi/Qadiani by faith whereas he was a Barelvi Muslim , thus petitioner had defamed him by causing false imputation---Validity---Essential ingredient of defamation as per S.499 of the Penal Code, 1860 (P.P.C.) is mens rea, therefore according to the Eighth Exception to S.499, P.P.C., accusation levelled in good faith before a lawful authority for protection of right or interest can not be defamation---When the statement is made for public good and to safeguard the interest of its maker, without any malicious motive, offence of defamation is not made out---However, for summoning an accused person, the facts of the case should only be discussed prima facie and, therefore, the inherent powers of the High Court are to be sparingly exercised to prevent the abuse of the process of law---Some important questions must not be lost sight of: firstly, whether the faith of father does not determine the faith of the child in normal circumstances; secondly, in the wake of total denial of a particular faith by a person, whether a Family Court can issue any such declaration within the scope of Family Courts Act, 1964 , while determining welfare of the minor in deciding his custody petition; thirdly, whether the allegations before the judicial authorities are in good faith; fourthly, whether the Sessions Court is not the forum to determine the criminal consequences of calling someone with some faith other than his own---However, all said questions will have to be determined by the Sessions Court, once the same may be brought to its (Court's) notice through an application under S.265-K, Cr.P.C---Since the petitioner had already entered appearance before it (the Court), criminal revision was disposed of accordingly.

Mst. Shash Begum and others v. Bashir Ullah and others 2013 PCr.LJ 1737; Aun Saieed Hashmi and another v. The State and 2 others PLD 1976 Kar. 706; S. Dawood Shah v. S. Noor Shah and another 1986 PCr.LJ 1689; Sheikh Mahmood Saeed and others v. Amir Nawaz Khan and another 1996 SCMR 839; Muhammad Bux v. Sub-Divisional Magistrate, Sub-Division Matli, District Badin and another PLD 1999 Kar. 366; Mirza Ali Khan v. Sessions Judge, Peshawar and another 2002 SCMR 1461; Lt. Col. (Retd.) Najam Hameed v. The State and another 2007 YLR 2126 and Muhammad Sarwar Khan v. Sub. (Retd.) Muhammad Ashraf Khan 1987 PCr.LJ 1439 ref.

Muhammad Amin Akhtar for the Petitioner.

Ijaz Ahmad Pannun, Deputy District Public Prosecutor for the State.

Rana Zulfiqar Ali Khan for the Respondent.

Order

Ali Baqar Najafi, J.----Through this criminal revision under sections 435, 439 Cr.P.C., the order dated 12.03.2022 passed by learned Additional Sessions Judge, Lahore has been challenged whereby the petitioner was summoned in a private complaint to face trial under section 499 P.P.C.

1. Brief facts giving rise to the filing of this criminal revision are that the respondent No.1 filed a private complaint alleging that the petitioner through different documents including habeas petition, guardian petition, etc. at different fora has alleged that the respondent is a Ahmadi/Qadiani by faith whereas he is a Barelvi Muslim and in this way petitioner has defamed him by causing false imputation. Besides, allegations of extending threats to the respondent were also levelled against the petitioner and others. After recording the cursory statements, the petitioner was summoned to face trial, hence this criminal revision.

2. Arguments heard. Record perused.

3. Relevant Eighth Exception of section 499 P.P.C. is reproduced as under:-

"499. Defamation. Whoever by words either spoken or intended to be read, or by sign or by visible representations, makes or" publishes any imputation concerning any person intending to harm. or knowing or having reason to believe that such imputation will harm the reputation of such person is said except in the cases hereinafter excepted, to defame that person.

.......

.......

Eighth Exception. Accusation preferred in good faith to authorked person. It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation."

1. The essential ingredients of section 499 P.P.C. Defamation is mens rea and, therefore, accusation levelled in good faith before a lawful authority for protection of his right or interest cannot be a defamation. When the statement was made for public good and to safeguard the interest of its maker, without any malicious motive, offence of defamation was not made out. However, it was observed that for summoning an accused person, the facts of the case should be only discussed prima-facie and, therefore, the inherent powers of this court are to be sparingly exercised just to prevent the abuse of the process of law[ ]

2. In the context of above discussed legal position, some important questions must not be lost sight of: Firstly, whether the faith of father does not determine the faith of the child in normal circumstances. Secondly, in the wake of total denial of a particular faith by a person, whether a family court can issue any such declaration, within the scope of the West Pakistan Family Courts Act, 1964 while determining the welfare of the minor in deciding his custody petition. Thirdly, whether the petitioner is alleged to have imputed the allegations against the said respondent before the judicial authorities in good faith. Fourthly, whether the court of Additional Sessions Judge is not the forum to determine the criminal consequences of calling someone with some faith other than his own.

3. However, all these questions will have to be determined first by the learned Additional Sessions Judge once these legal arguments and relevant and essential facts are brought to the notice of the learned trial court through filing an application under section 265-K Cr.P.C. since the petitioner has already entered appearance there. Admittedly, no such application was filed before the said court, therefore, petitioner, if so advised, may file said application . With this observation, the instant criminal revision stands Disposed of.

MQ/A-24/L Order accordingly.

2024 P Cr. L J 1212

[Lahore (Rawalpindi Bench)]

Before Sadaqat Ali Khan and Ch. Abdul Aziz, JJ

Khalid Mehmood---Appellant

Versus

The State---Respondent

Criminal Appeal No. 253 of 2019 and Murder Reference No. 16 of 2019, heard on 8th December, 2022.

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

----Ss. 302(a), 324 & 337-F(iv)---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mudihah---Appreciation of evidence---Natural witnesses---Presence of the witnesses at the time and place of occurrence proved---Accused was charged for committing murder of three ladies of the complainant party by firing and also causing firearm injuries to the fourth lady---Ocular account of the incident had been furnished by complainant, injured lady and her husband---Admittedly, injured lady and her husband had abode in the same house wherein the bloodbath took place---Since the incident occurred before dawn, hence the presence of injured lady and her husband at the eventful time was unquestionable---Even the defence had not brought anything on record which might persuade to infer the absence of the said two witnesses from the crime scene---Presence of an inhabitant of the house, wherein someone is assassinated, is generally accepted unless such claim of presence is dislodged by the defence through some convincing material---Complainant was residing in a separate house along with his slain wife but even he justified the claimed presence at the spot through cogent explanation---House within the four walls of which three ladies were assassinated, was situated in a locality and complainant was living in the same vicinity---On the preceding night, complainant along with his wife/deceased went to the house of eye-witness to attend to his mother-in-law, who was a paralysis patient---Foregoing explanation put forth by complainant apparently inspired confidence when seen in the context that his wife/deceased also spent night in the same house---Deceased-ladies, eye-witnesses and the accused were closely related to each other---In the given circumstances, there was not even a remote possibility of mistaken identification of the sole perpetrator of crime---Neither anything was discerning from record nor pleaded so as to hold that the two sides were inimical towards each other or were locked in some affair of abhorrence---Record reflected that no untoward incident, even of lighter magnitude, ever took place between the two sides in the past, what to talk of enmity between the parties---It spelled out from record that a witness, husband of a deceased lady, even helped accused to effect a compromise with the legal heirs of the deceased in a murder case registered against him in the year 2008---Unambiguously, in the given circumstances, it could be held that the eye-witnesses had no personal vendetta or score to settle with the accused, thus by no stretch it could be termed as partisan---Though four ladies endured serious firearm injuries during the incident and three out of them lost their lives but still the eye-witnesses solely held accused responsible for the crime---Appeal against conviction was dismissed, in circumstances.

Muhammad Javaid v. The State 2007 SCMR 324 rel.

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

----Ss. 302(a), 324 & 337-F(iv)---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mudihah---Appreciation of evidence---Night time occurrence---Source of light, proved---Accused was charged for committing murder of three ladies of the complainant party by firing and also causing firearm injuries to the fourth lady---Homicide incident occurred in the early hours of the morning and there was semi-darkness all around---Though it was vociferously alleged by defence that due to scarcity of light, margin of mistaken identification could legitimately be extended to the accused but such version ran contrary to record---Such version so advanced by defence stood exposed from the scaled site plan wherein the presence of electricity bulb at the spot was highlighted---Statements of eye-witnesses unfolded that the accused assassinated the ladies in a residential room of a small house and both sides were at close distance from each other while having long standing acquaintance---Presence of light at the spot and the close distance between the two sides left no room for discussion that the point mentioned above raised by the defence had no legs to stand---Even the analysis of record with utmost circumspection revealed that narrators of ocular account remained resolute not only in respect of the mode and manner in which the crime was committed but also about the post occurrence events---Eye-witnesses budged not a single inch from their stance of having witnessed the occurrence and in holding the accused as the sole person responsible for committing the crime---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(a), 324 & 337-F(iv)---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mudihah---Appreciation of evidence---Statement of injured witness---Reliance---Accused was charged for committing murder of three ladies of the complainant party by firing and also causing firearm injuries to the fourth lady---Injured witness entered the dock with the claim of having received a grievous firearm injury at her thorax region---For that trauma, injured witness was examined by Medical Officer through Medico-Legal Certificate, the genuineness of which was never challenged by the defence either during investigation or at trial---In the given circumstances, it would not be an overstatement to term the injuries of injured as stamp of her presence at the spot---In the given scenario, the question of predominant importance emerged that why injured witness would have resorted to the tool of substitution for letting go scot-free the actual offender who assassinated three of her close relatives, more importantly when she had no personal axe to grind with the accused---Persuading the Court for discarding the testimony of an injured witness of homicide incident inexorably was an insurmountable hurdle to cross for the culprit and this rule became more inflexible when the deposition of such a witness had no legal flaw or infirmity---Statement of such an injured eye-witness could safely be relied upon for handing down guilty verdict to the culprit of a murder incident---Appeal against conviction was dismissed, in circumstances.

Saleem Zada and others v. The State and others 2019 SCMR 1309; Muhammad Shabbir and others v. The State 2020 SCMR 1206; Azhar Nawaz v. The State 2017 SCMR 1877 and Jahangir and other v. The State NLR 1998 Criminal 687 rel.

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

----Ss. 302(a), 324 & 337-F(iv)---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mudihah---Appreciation of evidence---Medical evidence supporting the prosecution case---Accused was charged for committing murder of three ladies of the complainant party by firing and also causing firearm injuries to the fourth lady---Medical evidence showed that one deceased lady received two firearm injuries, other deceased lady suffered one firearm trauma over her skull, whereas another deceased lady endured a bullet injury at the occipital region---Almost all the entry wounds of the three deceased-ladies had blackening around their margins---As regards injured witness, initially she was taken to CMH Hospital and later was examined in THQ Hospital by Medical Officer through Medico-Legal Certificate who observed a firearm entry wound slightly below hypochondrium with a corresponding exit wound on the clavicle---Nature of injuries coincided with the weapon statedly the accused used during the incident and the duration between death and postmortem was also found to be in consonance with the time of occurrence described by the eye-witnesses---Even after having minutely examined the medical evidence, it did not have an iota of legal infirmity---Appeal against conviction was dismissed, in circumstances.

Jerry Wayne Andrews and Namon Earl Andrews v. State 270 So.2d 320 (1979) rel.

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

----Ss. 302(a), 324 & 337-F(iv)---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mudihah---Appreciation of evidence---Motive proved---Accused was charged for committing murder of three ladies of the complainant party by firing and also causing firearm injuries to the fourth lady---Motive behind the occurrence was stated to be the annoyance of accused which he nourished from the proposed marriage of daughter of one of the deceased lady with someone else---Accused got irked for no good reason when daughter of one of the deceased ladies was engaged with another person---Accused expressed his annoyance for the proposed matrimonial bond of daughter of one of the deceased ladies and later transformed it into aggression which he unleashed on the fateful day---Canvassed motive was proved through the depositions of three eye-witnesses and another witness---Factum of previous conviction in a murder case and the driving force behind the commission of instant occurrence were put to accused during his examination under S.342 Cr.P.C, and their truth was accepted by him through an answer in affirmative---Motive could safely be held to have been proved during trial---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(a), 324 & 337-F(iv)---Qanun-e-Shahadat (10 of 1984), Art.40---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mudihah---Appreciation of evidence---Weapon of offence recovered on the pointation of accused---Reliance---Accused was charged for committing murder of three ladies of the complainant party by firing and also causing firearm injuries to the fourth lady---Arrest of the accused was effected on 01.06.2018 and 07-days thereafter he got recovered a pistol from his house which was secured through a memo---Pistol was dispatched to Forensic Science Agency through ASI/witness---During spot inspection SI/witness collected five crime empties of .30 bore caliber which were transmitted to Forensic Science Agency on 29.05.2018---According to the Forensic Science Agency Report, all the five crime empties were found wedded with the pistol recovered from the accused---Even the recovery of pistol was impeccably proved by the prosecution through confidence inspiring depositions of two witnesses---All the three witnesses testified the recovery proceedings without any conflict or contradiction by stating that the weapon was recovered in pursuance of disclosure and pointing out of the accused---Place of recovery was a house which was in the exclusive possession of the accused having sole knowledge of the exact place where the pistol was kept---Recovery of pistol which subsequently matched with the crime empties could inexorably be taken as discovery of a new fact which in terms of Art. 40 of Qanun-e-Shahadat O. 1984, was admissible---Appeal against conviction was dismissed, in circumstances.

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

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

----Ss. 302(a), 324 & 337-F(iv)---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mudihah---Appreciation of evidence---Sentence, quantum of---Accused was charged for committing murder of three ladies of the complainant party by firing and also causing firearm injuries to the fourth lady---Present case inescapably was of ferocious killing and the accused targeted four innocent ladies, out of whom three died at the spot---Neither defence pleaded any exception contemplated in Chapter IV of P.P.C nor any other extenuating circumstances like human frailty, morbid jealousy or loss of tamper owing to reasons attributable to the victims---Conversely, the record spoke that the accused even previously was sentenced to death in another murder case but earned acquittal on the basis of compromise---Moreover, it could be deciphered from the antecedents of the accused as well as from the genesis of the crime that he had least respect for human lives, thus deserved no mercy---Extending mercy to the accused by having resort to lesser sentence would amount to giving him another opportunity of letting loose on the lives of some innocent persons somewhere in the future---Appeal against conviction was dismissed, in circumstances.

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

----S. 342---Examination of accused---Scope---If an accused, facing trial is not confronted with incriminating circumstances, no conviction can be awarded on the basis thereof.

Muhammad Shah v. The State 2010 SCMR 1009 rel.

Raja Ghaneem Aabir Khan for Appellant.

Muhammad Bashir Paracha for the Complainant.

Sajjad Hussain Bhatti, Deputy Prosecutor General assisted by Muhammad Aslam Khaki, Amicus Curiae for the State.

Date of hearing: 8th December, 2022.

Judgment

Ch. Abdul Aziz, J.---In a trial held in case FIR No.53/2018 dated 23.05.2018 registered under Sections 302,324 and 311 of the Pakistan Penal Code, 1860 (hereinafter referred to as P.P.C) at Police Station Bahtar, learned Additional Sessions Judge Fateh Jang Attock vide judgment dated 24.01.2019 proceeded to convict and sentence Khalid Mehmood (appellant) in the following terms:-

(i) Under Section 302(a) P.P.C. to suffer death sentence as Qisas on three counts for committing qatl-i-amd of Tasleem Bibi, Fehmeeda Bibi and Uzma Bibi. He was also directed to pay Rs.2,50,000/- to each of the legal heirs of afore-mentioned deceased-ladies under Section 544-A of the Code of Criminal Procedure, 1898. The compensation was ordered to be recovered from the appellant as arrears of land revenue and in default whereof to suffer simple imprisonment for 06-months.

(ii) Under Section 324 P.P.C. to suffer rigorous imprisonment for 10-years with the direction to pay Rs.100,000/- to be paid to Abida Bibi (injured).

(iii) Under Section 337-F(iv) P.P.C. to suffer rigorous imprisonment for 05-years with the direction to pay Daman of Rs.50,000/- payable to Abida Bibi (injured/PW).

Aggrieved by his convictions and sentences, the appellant filed Criminal Appeal No.253 of 2019 through jail superintendent, whereas trial court sent reference under Section 374 the Code of Criminal Procedure, 1898 (hereinafter referred to as Cr.P.C). which was numbered as Murder Reference No.16 of 2019 for the confirmation or otherwise of death sentence awarded to Khalid Mehmood (convict). Both these matters are being decided through this single judgment on account of their inter se connection.

1. Succinctly stated the facts of the prosecution case as unveiled by Darya Khan (PW.5) in FIR (Exh.PD) are to the effect that he is resident of Humak and serving in Education Department; that his mother-in-law, namely Waris Jan was patient of paralysis for the last many years and was residing with her daughter Abida Bibi, wife of Muhammad Riasat (PW.7); that on the evening of 22.05.2018 he along with his wife Fehmeeda Bibi went to the house of Muhammad Riasat in order to see Waris Jan; that Mst.Tasleem Bibi and Uzma Bibi also arrived there for a night stay in the house of Waris Jan and till late hours, they remained busy in gossips; that he and Muhammad Riasat went in one room for sleep, whereas ladies remained in the other room; that at Fajjar prayer time, they heard the reports of fire shots coming from the other room; that he and Riasat rushed towards that room and saw Khalid Mehmood (appellant) while recklessly firing at the ladies; that due to the shots so fired by the accused the ladies, namely, Uzma Bibi, Tasleem Bibi, Fehmeeda Bibi and Abida Bibi received injuries and the former three took their last breath at the spot, whereas Abida Bibi PW was taken to CMH, Attock in precarious injured condition; that he and other PWs made efforts to apprehend the assailant, who also attempted to take their lives but fortunately no shot could be fired as the bullet missed. The motive behind the occurrence was stated to be the annoyance of Khalid Mehmood (appellant) which he nourished from the proposed marriage of Mehnaz Begum, the daughter of Tasleem Bibi (deceased) with one Sarfraz.

2. After receiving the information about the crime, Lehrasib Ali SI (PW.13) reached the spot where he recorded the statement (Exh.PM) of Darya Khan (PW.5), inspected the corpses, drafted applications (Exh.PN, Exh.PO and Exh.PQ) for autopsy of the three deceased-ladies and prepared inquest reports (Exh.PR, Exh.PS and Exh.PT). He entrusted Nuzhat Shaheen 2385/LC the task for shifting the dead bodies to hospital for postmortem examination. During spot inspection, he secured blood through cotton from the places where the victims fell after receipt of firearm injuries, collected five crime empties (P.2/1-5) and took into possession the energy saver bulb vide memos Exh.PA, Exh.PB and Exh.PC. He arrested Khalid Mehmood (appellant) on 01.06.2018, who during interrogation made disclosure and in pursuance thereof led to the recovery of pistol (P.3) which was taken into possession vide memo Exh.PE. He recorded the statements of the relevant PWs under Section 161 Cr.P.C and after complying with all the codal formalities submitted report under Section 173 Cr.P.C.

3. At the time of framing charge i.e. on 15.11.2018 the appellant pleaded guilty under Section 265-E Cr.P.C, however the learned trial court opted to summon the prosecution evidence in terms of Section 265-F(1) Cr.P.C and in pursuance thereof 13-PWs were produced, out of whom Dr. Marium Jalil (PW.10) and Dr.Sara Asad (PW.11) furnished the medical evidence, Darya Khan (PW.5), Abida Bibi (PW.6) and Riasat Ali (PW.7) narrated the ocular account and Lehrasib Ali SI (PW.13) is the Investigating Officer. The remaining PWs, more or less were formal in nature.

4. On 23.05.2018 Dr. Marium Jalil (PW.1) conducted the autopsy of Tasleem Bibi, Fehmeeda Bibi and Uzma Bibi and noted the injuries which are mentioned hereunder:-

(1) Tasleem Bibi

1. A firearm lacerated wound measuring 1.5 cm x 1 cm x ingoing; margins inverted, surrounding area blackening; present at medial aspect of left arm; 10 cm from tip of shoulder joint. It is entry wound.

2. A firearm lacerated wound measuring 1.0 cm x 1.5 cm x outgoing everted; surrounding area clear; present at lateral aspect of axilla; 10 cm from tip of shoulder joint. It is exit wound. (Injuries Nos.1 and 2 corresponding with one and another).

3. A firearm lacerated wound measuring 2.0 cm x 1 cm x ingoing; margins inverted; surrounding area clear; present at medial aspect of axilla; 15 cm from tip of shoulder joint. It is entry wound in front of injury No.2.

4. A firearm lacerated wound measuring 1 cm x 1 cm x outgoing; margins everted; surrounding area clear; present at right posterior axillary line at level of right 8th rip. Injuries Nos.3 and 4 corresponding with one and another. It is exit wound.

(2) Fehmeeda Bibi

1. A firearm lacerated wound measuring 1.0 cm x 1.0 cm x ingoing; margins inverted, surrounding area blackening; present at occiput; 14 cm away from left ear tragus. It is entry wound.

(3) Uzma Bibi

1. A firearm lacerated L-shaped wound measuring 6.0 cm x 4.0 cm x ingoing; margins inverted, surrounding area blackening; present at occiput; 08 cm left ear tragus. It is entry wound.

According to the doctor, the death of all the three deceased-ladies occurred due to firearm injuries which damaged their vital organs.

On 28.05.2018 Dr.Sara Asad (PW.11) conducted the medico legal examination of Abida Bibi and noted injuries which are as under:-

(1) A gun shot lacerated wound measuring 1 cm x 1 cm below right hypochondrium measuring 26 cm from right nipple and 14 cm above right iliac chest wound margins inverted, blackening present around wound.

(2) A gun shot lacerated wound measuring 1.5 cm x 1 cm below right clavicle 20 cm above right nipple margins everted.

1. After the conclusion of prosecution evidence, the learned trial court also examined the appellant under Section 342, Cr.P.C., who in response to question "why this case against you and why PWs deposed against you" made the following reply:-

"I am welder by profession. On 23.05.2018, at Fajjar time, I was present in the house of my 'Humzulf' Muhammad Riasat whereas my wife Uzma Bibi, her sisters Fehmeeda Bibi and Abida Bibi and her maternal aunt (Khala) who is my Phuphi namely Tasleem Bibi were sleeping in the eastern room of her house. I am firing upon all of them when they were sleeping in said room on cots. I committed murder of aforesaid Uzma Bibi, Fehmeeda Bibi and Tasleem Bibi whereas seriously injured Abida Bibi, by causing firearm injuries to them. I plead guilty and request this Court to convict me in accordance with law. The PWs have rightly deposed against me."

The appellant neither opted to make statement under Section 340 (2) Cr.P.C. nor produced any evidence in his defence. On the conclusion of trial, the appellants were convicted and sentenced as afore-stated, hence the instant criminal appeal and murder reference.

1. It is contended by learned counsel for the appellant that the case in hand was registered with inordinate delay of 4/5 hours which gives rise to concoction and fabrication; that admittedly, the deceased-ladies were murdered in the dark hours and the prosecution failed to prove the presence of light at the spot which gives rise to the possibility of mistaken identification; that the witnesses miserably failed to prove their presence at the spot and they otherwise were related with the deceased-ladies, thus their evidence is to be discarded; that medical evidence is in conflict with the ocular account which is another ground for dislodging the statements of eye-witnesses; that though prosecution came forward with a specific motive but failed to prove it; that the positive report of PFSA is to be discarded as the pistol was recovered from the appellant without adhering to the provisions of Section 103 Cr.P.C; that even if the prosecution case is proved but still the appellant deserves alternate sentence of imprisonment for life due to the weak canvassed motive; that the appellant pleaded guilty before the trial court which itself warrants award of lesser sentence.

2. On the other hand, learned law officer assisted by learned counsel for the complainant vociferously argued that the case was registered with reasonable promptitude as the police station was situated at considerable distance from the crime scene; that the incident took place within the four walls of the house and two eye-witnesses were having abode therein, thus their presence cannot be denied; that one of the eye-witnesses also received firearm injury during the same incident and this injury can safely be termed as proof of her attendance; that though the incident occurred shortly before the dawn, but it has no adverse significance for the prosecution as the source of light was pinpointed in the site plan; that the appellant committed cold blooded murder of three ladies and caused firearm injury to another, thus he deserves no leniency in the quantum of sentence.

3. Arguments heard. Record perused.

4. A wade through the record reveals that the case in hand was registered for the ferocious killing of three ladies, namely Uzma Bibi, Tasleem Bibi and Fehmeeda Bibi by one of their own relatives, Khalid Mehmood (appellant). All the three slain ladies along with injured Abida Bibi (PW.6) were sleeping in a residential room on 22.05.2018 and at the crack of dawn Khalid Mehmood (appellant) intruded therein along with a pistol and pounced upon them with the frightening ferocity. The perpetrator decamped from the spot after the commission of crime but left behind corpses of the three ladies along with Abida Bibi (PW.6) who though endured two firearm injuries but remained fortunate enough to survive the attack and later appeared in the dock to tell the tale of this incident.

5. The occurrence took place in the residential room of a house owned by Muhammad Riasat (PW.7) situated in a neighborhood known as Humak having distance of 28-kilometers from Police Station Bahtar, District Attock. Before inching any further, we feel a pressing need to mention here that Fehmeeda Bibi (deceased), Uzma Bibi (deceased) and injured Abida Bibi (PW.6) were inter se related as sisters, whereas the third deceased Tasleem Bibi was their aunt. Likewise, Fehmeeda (deceased) and injured Abida Bibi (PW.6) were wives of Darya Khan (PW.5) and Riasat Ali (PW.7) respectively. So far as, Uzma Bibi (deceased) is concerned, she was tied in a matrimonial knot with the sole perpetrator of the crime, namely, Khalid Mehmood (appellant). The house within the four walls of which the carnage took place, belongs to Riasat Ali (PW.7) and his wife Abida Bibi (PW.6).

6. During trial the saga of this heart wrenching episode was narrated by three eye-witnesses, namely Darya Khan, Abida Bibi and Riasat Ali (PWs 5,6 and 7). For ascertaining the truth behind the depositions of afore-mentioned eye-witnesses, we made an in-depth scrutiny of record and came across various factors reflecting positively upon their presence, credibility and truthfulness. While evaluating the intrinsic worth of what an eye-witness of homicide incident deposes, the question of paramount importance pertains to his acclaimed presence. Needless to mention here that if the stance of such an eye-witness about his presence at the crime scene is found surrounded amidst doubt, the superstructure of conviction cannot be raised upon his deposition. Firstly, it is noticed that admittedly Abida Bibi (PW.6) and her husband Riasat Ali (PW.7) were having abode in the same house wherein the bloodbath took place. Since the incident occurred before the dawn of 22.05.2018, hence the presence of Abida Bibi and Riasat Ali at the eventful time is unquestionable. Even the defence has not brought anything on record which may persuade us to infer the absence of the afore-mentioned two witnesses from the crime scene. The presence of an inhabitant of the house, wherein someone is assassinated, is generally accepted unless such claim of presence is not dislodged by the defence through some convincing material. Reference in this context may be made to the case reported as Muhammad Javaid v. The State (2007 SCMR 324) wherein the Hon'ble Supreme Court of Pakistan gave the following observation:-

"It is worth mentioning that being inmates of the house they were natural witnesses and cannot be termed as interested witnesses having no animus and rancour about the petitioner."

We are mindful of the fact that Darya Khan (PW.5) was residing in a separate house along with his slain wife Fehmeeda Bibi but even he justified the acclaimed presence at the spot through cogent explanation. It is noticed that the house within the four walls of which three ladies were assassinated just like sitting ducks, was situated in a locality known as Humak and Darya Khan (PW.5) was living in the same vicinity. On the preceding night, Darya Khan (PW.5) along with his wife Fehmeeda Bibi (deceased) went to the house of Riasat Ali (PW.7) to attend his mother-in-law Waris Jan, a paralysis patient. The foregoing explanation put forth by Darya Khan (PW.5) apparently inspires confidence when seen in the context that his wife Fehmeeda Bibi (deceased) also spent night in the same house. Secondly, it is noticed that the deceased-ladies, eye-witnesses and the appellant were closely related to each other. In the given circumstances, there is not even a remote possibility of mistaken identification of the sole perpetrator of crime. Thirdly, neither anything is discerning from record nor pleaded before us so as to hold that the two sides were inimically placed against each other or were locked in some affair of abhorrence. Indeed, it reflects from record that no untoward incident, even of lighter magnitude, ever took place between the two sides in the past. What to talk of enmity between the parties, it spells out from record that Bakhseesh Ahmed (PW.8), the husband of Uzma Bibi (deceased) even helped Khalid Mehmood (appellant) for affecting a compromise with the legal heirs of the deceased in a murder case registered against him in the year 2008. Unambiguously, in the given circumstances, it can be held that the eye-witnesses had no personal vendetta or score to settle with the appellant, thus by no stretch can be termed as partisan. Fourthly, we took note of the fact that though four ladies endured serious firearm injuries during the incident and three out of them lost their lives but still the eye-witnesses solely held Khalid Mehmood (appellant) responsible for this brutality. The unfortunate tendency to spread wider net for implicating some innocent relatives of the actual offender in a criminal case has become the trend of litigation in our society but the case in hand is seemingly an exception to the prevailing menace. We do not need to shed light upon the grief and sense of retribution the legal heirs of the victims must be having after the incident but still no innocent person from the family of appellant was grilled in the case. Inexorably, the foregoing fact indicates that the eye-witnesses overpowered their sentiments, emotions and sense of retribution by giving preference to the truth by nominating the appellant as the sole culprit, thus there is no reason to doubt their veracity. Fifthly, we are mindful of the fact that the homicide incident occurred in the early hours of the morning and it was semi-darkness all around. Though it was vociferously argued by the learned defence counsel that due to scarcity of light, margin of mistaken identification can legitimately be extended to the appellant but we are least impressed from such submission as it runs contrary to record. The frailty of the argument so advanced by learned defence counsel stands exposed from the scaled site plan (Exh.PF) wherein the presence of electricity bulb at the spot is highlighted. Even otherwise, it unfolds from the statements of eye-witnesses that the appellant assassinated the ladies in a residential room of a small house and both sides were at close distance from each other while having long standing acquaintance. Needless to mention here that the presence of light at the spot and the close distance between the two sides, leaves no room for discussion that the point mentioned above raised by the learned defence counsel has no legs to stand. Even the analysis of record with utmost circumspection reveals that narrators of ocular account remained resolute not only in respect of the mode and manner in which the crime was committed but also about the post occurrence events. They budged not a single inch from their stance of having witnessed the occurrence and in holding the appellant as the sole person responsible for committing the crime. Last but not the least, Abida Bibi (PW.6) entered the dock with the claim of having received a grievous firearm injury at her thorax region. For this trauma, Abida Bibi (PW.6) was medically examined by Dr.Sara Asad (PW.11) through MLC (Exh.PK), the genuineness of which was never challenged by the defence either during investigation or at trial. In the given circumstances, it will not be an overstatement to term the injuries of Abida Bibi (PW.6) as stamp of her presence at the spot. In the given scenario, the question of predominant importance emerges that why injured Abida Bibi (PW.6) will have resort to the tool of substitution for letting go scot-free the actual offender who assassinated three of her close relatives, more importantly when she had no personal axe to grind with the appellant. Persuading the Court for discarding the testimony of an injured PW of homicide incident inexorably is an insurmountable hurdle to cross for the culprit and this rule becomes more inflexible when the deposition of such a witness is having no legal flaw or infirmity. The statement of such an injured eye-witness can safely be relied upon for handing down guilty verdict to the culprit of a murder incident. The view so expressed by us regarding an injured witness is fortified from the observation of the Hon'ble Apex Court given in the case reported as Saleem Zada and others v. The State and others (2019 SCMR 1309) which is as under:-

"We have gone through the statement of Bhari Zaman, the sole eye-witness and found him most confidence inspiring; he alone can sustain the charge; being injured, his presence cannot be doubted."

If any further reference in this regard is required that can be made to the cases reported as Muhammad Shabbir and others v. The State (2020 SCMR 1206), Azhar Nawaz v. The State (2017 SCMR 1877) and Jahangir andohers v. The State (NLR 1998 Criminal 687).

1. The medical evidence in a charge of murder has its own importance and is collected with the sole purpose of enabling the Court for reaching the truth. The doctor who examines the injured or the deceased, in fact makes contribution in the administration of criminal justice. From the medical data placed on record, the court gets an overview about the truth of eye-witnesses in reference to the locales of injuries, the kind of weapons used for the crime, the duration within which the traumas were inflicted and above all the actual cause of death. The confirmatory medical evidence furnished in this case was subjected to an in-depth scrutiny on the benchmark of points mentioned above. It is noticed that the corpses of three deceased-ladies, namely, Tasleem Bibi, Fehmeeda Bibi and Uzma Bibi were shifted to THQ Hospital for autopsy without afflux of any noticeable delay. The task of conducting postmortem was assigned to Dr.Marium Jalil (PW.10) who examined the bodies and issued autopsy reports (Exh.PG, Exh.PH and Exh.PJ). It is noticed from the medical evidence that Tasleem Bibi (deceased) was in receipt of two firearm injuries, Fehmeeda Bibi (deceased) suffered one firearm trauma over her skull, whereas Uzma Bibi endured a bullet injury at the occipital region. Almost all the entry wounds of the three deceased-ladies were having blackening around their margins. As regards Abida Bibi (PW.6), initially she was taken to CMH Hospital and later was examined in THQ Hospital by Dr.Sara Asad (PW.11) through MLC (Exh.PK) who observed a firearm entry wound little below hypochondrium with a corresponding exit wound on the clavicle. The nature of injuries coincides with the weapon statedly the appellant used during the incident and the duration between death and postmortem is also found to be in consonance with the time of occurrence described by the eye-witnesses. Even after having minutely examined the medical evidence, we did not come across even an iota of legal infirmity, the legitimate benefit of which can be extended to the appellant.

2. The observations, so given by us, in the preceding paras though can justifiably be encapsulated in terms that the eye-witnesses are truthful and their depositions inspire confidence which otherwise have the support of confirmatory medical evidence but still for the safe administration of justice, we further scrutinized the record to look for the corroboration. In legal parlance the word "corroborate" means to strengthen, confirm or to make more certain and this is how the term is defined in Black's Law Dictionary, Tenth Edition. The corroboration can be sought from some other independent circumstances or evidence which though does not directly prove the ultimate guilt of a delinquent but inclines to connect him with the commission of crime. For the clarity of proposition, an observation from a case of American jurisdiction reported as 270 So.2d 320 (1979) [Jerry Wayne Andrews and Namon Earl Andrews v. State] is being referred hereunder-

"The sufficiency of corroborating evidence is established if its probative value tends to connect the defendant with the commission of the crime."

For substantiating the testimonies of eye-witnesses, the prosecution made available corroboratory evidence in the nature of motive and positive report of PFSA about the weapon recovered from the appellant which statedly matched with the empty shells secured from the crime scene. Before dilating upon the motive set out by the prosecution, we feel a pressing need to mention here that Khalid Mehmood (appellant) even previously remained involved in a murder case and was sentenced to death. Later, the appellant was acquitted in the earlier registered murder case on the basis of compromise affected with the legal heirs mainly due to the efforts of Bakhseesh Ahmed (PW.8). Unfortunately, instead of mending himself, the appellant developed the characteristics of a hardened criminal and even embittered the lives of his own relatives. He got irked for no good reason when Amina Bibi, the daughter of one of the deceased-ladies was engaged with a person resident of village Mirza. The appellant expressed his annoyance for the proposed matrimonial bond of Amina Bibi and later transformed it in the aggression which he unleashed on the fateful day. The canvassed motive was proved through the depositions of three eye-witnesses and Bakhseesh Ahmed (PW.8). The factum of previous conviction in a murder case and the driving force behind the commission of instant occurrence was put to Khalid Mehmood (appellant) during his examination under Section 342 Cr.P.C and their truth was accepted through an answer in affirmative. Inexorably, in the given circumstances, the motive can safely be held to have been proved during trial.

1. The arrest of the appellant was affected on 01.06.2018 and 07-days thereafter he got recovered pistol (P.3) from his house which was secured through memo Exh.PE. The pistol was dispatched to PFSA through Masood-ur-Rehman ASI (PW.1). It is equally important to mention here that during spot inspection Lehrasib Ali SI (PW.13) collected five crime empties of 30 bore caliber which were transmitted to PFSA on 29.05.2018. According to the PFSA report (Exh.PW), all the five crime empties were found wedded with the pistol recovered from the appellant. Even the recovery of pistol (P.3) was impeccably proved by the prosecution through the confidence inspiring depositions of Riasat Ali (PW.7), Bakhseesh Ahmed (PW.8) and Lehrasib Ali SI (PW.13). All the three witnesses testified the recovery proceedings without any conflict or contradiction by stating that the weapon was recovered in pursuance of disclosure and pointing out of the appellant. The place of recovery is a house which was in the exclusive possession of the appellant having sole knowledge of the exact place where the pistol was kept. The recovery of pistol which subsequently matched with the crime empties can inexorably be taken as discovery of a new fact which in terms of Article 40 of Qanun-e-Shahadat Order, 1984 is admissible. In this respect, reliance can be placed upon the case reported as Sh. Muhammad Amjad v. The State (PLD 2003 SC 704) wherein the Hon'ble Supreme Court of Pakistan held as under:-

"Further it is noted that as per Article 40, corresponding to Section 27 of the Evidence Act, when any fact is revealed in consequence of information received from any accused in custody of a Police Officer, such information whether it amounts to a confession or not as it relates distinctly to the fact whereby discovered, may be proved. The information supplied by the appellant, under Article 40 ibid, relating to incriminatory articles is admissible."

After having examined the record, we have no doubt in our minds that the duly proved motive and flawless recovery of pistol from the appellant was proved beyond shred of any ambiguity and both the foregoing incriminating aspects are providing corroboration to the ocular account narrated by the three eye-witnesses.

1. After having formed an opinion that the involvement of appellant in the commission of crime was proved beyond scintilla of any ambiguity, we are confronted with the question of pivotal importance which pertains to the quantum of sentence, the appellant deserves. The case inescapably is of ferocious killing and the appellant targeted four innocent ladies, out of whom three died at the spot. Neither learned counsel for the appellant pleaded before us any exception contemplated in Chapter IV of P.P.C nor any other extenuating circumstances like human frailty, morbid jealousy or loss of tamper owing to the reasons attributable to the victims. Conversely, the record speaks that the appellant even previously was sentenced to death in another murder case but earned acquittal on the basis of compromise. It deciphers from the antecedents of the appellant as well as from the genesis of the crime that he has least respect for the human lives, thus deserves no mercy. It will not be an over-statement that extending of mercy to the appellant by having resort to lesser sentence amounts to giving him another opportunity of letting loose on the lives of some innocent persons even somewhere in the future.

2. After having formed the afore-mentioned opinion, we have to wrestle with the proposition that whether the death sentence awarded to the appellant under Section 302 (a) P.P.C by the trial court is to be maintained or he is to be convicted under Section 302 (b) P.P.C with the same amount of punishment. It would be beneficial to mention here that under Section 302 (a) P.P.C a murderer is sentenced to death as Qisas, whereas Section 302 (b) P.P.C though provides punishment of death but as ta'zir. Besides that, under Section 302 (b) P.P.C alternate sentence of life imprisonment can also be awarded as ta'zir which in this case is not relevant. For the clarity of proposition, clauses (a) & (b) of Section 302 P.P.C are mentioned hereunder:-

"302. Punishment of qatl-i-amd. Whoever commits qatl-i-amd shall, subject to the provisions of this Chapter be;

(a) punished with death as qisas;

(b) Punished with death or imprisonment for life ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available…"

Section 302 falls in Chapter XVI of P.P.C which is titled as "OF OFFENCES AFFECTING THE HUMAN BODY". The Chapter XVI underwent a change and its provisions from Sections 229 to 338 were revamped through Criminal Law (Second Amendment) Ordinance, 1990 which attained eternity through Act II of 1997. A peep through the legal archives reveals that the amendment so made in Chapter XVI originated from a case titled as Gul Hassan Khan v. Government of Pakistan and another (PLD 1980 Peshawar 1) wherein a death convict approached Hon'ble Shariat Bench of Peshawar High Court and raised following questions:-

(1) Whether penalty prescribed by the Pakistan Penal Code for the murderer is repugnant to the Injunctions of Islam?

(2) Whether a person who was minor at the time of commission of murder, can be subjected to "Qisas"?

(3) Whether the provisions of sections 54, 55 of the Pakistan Penal Code as also sections 401 and 402 of the Criminal Procedure Code are repugnant to the Injunctions of Islam?

(4) Whether the provisions of the Schedule of the Criminal Procedure Code with regard to section 302, P.P.C. showing the same to be uncompoundable and those of section 345 of the same Code are part and parcel of the substantive law and can be questioned before a Shariat Bench despite the Explanation to Article 203-B of the Constitution that a law relating to the procedure of a Court or tribunal cannot be so questioned?

The afore-mentioned questions were posed in the wake of a compromise affected between the death convict Gul Hassan Khan and the legal heirs of the deceased, which met no acceptance from the Court. According to the law, then in field, the offence under Section 302 P.P.C though was compoundable but with the permission of the Court. The afore-mentioned questions were eruditely decided and the provisions of Chapter XVI were declared repugnant to the Injunctions of Islam. Later the matter was placed before the Hon'ble Federal Shariat Court and through the judgment reported as Muhammad Riaz, and others v. Federal Government, and others (PLD 1980 FSC 1), the view of the Peshawar High Court was endorsed. The Ministry of Law invoked the jurisdiction of Shariat Appellate Bench of Hon'ble Supreme Court of Pakistan and challenged the judgments so pronounced by the Hon'ble Peshawar High Court as well as of the Hon'ble Federal Shariat Court which were upheld through the judgment reported as Federation of Pakistan through Secretary, Ministry of Law and another v. Gul Hassan Khan (PLD 1989 Supreme Court 633). The Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan gave concluding observations which are as under:-

Accordingly, the necessary amendments were made in the Chapter XVI for giving effect to the judgment of Hon'ble Apex Court.

1. Islamic Jurisprudence provides various kinds of punishments which can be summarized as Hadd, Qisas and Ta'zir. The word "Hadd" in its literal sense means the punishments of crimes as ordained in Holy Quran. The offences which come within the purview of "Hadd" include intoxication through consumption of liquor by mouth, Theft/Haraabah, Zina, Qazf and Apostasy. If the quantum and quality of evidence for proving these offences is available in accordance with the Injunctions of Islam, then the delinquents are to be punished with the quantum of sentence as ordained by Almighty Allah and no deviation can be made therefrom by the Qazi/Court. So far as the Qisas is concerned, it means equal retaliation through retributive justice and stems out of the following Quranic Injunction and Sunnah of Holy Prophet Muhammad ():-

The law of retaliation is an ancient concept and was even recognized as lex talionis in the Mosaic Law but through Quranic Injunctions it was made subject to certain restrictions and limitations. It was, perhaps, best defined by Dr.Tanzil-ur-Rahman, an erudite Islamic jurist, in his paper presented at the "World Seminar on Islamic Law held under the auspices of the Lawyers' Islamic Council at Khulna, Bangladesh and the same is being mentioned below in verbatim:-

"The lex talionis of the Mosaic law also recognizes this significant difference that in Islamic Law the next of kin may accept blood money in case of willful murder. The law of retaliation is two-fold: first, as to life for life and second, as to loss or injury of the other parts of human body, i.e. in matters short of life."

The word "Qisas" is also defined in Section 299 (k) of Act No.II of 1997 which amended Chapter XVI of P.P.C as under:-

"Qisas means punishment by causing similar hurt at same part of the body of the convict as he has caused to the victim or by causing his death if he has committed qatl-i-amd in exercise of the right of the victim or a wali."

The basic difference between Hadd and Qisas is to the effect that the former fundamentally is the right of Allah Almighty and no compromise, settlement, pardon or waiver is permissible, whereas the latter is the right of victim (if injured) or the legal heirs/wali (in the case of murder) and can be compounded or waived. Insofar as Ta'zir is concerned, it is a kind of punishment which can be awarded through the laws of an Islamic State for other offences and in respect of delinquencies in which requisite proof for inflicting Hadd is lacking.

1. The punishment of death as Qisas under Section 302 (a) P.P.C can be awarded if the proof of qatl-i-amd contemplated in Section 304 P.P.C is available in the following two forms:-

"(a) The accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence or

(b) By the evidence provided in Article 17 of the Qanun-e-Shahadat Order 1984."

After examining the judgment passed by the learned trial court with due diligence, it is observed that the appellant was held guilty under Section 302 (a) P.P.C solely on the basis of his confession made at the time of his indictment. It will be advantageous to reproduce in verbatim the statement of Khalid Mehmood (appellant) made before the trial court while being charge sheeted on 15.11.2018:-

"I am welder by profession. On 23.05.2018, at Fajjar time, I was present in the house of my 'Humzulf' Muhammad Riasat whereas my wife Uzma Bibi, her sisters Fehmeeda Bibi and Abida Bibi and her maternal aunt (Khala) who is my Phuphi namely Tasleem Bibi were sleeping in the eastern room of her house. I am firing upon all of them when they were sleeping in said room on cots. I committed murder of aforesaid Uzma Bibi, Fehmeeda Bibi and Tasleem Bibi whereas seriously injured Abida Bibi, by causing firearm injuries to them. I plead guilty and request this Court to convict me in accordance with law. The PWs have rightly deposed against me."

From the in-depth review of the file we came across multiple factors, persuading us to discard the afore-mentioned statement of the appellant and not to treat it as an incriminating circumstance or even a confession in terms of Section 304(1)(a) P.P.C. In this regard, firstly it is observed by us that 173 Cr.P.C report reached the trial Court after enrouting through the learned Magistrate on 18.10.2018 and on the same date copies of documents under Section 265-C Cr.P.C were distributed. On 08.11.2018 the case appeared in the cause list of the trial court but was adjourned for the framing of charge on the request of appellant for engaging the services of a counsel. The charge was framed on 15.11.2018 and it manifests from the interim order of even date that accused was not represented by a counsel at that time. We need to shed light on the point that through the necessary implication of Article 10(1) of the Constitution of Islamic Republic of Pakistan, 1973, a person burdened with the allegation of having committed crime has an unfettered right to consult and be defended by a legal practitioner of his choice. Similar right is bequeathed to an accused under Section 340(1) of Cr.P.C and for reference sake the foregoing provision is mentioned below:-

"Any person accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader."

For ensuring the afore-mentioned right of an accused facing criminal charge, the needful is done through Rule 1 of the High Court Rules and Orders Volume-III, Chapter 24 which for advantage sake is reproduced hereunder:-

"Presiding Officer to report whether accused can afford to engage counsel.- If the accused is unrepresented in a Sessions case and cannot afford to engage a counsel, the Sessions Judge shall make arrangement to employ a counsel at Government expense. Counsel in such cases should be appointed well in time to enable him to study the documents mentioned in section 265 of the Code of Criminal Procedure."

The High Court Rules and Orders Volume-V, Chapter-4 Part-D further speaks that in cases of conviction having capital sentence, if the convict cannot engage a counsel for his defence, the Deputy Registrar shall take appropriate steps for providing such services at Government expense in appeals. Another provision of High Court Rules and Orders Volume-V Chapter-4 Part-E is a step forward in this regard and it is provided therein that if an accused is being tried by High Court in its original jurisdiction for an offence entailing capital punishment and he is incapacitated to afford the services of a legal practitioner, he can get such assistance at State expense. Without any speck of reluctance, we are leaned to hold that the right guaranteed under above quoted provisions was not extended to the appellant at the time of framing charge, though his entitlement to it could in no manner be abridged. It unveils from the interim order sheet that the learned trial court took care of the situation on 29.11.2018 by appointing Ch.Tariq Mehmood Qutab, Advocate to defend the appellant and subsequent thereto summoned the prosecution evidence. It can safely be captured that though in subsequent trial the appellant was being defended by a legal practitioner but at the time of his indictment it was not so. As a necessary consequence, the statement made by the appellant on 15.11.2018 cannot be used to his detriment or disadvantage and more importantly as a necessary proof of qatl-i-amd liable to Qisas in accordance with Section 304(1) Cr.P.C. Secondly, we took note of the plain language of Section 304(1)(a) Cr.P.C which is explicit in sense and leaves no room for discussion that only a voluntary and true confession, made before a Court competent to try the offence can ensue in a punishment of death as Qisas. The term "voluntary" used in Section 304 P.P.C is of dominant importance in reference to the facts of case and stands for a confession made with free will, from voice of conscience, without duress or promise for a favour. The expression "voluntary" is defined in Black's Law Dictionary Tenth Edition, in more exhaustive and comprehensive manner in following terms:-

"(1) Done by design or intention, (2) Unconstrained by interference; not impelled by outside influence.

(3) without valuable consideration or legal obligation;

(4) Having merely normal consideration."

In the judgment reported as Adnan Pervaiz and another v. The State (2022 YLR 2259) which was authored by one of us (Ch.Abdul Aziz, J.) while dilating upon the voluntary nature of confession, following observation was given:-

"It needs no emphasis that inducement or promise gives rise to temptation of avoiding conviction prompting the accused to make a confession. Likewise, a threat places a frail nerved accused under fear, compelling him to admit his guilt so as to avoid some further adverse consequences."

The statement of the appellant dated 15.11.2018 portrayed before us as confession in terms of Section 304(1)(a) P.P.C, was recorded without providing him facility of the counsel or by extending him sufficient opportunity to ponder upon its consequences. In the given circumstances, there can be a remote possibility that appellant might have admitted his guilt out of frustration, due to mental depression or by driven out of some promise of lesser sentence or owing to absence of legal assistance. The Hon'ble Supreme Court of Pakistan in the case reported as Muhammad Ismail v. The State (2017 SCMR 713) laid down certain guidelines for awarding conviction on the plea of guilt under Section 265-E Cr.P.C, which are as under:-

"The most important factors and required standards of confession may be cited below:-

It should be ensured, (i) that the accused is in full senses and understands the consequence of making a confession;

(ii) that, the confession was not a result of any duress, coercion or any promise by the prosecution, to be made an approver;

(iii) that, during transit of the accused by the police from and to the Trial Court from the prison, on each "Paishi" no threat or pressure was applied by the escorting police guard or Incharge thereof;

(iv) what were the actual facts, which induced the accused to confess after facing trial, during which he pleaded innocence all the way;

(v) the court recording the confession has to ensure that the mental capacity of the accused is not diminished due to any illness and if some indication of abnormality is suspected by the Court, it is better to refer the accused to the Standing Medical Board to ascertain the true cause thereof;

(vi) while recording the confession, the same safeguards and precautions be adopted, by directing the Public Prosecutor, the complainant's counsel, the Naib Court and all other officials to leave the Court. If need be, the counsel who represents him, may be given an opportunity to be present inside the Court during the whole process, if the accused person, on asking by the Trial Judge, so demands;

(vii) the handcuffs of the accused be removed and he be provided a chair on the dais. He may be given some time to think over the making of the confession and in that regard particular questions be put to him, as to why he was making the confession when he has already pleaded innocence and claimed trial at the time, the formal charge was framed;

(viii) the Trial Judge shall explain to the accused that, in case of making confession, he has to face a capital sentence in a murder case or any offence punishable with death;

(ix) the entire record of all the questions and answers recorded, be properly maintained and thereafter, a proper certificate be appended thereto, showing the satisfaction of the Trial Judge that the accused person was not mentally sick and he was making the confession voluntarily, based on true facts and that, there was no other compelling reason behind that."

Thirdly it unveiled from the statement of appellant recorded under Section 342 Cr.P.C. that his admission of guilt so recorded on 15.11.2018 was not put to him so as to be used as an incriminating circumstance. It would be in fitness of things to observe here that the examination of an accused under section 342 Cr.P.C. after the closure of prosecution evidence is not a mere formality but a legal requirement, which in no manner can be dispensed with. The primary purpose of such an examination is to apprise an accused with all the circumstances which are incriminating in nature, so as to enable him or her to address them properly. The law is settled that if the accused, facing trial is not confronted with such incriminating circumstances, no conviction can be awarded on the basis thereof. If any reference in this regard is needed that can be made to the case reported as Muhammad Shah v. The State (2010 SCMR 1009) and an extract therefrom is being reproduced below for advantage sake:-

"It is well settled that if any piece of evidence is not put to the accused in his statement under section 342 Cr.P.C. then the same cannot be used against him for his conviction. In this case both the Courts below without realizing the legal position not only used the above portion of the evidence against him, but also convicted him on such piece of evidence, which cannot be sustained."

Fourthly we have in our minds that though Section 265-E Cr.P.C explicates that if the accused pleads guilty, the Court in its discretion can convict him but if it is not so done then the prosecution evidence is to be recorded as is evident from Section 265-F(1) Cr.P.C which is referred hereunder:-

"If the accused does not plead guilty or the Court in its discretionary does not convict him on his plea, the Court shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution."

In the instant case, since the trial court even after recording the plea of guilt so raised by the appellant under Section 265-E, proceeded with the case in terms of Section 265-F(1), hence in our view it will be a fallacious approach to treat such confession as requisite proof of Qisas in consonance with Section 304 P.P.C which otherwise was not put to him under Section 342 Cr.P.C. From the tenor of cross-examination conducted upon the prosecution witnesses, it can safely be gathered that the appellant later resiled from his confession. In the given scenario, it can inescapably be held that punishment of death as Qisas awarded by the trial court is replete with a gross legal error. We have no doubt in our minds that if the accused pleads guilty under Section 265-E Cr.P.C. but the Court does not award him punishment and instead proceeds with the trial then such confession cannot be used to the detriment of the accused subsequently. By taking advantage of the proposition we intend to add that though Section 304(1)(a) P.P.C contemplates that punishment of death as Qisas can be awarded to an accused upon his voluntary and true confession made before the trial court but is in eternal silence as to how and under what provision of law it is to be recorded. The procedure of Sessions trial contemplated in Chapter XXII-A of Cr.P.C as well as the provisions of Chapter XVI of P.P.C are in absolute silence as to how the voluntary nature of the confession for the purposes of Section 304(1)(a) P.P.C is to be ensured.

1. We have also given our considered thought to the other eventuality envisaged in Section 304(1)(b) P.P.C whereby an assassin can be sentenced to death as Qisas. The gist of Section 304(1)(b) P.P.C is to the effect that qatl-i-amd (murder) will be liable to Qisas if the charge is proved by the evidence in accordance with Article 17 of Qanun-e-Shahadat Order, 1984 (hereinafter referred to as QSO, 1984). For the clarity of proposition, we are compelled to have a look upon the phraseology of Article 17 which is as under:-

"Competence and number of witness.--(1) The competence of a person to testify and the number of witnesses required in any case shall be determined in accordance with the Injunctions of Islam as laid down in Holy Quran and Sunnah.

(2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law.

(a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary and evidence shall be led accordingly; and

(b) in all other matters, the Court may accept, or act on, the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant."

(emphasis provided)

It can be derived from Section 304(1)(b) P.P.C that punishment of Qisas can be awarded if the proof in the form of Article 17 of QSO, 1984 is available. Over the years, the jurists have been focusing on Article 17(1) of QSO, 1984 while treating it as enabling provision for punishment of death as Qisas. The careful perusal of Article 17(1) leaves no room for discussion that it is applicable in all the cases and is not restricted to the offences of Hadd and Qisas. The use of expression "in any case" is self-explanatory in nature and goes long way to demonstrate that Article 17(1) is not Qisas specific. No elaboration is needed on the point that in order to apply Article 17(1) only to the extent of offences falling within the ambit of Hadd and Qisas, the Legislature should not have used the term "in any case". Leaving aside the afore-mentioned anomaly, the fact remains that through the necessary implication of Section 338-F P.P.C, for the interpretation and application of Chapter XVI of P.P.C, the Courts are bound to seek guidance from the Injunctions of Islam as laid down in Holy Quran and Sunnah. The combined effect of reading Article 17(1) of QSO, 1984 in conjunction of Sections 304(1)(b) and 338-F P.P.C is to the effect that punishment of death as Qisas can be awarded if the witness fulfills the requirement of "Tazkiyah-Al-Shuhood" which is a concept emanating from the Islamic law. The term "Tazkiyah-Al-Shuhood" comprises upon two words, one out of which is Tazkiyah which means purifying, screening or separating the good from the bad, whereas Shuhood stands for the witnesses to be produced during trial of a case. According to Quranic commandments, a Muslim is to speak nothing but truth even if it goes against him, out of them, two are being reproduced hereunder:-

Now the question of pivotal importance arises that how, in accordance with Injunctions of Islam the procedural requirement of Tazkiyah-Al-Shuhood is to be fulfilled. The answer of this query is found in the book Islami Qanun-e-Shahadat () authored by Dr. Tanzil-ur-Rehman and extract therefrom is cited below:-

In the case reported as Mumtaz Ahmad and another v. The State (PLD 1990 FSC 38), the Hon'ble Federal Shariat Court expounded upon the mode and manner of Tazkiyah-Al-Shuhood and laid down following guidelines:-

(i) There must be evidence of victim followed by at least two witnesses;

(ii) in case of discrepancies on vital aspects between two witnesses both shall be rejected;

(iii) Tazkiyah-Al-Shuhood is a condition precedent to impose the sentence of hadd;

(iv) there should be one or more 'Muzakki' (a person who testifies about the truthfulness of the witness);

(v) the 'Muzakki' should be present when the witness gives evidence;

(vi) The 'Muzakki" should also be questioned about antecedents, character and dealings;

(vii) it is the responsibility of the Court to satisfy itself about the credibility of a witness and it can for that matter select open or secret modes of inquiry or both;

(viii) the Court may frame a questionnaire on which the 'Muzakki' should collect information to supply to the Court;

(ix) the Court should also examine the 'Muzakki' after the submits his report;

(x) the Court should ask searching questions from the witness and cross-examine him to discover facts which might show his credibility, piety or otherwise."

Chapter XVI of P.P.C, even after having been reshaped in accordance with cases reported as Gul Hassan Khan v. Government of Pakistan and another (PLD 1980 Peshawar 1), Muhammad Riaz and others v. Federal Government, etc. (PLD 1980 FSC 1) and Federation of Pakistan through Secretary, Ministry of Law and another v. Gul Hassan Khan (PLD 1989 SC 633) is in eternal silence about the mode and manner of carrying out the essential requirement of Tazkiyah-Al-Shuhood. It will not be out of place to mention here that the term "Tazkiyah-Al-Shuhood" though is not specifically mentioned in reference to the cases falling within the ambit of Chapter XVI of P.P.C but it found place in Section 7(b) of Offences Against Property (Enforcement of Hudood) Ordinance 1979 which is as under:-

"Proof of theft liable to hadd. The proof of theft liable to hadd shall be in one of the following forms namely:

(a) ………………………………………………………………………….

2024 P Cr. L J 1252

[Lahore]

Before Malik Shahzad Ahmad Khan and Farooq Haider, JJ

Abid Ali and another---Appellants

Versus

The State and others---Respondents

Criminal Appeals Nos. 29270 and 39423 of 2019, Criminal Revision No. 39425 and Murder Reference No. 157 of 2019, decided on 18th December, 2023.

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

----Ss. 302(b), 324, 337-F(3), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah- hashimah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Chance witnesses---Presence of chance witnesses at the time and place of occurrence proved---Accused were charged that they made firing upon the complainant party, due to which brother of the complainant died while son of complainant sustained firearm injuries---Previous enmity was stated to be the motive of the occurrence---Ocular account produced by prosecution comprised of statements of complainant, injured and an eye-witness---Though said witnesses were not residents of the place of occurrence yet it had been mentioned in statement as well as in the FIR that residential Dera of the complainant was situated at a distance of about 3-kilometers towards south from village whereas his agricultural land was towards south-west at a distance of about 2-kilometers from residential Dera---On 08.10.2014 at about 12.00 pm (noon), complainant along with deceased and witnesses were coming back after looking at their lands and when they reached near canal outlet, the occurrence took place---Moreover, it is routine of villagers that they usually go to their lands for looking after their crops etc. in the morning time and come back at about noon time---So, complainant and cited eye-witnesses had explained acceptable and valid reason regarding their presence at the relevant "time and place" of occurrence, which was quite natural and appealed to a common prudent man---Furthermore, injured was the eye-witness who received firearm injury on his body during the occurrence and being injured witness his presence at the time and place of occurrence could not be doubted/questioned---In view of above, though they were chance witnesses yet their testimony could not be doubted/thrown away merely for the reason that they had no residence over at the place of occurrence---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, due to some mitigating circumstances, death sentence of the appellant was reduced to imprisonment for life---Appeal was dismissed with said modification in sentence.

Maskeen Ullah and another v. The State and another 2023 SCMR 1568; Zahid Iqbal v. The State 2017 SCMR 1543; Ahsan Shahzad and another v. The State and others 2019 SCMR 1165 and Amanullah v. The State and another 2023 SCMR 527 rel.

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

----Ss. 302(b), 324, 337-F(3), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah- hashimah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Minor discrepancies in the statements of witnesses due to efflux of time---Inconsequential---Accused were charged that they made firing upon the complainant party, due to which brother of the complainant died while son of complainant sustained fire arm injuries---Record showed that occurrence took place on 08.10.2014 and statements of witnesses of ocular account i.e. complainant, injured witness and an eye-witness were recorded in the year 2019---Minor inconsistencies and discrepancies appeared in the statements of witnesses with the passage of time; however, such inconsistencies/discrepancies could not dislodge the case of prosecution---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, due to some mitigating circumstances, death sentence of the appellant was reduced to imprisonment for life---Appeal was dismissed with said modification in sentence.

Sajid Mehmood v. The State 2022 SCMR 1882 and Muhammad Bashir and another v. The State and others 2023 SCMR 190 rel.

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

----Ss. 302(b), 324, 337-F(3), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah- hashimah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Substitution of real culprit, a rare phenomenon---Scope---Accused were charged that they made firing upon the complainant party, due to which brother of the complainant died while son of complainant sustained firearm injuries---Complainant was brother of deceased and father of injured whereas said injured of the case and eye-witness was nephew of the complainant---As per case of the prosecution, role of causing fatal firearm injury to deceased had been ascribed to Mr. "A" whereas role of causing firearm injury on right foot of injured witness had been attributed to "MA" and any valid/plausible reason to make false deposition by the complainant and eye-witness against both the accused persons could not be brought/established on the record---Furthermore, it was a broad daylight occurrence; admittedly, previous criminal litigation existed between the parties; both the accused persons were already known to the complainant and eye-witnesses including injured, hence, there was no question of misidentification of the accused persons---There was no reason as to why complainant, injured and eye-witness would substitute the accused persons, who had committed murder of their close relative and caused firearm injury to the injured---In such circumstances, substitution of the real culprits was a rare phenomenon---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, due to some mitigating circumstances, death sentence of the appellant was reduced to imprisonment for life---Appeal was dismissed with said modification in sentence.

Irshad Ahmad and others v. The State and others PLD 1996 SC 138; Muhammad Akhtar v. The State 2007 SCMR 876; Sheraz Khan v. The State 2010 SCMR 1772 and Nasir Ahmed v. The State 2023 SCMR 478 rel.

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

----Ss. 302(b), 324, 337-F(3), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah- hashimah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Credibility of the witnesses proved---Accused were charged that they made firing upon the complainant party, due to which brother of the complainant died while son of complainant sustained fire arm injuries---After going through the statements of complainant, injured and eye-witness, it had been observed that they deposed required detail of occurrence in straightforward, clear, unambiguous and unequivocal manner---Said witnesses were subjected to searching cross-examination but neither anything favourable to present accused persons nor adverse to the prosecution could come on the record---Furthermore credibility of the testimony of witnesses could not be minimized/impeached---Even otherwise, presence of injured witness who had stamp of receiving firearm injury on his body at the "time and place" of occurrence, was beyond doubt and his testimony carried more evidentiary value---Therefore, ocular account produced by the prosecution was confidence inspiring, truthful and reliable---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, due to some mitigating circumstances, death sentence of the appellants was reduced to imprisonment for life---Appeal was dismissed with said modification in sentence.

Allah Dad and others v. Muhammad Nawaz and others 2001 SCMR 1111; Muhammad Sadiq v. The State 2003 SCMR 736 and Aqil The State 2023 SCMR 831 rel.

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

----Ss. 302(b), 324, 337-F(3), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah- hashimah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Motive proved---Accused were charged that they made firing upon the complainant party, due to which brother of the complainant died while son of complainant sustained fire arm injuries---Previous enmity was stated to be the motive of the occurrence---Prosecution produced copy of a previous FIR and perusal of the same revealed that deceased of the present case was first informant/complainant in the same, which was recorded under Ss. 324, 148, etc., P.P.C against one of the accused persons of present case and others---Furthermore, motive had not been denied rather was admitted by the defence---Therefore, case of the prosecution against both thesaid accused persons was also corroborated by the motive---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, due to some mitigating circumstances, death sentence of the appellants was reduced to imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b), 324, 337-F(3), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah- hashimah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Absconsion of the accused not validly explained---Accused were charged that they made firing upon the complainant party, due to which brother of the complainant died while son of complainant sustained fire arm injuries---Accused became fugitive from law after the occurrence, his non-bailable warrants of arrest and proclamation were also issued---Said accused was declared as "proclaimed offender" and after remaining absconder for a considerable period of more than two years and seven months, he was ultimately arrested---Accused could not offer any valid/acceptable reason to explain the same, so, his unexplained and considerable abscondance also provided corroboration to the ocular account against him---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, due to some mitigating circumstances, death sentence of the appellants was reduced to imprisonment for life---Appeal was dismissed with said modification in sentence.

Nasir Ahmed v. The State 2023 SCMR 478 rel.

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

----Ss. 302(b), 324, 337-F(3), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah- hashimah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recovery of crime weapon on the pointation of accused---Inconsequential---Accused were charged that they made firing upon the complainant party, due to which brother of the complainant died while son of complainant sustained firearm injuries---Record showed that Kalashnikov along with five cartridges was recovered on the pointing out of the accused, and same was received in Forensic Science Agency, on 08.06.2017---Yet any report regarding comparison of the same with the empties/cartridge cases secured from the place of occurrence had not been produced by the prosecution rather as per report of Forensic Science Agency dated 06.07.2017, the Kalashnikov was found to be in mechanical operating condition with safety features functioning properly---Perusal of aforementioned report revealed that cartridge cases had already been collected by Investigating Officer on 06.10.2016 from Forensic Science Agency, and it was asked by said agency for resubmission of said cartridge cases if comparison report was required with the rifle recovered from accused but nothing was available on the record to show that investigating agency again submitted said empties/cartridge cases for comparison with said rifle; therefore, when there was nothing brought on the record to show that empties secured from the place of occurrence were found as having been fired with Kalashnikov rifle recovered from the accused, then said recovery was inconsequential and of no help to the case of prosecution---However due to other pieces of evidence, prosecution had proved its case against the accused beyond any shadow of doubt, but, due to some mitigating circumstances, his death sentence was reduced to imprisonment for life---Appeal was dismissed with said modification in sentence.

Imtiaz alias Taji and another v. The State and others 2020 SCMR 287 rel.

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

----Ss. 302(b), 324, 337-F(3), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah- hashimah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Accused were charged that they made firing upon the complainant party, due to which brother of the complainant died while son of complainant sustained firearm injuries---Record showed that accused Mr. "A" made single firearm shot at deceased---Both factors i.e. inconsequential recovery of weapon and single shot constituted mitigating circumstances for reduction of sentence of Mr. "A" from death to imprisonment of life---So, sentence of "death" awarded to accused by the Trial Court was converted to imprisonment for life under S. 302(b) P.P.C---Appeal was dismissed with partial modification/reduction in sentence of accused "A".

Sajid Mehmood v. The State 2022 SCMR 1882 rel.

Rai Bashir Ahmad, along with Ch. Imtiaz Gujjar, for the Appellants (in Criminal Appeal No. 29270 of 2019) and with Muhammad Asif (Appellant present in person after serving his entire sentence).

Munir Ahmad Sial, Additional Prosecutor General for the State.

Muhammad Farhan Saeed for Muhammad Nazir (complainant in Criminal Appeal No. 29270 of 2019, Appellant in Criminal Appeal No. 39423 of 2019 and Petitioner in Criminal Revision No. 39425 of 2019).

Date of hearing: 12th December, 2023.

jUDGMENT

FAROOQ HAIDER, J.---This single judgment will dispose of Crl. Appeal No.29270/2019 filed by Abid Ali and Muhammad Asif (appellants) against their "convictions and sentences", Crl. Appeal No.39423/2019 filed by Muhammad Nazir (complainant) against order of acquittal of respondents Nos.2 to 15, Criminal Revision No.39425/2019 filed by Muhammad Nazir (complainant) for enhancement of sentences of Abid Ali, Muhammad Asif as well as compensation amount and Murder Reference No.157/2019 sent by trial court, as all the matters have arisen out of one and the same judgment dated: 08.05.2019 passed by learned Addl. Sessions Judge, Mandi Bahauddin/trial court.

1. Abid Ali and Muhammad Asif (appellants) along with their co-accused persons namely Sajid Iqbal, Muhammad Umair, Azhar Iqbal, Shamas alias Shamsher, Ansar Iqbal, Tasawar Iqbal, Khizar Hayat, Muhammad Mansha, Muhammad Akram, Amjad Iqbal, Ehtisham ul Haq, Mukhtar Ahmad, Muhammad Aslam and Muhammad Ashraf were tried in case arising out of FIR. No.285/2014 dated: 08.10.2014 registered under Sections: 302, 324, 148, 149 P.P.C {subsequently offence under Section: 337-F(iii) P.P.C. was also added during investigation of the case) at Police Station: Miana Gondal, District: Mandi Bahauddin and the trial court vide impugned judgment dated: 08.05.2019 while acquitting aforementioned co-accused persons namely Sajid Iqbal, Muhammad Umair, Azhar Iqbal, Shamas alias Shamsher, Ansar Iqbal, Tasawar Iqbal, Khizar Hayat, Muhammad Mansha, Muhammad Akram, Amjad Iqbal, Ehtisham ul Haq, Mukhtar Ahmad, Muhammad Aslam and Muhammad Ashraf of all charges, has convicted and sentenced the appellants as under: -

ABID ALI

| | | | --- | --- | | Conviction | Sentence | | Under Section: 302 (b) P.P.C | "Death" as Taz'ir for committing Qatl-i-Amd of Muhammad Nawaz (deceased) with payment of compensation of Rs.2,00,000/- under Section: 544-A Cr.P.C. to the legal heirs of the deceased and in default of payment of compensation amount to further undergo simple imprisonment for six months. |

MUHAMMAD ASIF

| | | | | --- | --- | --- | | Convictions | | Sentences | | 1. | Under Section: 324 P.P.C | Under Section: 324 P.P.C to "Five years' Rigorous Imprisonment" along with fine of Rs.25000/- and in default thereof to further undergo Simple Imprisonment for two months. | | 2. | Under Section: 337-F(iii) P.P.C | Under Section: 337-F(iii) P.P.C to "Three years' Rigorous Imprisonment" as Taz'ir along with payment of Rs.25000/- as Daman payable to Ziafat Usman (injured) and in default thereof to remain in jail. Both the sentences were ordered to run concurrently and benefit of Section: 382-B Cr.P.C. was also extended to him. |

1. Brief facts, as per statement (/Ex.PU) got recorded by Muhammad Nazir (complainant/PW-16) before Azhar Iqbal S.I. (PW-20) on 08.10.2014 at 02:00 p.m., are that his residential Dera is situated at a distance of 3-kilometer towards south side from village Miana Gondal whereas his agricultural lands are towards south-west side at a distance of 2-kilometer from residential Dera; on 08.10.2014 at about 12:00 (noon), complainant along with Muhammad Nawaz (his brother), Ziafat Usman (his son), Ghulam Hussain and Muhammad Yaar were coming back after looking their lands and when reached near canal outlet (Mohga Nehri Nala) a bit ahead from Chah Gulab (), accused persons namely Abid armed with kalashnikov, Sajid armed with .303 bore, Muhammad Asif armed with .44 bore, Amjad, Ehtisham, Umair, Muhammad Ashraf, Khizar Hayat, Shamshair, Azhar, Mukhtar, Muhammad Aslam, Muhammad Akram, Ameer armed with firearms along with four unknown armed with firearms, who were already ambushed on both sides of canal outlet, after seeing them and while raising lalkara started straight firing in order to commit their murder; Abid fired shot from kalashnikov which hit Muhammad Nawaz (brother of complainant) at back side of right buttock in result whereof, he fell down after becoming injured; they also lay down on the ground; in the meantime, Muhammad Asif fired shot with rifle .44 bore which hit at Ziafat Usman (son of the complainant) at his right foot; all accused persons also made firing with their respective weapons; since they were laying on the ground therefore, luckily they remained safe; after hearing report of firing, people from nearby Dera made aerial firing; accused persons after leaving them fled away from the spot; occurrence was witnessed by the complainant and his companions.

Motive behind the occurrence as per aforementioned statement (/Ex.PU) was enmity regarding previous murder and litigation between complainant and Abid Hussain, etc.; accused party had been putting pressure for compromise and on refusal, accused persons after consultation with each other and with the intention to kill, made straight firing and caused injuries to Muhammad Nawaz (brother of complainant) and Ziafat Usman (son of the complainant), who were taken to R.H.C. Miana Gondal, where Muhammad Nawaz succumbed to the injuries.

In the light of aforementioned statement (/Ex.PU), FIR. (Ex.PL) was chalked out by Muhammad Inayat ASI/DO (PW-8). However, complainant/PW-16 subsequently got recorded supplementary statement for nominating Tasawar Iqbal, Ansar Iqbal and Muhammad Mansha in the case.

During investigation, accused persons namely Muhammad Aslam, Muhammad Ashraf, Ehtisham ul Haq, Mukhtar Ahmad, Muhammad Akram and Amjad Iqbal were found not involved in the occurrence, however, after completion of investigation, challan report under Section: 173 Cr.P.C. was submitted in the Court by placing names of aforementioned accused persons in Column No.2 whereas names of other accused persons including present appellants in Column No.3 of the same; they all were summoned and formally charge sheeted but they pleaded not guilty and claimed trial, whereas Ameer son of Ghulam Hussain (one of the accused nominated in aforementioned FIR./Ex.PL) was declared as "proclaimed offender" as he was not traceable; thereafter, prosecution evidence was summoned; after recording of prosecution evidence, accused persons were examined under Section: 342 Cr.P.C. but they refuted the allegations levelled against them; they neither opted to appear as their own witnesses under Section: 340(2) Cr.P.C. nor produced any evidence in their defence.

Trial Court after conclusion of trial while acquitting co-accused persons namely Sajid Iqbal, Muhammad Umair, Azhar Iqbal, Shamas alias Shamsher, Ansar Iqbal, Tasawar Iqbal, Khizar Hayat, Muhammad Mansha, Muhammad Akram, Amjad Iqbal, Ehtisham ul Haq, Mukhtar Ahmad, Muhammad Aslam and Muhammad Ashraf, has convicted and sentenced the appellants as mentioned above through the impugned judgment dated: 08.05.2019.

1. Learned counsel for the appellants has submitted that eye-witnesses are chance witnesses, recovery of the weapons is inconsequential, ocular account is not truthful and even not corroborated by any independent evidence; convictions recorded and sentences awarded to the appellants through impugned judgment are against the 'law and facts' of the case. Learned counsel for the appellants finally prayed for acquittal of the appellants.

2. Learned Additional Prosecutor General has supported the impugned judgment to the extent of convictions recorded and sentences awarded to Abid Ali and Muhammad Asif (appellants). Learned counsel for the complainant has supported impugned judgment to the extent of convictions recorded against aforementioned appellants however has prayed for enhancement of their sentences as well as compensation while supporting aforementioned Criminal Revision No.39425/2019 and also prayed for dismissal of the appeal filed by the convicts. Learned counsel for the complainant in support of Crl. Appeal No.39423/2019 against order of acquittal of Sajid Iqbal, Muhammad Umair, Azhar Iqbal, Shamas alias Shamsher, Ansar Iqbal, Tasawar Iqbal, Khizar Hayat, Muhammad Mansha, Muhammad Akram, Amjad Iqbal, Ehtisham ul Haq, Mukhtar Ahmad, Muhammad Aslam and Muhammad Ashraf, has submitted that said order of acquittal is against the law and facts; result of misreading and non-reading of evidence; prosecution has proved its case against them too, up to hilt and they may also be convicted and sentenced.

3. Arguments heard. Record perused.

4. It has been noticed that as per case of prosecution, occurrence took place on 08.10.2014 at 12:00 p.m. (noon) within the area of Union Council: Miana Gondal; after receipt of firearm injuries by Muhammad Nawaz (brother of complainant) and Ziafat Usman (son of complainant/PW-17), they were shifted to R.H.C. Miana Gondal, however, Muhammad Nawaz succumbed to the injuries there whereas Ziafat Usman (injured/PW-17) was medically examined by Dr. Muhammad Ilyas, SMO (PW-4); Muhammad Nazir (complainant/PW-16) got recorded his statement (/Ex.PU) for registration of case to Azhar Iqbal S.I./Investigating Officer (PW-20) in R.H.C. Miana Gondal on 08.10.2014 at 02:00 p.m., which was sent to police station and in the light of the same, First Information Report (FIR./Ex.PL) was recorded on 08.10.2014 at 02:20 p.m. by Muhammad Inayat A.S.I./D.O. (PW-8) whereas autopsy over dead body of Muhammad Nawaz (deceased) was conducted at 11:00 p.m. on 08.10.2014 by Dr. Saqib Ali (PW-13). It is natural phenomenon that generally efforts are made on priority basis for firstly shifting the injured persons to the hospital in order to save their lives and then to report the matter to the police; hence, in the peculiar facts and circumstances mentioned above, attempt of the complainant to firstly save the lives of his brother and son while taking them to R.H.C. Miana Gondal, is quite understandable and not contrary to the natural behavior. So, case has been got registered without unnecessary/unexplained delay and in the peculiar facts and circumstances mentioned above, postmortem examination also cannot be termed as conducted with unexplained delay; in this regard, guidance has been sought from the case of "Maskeen Ullah and another v. The State and another" (2023 S C M R 1568).

Ocular account produced by prosecution comprises of statements of Muhammad Nazir (complainant/PW-16), Ziafat Usman (injured/PW-17) and Muhammad Yar (PW-18). Though said witnesses were not residents of the place of occurrence yet it has been mentioned in statement (/Ex.PU) as well as in the FIR. (Ex.PL) that residential Dera of the complainant/PW-16 is situated at a distance of about 3-kilometers towards south from village Miana Gondal whereas his agricultural land is towards south-west at a distance of about 2-kilometers from residential Dera; on 08.10.2014 at about 12:00 p.m. (noon), complainant (PW-16) along with Muhammad Nawaz (brother of complainant/now deceased of the case), Ziafat Usman (son of the complainant/injured in the occurrence/PW-17), Ghulam Hussain (given-up PW) and Muhammad Yar (PW-18) were coming back after looking their lands and when reached near canal outlet (Mohga Nehri Nala) a bit ahead from Chah Gulab (), this occurrence took place. It goes without saying that it is routine of villagers that they usually go to their lands for looking after their crops etc. in the morning time and come back at about noon time; so, complainant and cited eye-witnesses have explained acceptable and valid reason regarding their presence at the relevant "time and place" of occurrence, which was quite natural and appeals to common prudent man; furthermore, Ziafat Usman (PW-17) is the eye-witness who received firearm injury on his body during the occurrence and being injured witness his presence at the "time and place of occurrence" cannot be doubted/questioned. In view of above, though they were chance witnesses yet their testimony cannot be doubted/thrown away merely for the reason that they were having no residence over there at the place of occurrence rather same can be safely relied; in this regard, guidance has been sought from the cases of "Zahid Iqbal v. The State" (2017 SCMR 1543), "Ahsan Shahzad and another v. The State and others" (2019 SCMR 1165) and "Amanullah v. The State and another" (2023 SCMR 527).

It goes without saying that in this case, occurrence took place on 08.10.2014 and statements of witnesses of ocular account i.e. Muhammad Nazir (complainant/PW-16), Ziafat Usman (injured witness/PW-17) and Muhammad Yar (PW-18) were recorded in the year 2019. Minor inconsistencies and discrepancies do appear in the statements of witnesses with the passage of time; however, such inconsistencies/discrepancies cannot dislodge the case of prosecution; in this regard, cases of "Sajid Mehmood v. The State" (2022 SCMR 1882) and "Muhammad Bashir and another v. The State and others" (2023 SCMR 190) can be safely referred. It is relevant to mention here that Muhammad Nazir (complainant/ PW-16) is brother of Muhammad Nawaz (deceased) and father of Ziafat Usman (injured) whereas said Ziafat Usman (PW-17) was himself injured of the case and Muhammad Yar (PW-18) was nephew of the complainant; as per case of the prosecution, role of causing fatal firearm injury to Muhammad Nawaz (deceased) has been ascribed to Abid Ali (appellant) whereas role of causing firearm injury at right foot of Ziafat Usman (injured witness) has been attributed to Muhammad Asif (appellant) and any valid/plausible reason to make false deposition by the complainant/PW-16 and aforementioned eye-witness against both the appellants could not be brought/established on the record; furthermore, this is broad daylight occurrence, admittedly, previous criminal litigation existed between the parties, both the appellants were already known to the complainant and eye-witnesses including injured PW, hence, there was no question of misidentification of the accused persons/appellants; even there is no reason that why Muhammad Nazir (complainant/PW-16), Ziafat Usman (injured/PW-17) and Muhammad Yar (PW-18) will make substitution of the accused persons, who have committed murder of their close relative i.e. Muhammad Nawaz and caused firearm injury to Ziafat Usman; in such circumstances, substitution of the real culprits is rare phenomenon; in this regard, case of "Irshad Ahmad and others v. The State and others" (PLD 1996 SC 138) can be advantageously referred, relevant portion from page No.143 of the same is as under:-

"Undoubtedly, the substitution is a phenomenon of rare occurrence, because even the interested witnesses would not normally allow the real murderers of their relation to escape by involving innocent persons."

Guidance on the subject has also been sought from the cases of "Muhammad Akhtar v. The State" (2007 SCMR 876), "Sheraz Khan v. The State" (2010 SCMR 1772) and "Nasir Ahmed v. The State" (2023 SCMR 478).

After going through the statements of complainant (PW-16), Ziafat Usman (injured/PW-17) and Muhammad Yar (PW-18), it has been observed by us that they deposed required detail of occurrence in straightforward, clear, unambiguous and unequivocal manner; they were subjected to searching cross-examination but neither anything favourable to present appellants nor adverse to the prosecution could come on the record; furthermore credibility of their testimony could not be minimized/impeached; even otherwise, presence of Ziafat Usman (injured witness/PW-17) who was having stamp of receiving firearm injury on his body at the "time and place" of occurrence, is beyond doubt and his testimony carries more evidentiary value; in this regard, guidance has been sought from cases of "Allah Dad and others v. Muhammad Nawaz and others" (2001 SCMR 1111), "Muhammad Sadiq v. The State" (2003 SCMR 736) and "Aqil The State" (2023 SCMR 831). Therefore, ocular account produced by the prosecution is confidence inspiring, truthful and reliable.

As per ocular version, Abid Ali (appellant) caused firearm injury at backside of right buttock of Muhammad Nawaz (deceased of the case); Dr. Saqib Ali (PW-13) conducted postmortem examination over dead body of the deceased of the case and relevant portion of his statement before the Court is reproduced as under: -

"Description of Injuries.

1. A fire-arm lacerated wound of size 01 x 01cm with inverted margins going deep on right buttock.

2. Contused selling[sic] of size 04 x 04cm at just below the umbilicus.

Injuries Nos.1 and 2 are communicating to each other.

Dissection of injuries Nos.1 and 2.

Cause damage to bladder, small intestines (jejunum), which caused massive inside bleedings."

So, the firearm injuries caused by Abid Ali (appellant) damaged the bladder and small intestines (jejunum), which caused massive inside bleedings; therefore, said ocular version has been confirmed by medical evidence.

Furthermore, as per case of prosecution, Muhammad Asif (appellant) caused firearm injury at right foot of Ziafat Usman (injured/PW-17); Dr. Muhammad Ilyas (PW-4) conducted medical examination of said injured on 08.10.2014 at 02:00 p.m. and found firearm injury on the body of said injured and declared the same as "Jurrah Ghayr Jaifah Mutlahimah" attracting offence under Section: 337-F(iii) P.P.C; in this regard, relevant portion of his statement is mentioned below: -

"Injuries.

1 x 1 cm entry and exit wound lacerated in nature. No blackening and burning was seeing around, fresh little more clotted blood around. Located below right lateral malleolus, X-Ray was advised and injury was kept under observation. No other injury seen/stated on any part of the body.

Nature of injuries.

Injury No.1 was kept under observation.

Probable duration of injury was within five hours.

There was no possibility of fabrication in this injured. Kind of weapon was fire arm.

On 22-10-2014, I.O of the instant case submitted application before me for declaration of injury No.1. Vide X-Ray No.13 dated 16.10.2014, no bony injury was seen. No foreign body was seen. However, injury No.1 was declared as "Jurrah Ghayr Jaifah Mutlamiah"."

(emphasis added)

so, medical evidence comprising of Medicolegal Examination Certificate (Ex.PC) of Ziafat Usman (injured/PW-17) and statement of Dr. Muhammad Ilyas (PW-4), has also supported afore-mentioned ocular version.

Now coming to the motive of the occurrence, prosecution produced copy of First Information Report as Ex.PAT (copy whereof is available at Page No.396 of the paper book) and perusal of the same reveals that Muhammad Nawaz (now deceased of the case) was first informant/complainant in the same, it was recorded on 30.12.2011 under Sections: 324, 148, etc. P.P.C at Police Station: Miana Gondal, District: Mandi Bahauddin against Abid Ali (now one of the appellants) and others; furthermore, motive has even not been denied rather admitted by the defence; in this regard, relevant portion of statement of Muhammad Yar (PW-18) is hereby reproduced: -

"It is correct that both parties are worst enemy of each other".

Therefore, case of the prosecution against both these appellants is also corroborated by the motive.

It is further noteworthy that Abid Ali (appellant) became fugitive from law after the occurrence, his non-bailable warrants of arrest (Ex.PF) and proclamation (Ex.PH) were also issued; he was declared as "proclaimed offender" and after remaining absconder for a considerable period of more than two years and seven months, he was ultimately arrested in this case on 27.05.2017 but could not offer any valid/acceptable reason to explain the same; so, his unexplained and considerable abscondance also provides corroboration to the ocular account against him; in this regard, case of "Nasir Ahmed v. The State" (2023 SCMR 478) can be safely referred: relevant portion of the same is reproduced below: -

"Admittedly, the petitioner remained absconder for a period of about six months and the same is also a corroboratory piece of evidence against him."

In this regard, case of "Maskeen Ullah and another v. The State and another" (mentioned supra) can also be advantageously referred and relevant portion of the same is mentioned as under: -

"This willful and unexplained abscondence fully corroborates the ocular account as he did not give any plausible explanation of such long abscondence."

As far as acquittal of co-accused persons namely Sajid Iqbal, Muhammad Umair, Azhar Iqbal, Shamas alias Shamsher, Ansar Iqbal, Tasawar Iqbal, Khizar Hayat, Muhammad Mansha, Muhammad Akram, Amjad Iqbal, Ehtisham ul Haq, Mukhtar Ahmad, Muhammad Aslam and Muhammad Ashraf is concerned, suffice it to say that as per own case of the prosecution, only generalized role of ineffective firing was alleged against all of them and any overt act was not attributed to them and more so, during investigation of the case, out of aforementioned accused persons, Muhammad Aslam, Muhammad Ashraf, Ehtisham ul Haq, Mukhtar Ahmad, Muhammad Akram and Amjad Iqbal were found not involved in the occurrence and even no weapon was recovered from them; in this regard, case of "Safdar Mehmood and others v. Tanvir Hussain and others" (2019 SCMR 1978) can be safely referred and relevant portion from the same is reproduced: -

"For whatever its evidentiary value, the investigating agency had declared the appellant innocent."

Furthermore, Tasawar Iqbal, Ansar Iqbal and Muhammad Mansha were not nominated in the First Information Report (FIR/Ex.PL) rather they were subsequently introduced in the case through supplementary statement of the complainant/PW-16. Though firearm weapons were recovered from Sajid Iqbal, Muhammad Umair, Azhar Iqbal, Shams alias Shamsher, Khizar Hayat, Tasawar Iqbal, Ansar Iqbal and Muhammad Mansha yet empties/cartridge cases secured from the place of occurrence were found as not having been fired from the weapons statedly recovered from them as per report of Punjab Forensic Science Agency, Lahore (available at Page Nos.134-136 of the paper book), so said recovery was inconsequential. While taking into consideration aforementioned reasons in totality, they have been acquitted for safe administrative of justice by the trial court, however, said acquittal cannot have any adverse effect on the case of prosecution against present appellants; in this regard, case of "Shaheen Ijaz alias Babu v. The State" (2021 SCMR 500) can be advantageously referred and relevant portion of the same is hereby reproduced below: -

"nomination of co-accused with inconsequential roles notwithstanding, their presence at the scene followed by acquittal, seemingly out of abundant caution, does not tremor prosecution's mainstay qua the role assigned to the petitioner."

A rifle .44 bore was recovered from Muhammad Asif (appellant) but as pre report of Punjab Forensic Science Agency, Lahore dated: 10.06.2016 (copy whereof is available at Page Nos.134-136 of the paper book), empties secured from the place of occurrence have not been found as having been fired from said weapon; therefore, said recovery is of no avail however it cannot have any adverse effect on the case of prosecution.

Now coming to the defence version. Abid Ali and Muhammad Asif (appellants) during recording of their statements under Section: 342 Cr.P.C. in reply to Question No.9 "Why this case has been made against you and why the witnesses of the prosecution have deposed against you?, stated as under: -

"The story of prosecution is false, fabricated one. I have been falsely implicated in false story and complainant party tried their best to throw a wider net to falsely implicate my whole family. No independent person supported the prosecution version, so much so independent person negated the prosecution version. In fact the deceased has lost his life in an unseen occurrence at some unknown place when he was all alone. The injury on the person of Ziafat is concocted, self suffered and the result of connivance with doctor. Furthermore, FIR was registered with pre-meditation pre- consultation after an unexplained delay. Post mortem was also conducted after delay. I am innocent."

Said version of the appellants is a bald assertion as they neither themselves appeared under Section: 340 (2) Cr.P.C. in support of their aforementioned version as well as to disprove the allegation levelled against them nor produced any other witness including any other resident of the vicinity in this regard. Even otherwise, there version could not find favour from the available record. Therefore, aforementioned version has neither been proved nor caused any dent in the case of prosecution and same is even otherwise of no avail to the defence.

When Court has kept prosecution version in juxtaposition with defence version, then it has been observed by us that defence version stands nowhere, however, version of prosecution has been found as straightforward, truthful and reliable.

In view of what has been discussed above, prosecution has proved its case against Abid Ali and Muhammad Asif (appellants) upto hilt, beyond any shadow of doubt; therefore, they have been rightly convicted as mentioned above; resultantly, aforementioned convictions recorded against both aforementioned appellants are upheld and maintained.

1. As far as question regarding quantum of sentence awarded to Abid Ali (appellant) is concerned, it has been noticed that though kalashnikov (P-16) along with five cartridges (P-17/1-5) was recovered on the pointing out of the appellant, same was received in Punjab Forensic Science Agency, Lahore on 08.06.2017 yet any report regarding comparison of the same with the empties/cartridge cases secured from the place of occurrence has not been produced by the prosecution rather as per report of Punjab Forensic Science Agency, Lahore dated: 06.07.2017 (copy whereof is available at Page No.132 of the paper book), said kalashnikov was found to be in mechanical operating condition with safety features functioning properly; in this regard, relevant portion of said report is hereby scanned below: -

Description of Evidence Submitted

Parcel-12 was submitted by Akhtar Hussain (SI) along with request of DPO Mandi Bahaudin for Functionality Testing.

Parcel Description

Received in PFSA2017-69849-FTM 11/990 on 08.06.2017

Parcel-12 One sealed cloth bag containing one 7.62´39mm rifle (Item R3, said to be K.Kove with magazine, having number RK 11/33, marked as 69849-11990/17 along with its item number, duly signed.

And five 7.62´39mm live rounds.

(said to be recovered from accused Abid Ali son of Akram)

Conclusion:

· The item R3 rifle was examined and found to be in mechanical operating condition with safety features functioning properly.

Examination Method: Physical Examination and Test Firing.

Disposition of Evidence:

The case property/evidence may be received by the responsible official of your office on submitting authorization letter/docket within 15 days after the receipt of this report. Ammunition components should be maintained for possible future examinations.

Note: The results in this report relate only to the item(s) tested.

This report is to be read with the previously issued report related to this case having serial numbers 0000228343, 0000228344 and 0000228345 dated 10.06.2016. The catridge cases, of the case have already been collected by Shoakat Ali (T/ASI) on 06.10.2016 from Punjab Forensic Science Agency. Please resubmit cartridge, cases if the comparison report is required.

Perusal of aforementioned report reveals that cartridge cases of the case had already been collected by Shoukat Ali T/ASI on 06.10.2016 from Punjab Forensic Science Agency, Lahore and it was asked by said agency for re-submission of said cartridge cases if comparison report is required with the rifle recovered from Abid Ali (appellant) but nothing is available on the record to show that investigating agency again submitted said empties/cartridge cases for comparison with said rifle; therefore, when there was nothing brought on the record to show that empties secured from the place of occurrence were found as having been fired with kalashnikov rifle recovered from the present appellant, then said recovery is inconsequential and of no help to the case of prosecution; in this regard, guidance has been sought from the case of "Imtiaz alias Taji and another v. The State and others" (2020 SCMR 287); relevant portions of said case law are reproduced below: -

"Moreover, the report of FSL qua .44 bore rifle recovered from the appellant is only to the effect that said weapon is in working condition. As such, the same cannot be of much help for the prosecution."

"All these circumstances justify reduction in the quantum of sentence of the appellant from death to imprisonment for life."

In this regard, case of "Amanullah v. The State and another" (mentioned supra) can also be advantageously referred and relevant portion of the same is mentioned as under: -

"So far as the quantum of punishment is concerned, keeping in view the fact that recovery was disbelieved, the learned High Court has already taken a lenient view and converted the sentence of death into imprisonment for life to meet the ends of justice, hence, it leaves no room for us for further deliberation on this score."

Furthermore, Abid Ali (appellant) made single firearm shot at Muhammad Nawaz (deceased of the case). These both factors i.e. inconsequential recovery of weapon and single shot constitute mitigating circumstance for reduction of sentence of Abid Ali (appellant) from death to imprisonment of life; in this regard, case of "Sajid Mehmood v. The State" (2022 SCMR 1882) can also be safely referred; relevant portion from the same is reproduced as below: -

"So far as the question of punishment is concerned, the learned High Court while taking into consideration--------------------------; appellant only fired single shot and co-accused of the appellant have been acquitted by the learned Trial Court, has rightly taken a lenient view and converted the sentence of death into imprisonment for life."

So, we convert sentence of "death" awarded to Abid Ali (appellant) by the trial court to "Imprisonment for Life" under Section 302(b) P.P.C; however, order passed by the trial court regarding payment of compensation by Abid Ali (appellant) to the heirs of the deceased and in respect of imprisonment in default thereof, are maintained. All the sentences of Muhammad Asif (appellant) are also maintained in toto. Benefit under Section: 382-B Cr.P.C. will be given to both the appellants and all the sentences awarded to them shall run concurrently. Therefore, Criminal Appeal No.29270/2019 is dismissed with partial modification/reduction in sentence of Abid Ali (appellant) as mentioned above whereas to the extent of Muhammad Asif (appellant), same is dismissed in toto.

1. Murder Reference No.157/2019 is answered in negative and death sentence awarded to Abid Ali is not confirmed.

2. So far as order of acquittal of Sajid Iqbal, Muhammad Umair, Azhar Iqbal, Shamas alias Shamsher, Ansar Iqbal, Tasawar Iqbal, Khizar Hayat, Muhammad Mansha, Muhammad Akram, Amjad Iqbal, Ehtisham ul Haq, Mukhtar Ahmad, Muhammad Aslam and Muhammad Ashraf passed by trial court through impugned judgment dated: 08.05.2019, is concerned, we have noticed that for the reasons mentioned in paragraph No.7 of this judgment, the same is neither perverse, nor capricious nor arbitrary rather has been passed perfectly in accordance with law, facts and record of the case. After acquittal, accused persons have attained double presumption of innocence and courts are always slow to disturb the same and in this regard, reliance can be placed upon the case of "Haji Paio Khan v. Sher Biaz and others" (2009 SCMR 803) and "Muhammad Shafi alias Khddoo v. The State and others" (2019 SCMR 1045); from, latter case law, relevant portion is reproduced:-

2024 P Cr. L J 1289

[Lahore]

Before Anwaarul Haq Pannun, J

Mst. Saira Fatima---Petitioner

Versus

The State and 3 others---Respondents

Crl. Misc. No. 31686 of 2023, decided on 30th May, 2023.

Penal Code (XLV of 1860)---

----S. 489-F---Criminal Procedure Code (V of 1898), S. 234---Issuing cheque dishonestly---Application for joinder of charges---Petitioner facing trials in more than one cases of the same nature, registered within a span of 12 months sought one trial by way of joinder of charges in all the cases---Application was declined by Trial Court---Revision was also dismissed---Validity---Joinder of charges as provided in S. 234, Cr.P.C, is procedural as well as directory and not mandatory---Joinder of charges could not be sought as a right either by the accused or the prosecution---Accused can not insist for joinder of charges unless it is shown that separate charges in different trials either will prejudice his/her case or will amount to an illegality including double jeopardy---Three prosecution witnesses had been recorded in one of the cases and a direction had already been issued by the Director General, Directorate of District Judiciary, to decide the case within two months---All the criminal cases, having different sets of witnesses i.e. the proposed evidence, had been lodged by different persons/complainants---Courts below had passed the impugned orders while taking into consideration the law on the point in its true perspective and had validly refused to exercise the discretion in favour of the petitioner, which called for no interference by the High Court---Petition was dismissed, in circumstances.

Mian Muhammad Nawaz Sharif v. the State through Chairman, National Accountability Bureau, Islamabad and another 2018 PCr.LJ 521 ref.

The State v. Mirza Azam Beg, P.C.S and another PLD 1964 (W. P.) Lahore 339; Shahadat Khan and another v. Home Secretary to the Government of West Pakistan and others PLD 1969 SC 158; Muhammad Sharif and others v. The State and others 2001 YLR 896; Eslam Wazir v. Nek Dar Khan and another 2022 PCr.LJ 249; Ahmad Khan v. Commissioner, Rawalpindi Division and another PLD 1965 (W. P.) Peshawar 65 and Mian Muhammad Nawaz Sharif v. The State through Chairman, National Accountability) Bureau, Islamabad and another 2018 PCr.LJ 521 rel.

Muhammad Aurangzeb Khan Daha and Muhammad Aqeel for the Petitioner.

Tariq Siddique, Addl. Prosecutor General.

Sher Zaman Cheema, with the Respondent.

Order

Anwaarul Haq Pannun, J.---The petitioner, who is an accused of the charge that she without making arrangements with the bank ensuring that the cheques on its presentation, shall be honoured, had dishonestly issued cheques fully detailed in the FIR, for fulfilling her financial obligation to the complainant, when presented before the concerned bank, stood dishonoured, in the cases mentioned blow in paragraph No.2 of this order, by means of instant petition under Section 561-A Cr.P.C. has challenged the vires of order dated 06.03.2023 passed by learned Judicial Magistrate Section-30, Model Town, Lahore whereby her application under section 234 Cr.P.C. for joinder of charges was dismissed as well as the order dated 03.05.2023 passed by learned Addl. Sessions Judge, Lahore whereby her revision has also been dismissed.

1. Facts necessary for disposal of instant petition are that the petitioner being an accused in the following o cases is facing the trial:-

i) FIR No.1253 dated 03.12.2020 under section 489-F, P.P.C, P.S. Gulberg, Lahore.

ii) FIR No.1266 dated 05.12.2020 under section 489-F, P.P.C, P.S. Gulberg, Lahore. -

iii) FIR No.2436 dated 25.11.2020 under section 489-F, P.P.C, P.S. Baghbanpura, Lahore.

The petitioner's application under section 234 Cr.P.C. requesting that since the petitioner is facing the trial in more than one cases of the same nature, registered within a span of 12 months from the first to the last, therefore, instead of separate trials, she may be tried by way of joinder of charges in all the aforesaid cases, at one trial, was dismissed vide order dated 06.03.2023. She filed criminal revision petition which also met the same fate vide order dated 03.05.2023. Hence, instant petition.

1. Learned counsel for the petitioner mainly argued that since all cases relate to dishonouring of cheques allegedly issued by the petitioner in the transaction connected to Bahar Trading Company, therefore, following the underlying spirit of section 234 Cr.P.C., all the cases may be ordered to be tried after joinder of charges by means of one trial by the single learned court, thus craved for acceptance of her application by setting aside the impugned order.

2. On the other hand, learned Prosecutor while relying upon case law titled Mian Muhammad Nawaz Sharif v. The State through Chairman, National Accountability Bureau, Islamabad and another (2018 PCr.LJ Islamabad 521) has defended the impugned orders and thus has prayed for dismissal of instant petitioner.

3. Arguments heard. Record perused.

4. In order to appreciate the contention of learned counsel for the petitioner, it will be beneficial to reproduce sections 233 and 234 Cr.P.C. hereunder:-

233. Separate charges for distinct offences. For every distinct offence of which any person is accused there shall be separate charge, and every such charge shall be tried separately, except in the case mentioned in sections 234, 235, 236 and 239.

2024 P Cr. L J 1298

[Lahore]

Before Ali Baqar Najafi and Muhammad Amjad Rafiq, JJ

Ghulam Abbas---Appellant

Versus

Government of Punjab and others---Respondents

Criminal Appeal No. 67693 of 2022, decided on 13th July, 2023.

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

----Ss. 11EE (4), 21-L & Fourth Sched.---Constitution of Pakistan, Part. II, Chapt. 1---Proscription of person---Fundamental rights---Scope---Accused placed in Fourth Schedule to the Anti-Terrorism Act, 1997---Sanctions so reflected apparently were against the fundamental rights---Fundamental rights are regulated through statutory law---When fundamental right is abridged through statutory law, utmost care and caution should be exercised to evaluate the information/material against the delinquents---Such action must not be an exercise in vacuum or routinely venture based on whims, wishes or conjectures of the authority to move blindly and run over the guaranteed fundamental rights---After imposition of such sanctions, person becomes handicapped to run his life honourably and smoothly---For subsistence and spending his life, person becomes dependent upon the discretion of the Federal Government, and he is to take refuge in that respect under S.11-OO of the Act---In addition, the person enlisted in Fourth Schedule is required to execute a bond for certain restriction upon his freedom of movement, right to reside at a particular place, deprivation from entertainment and amusement, curtailment of liberty including check and probe on their assets or assets of his family members including parents, being under constant monitoring or surveillance; so much so he can be arrested and detained under S.11-EEE of Anti-Terrorism Act, 1997, as and when the government desires---Section 11-EE of the Act, 1997, though enumerated different situations attracting liability for the persons to be enlisted in Fourth Schedule but use of words "reasonable grounds" in the section required evaluating the material/information within that scope---Reasonable grounds flow from the information available or collected against the delinquents and such information was usually derived from the links propagated through many types of material including SMS/voice messages, messages on WhatsApp or other social media accounts, pamphlets/handouts, posters, photographs, painting, caricatures, books/literature, newspapers, audio/video CDs, electronic and digital material, wall chalking, banners/pena flex, demonstrations in rallies, material on Facebook, Twitter or any other social media account, communication on telephone/mobile (CDR), speeches in public meetings, radio and T.V. shows, surveillance report in any form, reports from international agencies, suspicious transaction report from any financial institution etc.---Authority before enlisting any person in Fourth Schedule must ensure that information be available in more than one forms as highlighted above so as to make it credible and be more than a suspicion---Court asked specific questions from the Law Officer whether he had any record with him which could establish links of the present appellant with any proscribed organization or he could show the Court any material like visuals or audio by which it could be seen or heard that appellant was engaged in any objectionable activities but no such material could be produced or shown to the Court---When asked to explain the reasons for placing appellant's name in the Fourth Schedule of the Act, 1997, Law Officer contended that appellant remained involved in one criminal case---Involvement in any criminal case is hardly a ground to deprive any citizen of his fundamental right of life and liberty---Record once at the credit of an accused can not be used to rotate him in such allegations again without any fresh material in that respect---Appeal was allowed, in circumstances.

Farrukh Imtiaz Khokhar v. Government of Pakistan through Secretary Ministry of Interior, Islamabad and 2 others 2021 MLD 40; Muhammad Ilyas Ghuman v. Government of Punjab through Secretary Home Department Lahore and others PLD 2020 Lahore 378; Zulfiqar Ali Gohar Alvi v. Government of the Punjab through Home Secretary, Lahore and 11 others 2017 YLR Note 264; Qari Muhammad Arif v. Secretary Home Department and others PLD 2021 Lahore 499 and Ghulam Hussain and others v. The State and others PLD 2020 SC 61 rel.

Ahmad Masood Gujjar for Appellant.

Falak Sher Bakhsh Gill, AAG with Irshad Ahmad, Section Officer, Home Department and Zafar SHO.

Order

The appellant has filed the instant criminal appeal mainly against the order dated 18.10.2021, whereby his name was entered in the 4th schedule of Anti-terrorism Act, 1997 (ATA, 1997) and the order dated 20.09.2022, by which his review petition against the above order has been rejected.

1. We have heard the arguments of learned counsel for the parties and examined the record.

2. Learned counsel submits that appellant's case does not qualify to be treated under section 11-EE ATA, 1997 for his proscription because no such material is available against him. For ready reference relevant part of section 11-EE ATA, 1997 is reproduced as under:-

"11EE. Proscription of Person. (1) The Federal Government may, by order published in the official Gazette, list a person as a proscribed person in the fourth Schedule on an ex-parte basis, if there are reasonable grounds to believe that such person is-

(a) concerned in terrorism;

(aa) listed under the United Nations (Security Council) Act, 1948 (XIV of 1948)

(b) an activist, office bearer on an associate of an organization kept under observation under section 11D or proscribed under section 11B; and

(c) in any way concerned or suspected to be concerned with such organization or affiliated with any group or organization suspected to be involved in terrorism or sectarianism or acting on behalf of, or at the direction of, any person or organization proscribed under this Act.

Recitation of above section stands in confirmity to the stance raised by the learned counsel for the appellant, therefore, we are pursuaded to examine the material and criteria in place for proscription of any person.

1. The criteria or prerequisites for listing a person as a proscribed in the fourth schedule of ATA, 1997 are almost settled by the courts i.e. the State must demonstrate that the person sought to be notified as such, was involved in cases under Sections 6 and 7 of the ATA, 1997 or was an office-bearer, activist or associate with an organization notified in terms of Section 11-B for proscription of organization by Federal Government or was member of such organization which was under observation in terms of Section 11-D of ATA, 1997 or was involved in terrorism or sectarianism. Further, in order to arrive at a conclusion on above aspects, the information may be gathered from any credible source whether domestic or foreign including governmental and regulatory authorities, the law enforcement agencies, financial intelligence units, banks and non-banking companies and even international institutions. The cases reported as "Farrukh Imtiaz Khokhar v. Government of Pakistan through Secretary Ministry of Interior, Islamabad and 2 others" (2021 MLD 40) and "Muhammad Ilyas Ghuman v. Government of Punjab through Secretary Home Department Lahore and others" (PLD 2020 Lahore 378) are referred. But the foremost condition would always remain that above conclusion would be drawn on the basis of concrete/cogent material/grounds and justifiable reasons to establish that such person was an activist, office bearer or an associate of proscribed organization or an organization suspected to be involved in terrorism or sectarianism. "Zulfiqar Ali Gohar Alvi v. Government of the Punjab through Home Secretary, Lahore and 11 others" (2017 YLR Note 264). There must be some reasonable grounds before enlisting a person in 4th schedule and of course reasonable grounds stand apart from reasonable suspicion. This court has explained the statutory safeguards in this respect in a case reported as "Qari Muhammad Arif v. Secretary Home Department and others" (PLD 2021 Lahore 499).

2. We are mindful of the consequences of enlisting a person in 4th schedule, which are enumerated through section 11-O of ATA, 1997, like as follow: -

(a) the money or other property owned or controlled, wholly or partly, directly or indirectly, by a proscribed organization or proscribed person shall be frozen or seized, as the case may be;

(b) the money or other property derived or generated from any property referred in clause (a) shall be frozen or seized, as the case may be;

(c) no person shall use, transfer, convert, dispose of or remove such money or other property with effect from proscription; and

(d) within forty-eight hours of any freeze or seizure, the person carrying out the freeze or seizure shall submit a report containing details of the property and the persons affected by the freeze or seizure to such office of the Federal Government as may be notified in the official Gazette.

The property so frozen or seized shall remain as such until a proscription is cancelled as per section 11-U of Anti-Terrorism Act, 1997.

1. Sanctions so reflected above apparently are against the fundamental rights but of course, as per command of the Constitution of Islamic Republic of Pakistan, 1973, fundamental rights are regulated subject to statutory law, therefore, when fundamental right is being abridged through statutory law, utmost care and caution should be exercised to evaluate the information/material against the delinquents. It must not be an exercise in vacuum or routinely venture based on whims, wishes or conjectures of the authority to move blindly and run over the guaranteed fundamental rights. It is in common experience that after imposition of such sanctions, person becomes handicapped to run his life honourably and smoothly; for subsistence and spending his life, he becomes dependent upon the discretion of the Federal Government, and he is to take refuge in this respect under section 11-OO of the Act, ibid. For ready reference the said section is reproduced here under: -

"Access to services, money or other property. (1) The Federal Government may permit a person to make available to a proscribed organization or proscribed person such services, money or other property as may be prescribed, including such money as may be required for meeting necessary medical and educational expenses and for subsistence allowance, and such person shall not be liable for any offence under this Act on account of provision of the prescribed services, money or other property."

In addition to above, the person enlisted in 4th schedule is required to execute a bond for certain restriction upon his freedom of movement, right to reside at a particular place, deprivation from entertainment and amusement, curtailment of liberty including check and probe on their assets or assets of his family members including parents, being under constant monitoring or surveillance; so much so he can be arrested and detained under section 11-EEE of ATA, 1997 as and when the government desires. In short, he is clutched so hard to live a peaceful life. Therefore, a strict criteria or stringent approach be adopted before enlisting a person in the 4th schedule, and the material collected against him should be appreciated keeping in view the above consequences.

1. Section 11-EE of ATA, 1997 though enumerates different situations attracting liability for the persons to be enlisted in 4th schedule but use of words "reasonable grounds" in the section requires to evaluate the material/information within that scope. The term 'reasonable grounds' though is part of explanation attached to Section 11-EE but it has not been defined in the Act, so in any ordinary sense it could be understood from the following expressions;

"Reasonable grounds" means

a set of facts or circumstances which would satisfy an ordinary cautious and prudent person that there is reason to believe and such belief goes beyond mere suspicion.

a suspicion that is based on reasons which can be articulated. It is more than mere hunch or supposition, but much less than the level of proof that would be required to impose a disciplinary sanction.

more than mere suspicion but less than the civil test of balance of probabilities. It is a much lower threshold than the standard known as "proof beyond reasonable doubt." It is a bona fide belief in a serious possibility based on credible evidence.

that there must be some supporting information for the suspicion. A mere allegation is not enough. Reports must not contain information that is known to be untrue.

information that establishes sufficient articulable facts which give a trained law enforcement or criminal investigative agency officer, investigator, or employee a reasonable basis to believe that a definable criminal activity or enterprise is, has been, or may be committed.

The reasonable grounds flow from the information available or collected against the delinquents and such information is usually derived from the links propagated through many types of material including SMS/Voice Messages, messages on WhatsApp or other social media accounts, pamphlets/handouts, posters, photographs, painting, caricatures, books/Literature, newspapers, Audio/Video CDs, electronic and digital material, wall chalking, banners/Pena flex, demonstrations in Rallies, material on Facebook, twitter or any other social media account, communication on Telephone/Mobile (CDR), speeches in Public Meetings, Radio and T.V. shows, surveillance report in any form, reports from international agencies, suspicious transaction report from any financial institution.

2024 P Cr. L J 1310

[Lahore]

Before Malik Shahzad Ahmad Khan and Muhammad Amjad Rafiq, JJ

Ulfat Rasool---Appellant

Versus

The State---Respondent

Criminal Appeal No. 71704-J of 2019 and Murder Reference No. 279 of 2019, decided on 16th February, 2024.

(a) Criminal trial---

----Circumstantial evidence---Case based upon circumstantial evidence---In such like cases, every circumstance should be linked with each other and it should form such a continuous chain that its one end touches the dead body and the other the neck of the accused---If any link in the chain was missing then its benefit must go to the accused.

Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047; Sarfraz Khan v. The State 1996 SCMR 188; Asadullah and another v. The State 1999 SCMR 1034 and Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 ref.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Complainant, statement of---Infirmities---Accused was charged for committing murder of the brother of complainant---Record showed that there was no eyewitness of the occurrence---No accused was named in the FIR---No features of the unknown accused persons were mentioned in the contents of FIR---No identification parade of the accused or any other co-accused had been held---Accused had been implicated in the case through supplementary statement of the complainant which was recorded after seven days from the date of registration of the FIR---In the said supplementary statement, the complainant expressed his strong suspicion that as accused had taken a house on rent near the residence of deceased and developed illicit relations with the wife of the deceased, therefore, accused must have committed the murder of deceased---No source of information whatsoever was mentioned in the supplementary statement of the complainant that as to how the complainant came to know that the occurrence of the case was committed by the accused and who had imparted the information to him, thus his statement in that respect was completely silent---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---Last seen evidence---Doubtful---Chance witnesses---Accused was charged for committing murder of the brother of complainant---Last seen evidence had been furnished by a witness, who had nominated the accused in his statement recorded before the police---Name of said witness was not mentioned in the contents of FIR---Likewise, name of said witness was also not mentioned in the supplementary statement of the complainant---Complainant and a witness had stated that they had seen the deceased alive in the company of the accused at an Adda, whereas witness of last seen evidence stated that he had lastly seen the deceased alive in the company of the accused near the dera of one "Mr. NA"---All the witnesses of last seen evidence were residents of Chak No. 4---Evidently, the dera of "Mr. NA" was at a distance of 17-kilometers from the Adda and his residence was situated at a distance of 21-kilometers from the said dera and as such, all the witnesses of last seen evidence, who were residents of Chak No. 4, were chance witnesses---Complainant and a witness stated that they were present on the night of occurrence at Adda in connection with the election campaign but they did not claim that they were themselves or deceased was contesting the election---Said witnesses had not named the persons in their examination-in-chief for whom they were busy in the election campaign---Thus, last seen evidence brought on record in the case through complainant and other witnesses was not worthy of reliance---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Motive not proved---Scope---Accused was charged for committing murder of the brother of complainant---Motive behind the occurrence was that accused had illicit relations with the wife of deceased and he wanted to marry her therefore, he committed murder of the deceased---Record showed that no motive whatsoever was alleged in the FIR---Neither wife of the deceased was involved as an accused nor she was cited as a witness in the case---Motive was not alleged in the FIR and the same had been introduced for the first time through supplementary statement of the complainant with the delay of seven days from the occurrence---Complainant had stated that no one had ever told him prior to the occurrence regarding the illicit relationship/love affair between the accused and the wife of the deceased---No witness had been produced in the prosecution evidence who had ever seen the accused and wife of deceased in some objectionable condition---Some photographs allegedly recovered from the mobile phone of wife of deceased had been produced in the prosecution evidence but there was no forensic report regarding the genuineness of the said photographs---If there was no report of Forensic Science Agency qua genuineness of said pictures then credibility and reliability of the said pictures being genuine, was destroyed---Even mobile phone of the wife of deceased through which the said photographs were taken and recovered was not taken into possession by the police vide any recovery memo---Under the circumstances motive introduced by the complainant through his supplementary statement had not been proved in the case---Appeal against conviction was allowed, in circumstances.

Ishtiaq Ahmed Mirza and 2 others v. Federation of Pakistan and others PLD 2019 SC 675 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence, blood stained clothes of the accused and dead body of deceased---No DNA report on record---Effect---Accused was charged for committing murder of the brother of complainant---Record showed that blood stained clothes of the accused, dead body of the deceased as well as blood stained churra were recovered from the fields of "Mr. I"---Dead body was recovered in this case on 10.07.2018 but at the time of recovery of dead body and preparation of inquest report, presence of any churra or clothes of the accused near the dead body of the deceased, in the said field, was not mentioned---Occurrence in this case took place on 10.07.2018 and the blood stained clothes of the accused and blood stained churra were recovered on 09.08.2018 with a delay of one month from the date of occurrence---Blood disintegrated during such period---Buckel swabs of the accused were sent to the office of Forensic Science Agency for matching of DNA profile of the accused with the said clothes or with the handle of churra, therefore, there was no report regarding the matching of DNA profile of the clothes and swabs taken from the handle of churra with the DNA profile of the accused---Thus, it was not safe to rely upon the such pieces of prosecution evidence---Appeal against conviction was allowed, in circumstances.

Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 rel.

(f) Criminal trial---

----Benefit of doubt---Principle---If there was a single circumstance creating doubt regarding the prosecution case, the same would be sufficient to give benefit of doubt to the accused.

Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Rai Bashir Ahmad and Attiq-ur-Rehman Siddiqi for appellant.

Munir Ahmad Sial, Addl. Prosecutor General along with Muhammad Mansha, Sub-Inspector for the State.

Rana Muhammad Hamid for the Complainant.

Date of hearing: 12th February, 2024.

Judgment

MALIK Shahzad AHMAD KHAN, J.---This judgment shall decide Criminal Appeal No. 71704-J. of 2019, filed by Ulfat Rasool appellant (through jail) against his conviction and sentence and Murder Reference No. 279 of 2019, sent by the learned trial Court for confirmation or otherwise of the Death sentence awarded to Ulfat Rasool (appellant). We propose to decide both these matters by this single judgment as these have arisen out of the same judgment dated 17.07.2019 passed by the learned Addl. Sessions Judge-I/Judge MCTC, Pakpattan.

1. The appellant, namely, Ulfat Rasool was tried in case FIR No. 335 dated 10.07.2018 registered at Police Station Sadar District Pakpattan offences under Sections 302/34 of P.P.C. After conclusion of the trial, the learned trial Court vide its judgment dated 17.07.2019 has convicted and sentenced Ulfat Rasool appellant as under: -

Under Section 302(b) P.P.C. to 'Death' as Ta'zir for committing Qatl-i-Amd of Muhammad Shafique (deceased). He was also ordered to pay Rs.200,000/- (Rupees two hundred thousand only) to the legal heirs of the deceased as compensation under Section 544-A of Cr.P.C, and in default thereof to further undergo simple imprisonment for two months.

1. Muhammad Rafique complainant (PW-2) lodged FIR while stating that he (complainant) was resident of Adda Mashiwal and a labourer by profession, whereas, his brother, namely, Muhammad Shafique (deceased) used to drive a carry van bearing registration No. 2001/VRS-12 on rent. On the intervening night of 09/10.07.2018 at about 02:00 a.m., (night), he (complainant) along with Umar Daraz (given up PW) and Muhammad Afzal (PW-3) were present at Adda Mashiwal on motorcycle in connection with election campaign. In the meanwhile, Muhammad Shafique (deceased) while driving the abovementioned carry van came at the aforementioned Adda, wherein four persons were sitting out of whom one was sitting on the front seat, whereas, remaining persons were sitting on the rear seats. The complainant asked Muhammad Shafique (deceased) about his destination who told that he was going to Pakpattan along with passengers. The complainant and the witnesses saw the passengers, who could be identified on confrontation. On 10.07.2018 at about 06:00 a.m., he (complainant) received information through phone that Muhammad Shafique (deceased) had been murdered by some unknown accused persons in the area of Chak No. 37/SB situated within the jurisdiction of Police Station Sadar District Pakpattan with sharp edged weapon and carry van was present at the spot. On receiving the information, the complainant and PWs reached at the spot and witnessed that carry van was present at the road side, whereas, in the nearby crop of maize, dead body of Muhammad Shafique (deceased) was lying and on different parts of his body, sharp edged injuries were present and neck of Muhammad Shafique (deceased) was cut from left side by a sharp-edged weapon. The complainant further stated that some unknown accused persons had committed the murder of Muhammad Shafique (deceased) due to some unknown reasons.

Initially FIR was lodged against unknown accused persons however, on 17.07.2018, Muhammad Rafique complainant (PW-2) made supplementary statement (Exh.PC) wherein he expressed his strong suspicion that Ulfat Rasool (appellant) had taken a house on rent near the residence of Muhammad Shafique (deceased) and had developed illicit relations with the wife of Muhammad Shafique (deceased), namely, Mst. Shakeela Bibi and the appellant wanted to marry with her (Mst. Shakeela Bibi) and due to this grudge, Ulfat Rasool (appellant) committed the murder of Muhammad Shafique (deceased).

1. Ulfat Rasool (appellant) was initially arrested on 18.07.2018 and was sent to judicial lock up for identification parade however, learned Area Magistrate turned down the application for identification parade vide order dated 04.08.2018 and thereafter, the appellant was formally arrested in this case on 07.08.2018 by Muhammad Ashraf, Sub-Inspector (PW-7). On 09.08.2018 the appellant made disclosure and led to the recovery of churra' (P-9) vide recovery memo (Exh.PK), as well as, his blood stained clothes worn at the time of occurrence i.e., pent (P-7), shirt (P-8) vide recovery memo (Exh.PL). After completion of investigation, report under Section 173 of Cr.P.C., was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant on 19.11.2018 to which he pleaded not guilty and claimed trial.

2. In order to prove its case, the prosecution produced nine witnesses during the trial. The prosecution also produced documentary evidence in the shape of (Exh.PA to Exh.PV/1).

3. The statement of Ulfat Rasool (appellant) under Section 342 of Cr.P.C., was recorded by the learned trial Court. The appellant refuted the allegations levelled against him and professed his innocence.

The appellant did not opt to make his statement on oath as envisaged under Section 340 (2) Cr.P.C., however he produced documentary evidence in his defence in the shape of Exh.DA to Exh.DE.

The learned trial Court vide its judgment dated 17.07.2019 found Ulfat Rasool (appellant) guilty, convicted and sentenced him as mentioned and detailed above.

1. It is contended by learned counsel for the appellant that the appellant is absolutely innocent and he has falsely been implicated in this case by the complainant party being in league with the local police; that it was an unseen occurrence and the prosecution case is based only on weak circumstantial evidence which carries no value in the eye of law; that no motive has been alleged in the contents of the FIR and the subsequent motive of the alleged illicit relation of the appellant with the wife of the deceased, introduced by the prosecution through supplementary statement of the complainant (Exh.PC) has also not been proved in this case; that the prosecution witnesses are chance witnesses; that nothing has been recovered from the appellant and the alleged recovery of weapon and blood stained clothes has been planted against the appellant; that the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt therefore, the appeal filed by the appellant may be accepted and he may be acquitted from the charge.

2. On the other hand, it is contended by the learned Addl. Prosecutor General for the State assisted by learned counsel for the complainant that the prosecution has produced convincing and reliable circumstantial evidence against the appellant therefore, he was rightly convicted and sentenced by the learned trial Court; that motive of the prosecution has also been proved in this case through trustworthy evidence of the prosecution witnesses; that the recoveries of weapon of offence and blood stained clothes of the appellant, as well as, positive report of PFSA (Exh.PV/1) alsq corroborates the prosecution case against the appellant; that there is no substance in the appeal filed by the appellant therefore, the same may be dismissed and murder reference be answered in the affirmative.

3. Arguments heard. Record perused.

4. The detail of the prosecution case as set forth by the complainant in the FIR (Exh.PB/1) and in the supplementary statement/application of the complainant (Exh.PC), has already been given in para No.3 of this judgment therefore, there is no need to repeat the same.

5. Since there is no direct evidence and prosecution case hinges upon the circumstantial evidence, therefore, utmost care and caution is required for reaching at a just decision of the case. It is settled by now that in such like cases every circumstance should be linked with each other and it should form such a continuous chain that its one end touches the dead body and other to the neck of the accused. But if any link in the chain is missing then its benefit must go to the accused. In this regard, guidance has been sought from the judgments of the Apex Court of the country reported as 'Ch. Barkat Ali v. Major Karam Elahi Zia and another' (1992 SCMR 1047), 'Sarfraz Khan v. The State' (1996 SCMR 188), 'Asadullah and another v. The State' (1999 SCMR 1034) and 'Altaf Hussain v. Fakhar Hussain and another' (2008 SCMR 1103).

Keeping in view the parameters, laid down in the above-mentioned judgments, we proceed to decide this case.

1. We have noted that the FIR (Exh.PB/1) was lodged against unknown accused with the claim that on the intervening night of 09/10.07.2018 at about 02:00 a.m., (night), the complainant along with PWs was present at Adda Mashiwal, in connection with the election campaign. In the meanwhile, brother of the complainant, namely, Muhammad Shafique (deceased) came there on a carry van. Four unknown persons were also present in the said carry van and out of the said unknown persons, one was sitting on the front seat, whereas, three were sitting on the rear seats of the van. On an inquiry by the complainant, Muhammad Shafique (deceased) told the complainant and PWs that he was going along with his passengers to Pakpattan and thereafter, he did not return rather his dead body was recovered on the next morning while lying in the fields of Chak No. 37/SB situated within the jurisdiction of Police Station Sadar District Pakpattan. As mentioned earlier, there is no eye-witness of the occurrence. No accused was named in the FIR. No features of the unknown accused persons were mentioned in the contents of the FIR. No identification parade of the appellant or any other co-accused has been held in this case. The appellant has been implicated in this case through supplementary statement of the complainant dated 17.07.2018 (Exh.PC) which was recorded after seven days from the date of registration of the FIR. In the said supplementary statement, the complainant expressed his strong suspicion that as Ulfat Rasool (appellant) had taken a house on rent near the residence of Muhammad Shafique (deceased) and developed illicit relations with the wife of the deceased, namely, Mst. Shakeela Bibi therefore, he (appellant) must have committed the murder of Muhammad Shafique (deceased). No source of information whatsoever was mentioned in the above-referred supplementary statement of the complainant (Exh.PC) that as to how the complainant came to know that the occurrence of this case was committed by the appellant and who had imparted the abovementioned information to him. His statement in this respect is completely silent.

2. The prosecution also produced last seen evidence through Abdul Jabbar (PW-4) apart from Muhammad Rafique complainant (PW-2) and Muhammad Arzal (PW-3) who were also witnesses of last seen evidence of this case. As mentioned earlier, no accused was nominated by Muhammad Rafique complainant (PW-2) or Muhammad Afzal (PW-3) in their first statements recorded by the police however, Abdul Jabbar (PW-4) had nominated the appellant in his statement recorded by the police. It is further noteworthy that name of Abdul Jabbar (PW-4) was not mentioned in the contents of the FIR. Likewise, name of Abdul Jabbar (PW-4) was also not mentioned in the supplementary statement of the complainant (Exh.PC) recorded on 17.07.2018 though Abdul Jabbar (PW-4) had stated that he has also made statement before the police on 17.07.2018. We have further noted that the occurrence of this case took place in the fields of Chak No. 37/S.B. Muhammad Rafique complainant (PW-2) and Muhammad Afzal (PW-3) have stated that they had seen the deceased alive in the company of the appellant at Adda Mashiwal, whereas, Abdul Jabbar (PW-4) stated that he had lastly seen the deceased alive in the company of the appellant near the Dera of one Ch. Nazeer Ahmad Butt. All the abovementioned witnesses of last seen evidence are residents of Chak No. 4/WB Mashiwal District Vehari. It is further evident from the statement made during cross-examination of Abdul Jabbar (PW-4) that the Dera of abovementioned Ch. Nazeer Ahmad Butt was at a distance of 17-kilometers from Adda Machiwal and his (PW-4's) residence was situated at a distance of 21-Kilometers from the said Dera and as such, all the abovementioned witnesses of last seen evidence, who were residents of Chak No. 4/W.B, are chance witnesses. Muhammad Rafique complainant (PW2) and Muhammad Afzal (PW-3) stated that they were present on the night of occurrence at Adda Mashiwal in connection with the election campaign but they did not claim that they were themselves or Muhammad Shafique (deceased) was contesting the election. They have not named the person in their examinations-inchief for whom they were busy in the election campaign however, Muhammad Rafique complainant (PW-2) stated during his cross-examination that they were busy in the election compaign of one 'Bhatti Sahab' but except mentioning the caste of the candidate, he has not mentioned the name of the said candidate or his address. Said candidate was neither produced during the investigation nor during the trial before the learned trial Court to justify the presence of abovementioned witnesses at the spot situated in a different village, at the odd hours of night. We are therefore, of the view that last seen evidence brought on record in this case through Muhammad Rafique complainant (PW-2), Muhammad Afzal (PW-3) and Abdul Jabbar (PW-4) is not worthy of reliance.

3. According to the prosecution case, motive behind the occurrence was that Ulfat Rasool appellant had taken a house on rent near the house of Muhammad Shafique (deceased) and developed illicit relation with the wife of the deceased, namely, Mst. Shakeela Bibi and as the appellant wanted to marry with the wife of the deceased therefore, he committed his murder.

In this respect we have noted that no motive whatsoever was alleged in the FIR. Neither Mst. Shakeela Bibi (wife of the deceased) was involved as an accused nor she was cited as a witness in this case. Abovementioned motive was not alleged in the FIR and the same has been introduced for the first time through supplementary statement of the complainant dated 17.07.2018 i.e., with the delay of seven days from the occurrence. Muhammad Rafique complainant (PW-2) has stated during his cross-examination that no one had ever told him prior to the occurrence regarding the illicit relationship/love affair between the appellant and Mst. Shakeela Bibi. Relevant part of his statement in this respect reads as under:-

"No one known about the alleged relation/love affair in between accused and Shakeela Bibi wife of deceased prior to the occurrence. Shakeela Bibi was married with deceased 14/15 years prior to the occurrence and she is the mother of three children. She might be aged 30/35 years. It is correct that she is elder about 20 years from the accused. I did not listen any rumour regarding the bad character of Shakeela Bibi prior to the present occurrence. It is incorrect that I concocted another false story regarding the bad character of the Shakeela Bibi in order to create a motive of this occurrence. I did not produce any witness from Adda Machi-wal and any other place in order to verification of my allegation that accused got a house on rent at Adda Machi-wal."

No witness has been produced in the prosecution evidence who had ever seen the appellant and Mst. Shakeela Bibi in some objectionable condition. It is true that some photographs allegedly recovered from the mobile phone of Mst. Shakeela Bibi have been produced in the prosecution evidence as (Exh.PM to Exh.PO/6) but there is no forensic report regarding the genuineness of the abovementioned photographs. The Hon'ble Supreme Court of Pakistan in the case of 'Ishtiaq Ahmed Mirza and 2 others v. Federation of Pakistan and others' (PLD 2019 Supreme Court 675), has observed that no audio tape or video could be relied upon by a Court until the same was proved to be genuine and not tampered with or doctored. It was also observed that a person recording the conversation or event had to be produced in evidence and he must produce the audio tape or video himself and safe custody of the audio tape or video, after its preparation till production before the Court, must also be proved. It was further observed that with the advancement of science and technology, it is now possible to get a forensic examination, audit or test conducted through an appropriate laboratory so as to get it ascertained as to whether an audio tape or a video is genuine or not and such examination, audit or test can also reasonably establish if such audio tape or video has been edited, doctored or tampered with or not. It was further observed in para No.7 of the abovementioned judgment as under:-

"The advancement of science and technology has now made it very convenient and easy to edit, doctor, superimpose or photoshop a voice or picture in an audio tape or video and, therefore, without a forensic examination, audit or test of an audio tape or video it is becoming more and more unsafe to rely upon the same as apiece of evidence in a court of law. It must never be lost sight of that the standard of proof required in a criminal case is beyond reasonable doubt and any realistic doubt about an audio tape or video not being genuine may destroy its credibility and reliability."

On the same analogy, if there is no report of PFSA qua genuineness of abovementioned pictures then credibility and reliability of the said pictures produced as (Exh.PM to Exh.PO/6) being genuine, is destroyed. Even mobile phone of Mst. Shakeela Bibi through which the abovementioned photographs were taken and recovered, was not taken into possession by the police vide any recovery memo. Under the circumstances, motive, introduced by the complainant through his supplementary statement (Exh.PC) has not been proved in this case.

1. Insofar as the recovery of blood stained clothes of the appellant, as well as, blood stained 'churra' (P-9) vide recovery memos (Exh.PL) and (Exh.PK) respectively are concerned, in this respect we have noted that the blood stained clothes of the appellant, as well as, blood stained ' churra' (P-9) were recovered from the fields of one Haji Imam situated in Square No. 1 Killa No. 25 of Chak No. 37/SB. It is further noteworthy from the perusal of the site plan of the place of recovery of dead body of Muhammad Shafique (deceased) (Exh.PP) that even the dead body was also recovered from the same place i.e., fields of Haji Imam bearing Square No. 1 Killa No. 25 of Chak No. 37/SB. Dead body was recovered in this case on 10.07.2018 but at the time of recovery of dead body and preparation of inquest report (Exh.PS), presence of any 'churra' or clothes of the appellant near the dead body of the deceased, in the abovementioned field, was not mentioned. We have further noted that the occurrence in this case took place on 10.07.2018 and the blood stained clothes of the appellant and blood stained 'churra' were recovered on 09.08.2018 i.e., after one month from the occurrence. It is by now well settled that blood disintegrates during the abovementioned period, as observed in the case of 'Muhammad Jamil v. Muhammad Akram and others' (2009 SCMR 120). It is further noteworthy that buckle swabs of the appellant were never sent to the office of PFSA for matching of DNA profile of the appellant with the abovementioned clothes or with the handle of 'churra' (P-9), therefore, there is no report regarding the matching of DNA profile of the clothes i.e., pent (P-7) and shirt (P-8) and swabs taken from the handle of 'churra' (P-9) with the DNA profile of the appellant. We are therefore, of the view that it is not safe to rely upon the abovementioned pieces of prosecution evidence.

2. We have considered all the aspects of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond the shadow of doubt. It is by now well settled that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubts about the prosecution story. In the case of "Tariq Pervez v. The State" (1995 SCMR 1345), the Hon'ble Supreme Court of Pakistan, at page 1347, was pleased to observe as under:-

2024 P Cr. L J 1341

[Lahore (Bahawalpur Bench)]

Before Muhammad Amjad Rafiq, J

Muhammad Hassan---Petitioner

Versus

The State and another---Respondents

Criminal Misc. No. 3535-B of 2023, decided on 8th November, 2023.

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

----Ss. 23 & 7---Penal Code (XLV of 1860), Ss. 365-A, 392, 376(ii), 376(iii)---Kidnapping or abduction for extorting property, valuable security, etc., robbery, kidnapping or abducting a person under the age of fourteen, rape, act of terrorism---Application for transfer of case from anti-terrorism court to the ordinary court was dismissed---Validity---Complainant lodged FIR alleging that accused persons kidnapped her along with her daughter, committed rape with them, snatched mobile phone and hard cash and ran away---As per contents of the FIR, there was no demand of property (movable or immovable) valuable security or compelling of the complainant or her daughter to comply with any other demand in cash or otherwise---Moreover, it was not the case of the prosecution that the assailants demanded some money and upon their failure put them in illegal confinement and committed Zina-bil-jabr---Under S. 365-A, P.P.C, the elements of extortion from the person or kidnapping or abducting for the purpose of any property movable or immovable, valuable security or other demand, whether cash or otherwise for obtaining release of any kidnapped or abducted person were made---Such elements were not available in the FIR, therefore, S.365-A, P.P.C, would not be attracted---In the instant case, there was no demand of ransom of cash either from the complainant or her relative---Irrational interpretation of the word "any other demand" by extending it to compel a woman for a sexual intercourse could not be adopted by the High Court particularly when offence under S. 365-B, P.P.C., and S. 376, P.P.C., exclusively deal with the offence of rape; sexual intercourse with a woman against her will by putting her under fear of death, etc.---Criminal revision for transfer of case to an ordinary court was allowed, in circumstances.

Rohan Ahmad and others v. The State and another 2022 PCr.LJ 259; Muhammad Nawaz alias Karo v. The State 2023 SCMR 734; Jahanzeb and others v. The State through A.G. Khyber Pakhtunkhwa Peshawar and another 2021 SCMR 63; Muhammad Shafique and another v. The State and others 2017 SCMR 79; Salman Zahid v. The State through P.G. Sindh 2023 SCMR 1140; Gul Muhammad v. The State 2023 SCMR 857; Muhammad Amin v. the State 2023 SCMR 857 and Muhammad Arslan Ahmed v. The State 2017 PCr.LJ 434 (Sindh) rel.

Sardar Zafar Iqbal Tareen for the Petitioner.

Javaid Iqbal Bhaaya, Assistant District Public Prosecutor with Muhammad Ali, ASI.

Muhammad Ahmad Bhatti for the Complainant.

Order

Muhammad Amjad Rafiq, J.---Through this petition under Section 497 Cr.P.C., petitioner has sought post arrest bail in case FIR No.441 dated 21.08.2023 registered under Section 462-C P.P.C. at Police Station Pacca Laran, Tehsil Liaqat purr, District Rahim Yar Khan.

1. Heard. Record perused.

2. Petitioner was under the allegation of committing theft of gas by tampering into auxiliary or distribution pipeline of SNGPL (Sui Northern Gas Pipelines Limited) which is an offence under section 462C P.P.C. entailing punishment up to 10 years' imprisonment. Offences carrying punishment up to 10 years or more are usually regarded as serious offences, therefore, prosecution by all times is at call of duty to collect concrete evidence so as to ensure that broad extent of the criminality has been determined and that they are able to make a fully informed assessment. Before dilating upon the matter for bail in the context of further inquiry and availability of sufficient material against the accused/petitioner, it was expedient to collect information about layout plan of gas pipelines by SNGPL for supply of gas to end users; therefore, on direction, learned Prosecutor after collecting information from office of concerned Company submitted as under;

There are three lines of Sui gas; (i) Transmission Lines (ii) Distribution Supply Lines (iii) Distribution Feeder Lines. Transmission lines usually having diameter of 16 to 42 inch or more start from the gas well and ends at city gates for supply of gas to various cities/industries through Sales Meter Station (SMS). These lines generally contain pressure of gas 500 psi (pound per square inch) or above. Where the transmission line ends, distribution lines start which generally contain high pressure of 50 to 100 psi or above; these lines have generally diameter of 6 to 12 inches or above. However, it is pertinent to mention that Sales Meter Station (SMS) may provide gas to industries only through dedicated SMS wherein said lines have no city/town load. These lines are mostly located at main passages/road or location from where gas is distributed to towns and localities through Town Border Station (TBS). Distribution Feeder Lines start from TBS and gas is provided to consumer i.e., domestic or commercial at low pressure generally from 5 to 15 psi. The diameter of said lines is usually 1 to 4 inches. Before installation of said lines, a map is prepared by drawing section of Sui Gas at regional level. The existence of said lines may be verified through map/DLM (Drawing Location Map).

1. Duty of prosecution to collect concrete evidence is mentioned in para 4.12 of the Code of Conduct for Prosecutors (COCP) issued by the Prosecutor General under section 17 (1) of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 hereinafter be called as CPS Act, which is reproduced as under;

"4.12: Prosecutors may only take a decision when they are satisfied that the broad extent of the criminality has been determined and that they are able to make a fully informed assessment. If prosecutors do not have sufficient information to take such a decision, the investigation should proceed and a decision taken later in accordance with the Full Code Test.

Therefore, when prosecutors do not have sufficient information to take such a decision, the investigation should proceed. However, pursuant to para-6 of COCP, they while applying threshold test on interim report under section 173 Cr.P.C. can request the Court for postponement of trial as mandated under sub section (6) of section 9 of CPS Act; which is reproduced;

(6) On receipt of an interim police report under section 173 of the Code, the Prosecutor shall-

(a) examine the reasons assigned for the delay in the completion of investigation and if he considers the reasons compelling, request the Court for the postponement of trial and in case investigation is not completed within reasonable time, request the Court for commencement of trial; and

(b) in cases where reasons assigned for delay in the completion of investigation are not compelling, request the Court for commencement of trial on the basis of the evidence available on record.

The role of prosecutors to guide the police for collection of evidence is regulated through the same COCP in following manners;

2.1 Prosecutors must cooperate and coordinate with the police to ensure fair and just prosecutions.

2.2 Coordination and cooperation mean and entails advice and guidance to the police regarding possible lines of enquiry, evidential requirements and pre-charge procedures. It is meant to assist the police and other investigators to complete the investigation within a reasonable period of time and to build the most effective prosecution case. However, prosecutors cannot direct the police or other investigators except in accordance with paragraph 4. (emphasis supplied)

According to above command prosecutors should look into the evidential requirements and take care of all pre-charge procedures while suggesting possible lines of inquiry so as to build a good prosecution case for its submission before the Court.

1. It is misconception that evidential requirement for proving an offence depends upon the principle of evidence but as a matter-of-fact it is embedded in the substantive law through respective penal provision, and how to transform such requirement into admissible format through different kinds of evidence is the subject of law of evidence. Case analysis is the first step to understand the evidential requirement which is triggered on the receipt of FIR by the prosecutors pursuant to section 12 of the CPS Act. Therefore, from the very early-stage prosecutors are required to associate into the process, and in this respect Prosecutor General can issue general guidelines to prosecutors and the investigating officers as per section 10 (1) of the CPS Act which is as under;

10. Powers of Prosecutor:-(1) The Prosecutor General may issue general guidelines to the Prosecutors or officers responsible for investigation for effective and efficient prosecution.

1. In order to prove an offence, the literal and constructive understanding of relevant penal provision is the essence of case analysis which gives way to understand the mode and manner of proving such offence. What could be the possible evidential requirement for proof of an offence under section 462C P.P.C, it is essential that such section be read in its entirety along with Chapter XVII-A of P.P.C. wherein it falls. Here is the section;

462C: Tampering with auxiliary or distribution pipelines of petroleum: (1) Any person who willfully does tampering or attempts to do tampering or abets in tampering with any auxiliary or distribution pipeline of petroleum not being a main transmission and transportation pipeline but includes a distribution system, distribution pipeline or any other related system and equipment, as the case may be, of petroleum is said to commit tampering with auxiliary or distribution pipelines of petroleum.

(2) Any person who commits or abets in tampering with auxiliary of distribution pipeline of petroleum for the purpose of: -

(a) Theft of petroleum; or

(b) Disrupting supply of petroleum, shall be punished with rigorous imprisonment which may extend to ten years but shall not be less than five years and with fine which may extend to three million rupees.

Let's bifurcate the section to understand the evidential requirement; at first it is essential to see the definition of 'petroleum' as given in section 462A P.P.C. as under;

(h) "Petroleum" means oil, crude oil, refined oil products, natural gas, LPG, Air Mix LPG, LNG and CNG;

Not only different types of natural gas, it also encompasses oil etc. As per section 462C P.P.C. cited above, the first element is to prove the situation of "willfully tampering"; therefore, what connotes the word "willfully" and what is the tampering, it is to be responded. Definition of tampering is given in section 462A P.P.C. as under;

(j) "Tampering" includes interfering or creating hindrance in flow or metering of petroleum by unauthorized entry into metering system or transmission and distribution lines either by breaking the seals or damaging or destructing the same or in any manner interfering with the meter or interfering with its original condition.

Keeping in view the above definition, if the section is read in parts, the following is evidential requirement to prove the tampering;

1. Evidence of interference or hindrance like using any connecting device, clumps, pipe, hose, material or anything for the purpose of getting petroleum or creating hindrance in flow or metering of petroleum.

1. Such interference must be unauthorized and that too in metering system, or transmission and distribution lines.

2. It must be done either by breaking the seal or damaging or destructing such system or lines or in any other manner interfering with original condition of meter or lines.

Whereas word 'Willfully' could be defined like referred in case reported as "Rohan Ahmad and others v. The State and another" (2022 PCr.LJ 259) which is as under;

According to Halsbury's Laws of England, Fourth Edition, Vol. 11, para. 1252 willfully' means deliberately and intentional, not accidentally or inadvertently. Frank R. Prassel in his Criminal law, Justice and Society 1979 Edition, page 150 says that "Intent is probably the most common, at least for the major traditional offences, but some codes call the proof ofwillful' voluntary',malicious', corrupt', orpurposeful' product instead. These terms are generally accorded similar legal meanings, subject to limited variation from one jurisdiction to another.

According to Black's Law Dictionary, Fifth Edition, "an act is done willfully and knowingly when the actor intends to do it and knows nature of the act. Further that an act or omission is `willfully' done, if done voluntarily and intentionally and with the specific intent to do something the law forbids, or with the specific intent to fall to do something the law requires to be done; that is to say, with bad purpose either to disobey or to disregard the law. It goes on to say that when used in criminal context it generally means an act done with a bad purpose, without justifiable excuse; stubbornly, obstinately, perversely. The word is also employed to characterize a thing done without ground for believing it is lawful or conduct marked by a careless disregard whether or not one has the right so to act."

Stroud's Judicial Dictionary Vol. 4, third Edition, says "that the legal meaning of willful is purposely without regard to bona fides or collusion and deliberately and intentionally but does not involve obstinacy of an obstructive kind and it means an intentional disobedience. In the Law Terms and Phrases Judicially Interpreted, by Sardar Muhammad Iqbal Khan Mokal, the term "willfully" amounts to nothing more than this that the person whose action is in question, mows that he is doing and intends to do what he is doing and is free agent. He further says that willful means wantonly, intentional, deliberately and consciously and not accidentally or by inadvertence. Reference is made there to Madras State Waqf Board v. Tajammal Hussain (AIR 1968 Mad. 332) and Kedar Nath v. The State (AIR 1965 All. 233)."

Willfully as mens rea thus means voluntarily, maliciously, and purposefully doing an act which is forbidden by law.

1. Tampering would be proved by ocular account in respect of point of interference in distribution line etc. size of hole or point from where gas was being stolen, recovery of pipe, hose etc. showing corresponding size of such articles. Snaps/videos of an exercise of digging out the earth for search of such material. Likewise, evidence of safe custody and dispatch of articles to concerned Lab for testing in order to obtain evidence of residues of petroleum in recovered pipe etc., so that it could be proved as being used for flow of petroleum, and of course the Lab report in this respect.

Once the tampering is proved, next step in section 462C P.P.C. is to prove that such pilferage of petroleum was for the purpose of theft or disruption of supply. If it was for theft, then prosecution must take lead to show the place where actually the petroleum is being used for any purpose. If it was being used in residential house for kitchen purposes, then the appliance connected therewith must be taken into possession, and to prove for its use in commercial or industrial activities, proof in any form like sealing of property and securing of evidence by video graphing the action or its snapping as the case may be.

However, if tampering was intended for 'disrupting supply of petroleum', it connotes of causing any mischief, terrorist or sabotage activity; therefore, evidence of broader purpose of accused and his link with any group or organization interested in such subversive activities, is essential. The broader motives of the accused could be to satisfy their personal grudge against the company, like passing of supply pipeline nearby their lands creating devaluation or danger to their life and property.

Likewise, documentary evidence for dropping of gas pressure at particular area, as tracked/reported in the main monitoring system of the company due to theft or disrupting supply of petroleum, is necessary, because as per section 462A (k) P.P.C., a standard pressure in the pipelines is always measured as not less than three hundred psig (per square inch gauge) and regulation of such pressure may be prescribed from time to time.

In both situations, either to prove theft or disrupting the supply of petroleum, a drawing location map (DLM) prepared by SNGPL is necessary to be obtained for tendering into evidence in order to show the existence of such auxiliary or distribution pipeline near or around the place of occurrence.

1. Tampering is not an easy job, it cannot be done by a layman, rather it is expected that some expert might have put his efforts through technical skills to materialize it. Thus, the prosecution is obliged to get that very expert tracked and consequent recovery of tools or implements used for such activity, but if the accused had himself indulged or did it by his own, the recovery of such tools from him is also essential. It must be remembered that it is very important piece of evidence, otherwise mere using of petroleum unauthorizedly would not be an offence under section 462C P.P.C. because in that case it is expected that somebody else had committed the tampering for the purpose of supply of petroleum to simpletons for unlawful gains.

The above cited can be the least evidence, collection whereof is essential to prove the offence under section 462C P.P.C. or like offences under Chapter XVII-A of P.P.C., therefore, prosecution is reminded of its duty to collect such type of evidence before sending the case to the Court.

2024 P Cr. L J 1364

[Lahore]

Before Tariq Saleem Sheikh, J

Azeem-ud-Din---Applicant

Versus

Feroze Khan and another---Respondents

Criminal Misc. No. 60014/CB of 2022, decided on 20th January, 2023.

Criminal Procedure Code (V of 1898)---

----Ss. 497(5) & 498---Penal Code (XLV of 1860), S. 489-F--- Dishonestly issuing a cheque---Pre-arrest bail, cancellation of---Bail granted on the basis of compromise---Accused failing to abide by terms of compromise---Accused borrowed Rs. 18,00,000/- from complainant and issued a cheque for repayment of loan which was dishonoured upon presentation---Accused filed a petition for pre-arrest bail which was dismissed---Accused then filed a criminal miscellaneous application for the same relief---Both the parties entered into a settlement during the pendency of that application---Court granted bail on the terms and condition of settlement acknowledged by the accused---According to the settlement, accused made partial payment in cash and undertook to pay the remaining sum of Rs. 14,00,000/- within six months, but he had defaulted---Effect---Petitioner's father lodged F.I.R against the accused for the dishonoring of the cheque---Now that the complainant had died, the petitioner was an interested party and competent to apply under S.497(5), Cr.P.C---In the circumstances, the objection of accused regarding the maintainability of the application was overruled---Court granted pre-arrest bail to accused pursuant to his compromise with complainant---Accused paid a part of the outstanding amount in cash and undertook to pay the remaining amount Rs. 14,00,000/- within six months but had defaulted---Since the bail of accused was conditional and subject to due performance of his obligations, therefore, it must be recalled---Application was accepted and the pre-arrest bail granted to accused was cancelled, in circumstances.

The State/Anti-Narcotics Force v. Malik Amir 2005 YLR 1411; Zafar Ali Shah v. Zakir Hussain and another 2018 YLR Note 124; Zahir Ahmad Suri v. Wazir Ahmad Chughtai 1969 PCr.LJ 1161; Nazir Ahmad v. Latif Hussain and others PLD 1974 Lah. 476; Khalid Mahmood v. Abdul Qadir Shah and others 1994 PCr.LJ 1784; Saleem Akram v. Muhammad Zakir Khan Changezi and another 1979 PCr.LJ 972; Dur Muhammad v. Bashir and others 1983 PCr.LJ 2053; Nazar Muhammad v. The State and another 1977 PCr.LJ 277; Shaista Qaiser v. Mir Hassan alias Miro and others 2004 MLD 420 and Haji Behram Khan v. Akhtar Muhammad and others 1993 PCr.LJ 71 rel.

Sheikh Irfan Akram and Saim Raza for the Applicant.

Muhammad Mustafa Chaudhry, Deputy Prosecutor General, with Ibrar/ASI for the State.

Zafar Abbas Khan and Ghulam Murtaza Chaudhry, for Respondent No. 1.

Order

Tariq Saleem Sheikh, J.---Muhammad Iqbal lodged FIR No.333/2021 dated 20.8.2021 against Respondent No.1 at Police Station City, Bhakkar, for an offence under section 489-F P.P.C. claiming that Respondent No.1 borrowed Rs.1,800,000/- from him on 15.2.2021. Later, he gave him Cheque No.01044063 drawn on United Bank Limited, Bhakkar, for repayment of that loan which was dishonoured upon presentation. Respondent No.1 petitioned for pre-arrest bail in the Sessions Court but it was denied. Then he filed Crl. Misc. No.64987-B/2021 in this Court for the same relief. Muhammad Iqbal and Respondent No.1 entered into a settlement during the pendency of that application. On 15.3.2022, Muhammad Iqbal submitted his affidavit in this Court stating the terms of compromise, which was placed on record as Mark-A. Respondent No.1 duly acknowledged it. Thereupon, by order of even date, this Court granted his plea and admitted him to pre-arrest bail.

1. On 3.9.2022, Muhammad Iqbal died. His son, Azeem-ud-Din (hereinafter referred to as the "Petitioner"), has filed the present application under section 497(5) of the Code of Criminal Procedure, 1898 (hereinafter referred to as the "Code" or "Cr.P.C."), for cancellation of the bail of Respondent No.1. He contends that he has failed to abide by the terms of the compromise and fulfill his commitments. According to him, on 15.3.2022 (the settlement date), he made partial payment in cash and undertook to pay the remaining sum of Rs.1,400,000/- within six months, but he has defaulted. The Petitioner argues that the bail of Respondent No.1 was conditional so it is liable to be recalled.

2. This Court issued notice to Respondent No.1 who has made an appearance with his counsel. He does not deny violating the terms of his settlement with Muhammad Iqbal by failing to pay the remaining sum of Rs.14,00,000/- within the agreed period of six months. He has rather objected to the maintainability of this application. He contends that the Petitioner lacks locus standi to file it because he is not the complainant of FIR No.333/2021 and was not a party to the settlement dated 15.3.2022.

3. The learned Deputy Prosecutor General has supported this application.

4. Arguments heard. Record perused.

5. Chapter XXXIX of the Code sets out the law relating to bail. Section 497(5) provides for the cancellation of bail. It reads as under:

(5) A High Court or Court of Sessions and, in the case of a person released by itself, any other court may cause any person who has been released under this section to be arrested and may commit him to custody.

1. The Code does not prescribe any procedure for applying for cancellation of bail. Therefore, in The State/Anti-Narcotics Force v. Malik Amir (2005 YLR 1411), a Division Bench of this Court observed that the power conferred by section 497(5) was akin to revisionary powers under sections 435 and 439 Cr.P.C. The relevant excerpt is reproduced below:

"Since no specific manner/procedure for filing of a petition for cancellation of bail has been prescribed either in Control of Narcotic Substances Act, 1997 or in the Criminal Procedure Code 1898 and its section 497(5) conferred unrestricted powers on this Court and the Court of Session in case of a person released by itself or by any other Court, for his arrest for committing to custody. We are of the view that invocation of this jurisdiction can be made on an application of any concerned person and, in the absence of any such application, by the court itself, whenever any lapse, capriciousness, or arbitrariness amenable to its jurisdiction comes to its notice. Powers of cancelling bail under sub-section (5) of section 497 Cr.P.C. can in no manner be restricted for any specific class of persons because such intention of the legislature does not flow out of those provisions. These powers are also similar to the revisional powers for which, as well, right of invocation is also not restricted."

Lately, Zafar Ali Shah v. Zakir Hussain and another (2018 YLR Note 124) has expressed the same view.

1. I may also refer to two earlier cases. In Zahir Ahmad Suri v. Wazir Ahmad Chughtai (1969 PCr.LJ 1161), the High Court found that the applicant seeking bail cancellation was neither a prosecution witness nor a relative of the murdered man. It ruled that he had no locus standi to pursue the application and, therefore, asked him to retire. However, it continued the proceedings on the ground that the court is competent to revoke bail under section 497(5) Cr.P.C., even in the absence of any party's application, when a perverse order comes to its notice. In Nazir Ahmad v. Latif Hussain and others (PLD 1974 Lahore 476), a learned Single Judge held that the High Court could exercise its revisional jurisdiction under section 439 Cr.P.C. and set aside an order of a magistrate or a Sessions Judge granting bail to an accused if it is perverse.

2. The question as to who can make an application for cancellation of bail of an accused has been considered in several cases. In Nazir Ahmad, supra, this Court held that in cognizable cases, the Public Prosecutor must be vigilant and petition for bail cancellation if he thinks the order is erroneous and unsustainable. However, section 497(5) Cr.P.C. does not explicitly state that only an interested person can move the court for cancellation of bail. In Nazir Ahmad, the High Court entertained the application because the applicant, in addition to being a witness of the alleged motive, was the husband of the woman who was assaulted and dishonoured. The High Court held that he was "a person vitally interested in the case." In Khalid Mahmood v. Abdul Qadir Shah and others (1994 PCr.LJ 1784), this Court ruled that a private person who has a legitimate interest in the prosecution, such as the complainant or a close relative of the deceased or an injured person, may apply for cancellation of bail granted to an accused person. The learned Judge observed that being the "real aggrieved persons" they cannot be barred from seeking redress in a court of law. This is also necessary because the State frequently exhibits passivity in bail cancellation.

3. In Saleem Akram v. Muhammad Zakir Khan Changezi and another (1979 PCr.LJ 972), the Sindh High Court cancelled the bail of an accused at the instance of the person injured in the incident. The learned Judge held that the State should have ordinarily moved for cancellation where the bail-granting order is perverse. However, in a proper case, an aggrieved private party should be allowed to have recourse to the law. In Dur Muhammad v. Bashir and others (1983 PCr.LJ 2053), the Sindh High Court ruled that a person allegedly injured in the occurrence, even if he is not the complainant, is vitally interested in the case. Hence, he is entitled to apply under section 497(5) Cr.P.C. for cancellation of the bail of the accused. The Hon'ble Judge dissented from the view taken in an earlier case, Nazar Muhammad v. The State and another (1977 PCr.LJ 277), in which another Bench of the same Court accepted the revision petition of the accused whose bail had been cancelled by the Additional Sessions Judge at the instance of a person allegedly injured in the occurrence. In doing so, the Bench had observed that the provision regarding cancellation of bail could not be made available to private parties to satisfy their grudges or use it as a means of exacting vengeance. Dur Muhammad was followed in Shaista Qaiser v. Mir Hassan alias Miro and others (2004 MLD 420).

4. In Haji Behram Khan v. Akhtar Muhammad and others (1993 PCr.LJ 71), the Balochistan High Court distinguished Nazar Muhammad, supra, decided by the Sindh High Court, holding that it only discouraged frivolous applications for cancellation of bail. It ruled:

"It appears that the learned trial court has misconstrued the import of the above report. Factually it aims at restricting and discouraging the tendency of misconceived applications of private persons which may be motivated by the mala fide desire of merely satisfying grudges, vindicating their vengeance, or causing harassment to the accused person. It may further be noticed that plain reading of section 497(5) Cr.P.C. concerning cancellation of bail, as well as revisional jurisdiction conferred upon the courts under Cr.P.C. does not place any embargo on the private persons in pointing out grave improprieties committed by a subordinate court. Therefore, any person primarily interested in prosecuting a case against the accused cannot be restrained from knocking on the door of justice. It cannot be overlooked that public prosecutors, at times, show indifference to challenge a decision that may otherwise be defective. Therefore, outright exclusion of the aggrieved person from approaching the court of law in pointing out gross illegalities, misuse of powers or arbitrary assumption of jurisdiction by the trial court can be detrimental to the effective administration of justice."

1. Analysis of the above case-law shows that it is the State's primary duty to ensure justice is done to the parties even during the bail process. No accused should be released on bail unless legally entitled to it. The Prosecution Department should immediately seek a correction under section 497(5) Cr.P.C. where the court has wrongly granted bail to an offender. Additionally, any individual who is vitally interested in the case and concerned with its outcome has a right to contest such an order. The court may also intervene on its own initiative if any lapse, capriciousness, arbitrariness, or perversity comes to notice. Section 497(5) Cr.P.C. confers powers similar to revisional powers under sections 435 and 436 Cr.P.C. on the High Court and the Court of Session.

2024 P Cr. L J 1401

[Lahore (Multan Bench)]

Before Sardar Muhammad Sarfraz Dogar, J

Muhammad Ramzan---Petitioner

Versus

The State and another---Respondents

Criminal Revision No. 352 of 2023, heard on 4th December 2023.

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

----S. 540---Power to summon material witness or examine person present---Scope---Section 540, Cr.P.C, empowers the Court to summon, examine, recall and re-examine any person, if his evidence appears to the said Court essential for the just decision of the case---Court can summon any witness at any stage subject to its satisfaction that the evidence would be a stepping stone for just decision---First part of the said section confers discretion, the second makes obligatory that recalling is essential for the just decision of the case, but, at the same time, there are some factors which restrain the Court from summoning, recalling or re-examining the witness as it should not be meant to fill in lacuna left by any party.

2001 SCMR 424; PLD 1991 SC 430 and 2011 SCMR 474 rel.

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

----S. 376---Criminal Procedure Code (V of 1898), Ss. 561-A & 540---Inherent powers of High Court---Quashing of order---Summoning of witnesses for re-examination---Application of the prosecution for summoning the witnesses for re-examination was allowed---Validity---Petitioner had committed rape with his niece/victim resulting into her pregnancy and subsequent delivery of baby girl, who subsequently expired---Record showed that case was registered on 05.07.2021---Post mortem examination of deceased child was conducted on 21.05.2022 by the Woman Medical Officer, who extracted sample for DNA from spleen---Said sample was submitted on 30.05.2022 for Forensic DNA and Serology Analysis Report---Thereafter, the report of Forensic Science Agency in respect of Forensic DNA and Serology Analysis was issued on 30.09.2022---Despite this clear cut mentioning of the Forensic Science Agency, in respect of recovering of material evidence within 15 days of issuance of first report, the subsequent had been issued after more than one year---It was questionable as to why the report was requisitioned and submitted after such a long period---Statement of Woman Medical Officer was recorded on 18.05.2023 whereby said witness endorsed the report and based her final opinion on the said report and conclusion---Thereafter, on 23.08.2023 and on 08.09.2023, applications under Ss. 540, Cr.P.C., were filed on behalf of Public Prosecutor i.e. after about three months of statement of Woman Medical Officer, such delay raised an eye brow on these applications particularly when the copy of Forensic Science Agency Report in respect of Forensic DNA and Serology Analysis Report (Supplementary-I) had been perused, it seemed that the same was prepared on the basis of already submitted samples and at the specific request of submitting agency after a period of more than one year---Subsequent report was prepared and issued in response to fresh analysis request by the submitting agency bearing letter dated 21.06.2023---While analyzing the dates of examination of Woman Medical Officer, earlier issued report of Forensic Science Agency and of subsequent report, it was clear that the prosecution had recourse to the Forensic Science Agency for issuance of report in respect of question asked by the defence during the cross-examination of Woman Medical Officer---By doing so, it was crystal clear that the prosecution had made an attempt to fill in the lacuna pointed out by the defence during the course of cross-examination---Provisions contained in S.540, Cr.P.C, can be used to find out the truth but cannot be exercised for filling the gaps and lacuna left by either party---Court in exercise of its jurisdiction under provisions of S.540, Cr.P.C., would ensure that by summoning or recalling the Woman Medical Officer would meet the ends of justice but not to give illegal advantage to one party over the other and could not be used as a vehicle of exploitation---Duty of the Court is to administer justice in just and fair manner and not to assume the status of a prosecutor, to put an accused in undue advantage---Petition was allowed by setting aside impugned orders, in circumstance.

Shah Jahan and another v. Raheem Shah and others 2022 SCMR 352; Muhammad Afzal v. The State 2001 PCr.LJ 72; Muhammad Khan v. The State 2003 PCr.LJ 1178; Abdul Khalid v. Ansar Mehmood 2009 YLR 486; Mian Manzoor Ahmed Watto v. The State 2002 YLR 2362; Liaquat Ali and others v. The State 2000 SCMR 1455; Dildar v. The State through Pakistan Narcotics Control Board, Quetta PLD 2001 SC 384 and Qaisar Javed Khan v. The State through Prosecutor General Punjab, Lahore and another PLD 2020 SC 57 rel.

Ch. Umar Hayat for Petitioner.

Respondent No. 2 in person.

Hassan Mehmood Khan Tareen, Deputy Prosecutor General for the State.

Date of hearing: 4th December, 2023.

Judgment

Sardar Muhammad Sarfraz Dogar, J.---The revision petitioner Muhammad Ramzan, facing the trial of case FIR No.321 dated 05.07.2021, registered at the Police Station Qadir Pur Raan, District Multan for the offence under section 376 of the Pakistan Penal Code, 1860 (\P.P.C.) has called in question the order dated 09.09.2023 passed by learned Addl: Sessions Judge, Multan (\impugned order) whereby he not only allowed the prosecution to submit interim challan owing to receipt of supplementary PFSA report but also accepted application filed under section 540 of the Code of Criminal Procedure, 1898 for re-examination of lady doctor Zunaira (PW.8).

1. The chronicle of this case is that respondent No.2 Ghulam Shabbir got the above noted case FIR registered with the allegation that petitioner has been committing rape with his niece/victim resulting into her pregnancy and subsequent delivery of baby girl. Notably, afterwards, the said child expired.

2. After registration of case, petitioner was arrested, investigation of the case was carried on and thereafter, report under section 173 Cr.P.C was submitted before the learned Trial Court. Whereupon, after fulfilling the legal requirements, learned Trial Court framed charge against the petitioner on 26.10.2022 and thereafter proceeded to record evidence. In this sequel, learned Trial Court recorded statement of Woman Medical Officer, lady doctor Zunaira Malik as PW.8, who got her statement recorded and also exhibited the PFSA report (Exh.PH/4). Upon the said PW/Woman Medical Officer, learned counsel representing the petitioner conducted the cross-examination. But, thereafter, public prosecutor moved an application under section 540 Cr.P.C for summoning of PFSA report bearing serial No.0000874019/0000874020 and report of PFSA bearing Serial No.0000892869/0000892870 as well as summoning of forensic scientist as witness. Another application under section 540 Cr.P.C was also moved on behalf of Public Prosecutor for re-summoning and re-examination of Dr.Zunaira (PW.8) regarding medical opinion on the above-said report of PFSA. Learned trial court vide impugned order accepted both applications, being aggrieved of the said order, instant criminal revision has been filed by the petitioner.

3. Learned counsel for the petitioner inter-alia argued that the impugned order passed by learned Trial Court is illegal, against the law, facts, without lawful justification and coram-non-judice; that learned trial court by allowing the applications of the prosecution has erred in law and has granted leave to the prosecution to fill up the lacunas in the prosecution case which were pulled out by the learned counsel for the petitioner during cross-examination over the prosecution witnesses; that after a lapse of a considerable period, report of Punjab Forensic Science Agency in respect of DNA analysis has lost its authenticity and as such, the same cannot be allowed to be made part of the file, especially after cross-examination on the concerned PW. Finally prayed for acceptance of instant revision petition.

4. While, on the other hand, contradicting the contentions of learned counsel for the petitioner, learned Deputy Prosecutor General vehemently resisted this petition on the ground that impugned order is detailed and quite in accordance with law; that trial of the case is ongoing and there is no bar on re-examination of the Women Medical Officer as Section 540 Cr.P.C empowers the Court to summon the witnesses at any stage of trial in order to reach the just decision of the case; that at this particular stage of trial, it cannot be said that re-examination of the PW.8 would amount fulfilling the lacuna in the prosecution case as the said PW would obviously be available to the defence for the purpose of cross-examination; that it is a case of vital importance wherein the petitioner is accused of commission of rape with the victim, who became pregnant; that it is in the fitness of things to allow the prosecution to place on record the supplementary report of PFSA; as such learned Trial Court has not committed any illegality or irregularity while passing the impugned order, therefore instant revision petition merits dismissal.

5. Heard and perused the record.

6. From the matrix of the instant lis, following important situation requires to be addressed:-

"Whether re-summoning and re-examination of PW.8 and allowing the prosecution to place on record the Supplementary report of PFSA does or does not amount to fill up the lacuna of prosecution's case."

Before this Court proceeds to comment on the above said proposition, it would be appropriate to have a precise discussion on Section 540 of Cr.P.C. For convenience, the same is hereby reproduced:-

"540. Power to summon material witness or examine person present.--Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case."

There is no cavil to the proposition that section 540 Cr.P.C empowers the Court to summon, examine, recall and re-examine any person, if his evidence appear to the said Court essential for the just decision of the case. The Court can summon any witness at any stage subject to its satisfaction that the evidence would be a stepping stone for just decision. The first part of the Section confers discretion, the second makes obligatory that recalling is essential for the just decision of the case. But, at the same time, there are some factors which restrains the Court from summoning, recalling or re-examining the witness as it should not be meant to fill in lacuna left by any party.

1. Now, therefore, this Court has to see as to whether the impugned order opens a gate for the prosecution to fill up any lacuna or not? In this regard, it has been noticed with grave concern that case was registered on 05.07.2021. The post mortem examination of deceased child was conducted on 21.05.2022 by the PW.8 Dr. Zunaira Malik/WMO Children Hospital, Multan, who extracted sample for DNA from spleen. The said sample was submitted on May 30, 2022 for Forensic DNA and Serology Analysis Report. Thereafter, the report of PFSA in respect of Forensic DNA and Serology Analysis was issued on 30.09.2022. The results and conclusion of the said report is reproduced hereunder:-

Results and Conclusion

Based on the DNA analysis, Muhammad Ramzan (item No.S1) cannot be excluded as being the biological father of source of DNA obtained from item No.1 (Guriya Bibi deceased), because they share alleles at all the genetic markers tested. Assuming 50% prior chance, the probability of paternity is 99.9999991% and combined paternity index (CPI) is 120.608.354.

It is quite surprising to note here that in the earlier submitted report, it has been categorically mentioned by the Punjab Forensic Science Agency under the head of Disposition of Evidence that:-

"Portion of the pertinent evidence item(s), if available, will be stored at all appropriate temperature in the laboratory. Please recover evidence material within 15 days of issuance of this report, otherwise evidence may be disposed of and laboratory will not entertain any claim."

Despite this clear cut mentioning of the Punjab Forensic Science Agency, in respect of recovering of evidence material within 15 days of issuance of first report whereas the subsequent has been issued after more than one year. It is questionable as to why the report was requisitioned and submitted after such a long period.

1. It is also worth mentioning here that the statement of PW.8 was recorded on 18.05.2023 whereby PW.8/WMO, endorsed the report and based her final opinion on above noted conclusion of the report. On the same day, learned defence counsel conducted cross-examination over the said PW. During the course of cross-examination, on the question of learned defence counsel, said PW deposed as under:-

"It is correct that PFSA report is not containing DNA matching of deceased child with Mst. Alishba."

Thereafter, on 23.08.2023 and on 08.09.2023, applications under section 540 Cr.P.C. were filed on behalf of Public Prosecutor i.e. after about three months of statement of PW.8, such delay raises an eye brow on these applications particularly when the copy of PFSA report in respect of Forensic DNA and Serology Analysis Report (Supplementary-I) have been perused, it seems that the same was prepared on the basis of already submitted samples and at the specific request of submitting agency after a period of more than one year. For ready reference, the relevant portion of the said report is hereby reproduced hereunder:-

Results and Conclusion.

Forensic DNA analysis report regarding the paternity of Guriya Bibi (deceased) has already been issued on September 30, 2022 bearing serial No.0000874019 and 0000874020 to CPO, Multan in accordance with analysis request letter No.2435/D-Legal (dated 01.06.2022)

This supplementary report is being issued in response to fresh analysis request by the submitting agency letter No.2672/D-Legal (dated 21.06.2023)

Based on the DNA analysis, Alishba (item No.VI) cannot be excluded as being the biological mother of source of DNA obtained from item No.1 (Guriya Bibi deceased), because they share alleles at all the genetic markers tested. Assuming 50 % prior chance, the probability of parentage is 99.996% and combined parentage index (CPI) is 25.974.

NIST Caucasian population database of unrelated individuals was used for the frequency calculations."

The above reproduced portion of the subsequent report makes it crystal clear that the same was prepared and issued in response to fresh analysis request by the submitting agency bearing letter No.2672/D-Legal (dated 21.06.2023). While analyzing the dates of examination of PW.8, earlier issued report of Punjab Forensic Science Agency and of subsequent report, this Court has reached at an unambiguous conclusion that the prosecution has recoursed to the Punjab Forensic Science Agency for issuance of report in respect of question asked by the learned defence counsel during the cross-examination of PW.8. By doing so, it is crystal clear that the prosecution has made an attempt to fill in the lacuna pointed out by the learned defence counsel during the course of cross-examination. It has been held by the august Supreme Court of Pakistan in case law titled "Shah Jahan and another v. Raheem Shah and others" that "No one could be permitted to fill in the lacunas at the belated stage according to his own whims."

1. The powers conferred thereupon by the Court, thereunder the provisions contained in section 540 Cr.P.C could be used to find out the truth but could not be exercised for filling the gaps and lacuna left by either party. Reliance can be placed on the case of "Muhammad Afzal v. The State" and "Muhammad Khan v. The State".

2. This Court in exercise of his jurisdiction under provisions of Section 540 Cr.P.C. shall ensure that by summoning or recalling the PW.8 would meet the ends of justice but not to give illegal advantage to one party over the other and could not be used as a vehicle of exploitation. It is settled principle of law that the duty of the Court is to administer justice in just and fair manner and nevertheless, assume the status of a prosecutor, to put an accused in undue advantage. Reliance in this regard can be placed on the case of "Abdul Khalid v. Ansar Mehmood", "Mian Manzoor Ahmed Watto v. The State", "Liaquat Ali and others v. The State".

3. It is also observed that apparently the discretion vested in a Court appears to be unrestricted one, however, such power being in the nature of the public trust can only be exercised if such evidence appears to be essential for the just decision of the case and not merely to fill in the lacuna in a case owing to gross negligence, inefficiency, carelessness and recklessness of a party. Guidance have been sought from the case law titled "Dildar v. The State through Pakistan Narcotics Control Board, Quetta".

2024 P Cr. L J 1421

[Lahore (Rawalpindi Bench)]

Before Sadaqat Ali Khan and Ch. Abdul Aziz, JJ

Muhammad Atif Naveed and another---Appellants

Versus

The State ---Respondent

Criminal Appeals Nos. 827, 698 and Murder Reference No. 41 of 2022, heard on 16th April, 2024.

(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---Infirmities in inquest report---Accused were charged that they made murderous assault upon the brother of complainant and his wife, due to which brother of complainant died whereas his wife sustained fire arm injuries---Incident took place in pursuance of marriage dispute---According to the record, the crime scene was situated at a distance of 15-kilometers from police station and after 15 to 30 minutes of the incident, the victims were shifted to THQ Hospital---Investigating Officer reached THQ Hospital and recorded the statement of complainant which was transcribed as complaint at about 6.55 pm and immediately thereafter was dispatched to police station for the registration of formal FIR---Allegedly, the promptly registered FIR out-rightly excluded the possibility of any fabrication and false implication---However, the practice of stopping the Station Diary/Roznamcha as well as the FIR Register was rampant in our system of criminal investigation through which even the delayed FIRs were shown to have been promptly registered---Record showed that from the police proceedings mentioned at the bottom of FIR the complaint was drafted in THQ Hospital and was transmitted to Police Station through Police Constable---Inevitably, for proving the registration of FIR without any uncalled for delay the evidence of said Police Constable had crucial importance but surprisingly he was not produced as witness during trial of the case---If that was not enough, Investigating Officer candidly admitted that during investigation the statement of said Police Constable was not recorded under S. 161, Cr.P.C. and for that omission he failed to offer any explanation---In the present case, it was noticed that on the last page of inquest report the brief facts of the case were not mentioned properly---Relevant page gave no information about the identity of the assailants, the weapons used in the commission of crime, the manner in which the incident occurred and above all its time---Most important aspect noticed from the last page of inquest report was to the effect that no reference about injured lady having received injuries in the incident was made---Same incomplete inquest report was provided to the Medical Officer before the commencement of autopsy---Question of vital importance was that if at all the statement of complainant had been recorded before the postmortem examination, then why the tale of incident was not mentioned on the page of inquest report meant for incorporating the brief facts of the case---All the said omissions gave vent to an inescapable conclusion that till the time corpse of deceased was subjected to postmortem, the veil had not been lifted from the identity of the assassins---Thus, the FIR was registered much after the postmortem examination and through such malpractice the eye-witnesses gained advantage of adjusting their statements in accordance with locale and nature of injuries pointed out by the Medical Officer---Appeal against conviction was accordingly allowed.

Minhaj Khan v. The State 2019 SCMR 326; Mst. Yasmeen v. Javed and another 2020 SCMR 505 and Wasi Haider v. The State 2022 PCr.LJ rel.

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

----Ss. 302(b)---Qatl-i-amd---Statement of injured witness---Reliability---Receipt of grievous hurt by an eye-witness in a murder incident though was a factor which reflected positively upon his presence at the spot but it was not a conclusive proof about the truth of his deposition---For handing down guilty verdict to an accused in such incident, the testimony of an injured eye-witness was still required to be tested on the touchstone of the principles laid down for the appraisal of evidence---To say that an injured witness of murder incident seldom told lie might be true in a case of single accused but was an overstatement when the number of assailants was more than one---However, it would wholly be unjust to raise the superstructure of conviction on the deposition of injured witness, without subjecting it to strict test of scrutiny for adjudging his credibility.

Amin Ali v. The State 2011 SCMR 323 and Nazir Ahmad v. Muhammad Iqbal and another 2011 SCMR 527 rel.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Delay in recording the statement of injured witness---Accused were charged that they made murderous assault upon the brother of complainant and his wife, due to which brother of complainant died whereas his wife sustained fire arm injuries---Notable that the incident occurred on 17.03.2021 whereas S.161 Cr.P.C. statement of injured was recorded on 29.03.2021---Such delay of about 12-days in recording of S.161 Cr.P.C. statement was attributed during trial by the prosecution to the precarious medical condition of injured---As per record, injured lady initially was brought to THQ Hospital and was provided medical treatment from where she was referred to DHQ Hospital---As per prosecution claim, injured witness also remained admitted in CMH but no supporting evidence in that regard was led during trial---Nevertheless, Investigating Officer moved an application and thereby sought the opinion that whether injured lady was medically fit to make a lucid statement upon which it was reported by anaesthetist that the needful could not be done due to the critical condition of the patient---Admittedly, said anaesthetist was neither cited as witness in the case nor he appeared as such in the dock, a fact sufficient to discard it from consideration---Above all, at the time of initial medical examination carried out by Medical Officer, she found injured lady conscious and oriented in time and place---Last but not the least, injured lady was relieved from hospital on 25.03.2021, as was evident from Discharge Certificate---Question of pivotal importance arose that if at all injured lady was having normal Glasgow Coma Scale (GCS) at the time of her examination by Medical Officer on 17.03.2021, then why her statement under S.161, Cr.P.C., was postponed till 29.03.2021---Investigating Officer had reached THQ Hospital by the time injured lady was admitted there for medical treatment but still he made no effort to record her statement under S.161 Cr.P.C.---Such delay in recording S.161 Cr.P.C. statement of injured lady gained significance when seen in the context that no explanation about it was offered during trial as well as before Court---Even otherwise, injured lady was discharged from hospital on 25.03.2021 but still her statement was recorded four days thereafter for which again no explanation was offered by the prosecution---Such delay gave vent to many hypotheses about the truth behind the statement of injured lady leaving it unworthy of any credence---On one hand, it gave clue that the actual assailants were previously not known to injured lady and on the other hand it gave birth to the possibility that the accused persons were falsely grilled in the case through the tool of substitution with actual unknown assailants---Appeal against conviction was accordingly allowed.

(d) Criminal trial---

----Two interpretations---Preference---If two interpretations of same fact are possible, the one which favours the accused is to be adopted.

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

----S.302(b)---Criminal Procedure Code (V of 1898), S. 161---Delay in recording the statement of witness---Effect---Delay, even of 2/3 days in recording S.161 Cr.P.C statement of an eye-witness of homicide incident is always considered fatal and if no legally admissible explanation about it is offered, then the deposition of such witness is to be ousted from consideration.

Bashir Muhammad Khan v. The State 2022 SCMR 986 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---Presence of complainant at the time and place of occurrence not proved---Accused were charged that they made murderous assault upon the brother of complainant and his wife, due to which brother of complainant died whereas his wife sustained fire arm injuries---Record showed that the complainant failed to satisfactorily establish his presence at the crime scene---Complainant claimed that at the eventful time he while boarding on a motorcycle along with his son was following the bike upon which the two victims along with another female were seated---As per deposition of complainant, after about 10-15 minutes of the incident he along with two persons proceeded to THQ Hospital while placing the victims of murderous assault in the Suzuki Pick-up of a driver---Complainant gave no description of his own bike as well as of the assailants---Complainant was incumbently required to mention at least the particulars of the motorcycle on which he along with his son was boarded---Besides that, nothing as such was available on record that to whom complainant and his son entrusted their bike which according to them was left behind at the place of murder while proceeding to THQ Hospital---Above all, the motorcycle of complainant was also not exhibited during his evidence recorded before the Trial Court---If bike was excluded from the whole story of crime then the claim of complainant about his presence at the crime scene had no shred of truth in it---If at all complainant and his son were present at the crime scene along with their bike, at least one out of them should have driven it to THQ hospital behind the Suzuki Pick-up in which the victims were shifted from the spot---Presence of a witness was not to be inferred solely on the basis of his claim, rather was to be ascertained by subjecting it to the test of strict scrutiny from the attending circumstances---Appeal against conviction was accordingly allowed.

(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---Contradictions in statements of eye-witnesses---Accused were charged that they made murderous assault upon the brother of complainant and his wife, due to which brother of complainant died whereas his wife sustained fire arm injuries---Complainant claimed that the victims were taken to THQ hospital in the Suzuki Pick-up of a Driver and none else was with him---On the other hand, injured witness stated during cross-examination that son of complainant along with driver reached the place of occurrence and both of them accompanied to THQ Hospital---Question of foremost importance arose that if at all complainant witnessed the occurrence and also accompanied the victims to THQ Hospital then why he omitted to mention the name of his son---Beyond everything, why the driver was not cited as witness in the case though he was the one who was instrumental in shifting the victims to hospital---Appeal against conviction was accordingly allowed.

Qadir Bakhsh and another v. State and another PLD 2002 Quetta 97 rel.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Unnatural conduct of complainant---Accused were charged that they made murderous assault upon the brother of complainant and his wife, due to which brother of complainant died whereas his wife sustained fire arm injuries---Though according to column No.2 of FIR complainant had a mobile phone but he candidly conceded to have not informed anybody about the occurrence through a phone call---Such conduct ran contrary to natural human response which one was expected to demonstrate after having experienced such a tragic incident---Complainant was real brother of deceased and it did not sound logical that he would call no one through his mobile phone for intimating perhaps the most heart-wrenching incident of his life---For the safe administration of justice, the foregoing facts were sufficient to discard the stance of complainant about his presence at the spot---Appeal against conviction was accordingly allowed.

(i) Criminal trial---

----Medical evidence---Scope---Medical evidence is confirmatory to ocular account and its careful perusal gives clue about the truth behind the depositions of eye-witnesses regarding their stance of having seen the incident---Medical Officer who enters the dock during trial indeed through his testimony enables the Court to adjudge the veracity of an eye-witness for administering justice in an impeccable manner---If the statement of an eye-witness is at variance with the medical evidence, it gives rise to a doubt the legitimate benefit of which cannot be taken away from the accused facing charge of murder.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Medical evidence not corroborating ocular account---Accused were charged that they made murderous assault upon the brother of complainant and his wife, due to which brother of complainant died whereas his wife sustained fire arm injuries---In the present case, it was observed from the site plan that accused inflicted firearm injuries to deceased from a distance of half karam (2.5 feet) only---Such distance was further reduced keeping in view the fact that the assailant must have stretched his arm to press the trigger for targeting deceased---In such circumstances, there should have been mark of blackening, tattooing or charring but nothing as such was observed by Medical Officer, during autopsy around the entry margins of the two firearm wounds---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Motive not proved---Accused were charged that they made murderous assault upon the brother of complainant and his wife, due to which brother of complainant died whereas his wife sustained fire arm injuries---As regards motive, it was described by the prosecution as a grudge stemming out of a marriage dispute with the accused persons---Complainant and injured witness while appearing before the trial Court reiterated same motive but added not a single word to lift veil from its details---On that score alone, motive could safely be held to have remained unproved during trial---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Recovery of crime weapon on the instance of accused inconsequential when ocular account not proved---Accused were charged that they made murderous assault upon the brother of complainant and his wife, due to which brother of complainant died whereas his wife sustained fire arm injuries---Although during investigation, pistols were recovered from accused persons, and according to report of Forensic Science Agency, thus were found wedded with the crime empties secured from the spot, but positive report of Forensic Science Agency lost legal acceptance as the ocular account was disbelieved---Appeal against conviction was accordingly allowed.

Muhammad Bashir Paracha for Appellants.

Syed Mudassir Nazir Naqvi for Complainant.

Naveed Ahmad Warraich, DDPP with Ansar Si for State.

Date of hearing: 16th April, 2024.

Judgment

Ch. Abdul Aziz, J.---Muhammad Atif Naveed and Muhammad Ishfaq (appellants) along with another co-accused, namely Mulazim Hussain involved in case FIR No.76/2021 dated 17.03.2021 registered under Sections 302,324 and 34 P.P.C. at Police Station Saddar Talagang, District Chakwal, were tried by learned Additional Sessions Judge, Talagang (Chakwal). Trial court vide judgment dated 27.06.2022 while acquitting the afore-said co-accused proceeded to convict and sentence both the appellants in the following terms:-

(1) Muhammad Atif Naveed (appellant)

Under Section 302 (b) P.P.C. to suffer death sentence as Ta'zir. He was also directed to pay compensation of Rs.5,00,000/- under Section 544-A Cr.P.C. to the legal heirs of Arab Khan (deceased) and in case of its non-payment the same was ordered to be recoverable as arrears of land revenue and in case of default the appellant was directed to suffer 06-months simple imprisonment.

(2) Muhammad Ishfaq (appellant)

Under Section 324 P.P.C. to suffer rigorous imprisonment for 10-years for attempting to commit qatl-i-amd of Bhag Bhari with fine of Rs.1,00,000/- and in default whereof to further undergo 03-months simple imprisonment. He was also directed to pay Arsh equal to 1/3rd of Diyat amount i.e. Rs.9,26,000/- for the injury caused to Bhag Bhari which was declared as Jurh Jaifah under Section 337-D P.P. C. However, he was given the benefit of Section 382-B Cr.P.C.

Challenging their conviction and sentence, Muhammad Atif Naveed (appellant) filed Criminal Appeal No.827 of 2022, whereas Muhammad Ishfaq (appellant) preferred Criminal Appeal No.698 of 2022. Likewise, trial court sent reference under Section 374 Cr.P.C. which was numbered as Murder Reference No.41 of 2022 for the confirmation or otherwise of death sentence awarded to Muhammad Atif Naveed (convict). Since all these matters are inter se connected, hence are being disposed of through this single judgment.

1. Precisely stated the case of prosecution as unveiled by Sultan Khan (PW.11) in FIR (Exh.PG/1) is to the effect that he is resident of village Rehman Abad and agriculturist by profession; that on 17.03.2021 his brother Arab Khan along with his wife Bhag Bhari and daughter-in-law (Bahu) Rukhsana Bibi had come on their motorcycle to attend funeral in village Rehman Abad; that when they were returning home on their motorcycle, the complainant along with Muhammad Hussain while boarding motorcycle was following them in order to see his mother in the house of Arab Khan; that at about 4:30 p.m., when they reached the unpaved Path towards Jhamra Dhoke, Muhammad Ishfaq and Muhammad Atif Naveed on one motorcycle and Mulazim Hussain boarded on another motorcycle crossed them; that the assailants intercepted the motorcycles of the complainant and Arab Khan; that thereafter Mulazim Hussain exhorted to his co-accused for not letting anybody go alive, whereafter Muhammad Ishfaq and Atif Naveed took out pistols from the folds of their trousers while alighting from their motorcycles; that Atif Naveed fired two successive pistol shots which hit Arab Khan on his chest and adjacent to inguinal region who after the receipt of these injuries fell on the ground; that Muhammad Ishfaq also inflicted two fire shot injuries on the abdomen of Bagh Bhari who also collapsed on the ground; that the assailants decamped from the spot when the witnesses raised hue and cry; that the victims were immediately shifted to THQ Hospital where Arab Khan succumbed to the injuries he received during the occurrence and that the incident took place in pursuance of marriage dispute.

2. On 17.03.2021 Muhammad Aslam SI (PW.14) after the receipt of information about the incident reached THQ Hospital Talagang where Sultan Khan (PW.11) appeared before him and got recorded his statement (Exh.PM) which was read over to him. He examined Mst.Bhag Bhari, prepared injury statement (Exh.PJ/2) and handed over the same to Maryam Parveen 473/LC for medical examination. Subsequent thereto, he examined the dead body of Arab Khan, prepared application for postmortem examination (Exh.PE), inquest report (Exh.PF) and handed over the corpse to Waqar Tahir 669/C for postmortem examination. He also informed about the occurrence to the Crime Scene Unit Chakwal and PFSA Rawalpindi. In the meanwhile, he transmitted complaint (Exh.PM) to the police station through Ghulam Ghous 587/C for the registration of formal FIR. He also visited the place of occurrence, collected blood stained earth from the spots where Arab Khan and Bagh Bhari fell after the receipt of injuries through respective recovery memos. From the spot, he also collected four crime empties of .30 bore pistol (P.5/1-4) which were taken into possession through memo Exh.PQ. He also secured motorcycle (P.6) belonging to Arab Khan deceased vide memo Exh.PR. On 07.04.2021 he arrested Muhammad Atif Naveed and Muhammad Ishfaq (appellants). On 10.04.2021 Muhammad Ishfaq (appellant) made disclosure and in pursuance thereof led to the recovery of pistol .30 bore (P.7) which was taken into possession through memo Exh.PS. On 11.04.2021 Muhammad Atif Naveed (appellant) during interrogation also got recovered pistol .30 bore (P.9) which was secured through memo Exh.PT. He after complying legal formalities and recording the statements of relevant witnesses under Section 161 Cr.P.C. got prepared report under Section 173 Cr.P.C. which was submitted in the court upon which the trial commenced.

3. Prosecution in order to prove its case against the appellants produced 14-witnesses, out of whom, Dr.Awais Aftab (PW.5), Dr.Aisha Fida (PW.8), Dr.Zafar Abbas Radiologist (PW.9) and Dr.Usama Jalil (PW.10) furnished the medical evidence, Sultan Khan (PW.11) and Bhag Bhari (PW.12) narrated the ocular account and Muhammad Aslam SI (PW.14) investigated the case. The remaining PWs, more or less, were formal in nature.

4. Dr. Awais Aftab (PW.5) on 17.03.2021 at about 8:15 p.m. conducted the autopsy of Arab Khan (deceased) and noted the following injuries:-

(1) It was an entry wound with inverted margins 1 x .5 cm in diameter present on mid clavicular line about 3.5 cm from right nipple in right fourth rib area of right chest.

(2) It was an entry wound with inverted margins 1 x .5 cm present in left quadrant of abdomen about 6 cm from umbilicus in superio-lateral side of left half of abdomen.

(3) It was an exit wound with everted margins 1 x .5 cm present on left half of loin regions about 8 cm from midline on back, blood was oozing from the wound.

(4) Another exit wound with everted margins 1 x .5 cm was present on upper part of left buttock region about 9 cm from injury No.3.

On 17.03.2021 Dr.Aisha Fida (PW.8) conducted the medico legal examination of Bhag Bhari and noted the following injuries:-

(1) Entry wound with inverted margins measuring 1 cm x 1 cm located 8 cm superolateral to umbilicus over left side of abdomen. No blackening over skin around wound margin.

(2) Entry wound with inverted margins measuring 1 cm x 1 cm located 10 cm inferolateral to umbilicus over left side of abdomen. No blackening over skin noted around wound margin.

1. After the conclusion of prosecution evidence, the learned trial court examined the appellants under Section 342, Cr.P.C. who in response to question "why this case registered against you and why the P.Ws have deposed against you" made almost the same reply. For ready reference the reply so made by Muhammad Atif Naveed (appellant) is mentioned hereunder:-

"No independent PW deposed against me and my co-accused except the co-related and close relative PW and the complainant and PWs were not present at the place of occurrence. According to Mark-DF, the complainant was present in his home at 17:33 on 17.03.2021 when he received the call from No.0311-0225700 which is the cell number of the deceased Arab Khan and the complainant was informed by his son. Then at 17:35 complainant informed his son PW Muhammad Hussain on his telephone No.0304-5969940 when he was present in his home and his son was at Dhoke Mangral and firstly he informed Muhammad Asghar at 17:32 from his cell number to his cell No.0345-5771488 and similarly he was receiving calls and making calls to all the PWs while he was present in his Dhoke and at 18:03 when he was near Kot Sarang he again contacted with the son of Arab Khan when was already reached in hospital and according to mark-DF at 22:09:58 he was present in court Road Talagang Katchari and according to this statement he was not present at the place of occurrence at the time of occurrence, nor he was present at the place of occurrence at the alleged inspection of the IO for taking rough notes at the place of occurrence. Even the other eye-witnesses were also not present at the time of visit of IO for taking rough notes. According to Crime Scene Unit Report CD P.4, the occurrence was committed in a deserted place as the CD P.4 which copy of provided to the accused after observing it the snap shoot mark DG and Mark DF from where the blood stained earth was taken in presence of officials of Crime Scene Unit, there is lot of gross and deserted place is visible which is shown at five different points and from that evidence it is established that the deceased was murdered in deserted place by some unknown assailants and occurrence was not seen by any witness. Moreover, there is long standing litigation between the parents of the accused and the complainant party and due to such suspicion they wrongly roped me and my co-accused in this case and other are officials PWs are official witnesses and due to their exigency of their services they deposed falsely. Moreover, I was not present at the time of occurrence at the place of occurrence. I am innocent and has no nexus with the commission of alleged offence. "

The appellants neither made statement under Section 340(2) of Cr.P.C. nor produced any evidence in their defence. On the conclusion of trial, the appellants were convicted and sentenced as afore-stated, hence the instant criminal appeals and murder reference.

1. It is contended by learned counsel for the appellants that the incident in question was committed by some unknown persons and the appellants were falsely implicated in the case on account of suspicion; that even the crime report was registered later in the night but through tampering of record it was made to look as if promptly registered; that the ocular account narrated by the two eye-witnesses suffers from multiple discrepancies rendering them unworthy of any credence; that it reasonably emerges from the careful perusal of documents tendered in evidence that the FIR was registered much after the postmortem examination; that the statement of Bagh Bhari was recorded with mysterious delay of 12-days and on this score alone her deposition cannot be made basis for upholding the convictions of appellants; that Sultan Khan was proved during trial to be a chance witness, a factor sufficient to cast doubt about his claim of having witnessed the incident; that the medical evidence is also at variance with the ocular account and the doubt emerging therefrom is to be extended to the appellants and that since prosecution miserably failed to prove its case against the appellants, thus their convictions are to be set-aside.

2. On the other hand, learned law officer assisted by learned counsel for the complainant came forward with the submissions that the case is arising out of a promptly lodged FIR wherein appellants are ascribed the role of causing injuries to Arab Khan and Bhag Bhari; that the guilt of appellants is well established from confidence inspiring ocular account furnished by two witnesses including injured Bhag Bhari; that the medical evidence provides full support to the ocular account and no conflict is arising out of it; that the corroboration can well be sought from the duly proved motive and positive report of PFSA according to which the weapons recovered from the appellants matched with the crime empties secured from the spot and that since the prosecution successfully proved its case against the appellants, thus the convictions awarded to them be upheld.

3. Arguments heard. Record perused.

4. The roots of the case are traced in an unfortunate incident which occurred on the afternoon of 17.03.2021. During this incident, Arab Khan, his wife Bagh Bhari and daughter-in-law Rukhsana Bibi were confronted with a murderous assault mounted by a bunch of assailants comprising upon Atif Naveed, Muhammad Ishfaq and Mulazim Hussain. The aggression of the assailants culminated in the homicidal death of Arab Khan (deceased) and firearm injuries to his wife Bagh Bhari (PW.12). So far as, Rukhsana Bibi (given up) is concerned she remained lucky enough to return scratchless from this incident. It is equally important to mention here that the incident took place when Arab Khan (deceased) along with Bagh Bhari (PW.12) and Rukhsana Bibi were on way back to their house while boarding a motorcycle after attending the funeral in nearby village.

5. According to record, the crime scene was situated at a distance of 15-kilometers from Police Station Talagang and after about 15 to 30 minutes of the incident, the victims were shifted to THQ Hospital Talagang. Muhammad Aslam SI (PW.14) reached THQ Hospital and recorded the statement of Sultan Khan (PW.11) which was transcribed as complaint (Exh.PM) at about 6:55 p.m. and immediately thereafter was dispatched to police station for the registration of formal FIR (Exh.PG). On the basis of afore-mentioned data it was vociferously argued by learned counsel for the complainant that the promptly registered FIR out-rightly excludes the possibility of any fabrication and false implication. We are not oblivious of the fact that the practice of stopping the Station Diary/Rozenamcha as well as the FIR Register is rampant in our system of criminal investigation through which even the delayed FIRs are shown to have been promptly registered. We examined the record with utmost care and came across multiple factors which cast strong doubt upon the acclaimed prompt registration of FIR. Firstly, it is noticed from the police proceedings mentioned at the bottom of FIR (Exh.PG) that complaint (Exh.PM) was drafted in THQ Hospital and was transmitted to Police Station Saddar Talagang through Ghulam Ghous 587/C. Inevitably, for proving the registration of FIR without any uncalled for delay the evidence of afore-mentioned Ghulam Ghous 587/C had crucial importance but surprisingly he was not produced as witness during trial of the case. As this was not enough, Muhammad Aslam SI (PW.14) candidly admitted that during investigation the statement of Ghulam Ghous Constable was not recorded under Section 161 Cr.P.C. and for this omission he failed to offer any explanation. The importance of such omission can be highlighted from the observation of the Supreme Court of Pakistan in the case reported as Minhaj Khan v. The State (2019 SCMR 326) which is as under:-

"………the non-production of Constable Jehanzeb Khan who took the written complaint and was an eye-witness of the occurrence and of the recovery memorandums; and the inexplicable conduct of the Complainant PW-2 in not proceeding to the police station himself to register the FIR are matters of concern and collectively of incredulity. The conclusion therefrom that we draw is that the prosecution had failed to establish its case against the petitioner beyond reasonable doubt, or, at worst, that the petitioner was involved in a false case for ulterior reasons."

The inquest report is a document prepared under Rule 35 of Chapter 25 of Police Rules, 1934 and its circumspective perusal gives traces about the manner in which investigation of a homicide case is conducted on the first day and besides that it also gives clue about the veracity of prosecution's claim regarding the prompt registration of FIR. The inquest report comprises upon 24-columns which are followed by an additional page meant for incorporating the brief facts of the occurrence emerging from the contents of complaint. According to the sequence of proceedings required to be carried out by the police in a murder case, firstly the statement of complainant for the registration of FIR is recorded and then the spot inspection is carried out, whereafter the inquest report is to be prepared. Columns Nos.1 to 24 of inquest report are meant to mention various factors which include the place of incident, the time of receipt of its information, the detail of injuries on the corpse, the kind of weapon used and the articles recovered from the crime scene. The most important aspect is the brief facts of the case required to be mentioned on its last page. The inquest report is a document which is essentially required to be provided to the medical officer for holding of postmortem examination. The purpose of providing inquest report to the medical officer before the autopsy apparently is aimed at safeguarding the record from becoming vulnerable to the impurity of tampering through which the delayed FIRs are shown to have been promptly registered. In the instant case, we have noticed that on the last page of inquest report (Exh.PF) the brief facts of the case are not mentioned properly. The relevant page gives no information about the identity of the assailants, the weapons used in the commission of crime, the manner in which the incident occurred and above all its time. The most important aspect noticed from the last page of inquest report is to the effect that no reference about Bagh Bhari (PW.12) having received injuries in the incident is made. The same incomplete inquest report was provided to the medial officer before the commencement of autopsy. The question of vital importance arises that if at all the statement of complainant (Exh.PM) had been recorded before the postmortem examination, then why the tale of incident was not mentioned on the page of inquest report (Exh.PF) meant for incorporating the brief facts of the case. All the afore-mentioned omissions give vent to an inescapable conclusion that till the time corpse of Arab Khan was subjected to postmortem, the veil had not been lifted from the identity of the assassins. We have no doubt in our minds that the FIR was registered much after the postmortem examination and through this malpractice the eye-witnesses gained advantage of adjusting their statements in accordance with locale and nature of injuries pointed out by the medical officer. It will not be out of place to mention here that in accordance with the guidelines given by Dr. S.Siddiq Husain in Chapter-III MEDICO-LEGAL POSTMORTEM EXAMINATION of A Text Book of Forensic Medicine and Toxicology, the medical officer is required to sign and examine each page of the inquest report before the postmortem examination. The Supreme Court of Pakistan in the case reported as Mst. Yasmeen v. Javed and another (2020 SCMR 505) while dilating upon the non-mentioning of brief facts in the inquest report observed as under:-

"In addition to the said findings, it has been observed by us that the occurrence in this case, as per prosecution, took place on 19.02.2005 at 10:00 p.m. The matter was reported to police in the intervening night of 19/20.02.2005 at 1.00 a.m. (night). The postmortem examination on the dead body of Mst. Naheeda (deceased) was conducted by Dr. Faiqa Elahi (PW.7) on 20.02.2005 at 8.50 a.m. Even if delaying conducting the postmortem examination on the dead body of deceased, in the circumstances of the case, is ignored, the fact remains that in the relevant column of inquest report "brief history of crime", nothing is mentioned regarding facts of the case despite the claim of prosecution that matter was reported to police within three hours of the occurrence i.e. in the intervening night of 19/20.02.2005 at 1.00 a.m. (night). This circumstance alone casts serious doubts about the veracity of prosecution case against the respondents and the claim of eye-witnesses Mst.Yasmeen (PW.5) and Mst.Kabalo (PW.6) to have witnessed the occurrence".

Another observation of the Division Bench of this Court given in the case reported as Wasi Haider v. The State (2022 PCr.LJ 1695) on account of its relevancy is being mentioned hereunder:-

"The circumspective scrutiny of record unfortunately reveals that the case in hand is also riddled with the evil of record tampering. The inquest report (Exh.CW.3-4), as per record, though was provided to medical officer before autopsy but its page meant for incorporating brief facts of case does not contain the tale of incident mentioned in FIR (Exh.CW4/1). We have anxiously noted that on the relevant page of inquest report neither the name of any perpetrator is mentioned nor the manner in which the crime occurred is stated even tentatively. This omission gives a strong clue that the FIR was not registered till the holding of postmortem examination. We feel a pressing need to reiterate here that murder incident took place at 10:15 p.m., the complaint (Exh.PB) was drafted at 2:30 a.m., whereas autopsy was conducted at 3:00 a.m. The question arises that if at all before holding of autopsy the complaint (Exh.PB) was complete in all respects then why its contents were not mentioned in column of inquest report meant for the brief facts. A conclusion is inevitable that till holding of autopsy the complaint (Exh.PB) was still in process of preparation apparently through consultation and deliberation etc."

1. The facts mentioned in the preceding para prompted us to scan the ocular account with extreme care and caution. The saga of homicide incident was furnished by Sultan Khan (PW.11) and Bagh Bhari (PW.12) who were related with Arab Khan (deceased) as brother and wife respectively. Out of these witnesses, Bagh Bhari (PW.12) claimed to have endured firearm injuries on her abdomen and the foregoing fact was described by the prosecution as affirmative proof of her truthful deposition. We acknowledge that the receipt of grievous hurt by an eye-witness in the murder incident though is a factor which reflects positively upon his presence at the spot but it is not a conclusive proof about the truth of his deposition. For handing down guilty verdict to an accused in such incident, the testimony of an injured eye-witness is still required to be tested on the touchstone of the principles laid down for the appraisal of evidence. To say that an injured witness of murder incident seldom tells lie might be true in a case of single accused but is an overstatement when the number of assailants is more than one. It will wholly be unjust to raise the superstructure of conviction on the deposition of injured witness, without subjecting it to strict test of scrutiny for adjudging his credibility. If any reference in this regard is needed that can be made to the case reported as Amin Ali v. The State (2011 SCMR 323) wherein the Supreme Court of Pakistan observed as under:-

"Certainly, the presence of injured witnesses cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses or otherwise, because merely the injuries on the person of P.Ws. would not stamp them truthful witnesses."

In another case reported as Nazir Ahmad v. Muhammad Iqbal and another (2011 SCMR 527), the Supreme Court of Pakistan while examining the case of an injured witness held as under:-

"It is settled law that injuries of PWs are only indication of his presence at the spot but are not affirmative proof of his credibility and truth. See Said Ahmed's case (1981 SCMR 795) and Muhammad Pervez's case (2007 SCMR 670)."

It is noticed that the incident occurred on 17.03.2021 whereas 161 Cr.P.C. statement of Bagh Bhari (PW.12) was recorded on 29.03.2021. The afore-mentioned delay of about 12-days in recording of 161 Cr.P.C. statement was attributed during trial by the prosecution to the precarious medical condition of Bagh Bhari (PW.12). As per record, Bagh Bhari (PW.12) initially was brought to THQ Hospital Talagang and was provided medical treatment by Dr.Ayesha Fida (PW.8) from where she was referred to DHQ Hospital, Rawalpindi. As per prosecution claim, Bagh Bhari (PW.12) also remained admitted in CMH Rawalpindi but no supporting evidence in this regard was led during trial. Nevertheless, Muhammad Aslam SI (PW.14) moved an application (Exh.PX) and thereby sought the opinion that whether Bagh Bhari (PW.12) is medically fit to make a lucid statement upon which it was reported by Brig. Muhammad Saqib CL. Anaesthetist that the needful cannot be done due to the critical condition of the patient. Admittedly, Brig. Muhammad Saqib was neither cited witness in the case nor he appeared as such in the dock, a fact sufficient to discard Exh.PX from consideration. Above all, we took note of the fact that at the time of initial medical examination carried out by Dr.Ayesha Fida (PW.8), she found Bagh Bhari (PW.12) conscious and oriented in time and place. Last but not the least, Bagh Bhari (PW.12) was relieved from hospital on 25.03.2021, as is evident from Discharge Certificate (Exh.PL). The question of pivotal importance arises that if at all Bagh Barhi was having normal Glasgow Coma Scale (GCS) at the time of her examination by Dr.Ayehsa Fida (PW.8) on 17.03.2021, then why her statement under Section 161 Cr.P.C. was postponed till 29.03.2021. We have also noticed that the Investigating Officer had reached THQ Hospital by the time Bagh Bhari was admitted there for medical treatment but still he made no effort to record her statement under Section 161 Cr.P.C. The afore-mentioned delay in recording 161 Cr.P.C. statement of Bagh Bhari gains significance when seen in the context that no explanation about it was offered during trial as well as before us. Even otherwise, Bagh Bhari (PW.12) was discharged from hospital on 25.03.2021 but still her statement was recorded four days thereafter for which again no explanation is offered by the prosecution. Such delay gives vent to many hypotheses about the truth behind the statement of Bagh Bhari (PW.12) leaving her unworthy of any credence. On one hand, it gives clue that the actual assailants were previously not known to Bagh Bhari and on the other hand it gives birth to the possibility that the appellants were falsely grilled in the case through the tool of substitution with actual unknown assailants. It is well entrenched principle of appraising the evidence that if two interpretations of same fact are possible, the one which favours the accused is to be adopted. The delay, even of 2/3 days in recording 161 Cr.P.C statement of an eye-witness of homicide incident is always considered fatal and if no legally admissible explanation about it is offered, then the deposition of such witness is to be ousted from consideration. Reliance is placed on case reported as Bashir Muhammad Khan v. The State (2022 SCMR 986) wherein the Supreme Court of Pakistan observed as under: -

Delayed recording of statement of PW under section 161, Cr.P.C. reduces its value to nil unless and until it is explained rendering justiciable reasonings. Reliance is placed on the judgment reported as Abdul Khaliq v. The State (1996 SCMR 1553). This judgment was followed by this Court in another judgment reported as Noor Muhammad v. The State (2020 SCMR 1049) as also in an unreported judgment passed in Criminal Petition No. 537/2021. Keeping in view the conduct of the PWs, it would not be safe to only rely upon their statements to sustain conviction of the appellant and there must be some independent corroboration to the extent of his involvement in commission of the crime."

1. We have also examined the evidence of complainant Sultan Khan (PW.11) with best possible circumspection and have come to the conclusion that he failed to satisfactorily establish his presence at the crime scene. Sultan Khan (PW.11) claimed that at the eventful time he while boarding on a motorcycle along with his son Muhammad Hussain was following the bike upon which the two victims along with Rukhsana Bibi were seated. As per deposition of Sultan Khan (PW.11) after about 10-15 minutes of the incident he along with Muhammad Hussain and Rukhsana Bibi proceeded to THQ Hospital while placing the victims of murderous assault in the Suzuki Pick-up of Ihtisham Driver. We have anxiously noticed that Sultan Khan gave no description of his own bike as well as of the assailants. In our view, Sultan Khan (PW.11) was incumbently required to mention at least the particulars of the motorcycle on which he along with his son Muhammad Hussain was boarded. Besides that, nothing as such is available on record that to whom Sultan Khan (PW.11) and his son Muhammad Hussain entrusted their bike which according to them was left behind at the place of murder while proceeding to THQ Hospital. Above all, the motorcycle of Sultan Khan was also not exhibited during his evidence recorded before the trial court. If we exclude the bike from the whole story of crime then it necessitates to hold that the claim of Sultan Khan (PW.11) about his presence at the crime scene has no shred of truth in it. If at all Sultan Khan (PW.11) and his son Muhammad Hussain were present at the crime scene along with their bike, at least one out of them should have driven it to THQ Hospital behind the Suzuki Pick-up in which the victims were shifted from the spot. The presence of a witness is not to be inferred solely on the basis of his claim, rather is to be ascertained by subjecting it to the test of strict scrutiny from the attending circumstances.

We have also come across a glaring conflict between the stance of Sultan Khan (PW.11) and the injured Bagh Bhari (PW.12) which casts doubt about the presence of former at the crime scene. Sultan Khan (PW.11) claimed that the victims were taken to THQ Hospital in the Suzuki Pick-up of Ihtisham Driver and none else was with him. Since this is an important aspect, hence an extract from his cross-examination is being reproduced hereunder:-

"Both the injured Arab Khan and Bagh Bhari were shifted in Talagang through a Suzuki Pick-up owned by one Ihtisham. I along with Muhammad Hussain, Rukhsana Bibi were boarded in Suzuki Pick-up along with two injured. Both the injured were placed on the seats of the Suzuki Pick-up. I placed the head of my brother Arab Khan in my lap and Rukhsana Bibi placed the head of Bagh Bhari in her lap, whereas Muhammad Hussain has put a piece of cloth on the injuries of Arab Khan. We left the place of occurrence at about 4:45/5:00 p.m. for THQ Hospital Talagang and reached in THQ Hospital Talagang at about 5:45/6:00 p.m. We did not stop in the way to THQ Hospital Talagang. No other person except above said five persons boarded in Suzuki Pick-up and in the front seat Ihtisham Driver was alone."

On the other hand, Bagh Bhari (PW.12) stated during cross-examination that Muhammad Irfan along with Ihtisham reached the place of occurrence and both of them accompanied to THQ Hospital. The question of foremost importance arises that if at all Sultan Khan (PW.11) witnessed the occurrence and also accompanied the victims to THQ Hospital then why he omitted to mention the name of Muhammad Irfan. Beyond everything, we have our concerns that why Ihtisham (driver) was not cited as witness in the case though he was the one who was instrumental in shifting the victims to hospital. In case reported as Qadir Bakhsh and another v. State and another [PLD 2002 Quetta 97], a learned Division Bench of Quetta High Court acquitted the accused wherein the person who brought the deceased to the hospital was not produced during trial with the following observation:-

"It had come on record that Abdul Sattar who took the deceased in Suzuki Pick Up informed the complainant about the said incident; Abdul Sattar is a very material and important witness but he has not been examined which further creates a dent in the prosecution case and presumption would be that had he appeared, he would not have supported the prosecution version."

The things get more complex when seen in the context that though according to column No.2 of FIR (Exh.PG) Sultan Khan (PW.11) was having a mobile phone No.03025700475 but he candidly conceded to have not informed anybody about the occurrence through a phone call. Such conduct runs contrary to the natural human response which one is expected to demonstrate after having met such tragic incident. We intend to add that Sultan Khan (PW.11) was real brother of Arab Khan (deceased) and it sounds no logic that he would call none through his mobile phone for intimating perhaps the most heart-wrenching incident of his life. For the safe administration of justice, the foregoing facts are sufficient for us to discard the stance of Sultan Khan (PW.11) about his presence at the spot.

1. The medical evidence is confirmatory to ocular account and its careful perusal gives clue about the truth behind the depositions of eye-witnesses regarding their stance of having seen the incident. A medical officer who enters the dock during trial indeed through his testimony enables the Court to adjudge the veracity of an eye-witness for administering justice in an impeccable manner. If the statement of an eye-witness is at variance with the medical evidence, it gives rise to a doubt the legitimate benefit of which cannot be taken away from the accused facing charge of murder. In the instant case, it is observed from the site plan (Exh.PH/1-3) that Atif Naveed (appellant) inflicted firearm injuries to Arab Khan from a distance of half karam (2.5 feet) only. Such distance is further reduced keeping in view the fact that the assailant must have stretched his arm to press the trigger for targeting Arab Khan (deceased). In such circumstances, there should have been marks of blackening, tattooing or charring but nothing as such was observed by Dr. Awais Aftab (PW.5) during autopsy around the entry margins of the two firearm wounds. According to Modi's Medical Jurisprudence and Toxicology (24th Edition), the blackening is found, if a firearm is discharged from a distance of not more than three feet.

We are mindful of the fact that the site plan is not a substantive piece of evidence, nevertheless, it can be used for adjudging the inter se distance of the assailant and victim as well as the location of the eye-witnesses, if proved during trial to have been prepared on the pointation of the narrators of ocular account. If any reference in this regard is needed that can be made to the case reported as Muhammad Ahmad and another v. The State and others (1997 SCMR 89) wherein the Supreme Court of Pakistan held as under:-

"The site plan was prepared by the Draftsman on the pointation of the eye-witnesses: It could, therefore, well be referred to for determining the respective positions of the assailant/appellant and the deceased."

2024 P Cr. L J 1443

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram, J

Mst. Haseena Mai---Petitioner

Versus

The State and d others---Respondents

Criminal Revision No. 336 of 2023, heard on 22nd November, 2023.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), Ss. 561-A & 540---Inherent powers of High Court---Quashing of order---Summoning of witnesses for examination---Application of the petitioner for summoning the witnesses for examination was dismissed---Validity---Perusal of the application submitted by the petitioner under S.540, Cr.P.C, seeking the summoning of witness revealed that in the said application it had been mentioned that the witness was father of the deceased and was the one who had also arrived at the place where the deceased breathed his last; that for the fact that soon after the occurrence, which had taken place on 14.01.2019, as witness had to proceed abroad on 22.01.2019 and only returned to Pakistan on 05.10.2021, therefore, he could not be named a witness in the list of witnesses appended with the private complaint lodged by the petitioner and was sought to be summoned by the said application---Only fact which was sought to be proved by the production of witness was that on the asking of the deceased he was summoned by complainant/petitioner and when he arrived at the place where the deceased was present, the deceased had already died---Such fact that witness was asked to be summoned by the deceased and it was on the asking of complainant that witness arrived at the place where the deceased was present, had already been given evidence of by complainant, who had appeared before the Trial Court and had got her statement recorded---Mere arrival of that witness at the place where the dead body of the deceased was present had no bearing or relevancy for the just decision of the case---Evidence related to fact in issue and relevant facts had already been given by the prosecution witnesses as produced before the Trial Court---Furthermore, the trial Court had already recorded statements of as many as nine Court witnesses, who it thought were essential for the just decision of the case---Trial of the case had been instituted upon the private complaint filed by the petitioner herself and it had not been explained at all as to why the witness was not cited as a witness in the calendar of witnesses appended with the private complaint itself---If the witness was an essential witness then he must have been sought to be examined and his name must have been mentioned in the calendar of witnesses appended with the private complaint itself, which was not done in the present case---In this case despite having an opportunity to apprise the trial Court with regard to the production of witness, the complainant did not do so though witness was very much available and present in Pakistan---All such facts amply proved that the petition filed by the petitioner seeking the summoning of witness was rightly rejected---Petition being meritless was dismissed, in circumstances.

Ms. Farah Sharif Khosa for Petitioner.

Muhammad Sadiq Rehman, Additional Prosecutor General for the State.

Abdul Rehman Ahmad Rizwan Sadozi for Respondents.

Date of hearing: 22nd November, 2023.

Judgment

Sadiq Mahmud Khurram, J.---Through this petition filed under sections 435 and 439 Cr.P.C., the petitioner has assailed the order dated 26.09.2023 passed by the learned Additional Sessions Judge, Dera Ghazi Khan whereby the application submitted by the petitioner under section 540 Cr.P.C. seeking the summoning and examination of Allah Bachaya was dismissed by the learned trial court.

1. The brief facts of the case leading up to the filing of the instant petition are that the petitioner namely Mst. Haseena Mai initially got lodged the FIR. No.23 of 2019 dated 14.01.2019 registered in respect of offences under sections 302 and 34 P.P.C. at the Police Station Drahma, District Dera Ghazi Khan, detailing the circumstances of the Qatl-i-Amd of her son namely Muhammad Dilawar. Thereafter, being dissatisfied by the investigation conducted by the policing authorities, the petitioner filed a private complaint titled "Haseena Mai v. Nadir and 2 others" and after the preliminary inquiry of the said private complaint, the learned trial court summoned the respondents Nos. 2 to 4 to face the trial of the case in respect of offences under sections 302 and 34 P.P.C. The learned trial court, during the trial of the case, framed the charge against the accused which they denied and claimed trial. Subsequently, the complainant of the case proceeded to get her witnesses examined and the learned trial court also recorded the statements of as many as nine witnesses as court witnesses. Subsequently, the complainant of the case got recorded her statement on 04.09.2023, closing the prosecution evidence. The learned trial court proceeded to examine the accused facing the trial under section 342 Cr.P.C. on 06.09.2023 and the accused claimed innocence however did not make any statement under section 340(2) Cr.P.C. nor produced any evidence in their defence. Subsequent to the recording of the statements of the accused during the course trial of trial under section 342 Cr.P.C., the petitioner moved the application in question on 19.09.2023 and the learned trial court proceeded to dismiss the said application vide order dated 26.09.2023, hence, the petition.

2. The learned counsel for the petitioner submitted that the order dated 26.09.2023 passed by the learned Additional Sessions Judge whereby he proceeded to dismiss the application of the petitioner seeking the summoning and examination of Allah Bachaya was liable to be set-aside being against the facts and law; that the name of Allah Bachaya was duly mentioned in the private complainant as lodged by the petitioner and it was also mentioned by the complainant and her witnesses at the time of recording of their statements before the learned trial court; that Allah Bachaya was a witness whose examination was essential for the just decision of the case, therefore, he was sought to be summoned and examined.

3. The learned Additional Prosecutor General and the learned counsel appearing on behalf of the respondents Nos. 2 to 4 submit that the order dated 26.09.2023 passed by the learned Additional Sessions Judge does not suffer from any illegality, meriting any interference of the same.

2024 P Cr. L J 1467

[Lahore (Rawalpindi Bench)]

Before Sadaqat Ali Khan and Asjad Javaid Ghural JJ

Imtiaz Ullah---Appellant

Versus

The State---Respondent

Criminal Appeal No. 60592 and Murder Reference No. 130 of 2021, heard on 11th March, 2024.

(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---Prompty lodged FIR---Ocular account supported by medical evidence---No chance of false implication---Accused were charged for committing murder of the son of complainant by firing and causing fire arm injuries to the complainant---Occurrence took place in the street on 28.05.2016 at 09.40 pm whereafter FIR was lodged on the same night at 11.10 pm---Accused was son-in-law of the complainant, and having that close relationship, there was no question of his mis-identity despite the fact that occurrence took place at night as complainant could not take risk to falsely involve his son-in-law in the murder case of his son to ruin the matrimonial life of his daughter, especially when in the same occurrence complainant himself sustained firearm injuries---In such like cases, substitution of an accused was a rare phenomenon---Both the eye-witnesses were cross-examined at length but their evidence could not be shaken during the process of cross-examination---Eye-witnesses had corroborated each other on all material aspects of the case and they had also established their presence at the time of occurrence and at the place of occurrence with their stated reasons---Evidence of eye-witnesses was straightforward, trustworthy and confidence inspiring---Medical Officer during medical examination observed firearm entry wound on left thigh of deceased, then injured, and firearm grazing wounds on the fingers of right hand of injured/complainant, which were attributed to the accused---On death of deceased, Medical Officer during post-mortem examination also observed firearm injuries on dead body of the deceased which were ante-mortem in nature and were sufficient to cause death in ordinary course of nature, therefore, the medical evidence had fully supported the ocular account---Circumstances established that the prosecution had proved its case beyond shadow of doubt against the accused, however, due to some mitigating circumstances, his death sentence was altered to imprisonment for life---Appeal was dismissed with said modification in sentence, in circumstances.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Minor discrepancies in the statements of witnesses---Inconsequential---Accused were charged for committing murder of the son of complainant by firing and causing fire arm injuries to the complainant---Discrepancies in the statements of the witnesses pointed out by defence were minor and general in nature which occurred in every case when witnesses (who were human-beings) were cross-examined after a long time of the occurrence as in present case, and same were not fatal to the prosecution case---Circumstances established that the prosecution had proved its case beyond shadow of doubt against the accused, however, due to some mitigating circumstances, his death sentence was altered to imprisonment for life---Appeal was dismissed with said modification in sentence, in circumstances.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Motive not proved---Conviction still upheld---Accused were charged for committing murder of the son of complainant by firing and causing fire arm injuries to the complainant---Motive of occurrence was that daughter of the complainant being wife of the accused was not ready to reside with accused as he was a man of bad character, but she has not been produced in support of such motive---Circumstances established that the prosecution had proved its case beyond shadow of doubt against the accused, however, due to some mitigating circumstances, death sentence was altered to imprisonment for life---Appeal was dismissed with said modification in sentence, in circumstances.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Recovery of pistol on pointing out of the accused---Negative forensic report---Conviction still upheld---Accused were charged for committing murder of the son of complainant by firing and causing fire arm injuries to the complainant---Recovery of pistol .30-bore on pointing out of the accused in presence of negative report of Forensic Science Agency qua matching of the crime empties was inconsequential, but it was not fatal to the prosecution case---Circumstances established that the prosecution had proved its case beyond shadow of doubt against the accused, however, due to some mitigating circumstances, death sentence was altered to imprisonment for life---Appeal was dismissed with said modification in sentence.

Akbar Ali and others v. The State and others 2021 SCMR 104 rel.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Accused were charged for committing murder of the son of complainant by firing and causing fire arm injuries to the complainant---As per record, some mitigating circumstances were noted; firstly, recovery of pistol.30-bore on pointing out of the accused in presence of negative report of Forensic Science Agency qua matching of the crime empties was inconsequential---Secondly, single fire shot had been attributed to the accused on the person of deceased, and there was no allegation of repetition---Thirdly, motive had been disbelieved with reasons---It was not determinable in the case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence which resulted in the present unfortunate incident---Consequently, the death sentence was altered to imprisonment for life---Appeal was dismissed with said modification in sentence, in circumstances.

Zafar Iqbal and others v. The State 2014 SCMR 1227 rel.

Samina Jadoon and Sardar Gul Nawaz Khaliq for Appellant.

Naveed Ahmed Warraich, DDPP with Sher Ahmed, ASI for the State.

Judgment

Sadaqat Ali Khan, J.---Appellant (Imtiaz Ullah) has been tried by the trial Court in case FIR No.377 dated 28.05.2016 in offences under Sections 302/324/34 P.P.C. Police Station City, District Mianwali, and was convicted and sentenced vide judgement dated 30.07.2021 as under:-

Imtiaz Ullah (appellant)

Under Section 302(b) P.P.C.

Sentenced to DEATH as Ta'zir for committing Qatl-i-Amd of Khurram Awais (deceased) with compensation of Rs.500,000/- payable to legal heirs of deceased under section 544-A Cr.P.C. and in default whereof to further undergo simple imprisonment for 6-months.

Under Section 324 P.P.C.

Sentenced to 5-years Rigorous Imprisonment for attempting to commit Qatl-i-Amd of Imtiaz Hussain (complainant/injured PW) with fine of Rs.20,000/- and in default whereof to further undergo simple imprisonment for 2-months.

Under Section 337-F(i) P.P.C.

To pay Daman of Rs.10,000/- for each injury payable to complainant/injured PW and in default whereof to remain in jail till the recovery of Daman i.e. Rs.20,000/-.

The sentences of the appellant were ordered to run concurrently with benefit of Section 382-B, Cr.P.C.

1. Appellant has filed this Criminal Appeal against his convictions and the trial Court has sent Murder Reference for confirmation of his death sentence or otherwise, which are being decided through this single judgment.

2. Heard. Record perused.

3. Khurram Awais was done to death whereas his father Imtiaz Hussain PW-10/complainant sustained injuries during the occurrence took place in the street on 28.05.2016 at 09:40 p.m. whereafter FIR was lodged on the same night at 11:10 p.m. on the statement of Imtiaz Hussain PW-10, who and his son Kaflain Mehmood Shah PW-11 while claiming themselves to be the eye-witnesses of the occurrence stated in their statements before the trial Court that on 28.05.2016 at 09:15 p.m. they alon gwith deceased (Khurram Awais) after closing their hotel proceeded to their house on foot via Wandhi Ghund Wali, when reached near Morh Masjid Syedan Wali at about 09:40 p.m., Imtiaz Ullah (appellant) armed with pistol .30-bore along with with an unknown accused came there on motorcycle and raised lalkara to teach them a lesson for refusal of compromise relating to the family dispute and made fireshot causing injuries on index and middle fingers of right hand of the complainant (Imtiaz Hussain PW-10), second fireshot made by him hit on left thigh of Khurram Awais (deceased) as a result of which he fell down, they (Imtiaz Hussain injured/PW-10 and Khurram Awais, deceased/the then injured) were shifted to DHQ Hospital, Mianwali for treatment, fromwhere Khurram Awais (deceased, the then injured) was referred to PIMS Islamabad where he succumbed to the injuries on 29.05.2016 at 04:00 a.m.

4. Appellant is Damaad (son-in-law) of the complainant, having this close relationship there is no question of his misidentity despite the fact that occurrence took place at night as complainant cannot take risk to falsely involve his in the murder case of his son to ruin the matrimonial life of his daughter, especially when in the same occurrence he (complainant) himself sustained firearm injuries, leaving actual culprit scot free. In these circumstances, in such like cases, substitution of an accused is a rare phenomenon.

5. Both these eye-witnesses (Imtiaz Hussain PW-10 and Kaflain Mehmood Shah PW-11) were cross-examined at length but their evidence could not be shaken during the process of cross-examination. They have corroborated each other on all material aspects of the case. They have also established their presence at the time of occurrence at the place of occurrence with their stated reasons. Their evidence is straightforward, trustworthy and confidence inspiring.

6. The discrepancies in the statements of the PWs pointed out by learned counsel for the appellant, are minors and general in nature, occur in every case when witnesses (who are human-beings) are cross-examined after a long time of the occurrence as in present case, are not fatal to the prosecution case.

7. Dr. Saad Abdullah PW-14 during medical examination observed firearm entry wound on left thigh of Khurram Awais (deceased, the then injured) and firearm grazing wounds on the fingers of right hand of Imtiaz Hussain/injured/complainant PW-10 attributed to the appellant. On death of Khurram Awais (deceased), Dr. Muhammad Abdul Maalik PW-9 during post-mortem examination also observed firearm injuries on his (Khurram Awais/deceased) dead body which were ante-mortem in nature and were sufficient to cause death in ordinary course of nature, therefore, the medical evidence has fully supported the ocular account discussed above.

8. Motive of occurrence was that daughter (Mehwish) of the complainant being wife of the appellant was not ready to reside with him (appellant) as he was the man of bad character but she has not been produced in support of this motive which is not believable.

9. Recovery of pistol .30-bore on pointing out of the appellant in presence of negative report of Punjab Forensic Science Agency qua matching of the crime empties is inconsequential but does not fatal to the prosecution case "Akbar Ali and others v. The State and others" (2021 SCMR 104).

10. Appellant has denied his involvement in this case in his statement recorded under section 342 Cr.P.C. and stated that he is innocent and has falsely been involved in this case. He has neither opted to appear as witness under section 340 (2) Cr.P.C. nor produced any defence evidence (except production of copies of certain documents as Exh.DA to Exh.DF) in support of his defence plea which has rightly been discarded by the trial Court through the impugned judgment with sufficient reasons.

2024 P Cr. L J 1487

[Lahore (Multan Bench)]

Before Sardar Muhammad Sarfraz Dogar and Shakil Ahmad, JJ

Imran Mustafa---Petitioner

Versus

Government of Punjab through Inspector General of Prison Punjab, Lahore and 2 others---Respondents

Writ Petition No. 16629 of 2023, decided on 21st November 2023.

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

----S. 9(A)(1)---Control of Narcotic Substances (Amendment) Act (XX of 2022), S.6---Possession and transportation of narcotics to---Remissions, entitlement---Accused sought that newly inserted S.9(A)1 in Control of Narcotic Substances Act, 1997 be declared as having no legal effect on the accused as he was charge sheeted under S.9(c) Control of Narcotic Substances Act, 1997 and special remission be awarded to him---Held, that undeniably convict was rounded up on 12.11.2020 in case FIR No.810/2020 dated 12.11.2020, under S.9(c) of Control of Narcotic Substances Act, 1997, and after having been sent to face trial, was indicted on 23.12.2020 and was convicted and sentenced on 10.05.2022---No denial to the fact that S.9(A)(1) was introduced by virtue of an amendment through the Control of Narcotic Substances (Amendment) Act, 2022 dated 06.09.2022---Amended Act was given no retrospective effect by the Legislature---It did not transpire therefrom that the rights available to an accused involved in a case falling within the purview of Control of Narcotic Substances Act, 1997, prior to the amendment made on 06.09.2022, had been taken away in any manner whatsoever---Provisions of S.9(A)(1) of Amendment Act, 2022, from their bare reading were prospective in nature and same could not be given effect retrospectively by placing any sort of embargo on the right of a convict qua earning remissions who had been arrested, indicted and even convicted prior to insertion of S.9(A)(1) through Amendment Act, 2022---Convict was entitled to earn remissions albeit insertion of S.9(A)(1) in Control of Narcotic Substances Act, 1997, through Amendment Act, 2022---Petition was allowed accordingly.

Shah Hussain v. The State PLD 2009 SC 460 and Nazar Hussain and another v. The State PLD 2010 SC 1021 ref.

M. Aslam Mouvia v. Home Secretary and others PLD 2011 Lah. 323 rel.

Muhammad Usman Sharif Khosa for the Petitioner/convict.

Miss Samina Mahmood Rana, Assistant Advocate General with Dr. Qadeer Alam, AIG (Prison), Punjab.

Muhammad Ali Shahab, Deputy Prosecutor General.

Kizar Abbas, SO (Legal), Home Department South Punjab.

Order

Instant is a petition that has been filed by Imran Mustafa (convict herein) under Article 199(1)(ii) of the Constitution of Islamic Republic of Pakistan 1973 (hereinafter referred to as the "Constitution") with the supplication that reads:

"…awfully implored that instant solicitation be approved and application of newly inserted Section 9(A)1 be declared as having no legal effect on the petitioner/convict as he was charge sheeted under Section 9-C Control of Narcotic Substances Act, 1997 prior to promulgation of Narcotic Substances Amended Act, 2022 dated 5th September, 2022.

It is correspondingly prayed that respondent No.2 be directed to award all special remission earned by the petitioner on special occasions since his arrest on 12.11.2020 till to date and his sentence be reduced accordingly.

It is correspondingly prayed that respondent No.2 be directed to award all monthly, quarterly as well as annually ordinary remission earned by the petitioner since his arrest on 12.11.2020 till to date and his sentence be reduced accordingly.

Any other relief……….."

1. Facts in brief giving rise to the filing of instant petition are that convict having been booked in case FIR No.810 of 2020 dated 12.11.2020, under section 9(c) of the Control of Narcotic Substances Act, 1997 ("CNSA, 1997"), registered at Police Station Qutabpur, Multan was sent to face the trial and after being indicted and tried was convicted under section 9(c) of CNSA, 1997 and sentenced to ten years and six months rigorous imprisonment with fine of Rs.50,000/-, in default of payment of fine to further undergo simple imprisonment for eight months.

2. Convict assailed his conviction and sentence before this Court by way of filing Criminal Appeal No.514/2022 which was dismissed vide judgment dated 15.12.2022 by maintaining his conviction, however, sentence awarded to him by learned trial court was reduced to rigorous imprisonment for six years by also maintaining the amount of fine and imprisonment in default whereof. Convict who was rounded up on 12.11.2020 in above referred case requested the respondents for his release but was informed that owing to insertion of section 9(A) (1) through an Act namely Control of Narcotic Substances (Amendment) Act, 2022 (Act No.XX of 2022) (hereinafter referred to as the "Amendment Act, 2022), no remission could have been awarded to him and his probable date of release as told was 24.01.2025. Hence, this petition.

3. Report was requisitioned from respondent No.2 and same was submitted containing their stance precisely that in view of insertion of section 9(A) (1) through an amendment promulgated under Amended Act, 2022, no remission in sentence for the prisoners convicted under CNSA, 1997 could have been granted.

4. Learned counsel for the convict contended that when convict was booked in the case and even when was indicted and convicted, provisions of section 9(A) (1) were not inserted in CNSA, 1997 and even the provisions of section 9(A) (1) of Amendment Act, 2022 had no retrospective effect as the said section do not contain any provision signifying the intention of legislature qua its applicability with retrospective effect. Learned counsel by placing reliance on "Shah Hussain v. The State" (PLD 2009 SC 460) and "Nazar Hussain and another v. The State" (PLD 2010 SC 1021) argued that convict is entitled to earn remissions.

5. Learned Law Officers argued that in reply to the guidance sought by Inspector General of Prisons, Punjab, Lahore from Government of Punjab, Law and Parliamentary Affairs Department through letter No.OP:15-11/2023/5503 dated 28.09.2023, opined that the principle of grant of no remissions in sentence seems to be applicable in all cases from the date of insertion of the Amendment Act, 2022 notwithstanding anything contained in Prison Rules, 1978. Learned Law Officers, however, when confronted with the query put by us that where certain rights were available with the convict qua his entitlement to get the benefit of remissions in accordance with existing law when he was arrested, tried and convicted, how he can be deprived of getting remissions in view of insertion of section 9(A) (1) through Amendment Act, 2022 that was inserted subsequent to his conviction and sentence, failed to meet the point.

6. Heard either of the sides and record perused.

7. The moot point that requires our consideration and its decision is that whether the provisions of section 9(A) (1) of the Amendment Act, 2022 have retrospective effect and in turn depriving of the convict who has been arrested, indicted and convicted before 06.09.2022 when the said section was inserted. Undeniably convict was rounded up on 12.11.2020 in case FIR No.810/2020 dated 12.11.2020, under section 9(c) of CNSA, 1997, registered at Police Station Qutabpur, Multan and after having been sent to face trial, was indicted on 23.12.2020 and was convicted and sentenced on 10.05.2022. There is also no denial to the fact that section 9(A) (1) was introduced by virtue of an amendment through the Amended Act 2022 dated 06.09.2022. Provisions of section 9(A) (1) are reproduced hereunder for the facility of ready reference:

"9(A)(1) Notwithstanding anything contained in any other law or prison rules for the time being in force, no remissions in any sentence shall be allowed to a person, who is convicted under this Act:

Provided that in case of a juvenile or female convicted and sentenced for an offence under this Act, remission, may be granted as deemed appropriate by the Federal Government."

Bare perusal of above would vividly suggest that same have given no retrospective effect by the legislature. Even it does not transpire therefrom that the rights available to an accused involved in case falling within the purview of CNSA, 1997 prior to the amendment made on 06.09.2022 have been taken away in any manner whatsoever. The provisions of section 9(A) (1) of Amendment Act, 2022 from their bare reading are prospective in nature and same cannot be given effect retrospectively by placing any sort of embargo on the right of a convict qua earning remissions who had been arrested, indicted and even convicted prior to insertion of section 9(A) (1) through Amendment Act, 2022. Almost similar sort of point in issue was taken up and dealt with by this Court in case "M. Aslam Mouvia v. Home Secretary and others" (PLD 2011 Lahore 323), wherein after having referred to good number of case laws on the moot point by the apex Court, this Court resolved the same in the following terms:

"20. The trial of the petitioner commenced before insertion of section 21-F of the ATA. Certain rights had already accrued in favour of the petitioner by way of his entitlement to the benefit of remissions in accordance with law in the field at the relevant time i.e. the time that the alleged offence was committed, FIR was registered against him, he was arrested and his trial commenced. Any subsequent changes in law would not have the effect of depriving him of the rights which were available to him at the time when the offence was committed and the trial commenced. In addition, there is nothing in section 21-F of ATA to indicate even remotely that it has retrospective operation or that it has the effect of taking away the rights that were available to certain convicts under the prevalent law when the offence was committed, the FIR was registered or the trial commenced. Looked at from this point of view, the provisions of section 21-F are prospective in nature and, therefore, cannot take away or affect the rights which were available to the petitioner at the relevant time. In support of this contention, reliance may also usefully be placed on the dictum of the honourable Supreme Court of Pakistan in the case of Commissioner Sindh Employees etc. (2002 SCMR 39).

2024 P Cr. L J 1495

[Lahore]

Before Tariq Saleem Sheikh, J

Muhammad Farman---Petitioner

Versus

The State and others---Respondents

Criminal Misc. No. 72710/B of 2022, decided on 31st March, 2023.

(a) Agricultural Pesticides Ordinance, (II of 1971)---

----Ss. 3,21(1), 21(2)(b) & 21-A---Punjab Agricultural Pesticides Rules, 2018, R. 13(1)(b)---Selling of expired / substandard pesticides---"Expired pesticide"---Scope---Whether or not, "expired pesticide" falls in the definition of "substandard" given in clause (rr) of S.3 of the Agricultural Pesticides Ordinance, 1971 (Ordinance)---Term "expired pesticide" is neither expressly defined nor mentioned in the Ordinance nor under Punjab Agriculture Pesticides Rules, 2018 (' the Rules 2018') and there is only one reference in R. 13(1)(b) of the Rules 2018---Term "substandard" in S.3(rr) of the Ordinance applies to two types of products: (a) the pesticide whose strength or purity falls below the purported standard or quality specified on its label or under which it is sold; (b) the pesticide whose valuable ingredient has been wholly or partially extracted---Pesticides that have passed their expiration date lose their effectiveness---They may also change chemical composition, harming not just the crop but also people and the environment---Pesticides sprayed too close to water might drift and deposit fine spray droplets away from their target, contaminating surface water---Drift incidents can pollute surface water more than runoff or leaching---Therefore, expired pesticides are included in part (a) of the definition of "substandard" given in S.3(rr) of the Ordinance---Consequently, the provisions of S.21(2)(b) apply when a person sells expired pesticides.

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

----S. 498---Agricultural Pesticides Ordinance (II of 1971), Ss. 3, 21(1), 21(2)(b) & 21-A---Punjab Agricultural Pesticides Rules, 2018, R.13(1)(b)---Selling of expired / substandard pesticides , allegation of---Pre-arrest bail, refusal of---Laboratory test of pesticide, requirement of---Scope---Complainant (Inspector Pesticides/Agriculture Officer), seized expired pesticides being offered for sale from the shop(general store) run by the petitioner/accused, and during interrogation, it was found that he(accused) had no license to sell such items---Contention of the accused/ petitioner was that the prosecution must demonstrate through a laboratory test that an expired pesticide had become "substandard" before alleging a violation of S.21(2)(b) of the Ordinance---Held, that said test was not required because the manufacturer declared on the label that the product's quality would deteriorate after the expiry date---Pre-arrest bail was declined to the accused, in circumstances.

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

----S. 498---Agricultural Pesticides Ordinance (II of 1971), Ss. 3, 21(1), 21(2)(b), 21-A & 26-A---Punjab Agricultural Pesticides Rules, 2018, R. 13(1)(b)------Selling of expired / substandard pesticides , allegation of---Pre-arrest bail, refusal of---License to sell pesticides, absence of---Complainant (Inspector Pesticides/Agriculture Officer), seized expired pesticides being offered for sale from the shop (general store) run by the petitioner/accused, and during interrogation, it was found that he(accused) had no license to sell such items---Held, that Petitioner/accused was also accused of selling pesticides without a license and , admittedly, Agricultural Pesticides Ordinance, 1971('the Ordinance 1971') did not specifically provide for such an offence, however , High Court viewed that S.21-A of the Ordinance 1971 would apply; and said offence was also cognizable and non-bailable under S.26-A of the Ordinance 1971---Pre-arrest bail was declined to the accused, in circumstances.

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

----Ss. 498 & 497(2)---Agricultural Pesticides Ordinance (II of 1971), Ss. 3, 21(1), 21(2)(b) & 21-A---Punjab Agricultural Pesticides Rules, 2018, R. 13(1)(b)---Selling of expired / substandard pesticides, allegation of---Pre-arrest bail, refusal of---Mala fide of the complainant, absence of---Complainant (Inspector Pesticides/ Agriculture Officer), seized expired pesticides being offered for sale from the shop (general store) run by the petitioner/accused, and during interrogation, it was found that he(accused) had no license to sell such items---Validity---Petitioner/accused had failed to point out any mala fide on the part of the complainant or the police regarding registration of the present case, which was a pre-requisite for the grant of pre-arrest bail---Pre-arrest bail, being discretionary relief, was meant to protect innocent people implicated in a criminal case for devious and ulterior motives , which could not be granted unless the accused met conditions mentioned in S.497(2) of the Criminal Procedure Code, 1898---Accused was to demonstrate that reasonable grounds existed to believe that he was not guilty of the alleged offence and there were sufficient grounds to warrant further inquiry---Petitioner had failed to make out case for grant of extra-ordinary relief---Bail was declined to the accused, in circumstances.

Muhammad Sadiq and another v. The State and another 2015 SCMR 1394 and Aamir Bashir and another v. The State and others 2017 SCMR 2060 ref.

Malik Muhammad Arshad Kundi for the Petitioner.

Muhammad Mustafa Chaudhry and Rana Tasawar Ali Khan, Deputy Prosecutors General for the State.

Order

Tariq Saleem Sheikh, J.---Through this application, the Petitioner seeks pre-arrest bail in case FIR No.545/2022 dated 4.11.2022 registered at Police Station Kundian, District Mianwali, for offences under sections 21(1), 21(2)(b) and 21-A of the Agricultural Pesticides Ordinance, 1971 (the "Ordinance").

1. The prosecution case is that the Petitioner runs a general store at Noon Market Melaywali. On 2.11.2022, Amir Sohail, Inspector Pesticides/Agriculture Officer Plant Protection, seized expired pesticides from his shop which he was offering for sale. During interrogation, the Complainant found he had no licence to sell such items.

2. Arguments heard. Record perused.

3. The police have booked the Petitioner under sections 21(2)(a), 21(2)(b) and 21-A of the Ordinance. Section 21(1) makes it illegal to import, manufacture, formulate, sell, stock or advertise adulterated and substandard pesticides. Clause (a) of section 21(2) provides for the punishment for adulterated pesticides, while clause (b) thereof provides for the punishment of substandard pesticides. Section 3 defines the terms "adulterated" and "substandard" as follows:

(a) "adulterated" in relation to a pesticide means a pesticide with which spurious, deleterious or harmful substance has been mixed or which is wholly or mainly ineffective for the purpose for which it is intended.

(rr) "substandard" when used with reference to a pesticide, means any pesticide, the strength or purity of which falls below the professed standard or quality which is expressed on its label or under which it is sold or a pesticide any valuable ingredient of which has been wholly or partially extracted.

1. The term "expired pesticide" is neither expressly defined nor mentioned in the Ordinance nor the Rules made thereunder (Punjab Agriculture Pesticides Rules, 2018). There is only one reference in Rule 13(1)(b) of the Rules of 2018 which reads as follows:

13. Packing, re-packing or re-filling of pesticides.-The manufacturers and formulators, before passing on the pesticides to the distributors, dealers or retailers, shall supervise:

(a) …

(b) affixation of the date of expiry, price, label the name, address and phone number of the manufacturer and formulator.

1. Does the "expired pesticide" fall in the definition of "substandard" given in clause (rr) of section 3 of the Ordinance?

2. "Substandard" products are those which are authorized but do not fulfil their quality standards or specifications. In this sense, they are distinct from "falsified" products, which intentionally or fraudulently misrepresent their identity, composition or source. Falsification includes substitutions and reproduction and/or manufacturing of an unauthorized product. Falsified products consist of innovator and generic products and items that lack active ingredients, have insufficient active ingredients, have the wrong ingredient, and/or contain hazardous contaminants or pathogens.

3. Product labels have various dates, each with its own meaning. Manufacturers use these dates to share special information with buyers. The "expiry date" advises buyers of the date up to which the manufacturer expects his product to retain its claimed efficacy, safety, quality or potency. The use-by-date alerts consumers when the product's quality may degrade. The phrase "best by date" indicates that the item's taste, flavour or texture may deteriorate beyond that date. Therefore, even after the "best before date", a product can be consumed because it is safe though it may not be as good as if used within the stipulated time limit. On the other hand, once the "expiry date" passes, the product is not fit for consumption.

4. The term "substandard" in section 3(rr) applies to two types of products: (a) the pesticide whose strength or purity falls below the purported standard or quality specified on its label or under which it is sold; (b) the pesticide whose valuable ingredient has been wholly or partially extracted. Pesticides that have passed their expiration date lose their effectiveness. They may also change chemical composition, harming not just the crop but also people and the environment. Pesticides sprayed too close to water might drift and deposit fine spray droplets away from their target, contaminating surface water. Drift incidents can pollute surface water more than runoff or leaching. Therefore, expired pesticides are included in part (a) of the definition of "substandard" given in section 3(rr) of the Ordinance. Consequently, the provisions of section 21(2)(b) apply when a person sells expired pesticides.

2024 P Cr. L J 1511

[Lahore]

Before Farooq Haider, J

Riasat Ali---Petitioner

Versus

The State and others---Respondents

Diary No. 68328 and Writ Petition No. 30611 of 2024, decided on 16th May, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 177, 185 & 497--- Penal Code (XLV of 1860), S. 462-J--- Electricity theft--- Bail--- Jurisdiction of Court---First Information Report registered by FIA--- Dispute was with regard to territorial jurisdiction of Court to decide bail application of accused--- Offence was committed at place "P" and Court declined to decide bail application as FIR was registered by FIA and Special Court having jurisdiction was situated at place "G"---Validity---Place of occurrence was in territorial jurisdiction of place "P", therefore, Court at place "P" as Electricity Utility Court was competent to take cognizance of the offence and conduct trial of offence under S.462-G (a), P.P.C.---Court competent to take cognizance of offence and conduct trial of case, was competent to entertain and decide petition for bail---Electricity Utility Court at place "P" was competent to entertain petition for bail and decide the same in accordance with law---In case of any doubt regarding jurisdiction to inquire into or try any offence, High Court under S.185 (1), Cr.P.C., was to decide about Court to inquire into or try the offence---High Court in exercise of powers vested under S.185 (1), Cr.P.C., decided that the Court (if otherwise competent to take cognizance) in whose territorial jurisdiction occurrence was committed i.e. place of occurrence was situated, would take cognizance of the offence and conduct trial of the case---Court of Electricity Utility Court at place "P" was Trial Court in the matter---Office objection was disposed of accordingly.

Barrister Shahzad Shabbir for Petitioner.

Sardar Muhammad Ameer Hamza Dogar, Assistant Attorney General for the Federation of Pakistan (on Court's call) assisted by Nadeem Aamir, Deputy Director (Law), Federal Investigation Agency, Lahore.

Idrees Rafique Bhatti, Assistant Advocate General, Punjab along with Nuzhat Bashir and Haroon Rasheed, Deputy Prosecutors General for the State (on Court's call).

Order

Objection Case

Farooq Haider, J.---Since question of deciding jurisdiction with respect to taking cognizance and conducting trial of the case between the Courts of two districts is involved in the under-objection petition therefore objection raised by the office is overruled. Office is directed to allot number to this petition and fix the same for hearing today while issuing cause list in this regard.

Writ Petition No.30611/2024

Learned counsel for the petitioner submits that case arising out of FIR No.145/2024 was registered against the petitioner under Section: 462-J P.P.C. at Police Station: F.I.A., Circle, Gujrat; application for petition for post arrest bail was filed by the petitioner in the case before Sessions Courts, Gujrat, which was entrusted to the Court of learned Addl. Sessions Judge, Gujrat and was dismissed as withdrawn due to territorial jurisdiction vide order dated: 06.05.2024 passed by learned Additional Sessions Judge, Gujrat (copy of said application and order are available at Pages Nos.5 to 8 of instant petition); relevant portion of the order is hereby reproduced as under:-

"In view of above recorded statement of Qasim Ali Advocate learned counsel for the petitioner/accused Reyasat Ali in case FIR No.145/2024, offence under section 462-J, P.S FIA Gujrat, it is noted that the offence of this case had occurred in the territorial jurisdiction of district M.B.Din, so this court has no jurisdiction to entertain instant post-arrest bail petition and petitioner is allowed to .file the same before the court of competent jurisdiction. Consequently, this post-arrest bail petition is dismissed as withdrawn."

Then petitioner filed application for post arrest bail in the case in the Court of learned Additional Sessions Judge, Phalia, which was ordered to be returned due to territorial jurisdiction vide order dated: 07.05.2024 passed by learned Addl. Sessions Judge, Phalia (copy of said application and order are available at Pages Nos.9 to 11 of instant petition) and relevant portion of the order is hereby reproduced below:-

"5. It is an admitted fact that this FIR has been registered at Police Station FIA, Circle Gujrat by the concerned officer of the FIA authority. The Court of Additional Sessions Judge, Phalia has not been vested with any power to deal with the cases registered at Police Station FIA and is only entertaining and hearing the cases registered at local Police Station. As stated by learned counsel, the Court of learned Additional Sessions Judge, Gujrat was previously dealing with the cases registered at Police Station FIA. Because of bar of territorial jurisdiction relating to cases registered at Police Station FIA, this Court has no jurisdiction to entertain the post arrest bail application. The same may, therefore, be returned to the learned counsel for petitioner, so that the same may be presented before the Court of competent jurisdiction."

Learned counsel further adds that in aforementioned circumstances, petitioner is unable to find out the Court having territorial jurisdiction to entertain and decide the petition for bail, hence, instant petition has been filed before this Court.

1. Points raised need consideration.

2. Notice to the State/respondent No.1.

3. Learned Assistant Attorney General assisted by Deputy Director (Law), F.I.A., Lahore as well as learned Assistant Advocate General, Punjab and learned Deputy Prosecutors General (present in Court) have accepted the notice on behalf of the State and expressed their willingness to argue this petition today; therefore, instant petition is being decided as "Notice Case".

4. Brief however necessary facts for deciding instant petition are that case vide FIR No.145/2024 dated: 02.05.2024 was registered against present petitioner under Section: 462-J P.P.C. at Police Station: F.I.A., Circle: Gujrat (copy of FIR is available at Page No.4 of instant petition) and place of occurrence in Column No.4 of said FIR has been mentioned as "Pahrianwali, Mandi Bahauddin"; petitioner filed application for post arrest bail in the case in Sessions Courts, Gujrat, which was entrusted to the Court of learned Additional Sessions Judge, Gujrat however same was dismissed as withdrawn from said Court due to lack of territorial jurisdiction in order to file application for bail before the Court of competent jurisdiction (as detailed above); then, petitioner filed application for post arrest bail before the Court of learned Additional Sessions Judge, Phalia, which was also ordered to be returned to the petitioner due to bar of territorial jurisdiction vide order dated: 07.05.2024 passed by learned Additional Sessions Judge, Phalia (as mentioned above); hence, instant petition has been filed before this Court.

5. Learned counsel for the petitioner submits that in aforementioned state of affairs, petitioner is not certain about the Court which has territorial jurisdiction to entertain the application for bail as well as to take cognizance of the offence and conduct trial of the case. Learned counsel finally prays for declaring the relevant Court in this regard.

6. Learned Assistant Attorney General assisted by Deputy Director (Law), F.I.A., Lahore submits that Police Station: F.I.A., Circle: Gujrat has territorial jurisdiction with respect to registration of cases, investigation of cases as well as inquiring into the offences mentioned in schedule of the Federal Investigation Agency Act, 1974, in District: Gujrat as well as in the area of District: Mandi Bahauddin (copy of notification reflecting said jurisdiction has been produced by him, which has been placed on the record); further adds that Federal Investigation Agency is only meant for the purpose of investigating scheduled offences as well as inquiring into the same and the Federal Investigation Agency Act (ibid) does not contain any specific provision about the Court for the purpose of trial of the case regarding said offences.

7. Learned Assistant Advocate General, Punjab while supporting aforementioned arguments advanced by learned Assistant Attorney General adds that though offences including mentioned in the schedule of the Federal Investigation Agency Act, 1974 are to be investigated and inquired into by the Federal Investigating Agency only yet said "Act" has not been legislated for the purpose of deciding Court for trial.

8. Learned Deputy Prosecutors General while adopting aforementioned arguments of learned Law Officers further add that Federal Investigation Agency Act, 1974 only deals with investigation as well as inquiry regarding the offences mentioned in the schedule of said Act and since any specific provision for trial of cases falling in schedule offences is not mentioned therein hence merely by way of inclusion of any offence in the schedule of the "Act" (supra), venue of the trial will not be affected.

9. Arguments heard and available record perused.

10. The Federal Investigation Agency was established by way of the Federal Investigation Agency Act, 1974 and as per definition contained in Section: 2 (a) of the Act (ibid), "Agency" means the Federal Investigation Agency constituted under Section: 3, furthermore, as per Section: 3 (1) of the Act (ibid), the Federal Government may constitute an Agency to be called "the Federal Investigation Agency" for inquiry into, and investigation of the offences specified in the Schedule; for ready reference, both aforementioned sections are hereby reproduced as under:-

"2. (a) "Agency" means the Federal Investigation Agency constituted under section 3; "

"3. Constitution of the Agency. (1) Notwithstanding anything contained in any other law for the time being in force, the Federal Government may constitute an Agency to be called the Federal Investigation Agency for inquiry into, and investigation of the offences specified in the Schedule, including an attempt or conspiracy to commit, and abetment of any such offence."

Preamble of the "Act" (ibid) is also hereby reproduced:-

"Whereas it is expedient to provide for the constitution of Federal Investigation Agency for the investigation of certain offences committed in connection with matters concerning the Federal Government, and for matters connected therewith;"

Perusal of Section: 3 of the Act (ibid) read with preamble clearly shows that Federal Investigation Agency has only been established for the purpose of investigation of and inquiring into the offences specified in the schedule. So, it is crystal clear that Federal Investigation Agency is only an "Investigating Agency" and the Federal Investigation Agency Act, 1974 only deals with investigation of and inquiring into the offences mentioned in the schedule and it is nowhere mentioned in said act that if any offence has been included in the schedule of said Act, then any special Court will be established under said act for the purpose of taking cognizance and conducting trial of the case regarding said offence. Perusal of the schedule of the "Act" reveals that offences mentioned in various penal statues have been included in the same including from Pakistan Penal Code.

So, when in the Federal Investigation Agency Act, 1974, it has not been mentioned that the offences included in the schedule will be tried by any Court established under said Act, then inspite of the inclusion of offence in the schedule of said Act, for the purpose of jurisdiction with respect to taking cognizance of the offence and trial of the case regarding said offence, the parent statute containing said offence will hold the field i.e. the Court established for taking cognizance and conducting trial of the case regarding said offence provided in its parent statute will take cognizance of the offence and conduct trial of the case e.g. offences mentioned in the Emigration Ordinance, 1979 are also included in the schedule of the Act (ibid) however same are tried by the Special Court established under Section: 24 of the Emigration Ordinance, 1979, some offences punishable under the Anti-Terrorism Act, 1997 are included in the schedule of the "Act" (ibid) but same are tried by Anti-Terrorism Court and of course the offences mentioned in Pakistan Penal Code, which have been included in the schedule of the Act (ibid), will be tried by the Court established under the Code of Criminal Procedure, 1898.

The offences relating to electricity contained in Chapter XVII-B of Pakistan Penal Code, 1860 include Section 462-J P.P.C. also and offences under Sections: 462-H, 462-I, 462-J, 462-K, 462-I and 462-M have been included in the schedule of the Federal Investigation Agency Act, 1974 vide notification dated: 08th November, 2016; in this regard, relevant portion of said notification is hereby scanned below: -

PART II

Stututory Notifications (S. R. O)

GOVERNMENT OF Pakistan

Ministry of INTERIOR

NOTIFICATION

Islamabad, the 8th November, 2016

S.R.O. 1047(I)/2016.-In exercise of the powers conferred by section 6 of the Federal Investigation Agency Act, 1974 (VIII of 1975), the Federal Government is pleased to direct that the following further amendment shall be made in the Schedule to the said Act, namely:-

In the aforesaid Schedule,-

(a) in entry (1), after the figure, letter and comma "462F" the following snail be inserted, namely:-

"462H, 4621, 462J, 462K, 462L, 462-M"; and

Since as per notification issued by the Government of Pakistan, Ministry of Interior dated: 15th January, 2009 (copy whereof has been placed on the record), District: Mandi Bahauddin falls in the territorial jurisdiction of Police Station: F.I.A., Sub-Circle, Gujrat, therefore, instant case has been rightly registered at Police Station: F.I.A., Sub-Circle: Gujrat.

Now question does arise that whether the place, where case has been registered, will decide the jurisdiction for the purpose of trial of the case or it would be the place of occurrence? Answer of this question is available in Section: 177 of Cr.P.C., which clearly shows that every offence shall ordinary be inquired in and tried by a Court within the local limits of whose jurisdiction it was committed; for ready reference, said section is hereby reproduced as follows: -

77. Ordinary Place of inquiry and trial. Every offence shall Ordinary be inquired in and tried by a Court within the local limits of whose jurisdiction it was committed."

Of course, in this case, place of occurrence is situated at Pahrianwali , Tehsil: Phalia, District: Mandi Bahauddin, therefore, the Court having territorial jurisdiction regarding said place will be the competent Court to take cognizance as well as conduct trial of the case.

Another question is also relevant here that apart from territorial jurisdiction, which Court is competent to take cognizance and conduct trial of the case with respect to offences relating to electricity contained in Chapter XVII-B of Pakistan Penal Code, in this regard, Section: 462-G (a) P.P.C. clearly shows that the "Court" means the Court of Session designated as Electricity Utilities Court empowered to take cognizance of an offence under this Chapter; for ready reference, same is hereby reproduced below: -

"462-G

(a) "Court" means the Court of Session designated as Electricity Utilities Court empowered to take cognizance of an offence under this Chapter."

Furthermore it has been clearly mentioned in Column No.8 of Schedule-II of Cr.P.C. that said offences are triable by the Court of Session designated as Electricity Utilities Court and relevant portion from the same is reproduced as under: -

Chapter XVII-B Offence Relating to Electricity

| | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | | 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | | Section | Offence | Whether the police may arrest without warrant or not | Whether a warrant or a summons shall ordinarily issue in the first instance | Whether bailable or not | Whether compoundable or not | Punishment under the Pakistan Penal Code | By what Court triable | | 462-H | Abstraction or tampering etc. with transmission | May Arrest without warrant. | A warrant shall not ordinarily issue in the first instance | not bailable | not Compoundable | Rigorous imprisonment for three years or with fine upto ten million rupees or with both | Court of Session designated as Electricity Utilities Court | | 462-I | Abstraction or tampering etc. distribution or auxiliary | Ditto | Ditto | Ditto | Ditto | Rigorous imprisonment for three years or with fine upto three million rupees or with both. | Ditto | | 462-J | Interference, improper user or tampering etc. with electric meter by domestic consumer, etc. | Ditto | Ditto | Ditto | Ditto | Imprisonment upto two years or fine upto one million rupees or with both. | Ditto | | 462-K | Interference, improper use or tampering etc. with electric meter by industrial or commercial, consumer, etc. | Ditto | Ditto | Ditto | Ditto | Imprisonment upto three years or with fine upto six million rupees or with both | Ditto | | 462-L | Interference, improper use or tampering etc. with electric meter by agricultural consumer, etc. | Ditto | Ditto | Ditto | Ditto | Imprisonment for two years or with fine upto two and half million rupees or with both. | Ditto | | 462-M | Damaging or destroying the tansmission lines, distribution lines, electric meters etc. | Ditto | Ditto | Ditto | Ditto | Rigorous imprisonment for seven years and with fine not less than three million rupees. | Ditto |

Therefore, the Court of Session designated as Electricity Utilities Court under Section: 462-G (a) P.P.C. would be competent to take cognizance of the offences and conduct trial of the cases regarding said offences. It is also relevant to mention here that this Court vide notification bearing No.325/JOB(I)/VI.F.6 dated: 25.10.2019 has already authorized all the District and Sessions Judges in the Punjab to hear and dispose of all such cases falling under Section: 462-G (a) of Criminal Law (Amendments) Act, 2016 with retrospective effect from 01.02.2016 and they have been further authorized to nominate one or two Additional District and Sessions Judges for said purpose till the establishment/constitution of regular new Electricity Utility Courts; relevant portion of said notification is hereby reproduced as under:-

"The Hon'ble Chief Justice and Judges have been pleased to authorize all the District and Sessions Judges in the Punjab to hear and dispose of all such cases themselves and also authorize to nominate one or two Additional District and Sessions Judges, where required in view of the pendency of cases to hear and dispose of all such cases falling under Section 462G(a) of Criminal Law (Amendments) Act, 2016 with retrospective effect from 01.02.2016, till the establishment/constitution of regular new Electricity Utility Courts."

And in the light of said notification, District and Sessions Judge, Mandi Bahauddin has issued order vide Endst. No.1053/XV.B dated: 30.10.2019 while nominating Additional District and Sessions Judge-I, Phalia for aforesaid purpose, which is hereby reproduced below: -

"ORDER

In compliance of directions of the Hon'ble Lahore High Court, Lahore, contained in Notification No.325/JOB(I)/VI.F.6, dated 25.10.2019, in supersession of all previous orders in this regard, the following Courts working in this District are hereby nominated to hear and dispose of all such cases falling under section 462G (a) of Criminal Law (Amendments) Act, 2016, till the establishment of/constitution of regular new Electricity Utility Court:-

| | | | --- | --- | | Cases Pertaining District Headquarter Mandi Bahauddin | | | Sr.No. | Name of Judicial Officer | | 01 | Mr. Iftikhar Hussain, Addl: District and Sessions Judge, Mandi Bahauddin. |

| | | | --- | --- | | Cases Pertaining to Sub-division PHALIA | | | Sr.No. | Name of Judicial Officer | | 01 | Addl: District and Sessions Judge-I Phalia |

| | | | --- | --- | | Cases Pertaining to Sub-division Malakwal | | | Sr.No. | Name of Judicial Officer | | 01 | Addl: District and Sessions Judge-I, Malakwal |

1. It is pertinent to mention here that 03. Courts of Addl: District and Sessions Judges are working at Headquarter MB.Din, with the bifurcation as (1)-Model Criminal Trial Court, (II)-Model Civil Appellate Court and third one dealing with all the miscellaneous cases, sessions cases and Gender Base Violence cases (with heavy pendency). Though the Court of Mr. Iftikhar Hussain, learned Addl: District and Sessions Judge, M.B. Din is working as Model Civil Appellate Court but keeping in view the pendency of cases and having no other option, the said Court is nominated to hear and dispose of cases falling under section 462G (a) of Criminal Law (Amendments) Act, 2016- pertaining to headquarter Mandi Bahauddin.

2. All the cases related to above said section, pending before the Courts are withdrawn there from and transferred/entrusted to the above mentioned nominated Courts according to their respective sub-divisions, headquarter, forthwith. The Ahlmads of Transferring Courts are directed to hand over the files to learned Transferee Courts in bulk. The cause list shall be generated by the learned Transferee Court."

Said order was further modified to the extent of Headquarter Mandi Bahauddin vide order No.62/XVB dated: 10.01.2022 and relevant portion of the same is reproduced as under:-

"In partial modification of this office order bearing Ends. No. 1759/XV-B dated 15.12.2021 as well as for smooth functioning of Sessions Court, Mandi Bahauddin, and in the public interest it is order that all cases falling under section 462G (a) of Criminal Law (Amendments) Act, 2016, pertaining to Headquarter Mandi Bahauddin, till establishment of/constitution of regular new Electricity Court, shall be dealt with by the court of undersigned instead of the Court of Mr. Waris Ali, Additional District and Sessions Judge, Mandi Bahauddin, for the time being till further order.

This order shall apply on pending cases (except part heard cases) as well as fresh cases."

Since place of occurrence in this case falls in the territorial jurisdiction of Sub-Division: Phalia, therefore, learned Additional Sessions Judge-I, Phalia being Electricity Utility Court is competent to take cognizance of said offence and conduct trial of the instant case regarding said offence under Section: 462-G (a) P.P.C.

It is by now well settled that the Court competent to take cognizance of the offence and conduct trial of the case, is competent to entertain and decide the petition for bail as well in said case; therefore, in this case, learned Additional Sessions Judge-I, Phalia/Electricity Utility Court (as mentioned above) is competent to entertain petition for bail and decide the same in accordance with law.

2024 P Cr. L J 1568

[Lahore]

Before Ali Zia Bajwa, J

Mujtaba Saleem Butt---Petitioner

Versus

Incharge Investigation and others---Respondents

Crl. Misc. No. 10162-H of 2024, decided on 1st March, 2024.

Criminal Procedure Code (V of 1898)---

----S. 491---Police Rules, 1934, R. 26.21(6)---Habeas corpus---Illegal arrest---Complainant sought recovery of his son from the custody of police---Police Officer had appeared before the Court and had submitted that the detenu was arrested in connection with a case initially registered under S.381-A, P.P.C---Record transpired that earlier the detenu applied for his ad-interim pre-arrest bail in the said criminal case, which was confirmed by the Court---Investigating Officer thereafter, added offences under Ss.420, 468 & 471, P.P.C, in the case and arrested the detenu---Validity---Arrest of the accused, in blatant contravention of R. 26.21(6) of the Police Rules, 1934, and the principles enshrined within legal edifice, was both untenable and impermissible---Essence of justice demanded that once a Court had granted bail, pre-arrest or post-arrest, considering the gamut of facts and allegations, such a decision must be respected and could not be superseded by subsequent police action without first seeking judicial recourse for the cancellation of said bail---To uphold otherwise would be to sanction a travesty of justice, undermining both the authority of the judiciary and the rights of the accused---Sanctity of bail, granted after due deliberation of all pertinent facts, must remain inviolable, thereby reinforcing the paramountcy of the judiciary in the preservation of justice and the rule of law---Police Officer, by arresting the detenu without adhering to the proper legal channels, had not only disregarded the authority of the Court but also violated the rights of the detenue as enshrined under the law---Therefore, the arrest of the detenu was patently illegal having no legal justification---Petition was disposed of by declaring the arrest of the dentenu illegal.

Waqar v. Chairman NAB, Islamabad PLD 2015 Sindh 295; Pradeep Ram v. The State of Jharkhand AIR 2019 SC 3193 and Hidayat Ullah Khan's case PLD 1949 Lah. 21 =AIR 1949 Lah. 77 ref.

Sajid Naseer Ch. for Petitioner.

Hafiz Asghar Ali, Deputy Prosecutor General with Liaqat Ali Malik, DIG (OCU) and Zahid, DSP for the State.

Tahir Khokhar for Respondents Nos. 3 and 4.

Amad Tahir Ch. for Amicus Curiae.

Date of hearing: 20th February, 2024.

Judgment

Ali Zia Bajwa, J.--- Through this Habeas Petition filed under Section 491 of the Code of Criminal Procedure, 1898 (hereinafter 'the Code'), the petitioner seeks the recovery of his son, namely Rashid Hassan Butt ('the Detenu'). In pursuance of the order of this Court, the Detenu was produced before the Court by Respondent No. 2, Afzal Sub-Inspector of Anti Vehicle Lifting Squad ('AVLS') Mustafa Town Police Station, Lahore. It has been stated by Respondent No.2 that the Detenu was arrested in connection with Case FIR No. 2219/23 initially registered under Section 381-A of Pakistan Penal Code, 1860 ('P.P.C.') with Shera Kot Police Station, Lahore.

1. Earlier the Detenu applied for his ad-interim pre-arrest bail in the afore-referred criminal case, which was confirmed by the Court of Sessions vide consolidated order dated 21.09.2023. That order remained unchallenged, hence, the same attained finality. Thereafter the investigating officer i.e. Respondent No.2 added offences under Sections 420, 468 and 471, P.P.C. in the case and arrested the Detenu. The short but crucial question of law involved in this case is whether an accused person, who has been granted bail in a criminal case by the Court of competent jurisdiction, can be arrested in the same case under the garb of the addition of new offences.

2. Arguments of parties heard and record perused.

3. In the evolving landscape of criminal jurisprudence, a pivotal issue emerges when additional charges are levied against an accused who has already secured bail for the initial charge(s). This scenario presents a complex interplay between the rights of the accused and the interests of justice, necessitating a judicious approach to bail proceedings. Traditionally, the addition of new charges against a bailed-out accused has prompted a debate on the procedural steps that should follow. On one hand, there exists a perspective that mandates the accused to seek bail afresh for the newly added offences, treating them as separate grounds for judicial scrutiny. This view emphasizes the autonomous nature of each offence and its distinct implications for the accused's liberty. However, a more nuanced approach considers the procedural economy and the overarching principles of fairness and justice that when additional offences are added to an accused's charges, though it is imperative to re-evaluate the grounds upon which bail was initially granted but, this reconsideration does not necessitate a redundant plea for bail by the accused rather, shifts the onus onto the prosecution to seek the cancellation of the existing bail. Under this approach, the prosecution bears the responsibility to demonstrate that the addition of new charges substantively alters the landscape of risk and considerations that underpinned the original bail decision.

4. For the proposition in hand, it will be advantageous to consider the relevant Rule i.e. Rule 26.21(6) of The Punjab Police Rules, 1934 (hereinafter 'The Rules') which has been reproduced below: -

"26.21. Bail and recognizance. -

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(6) No police officer has power to re-arrest an accused person who has been released on bail under section 497, Code of Criminal Procedure. When re-arrest is deemed necessary, the police shall apply to a competent court for the cancellation of the bail bond and the issue of a warrant in accordance with the provisions of Section 497(5) Code of Criminal Procedure."

The Rules, particularly those outlined in Volume-III, stipulate clear procedure for the conduct of police officers during the investigation and process to be opted for the arrest of the accused. The above-provided Rule explicitly requires that in cases where an accused has already been released on bail for certain charges, any intention to arrest the accused for additional charges must be accompanied by an application for the cancellation of bail, presented before the competent court as envisaged under Section 497(5) of the Code, which shall be decided after issuance of notice to the accused. Reliance can be placed on the ratio rendered in Waqar Ahmed wherein while considering a situation where subsequently some offence(s) were added by the investigating agency it was ruled by the Division Bench as infra: -

"However it would not be justified to commit him to custody straightaway but what the law of propriety would demand is that such person be not deprived of his liberty without providing him an opportunity of hearing by serving him with such show cause notice by the court."

In Pradeep Ram Supreme Court of India while considering a legal proposition that whether in a case where an accused has been bailed out in a criminal case, in which case, subsequently new offences are added, is it necessary that bail earlier granted should be canceled for taking the accused in custody, after an exhaustive deliberation ruled as under: -

"In a case where an accused has already been granted bail, the investigating authority on addition of an offence or offences may not proceed to arrest the accused, but for arresting the accused on such addition of offence or offences it need to obtain an order to arrest the accused from the Court which had granted the bail."

The legal position that emerges from the above discussion is that once an accused person has been granted bail, he cannot be arrested by the investigating agency without seeking cancellation of bail granted by the court of competent jurisdiction by way of filing an application under Section 497(5) of the Code. Rule 26.21(6) of the Rules mandates that any such action must be taken with explicit permission of the Court, ensuring judicial oversight, and safeguarding the rights of the accused.

1. Allowing the police to arrest an accused who has already been granted bail by merely adding new offences to the case, without first seeking the cancellation of the existing bail, would effectively grant law enforcement agencies the unrestricted authority to circumvent judicial orders. This practice, if left unchecked, portends a perilous shift towards a regime where the liberties of individuals are held in abeyance by the caprices of prosecutorial discretion. The jurisprudence surrounding bail is predicated on the presumption of innocence, a cornerstone of criminal law, and serves as a bulwark against the potential for arbitrary detention. To permit law enforcement agencies to nullify this judicial safeguard by the mere expedient of adding charges post hoc is to erode the foundations of our legal system. Such a course of action not only flouts the explicit mandates of the law but also infringes upon the accused's fundamental right to liberty, as enshrined in the Constitution.

2. Moreover, this approach opens Pandora box of legal uncertainties, where the grant of bail could be rendered nugatory by the subsequent prosecutorial maneuvers. It establishes a precedent that could lead to rampant abuse of power, allowing for the detention of individuals ad infinitum, by the simple device of adding new offences against them. The prospect of such unbridled discretion vested in the investigating agency is antithetical to the rule of law and the principles of justice and equity. This practice would not only undermine the sanctity and finality of judicial decisions but also endanger the foundational principles of our legal system that aim to protect individual liberties against arbitrary detention. Such an approach would give law enforcement agencies a de facto license to frustrate judicial orders, enabling them to detain any bailed-out accused at will by the simple expedient of adding new charges.

3. Therefore, it is incumbent upon this Court to staunchly oppose such practices that imperil the liberty of the citizenry and detract from the integrity of the judicial process. The arrest of an individual granted bail by a Court of competent jurisdiction, without first seeking the cancellation of said bail on legitimate grounds, is an affront to the procedural safeguards designed to protect against the misuse of state power. The addition of offences after the grant of bail cannot serve as a carte blanche for investigating agencies to circumvent the due process rights of the accused. This would lead to a dangerous precedent, eroding trust in the judicial process and the principle of fairness that underpins our legal system, ultimately rendering the concept of bail meaningless and jeopardizing the rights of the accused to fair and impartial treatment under the law. The approach advocating for the prosecution's initiation of bail cancellation proceedings upon the addition of new offences offers a balanced mechanism for reassessing an accused's eligibility for bail. By placing the evidentiary burden on the prosecution to justify bail revocation and concurrently allowing the accused an opportunity to defend their continued entitlement to bail, the legal framework honors both the dynamics of criminal litigation and the fundamental rights of individuals. Thus, this Court holds that even if during the interrogation new offences are added or during the trial, additional offences are added in the charge framed against a bailed-out accused, the prosecution has to seek cancellation of his bail before arresting such accused against these newly added offences. This approach will not only reaffirm the supremacy of the judiciary in matters of bail but will also serve as a necessary check on the potential for police overreach, ensuring that the scales of justice remain evenly balanced.

4. The contention of the learned Law Officer is that Rule 26.21 (6) of the Rules only deals with the cases where the accused is released on post-arrest bail under Section 497 of the Code and not with the cases where the accused is admitted to pre-arrest. I am afraid the objection raised by the learned Law Officer is highly misconceived, stemming from a bare and superficial reading of the Rule ibid without grasping its underlying essence and purpose. The argument overlooks the fundamental principles of justice and liberty that the Rule seeks to protect, failing to appreciate its broader applicability in safeguarding the rights of individuals against arbitrary arrest. It is essential to consider beyond the mere text and understand the Rule in the context of its intent to uphold the sanctity of judicial decisions granting bail, ensuring that such decisions are not circumvented without proper legal process. To address the challenge of applying the principle that an accused, once released on bail, cannot be re-arrested without first seeking the cancellation of that bail to cases of pre-arrest bail, it is essential to understand both the historical context and the underlying rationale of the law.

5. The protection provided in Rule 26.21(6) of the Rules, was crafted in a legal environment where only post-arrest bail was recognized. The Constitutional Courts have always been actively engaged in filling legislative gaps and ensuring that the law evolves in response to emerging challenges. It was perhaps for the first time in December 1948 that by interpreting the latter part of Section 498 of the Code in Hidayat Ullah Khan's Case (PLD 1949 Lah. 21 =AIR 1949 Lah. 77), the power vesting in the High Courts and the Courts of Sessions to admit persons to bail before they could be arrested, was authoritatively discovered by a Full Bench of the Lahore High Court. The evolution of the law of pre-arrest bail as a judge-made law post-partition starting from the Hidayat Ullah Khan supra, reflects the legal system's adaptability and its commitment to protect the individual's rights and liberties. This landmark judgment laid the foundation for the legal construct of pre-arrest bail in our country, which has since evolved through the diligent scrutiny and thoughtful adjudications of our Constitutional Courts. The Jurisprudence on pre-arrest bail evolved through a series of judgments by the Superior Courts of Pakistan. These judgments have not only interpreted but also expanded the contours of the law of pre-arrest bail, adapting it to the changing dynamics of criminal law and societal needs.

6. In arguing for the application of the principle expounded in Rule 26.21(6) of the Rules to cases of pre-arrest bail, one must lean on the foundational tenets of justice, liberty, and the Rule of law. The essence is to protect the liberty of an accused who has been deemed eligible for bail, regardless of the bail's temporal stage, before or after his arrest. It stands to reason that its framers would have explicitly extended its protection to pre-arrest bail scenarios, had the concept been legislatively or judicially recognized at that time. The principle of not re-arresting a bailed-out accused without seeking cancellation of bail aligns with the broader legal principles of fairness, predictability, and respect for judicial decisions. Extending this principle to pre-arrest bail cases does not represent a radical departure from established legal norms but rather an affirmation of the law's inherent values. It acknowledges that the rationale preventing arbitrary re-arrest post-bail applies with equal force to those admitted to pre-arrest bail, as both scenarios involve individuals who, in the eyes of the law, should not be detained without compelling, judicially scrutinized reasons.

7. Therefore, applying this principle to pre-arrest bail cases is both a logical extension of existing legal protections and a necessary step to ensure consistency, fairness, and respect for individual liberties across the Criminal Justice System. It underscores the principle that bail, once granted, recognizes an individual's right to freedom and should not be undermined without due process and judicial oversight. This approach strengthens the integrity of the bail system and reaffirms the judiciary's role in safeguarding against the arbitrary exercise of power. This procedural sanctity is not merely perfunctory; it is the cornerstone upon which the edifice of justice rests, ensuring that the liberties of individuals are not trifled with capriciously.

8. Therefore, it is held that the arrest of the accused, in blatant contravention of Rule 26.21(6) of the Police Rules, 1934, and the principles enshrined within our legal edifice, is both untenable and impermissible. The essence of justice demands that once a Court has granted bail, pre-arrest or post-arrest, considering the gamut of facts and allegations, such a decision must be respected and cannot be superseded by subsequent police action without first seeking judicial recourse for the cancellation of said bail. To uphold otherwise would be to sanction a travesty of justice, undermining both the authority of the judiciary and the rights of the accused. It is upon these grounds that the sanctity of bail, granted after due deliberation of all pertinent facts, must remain inviolable, thereby reinforcing the paramountcy of the judiciary in the preservation of justice and the rule of law.

2024 P Cr. L J 1579

[Lahore]

Before Farooq Haider, J

Muhammad Hanif Tayyab and another---Appellants

Versus

Insha Ullah and others---Respondents

Criminal Appeals Nos. 10214 and 12109 of 2022, decided on 15th March, 2024.

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

----S.7 (1)(ff)---Explosive Substances Act (VI of 1908), S.4---Terrorism and recovery of explosive substance---Appreciation of evidence---Chain of safe custody of recovered case property and sample not established---Accused was convicted and sentenced for life imprisonment by Trial Court---Validity---Safe custody of allegedly recovered case property and parcel of sample was to be proved, otherwise conviction was not possible--- Recovery of explosive substance was not a mere corroborative piece of evidence rather it constituted an offence itself and entailed punishment--- Prosecution failed to prove safe custody of two parcels of samples containing defused hand grenade and detonating assembly (allegedly recovered from the possession of accused)--- High Court set aside conviction and sentence awarded to accused as conclusiveness and reliability of such report of Bomb Disposal Technician was vitiated and was not capable of sustaining conviction--- Appeal was allowed in circumstances.

The State through Regional Director ANF v. Imam Bakhsh 2018 SCMR 2039; Abdul Ghani and others v. The State and others 2019 SCMR 608; Qaiser Khan v. The State through Advocate-General, Khyber Pakhtunkhwa, Peshawar 2021 SCMR 363; Gulzar v. The State 2021 SCMR 380; Mst. Sakina Ramzan v. The State 2021 SCMR 451; Zubair Khan v. The State 2021 SCMR 492; Muhammad Shoaib and another v. The State 2022 SCMR 1006 and Subhanullah v. The State 2022 SCMR 1052 rel.

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

----S.7 (1) (ff)--- Explosive Substances Act (VI of 1908), S.4---Criminal Procedure Code (V of 1898), S. 340 (2)--- Terrorism and recovery of explosive substance---Appreciation of evidence---Evidence on oath, not given---Defence plea---Not proved--- Accused was convicted and sentenced for imprisonment for life by Trial Court---Validity---Improvised Explosive Device (I.E.D.) containing explosive was found from the possession of accused who was resident of city "K", and he came to city "L" having that explosive in his possession---Such possession of explosive reflected that it was for endangering life or causing serious injury to property---Offences of having possession of explosive substance without lawful justification was proved against accused---Although non-appearance of accused under S.340 (2) Cr.P.C. for disproving allegation levelled against him did not create any inference against him, yet when he had taken plea of false implication and his abduction as well as detention for a long period, then regarding the same, he himself was the best witness to prove his version by appearing so and his non-appearance amounted to withholding the best evidence---High Court maintained conviction of accused but reduced sentence of imprisonment for life to 14 years---Appeal was dismissed accordingly.

Naseer Ahmad v. The State 2004 SCMR 1361; Tariq Mehmood v. The State through Deputy Attorney General, Peshawar PLD 2009 SC 39 and Ajab Khan v. The State 2022 SCMR 317 ref.

Somaid and another v. Ali Gohar alias Gohar Zaman and others 2019 SCMR 1008 rel.

Rana Maqsood-ul-Haq, Arif Mehmood Rana, Muhammad Tayyab and Adil Riaz for Appellant (in Criminal Appeal No. 10214 of 2022).

Asif Javed Qureshi and Fahad Javaid Qureshi for Appellant (in Criminal Appeal No. 12109 of 2022).

Rana Ahsan Aziz, Additional Prosecutor General along with Kamran Ghulam Nabi ASI, CTD, Lahore for the State.

Date of hearing: 12th March, 2024.

Judgment

Farooq Haider, J.---This single judgment will dispose of Crl. Appeal No.10214/2022 filed by Muhammad Hanif Tayyab (appellant) against his "convictions amd sentences" and Crl. Appeal No.12109/2022 filed by Mohib Ullah (appellant) against his "convictions & sentences", as both the matters have arisen out of one and the same judgment dated: 08.02.2022 passed by learned Judge Anti-Terrorism Court-I, Lahore/trial court.

1. Muhammad Hanif Tayyab and Mohib Ullah (appellants) were tried in case arising out of FIR No.07/2021 dated: 04.04.2021 registered under Sections: 4, 5 of the Explosive Substances Act, 1908, Section: 13-2 (a) of the Arms Ordinance, 1965 and Section: 7 of the Anti-Terrorism Act, 1997 at Police Station: C.T.D., District: Lahore and the trial court vide impugned judgment dated: 08.02.2022 has convicted and sentenced the appellants as under: -

MUHAMMAD HANIF TAYYAB

| | | | --- | --- | | Convictions | Sentences | | (i) Under Section: 4 of the Explosive Substances Act, 1908 | Under Section: 4 of the Explosive Substances Act, 1908 to undergo "Life Imprisonment". | | ii) Under Section: 7-1 (ff) of the Anti-Terrorism Act, 1997. | Under Section: 7-1 (ff) of the Anti-Terrorism Act, 1997 to undergo "Life Imprisonment". |

MOHIB ULLAH

| | | | --- | --- | | Convictions | Sentences | | i) Under Section: 4 of the Explosive Substances Act, 1908. | Under Section: 4 of the Explosive Substances Act, 1908 to undergo "Life Imprisonment". | | ii) Under Section: 7-1 (ff) of the Anti-Terrorism Act, 1997. | Under Section: 7-1 (ff) of the Anti-Terrorism Act, 1997 to undergo "Life Imprisonment". | | Under Section: 13 of the Arms Ordinance, 1965, | Under Section: 13-2 (a) of the Arms Ordinance, 1965, for having un-licensed weapon in possession to undergo "3-years' R.I." along with fine of Rs.50,000/- and in default thereof to further undergo 3-month's Simple Imprisonment. |

All the sentences awarded to the convicts/appellants were ordered to run concurrently and benefit of Section: 382-B Cr.P.C. was also extended to them.

1. Briefly, case of prosecution as per written statement/ (Ex.PB/1) sent by Insha Ullah Kahloon 517/Corporal (complainant/PW-4) is that on 04.04.2021 at about 05:20 p.m. (evening), complainant along with Muhammad Aleem 744/CP, Syed Asif Shah 4930/CP, Adeel Anwaar 293/CP, Majid Humayon 471/CP, Hafiz Muhammad Arslan 507/CP armed with official pistols Berreta while riding on official vehicle driven by Mubeen Ali 332/C was present at Gulshan Ravi, Double Sarak, Lahore for searching members of proscribed organizations where an information was provided by the informer that two suspect persons are present at Vacant Plot, Printing Corporation Pakistan Press, Band Road, Lahore, they are also having explosive substance with them and want to target the religious places of minorities, if a raid is conducted, they could be apprehended along with explosive substance and loss of human lives as well as properties could be avoided; while considering such information of the informer as credible, after constituting raiding party consisting of complainant and companions, a raid was conducted at the pointed place at 05:30 p.m. and on the pointing out of the informer, two persons were found present there, who started running after seeing raiding party but they were apprehended with the help of companions, who disclosed their names as Mohib Ullah and Muhammad Hanif Tayyab; upon personal search of Mohib Ullah, on checking the black coloured bag carried in his right hand, white coloured Shalwar Kameez and an I.E.D. made in a plastic bottle were recovered; I.E.D. was kept at a safe distance under the supervision of Hafiz Muhammad Arsalan 507/CP and staff of Bomb Disposal Squad was informed; on his further search, a pistol .30 bore kept in the right side of Nefa of wearing Shalwar () was also recovered; on unloading said pistol, six live bullets whereas from the right lateral pocket of wearing shirt (), cash Rs,1700/-, original C.N.I.C. and a match box were also recovered; on personal search of Muhammad Hanif Tayyab, on checking a black coloured bag, which was hanging on his shoulder, a white coloured Shalwar Kameez and a hand grenade, which was also kept at a safe distance under the supervision of Hafiz Muhammad Arsalan 507/CP, were recovered; on his further personal search, from the right lateral pocket of wearing shirt (), cash Rs.1400/-, C.N.I.C. of Muhammad Tayyab Hanif were recovered; after reaching at the place of occurrence, staff of Bomb Disposal Squad defused the hand grenade as well as I.E.D., separated two grams explosive from I.E.D. as well as 1-inch from safety fuse and 1-inch from Prima Cord from I.E.D. as sample and after putting the same in packet of white paper, handed over to the complainant; recovered I.E.D. plastic bottle, explosive substance, safety fuse, Prima-Cord, ball bearing, non-electric detonator, samples of explosive substance, hand grenade, defused detonating assembly, bags along with Shalwar Kameez and other articles were wrapped in separate polythene bags, sealed into separate parcels with evidence tape and took into possession vide recovery memos (Ex.PD, Ex.PE), which were attested by Hafiz Arsalan 507/CP and Syed Asif Shah 4930/CP.

On the basis of above said written statement (Ex.PB/1), case vide FIR No.07/2021, dated: 04.04.2021 (Ex.PB) was registered under Sections: 4, 5 of the Explosive Substances Act, 1908, Section: 13-2 (a) of the Arms Ordinance, 1965 and Section: 7 of the Anti-Terrorism Act, 1997 at Police Station: CTD, District: Lahore.

On the conclusion of investigation, report under Section: 173 Cr.P.C. was sent to Court, charge was framed against the appellants under Section: 4 of the Explosive Substances Act, 1908, Section: 13-2 (a) of the Pakistan Arms Ordinance, 1965 and Section: 7-1(ff) of the Anti-Terrorism Act, 1997, to which they pleaded not guilty and claimed trial.

Prosecution got examined seven witnesses and while producing tool marks examination report (Ex.PH), closed its evidence. Then statements of the accused persons/appellants were recorded under Section: 342 Cr.P.C. in which they refuted the allegations levelled against them; they did not record their statements under Section: 340 (2) Cr.P.C. however, produced Muhammad Tufail as DW-1; Syed Arslan Bukhari, Executive Govt. Relations and Regulatory Affairs of Ufone (DW-2); Ghulam Dastagir 215/HC (DW-3); Akhtar Hussain, Senior Executive Officer ZONG (DW-4), Muhammad Sabir, Officer Grade-2, United Bank, Lahore as (DW-5) as well as documentary evidence i.e. Ex.DA to Ex.DJ, in their defence. Trial Court after conclusion of the trial vide impugned judgment dated: 08.02.2022 has convicted and sentenced the appellants as mentioned above.

1. Learned counsel for the appellants submit in unison that convictions recorded and sentences awarded to the appellants through impugned judgment are against the "law and facts" of the case; also add that ingredients found in samples as per report of Punjab Forensic Science Agency, Lahore (Ex.PG) cannot be considered as explosive; further submit that impugned judgment is result of misreading and non-reading of evidence therefore same is liable to be set-aside. Finally submit that no consent for trial has been produced during trial and request for acceptance of appeals filed by the appellants as well as their acquittal.

2. Learned Additional Prosecutor General while controverting the submissions of learned counsel for the appellants has supported the impugned judgment of the trial court by contending that the appellants were rightly convicted and sentenced. Lastly contends that there is no substance in the appeals and same are liable to be dismissed.

3. Arguments heard. Record perused.

4. So far as contention of learned counsel regarding non-production of consent or sanction of the Government/Authority for trial is concerned, it is relevant to mention here that request bearing No.2661/Reader(Inv)/RO/CTD/ LHR, dated: 06.05.2021 for "Approval regarding trial of the case" under Section: 7 of the Explosive Substances Act, 1908 was made to Government of the Punjab and relevant portion of the same is hereby scanned below: -

Report under Section: 173 Cr.P.C. (Challan) in the case was prepared on 10.04.2021 and received in the court on 19.05.2021. Section: 7 of the Explosive Substances Act, 1908 is hereby reproduced below: -

"7. Restriction on trial of offences. No Court shall proceed to the trial of any person for an offence against this Act except with the consent of the Provincial Government [or an officer authorized in this behalf by the Provincial Government] 2[to which intimation shall be sent within two days of the registration of the case] 3[:]]

4[Provided that if the consent is neither received nor refused within sixty days of the registration of case by the Government such consent shall be deemed to have been duly given.]

5Punjab Amendment: In Section 7, for the full stop at the end, a colon shall be substituted and thereafter the following Proviso shall be added:

"Provided that the consent to proceed to the trial of an offence under Section 3 or Section 4 of the Act, shall be deemed to have been given if the Provincial Government does not convey its decision to the Court within sixty days of the report forwarded to it under Section 173 of the Code of Criminal Procedure, 1898 (V of 1898)."

Similarly, Section: 19 (8b) of the Anti-Terrorism Act, 1997, being relevant, is also reproduced as under: -

"(8b) Notwithstanding anything contained in section 7 of the Explosive Substances Act, 1908 (VI of 1908), or any other law for the time being in force, if the consent or sanction of the appropriate authority, where required, is not received within thirty days of the submission of challan in the Court, the same shall be deemed to have been given or accorded and the Court shall proceed with the trial of the case.]"

Therefore, non-production of sanction/consent of Government for trial is not fatal and same i.e. sanction/consent would be deemed as has been given/ accorded. Hence, afore-mentioned contention of learned counsel in this regard is without any force thus repelled.

It has been noticed that as per case of prosecution, mentioned in aforementioned written statement/ (Ex.PB/1), on spy information, a raiding team was constituted, raid was conducted, present appellants were apprehended red handed from the spot and from the possession of Mohib Ullah (appellant in Crl. Appeal No.12109/2022), a black coloured bag, white coloured Shalwar Kameez, an I.E.D. made in a plastic bottle, a pistol .30 bore, cash Rs,1700/-, his original C.N.I.C. and a match box were recovered whereas from the possession of Muhammad Hanif Tayyab (appellant in Crl. Appeal No.10214/2022), a black coloured bag, white coloured Shalwar Kameez, a hand grenade, cash Rs.1400/- and his C.N.I.C. were recovered. Undeniably, aforementioned articles were recovered from the appellants on 04.04.2021 at about 05.30 p.m. (evening) within the area of Vacant Plot, Printing Corporation Pakistan Press, Band Road, Lahore, I.E.D. and hand grenade were kept at a safe distance under the supervision of Hafiz Muhammad Arsalan 507/CP and staff of Bomb Disposal Squad was informed, upon which, Riaz Ahmad, Bomb Disposal Technician (PW-1) reached at the place of occurrence, defused hand grenade and I.E.D., separated two grams explosive from I.E.D., one inch from safety fuse wire and one inch from prima-cord, sealed the same into parcel and handed over the same to Inshallah 517/CPL (complainant/PW-4), who took all aforementioned samples along with articles vide recovery memo Ex.PD and Ex.PE, respectively; then he drafted the complaint (Ex.PB/1) at 06:50 p.m. on 04.04.2021 and sent the same for chalking out the FIR through Muhammad Aleem/CP and in the light of the same, First Information Report (FIR/Ex.PB) was recorded on 04.04.2021 at 07:45 p.m. (evening) at Police Station: C.T.D., Lahore, which is at a distance of 33/34 kilometers from the place of occurrence as per Column No.4 of the FIR; hence, in the "peculiar facts and circumstances" (mentioned above), case has been got registered without unnecessary/unexplained delay.

It has been straightaway observed by us that Muhammad Khalid, Inspector (Investigating Officer/PW-6) reached at the place of occurrence, where complainant handed over all above case properties, police papers and accused persons to him; in this regard, relevant portion of statement of complainant (PW-4) is reproduced as under: -

"At about 09:00 P.M. Investigating Officer reached at the place of occurrence I handed over all the above case properties, police papers and accused persons to him and Investigating Officer inspected the place occurrence in my presence."

Similarly, Muhammad Khalid, Inspector (Investigating Officer) while appearing before the Court as PW-6 stated about handing over case property to Moharir (PW-2) as under: -

"I handed over case property to Moharrar and recorded his statement under section 161 Cr.P.C. and locked the accused to police lock up."

Likewise, Muhammad Irshad, A.S.I. (Moharir/PW-2) deposed before the court that Investigating Officer of the case handed over to him four parcels pertaining to accused Muhammad Hanif Tayyab which were sealed through evidence tape and eight parcels pertaining to accused Mohib Ullah which were also sealed through evidence tape, for keeping the same in safe custody and their onward transmission to the offices of Bomb Disposal Squad and Punjab Forensic Science Agency respectively; in this regard, relevant portion of statement of the Moharir (PW-2) is hereby reproduced as under: -

"On the same day, Khalid Inspector, the Investigating Officer of the case handed over to me four parcels pertaining to accused Muhammad Hanif Tayyab which were sealed through evidence tape and eight parcels pertaining to accused Mohib Ullah which were also sealed through evidence tape, for keeping the same in safe custody and their onward transmission to the offices of Bomb Disposal Squad and Punjab Forensic Science Agency respectively."

Muhammad Irshad, A.S.I. (Moharir/PW-2) also deposed that on 06.04.2021, he handed over two parcels consisting upon defused hand grenade and detonating assembly which were allegedly recovered from accused Muhammad Hanif Tayyab to Majid Hamayon 471/CPL (PW-3) for their dispatch to the office of Bomb Disposal Squad; in this regard, relevant portions of his statement are reproduced below: -

"On 6.4.2021 I handed over two parcels consisting upon defused hand grenade and detonating assembly which were allegedly recovered from accused Hanif Tayyab to Majid Hamayon/CPL for their dispatch to the office of Bomb Disposal Squad."

"Majid Humayon/CPL maintained that due to lapse of time the parcel which were entrusted to him were not deposited in the office of Bomb Disposal Squad and he returned the above said parcels to me on the same day and I kept the same intact.

On 07.4.2021 I again handed over two parcels consisting upon hand grenade and detonating assembly to Majid Humayon/CPL for their onward transmission to the office of Bomb Disposal Squad. So long parcels remained in my custody I did not tamper the same."

whereas Majid Humayon 471/CPL (PW-3) while appearing before the court categorically deposed that on 06.04.2021, he was posted at Police Station: CTD, Lahore; on the same day, Muhammad Irshad Moharrar Police Station: CTD handed over to him two parcels said to contain defused hand grenade and detonating assembly for their onward transmission to the office of Bomb Disposal Squad; further stated that said parcels could not be deposited in the concerned office because of lapse of time; further deposed that he returned back above said two parcels intact to the Moharir and on 07.04.2021, Moharir again handed over to him above said two parcels for their onward transmission to the office of Bomb Disposal Squad which he deposited in above said office, intact on the same day. In this regard, relevant portion of statement of Majid Humayon 471/CPL (PW-3) is reproduced as under: -

"On 06.04.2021 I was posted at Police Station: CTD, Lahore. On the same day, Muhammad Irshad Moharrar Police Station CTD handed over to him two parcels said to contain defused hand grenade and detonating assembly for their onward transmission to the office of Bomb Disposal Squad. Said parcels could not be deposited in the concerned office because lapse of time. I returned back above said two parcels intact to the Moharir. On 07.04.2021, Muhammad Irshad Moharrar, ASI again handed over to me above said two parcels for their onward transmission to the office of Bomb Disposal Squad which he deposited in above said office, intact on the same day."

(emphasis added)

whereas Riaz Ahmad, Bomb Disposal Technician while appearing before the Court as PW-1 clearly stated that said two sealed parcels brought by Majid Humayon Corporal were received on 06.04.2021 along with a letter dated: 04.04.2021 issued by Regional Officer, CTD, Lahore; in this regard, relevant portions of his statement are reproduced as under: -

"A letter, dated 4.4.2021 issued by Regional Officer CTD, Lahore received on 6.4.2021 along with two sealed parcels brought by Majid Humayon Corporal. One sealed parcel said to contain defused grenade and one sealed parcel said to contain detonating assembly of hand grenade. I examined both said sealed parcels and issued report EX.PA which bears my signature."

(emphasis added)

"I have not received any parcel relating to instant case except 6.4.2021."

(emphasis added)

Relevant portion of the report (Ex.PA) is scanned below: -

Received two (02) sealed parcel on 06-04-2021 from Corporal Majid Hamayuan No. 471/CPL CTD, Lahore for analysis vide letter under reference. The detail is as under:-

1. A Parcel having one hand grenade (diffused).

2. A Parcel having one detonating assembly of hand grenade.

Now it is crystal clear that two parcels said to contain defused hand grenade and detonating assembly were deposited by Majid Humayon 471/CPL (PW-3) on 07.04.2021 but Riaz Ahmad (PW-1) issued report Ex.PA qua parcels which were deposited on 06.04.2021 and not on 07.04.2021. Therefore, safe custody as well as transmission of two parcels said to contain defused grenade and detonating assembly from police station to the office of Bomb Disposal Squad, has not been proved in this case. Now law is well settled on the point that unbroken chain of "safe custody of allegedly recovered case property and parcel of sample" is to be proved otherwise, conviction is not possible and it is rightly so because recovery of explosive substance is not a mere corroboratory piece of evidence rather it constitutes the offence itself and entails punishment. Guidance in this regard has been sought from the case of "The State through Regional Director ANF v. Imam Bakhsh" (2018 SCMR 2039); relevant portion whereof is being reproduced below: -

"Chain of Custody - Safe custody and safe transmission

1. We have noted above that in Criminal Appeals Nos.523 to 525/2017 and No.22/2018, safe custody and safe transmission of the alleged drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory are not satisfactorily established. The chain of custody begins with the recovery of the seized drug by the Police and includes the separation of the representative sample(s) of the seized drug and their dispatch to the Narcotics Testing Laboratory. This chain of custody, is pivotal, as the entire construct of the Act and the Rules rests on the Report of the Government Analyst, which in turn rests on the process of sampling and its safe and secure custody and transmission to the laboratory. The prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure. Any break in the chain of custody or lapse in the control of possession of the sample, will cast doubts on the safe custody and safe transmission of the sample(s) and will impair and vitiate the conclusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction. This Court has already held in Amjad Ali v. State (2012 SCMR 577) and Ikramullah v. State (2015 SCMR 1002) that where safe custody or safe transmission of the alleged drug is not established, the Report of the Government Analyst becomes doubtful and unreliable.

20.

The representative samples of the alleged drug must be in safe custody and undergo safe transmission from the stage of recovery till it is received at the Narcotics Testing Laboratory"

(emphasis added)

In this regard, guidance has also been sought from the case of "Abdul Ghani and others v. The State and others" (2019 SCMR 608); relevant portion whereof is being reproduced:-

"There is hardly any occasion for discussing the merits of the case against the appellants because the record of the case shows that safe custody of the recovered substance as well as safe transmission of samples of the recovered substance to the office of the Chemical Examiner had not been established by the prosecution in this case. Nisar Ahmed, S.I./SHO complainant (PW1) had stated before the trial court that he had deposited the recovered substance at the Malkhana of the local Police Station but admittedly the Moharrir of the said Police Station had not been produced before the trial court to depose about safe custody of the recovered substance. It is also not denied that Ali Sher, H.C. who had delivered the samples of the recovered substance at the office of the Chemical Examiner had also not been produced during the trial so as to confirm safe transmission of the samples of the recovered substance. It has already been clarified by this Court in the cases of The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039), Ikramullah and others v. The State (2015 SCMR 1002) and Amjad Ali v. The State (2012 SCMR 577) that in a case where safe custody of the recovered substance or safe transmission of samples of the recovered substance is not proved by the prosecution through independent evidence there it cannot be concluded that the prosecution had succeeded in establishing its case against the appellants beyond reasonable doubt. The case in hand suffers from the same legal defects. This appeal is, therefore, allowed, the convictions and sentences of the appellants recorded and upheld by the courts below are set aside and they are acquitted of the charge by extending the benefit of doubt to them. They shall be released from the jail forthwith if not required to be detained in connection with any other case."

(emphasis added)

Further guidance has also been sought from the cases of "Qaiser Khan v. The State through Advocate-General, Khyber Pakhtunkhwa, Peshawar" (2021 S C M R 363), "Gulzar v. The State" (2021 SCMR 380), "Mst. Sakina Ramzan v. The State" (2021 SCMR 451), "Zubair Khan v. The State" (2021 SCMR 492), "Muhammad Shoaib and another v. The State" (2022 SCMR 1006) and "Subhanullah v. the State" (2022 SCMR 1052).

Since safe custody of two parcels of samples said to contain defused hand grenade and detonating assembly (allegedly recovered from the possession of Muhammad Hanif Tayyab) has not been proved, therefore, conclusiveness and reliability of the report of Bomb Disposal Technician (Ex.PA) has been vitiated and said report is not capable of sustaining conviction to the extent of Muhammad Hanif Tayyab (appellant in Crl. Appeal No.10214/2022); hence, now there is no need to discuss other merits of the case to his extent. Resultantly, prosecution has been failed to prove its case against Muhammad Hanif Tayyab (appellant) beyond shadow of doubt, thus, there is no need to discuss his defence version. Therefore, Crl. Appeal No.10214/2022 filed by Muhammad Hanif Tayyab is allowed/accepted, convictions recorded and sentences awarded to him through impugned judgment dated: 08.02.2022 passed in case arising out of FIR No.07/2021 dated: 04.04.2021 registered under Sections: 4, 5 of the Explosive Substances Act, 1908, Section: 13-2 (a) of the Arms Ordinance, 1965 and Section: 7 of the Anti-Terrorism Act, 1997 at Police Station: C.T.D., District: Lahore, are hereby set aside; he is acquitted of the charge and will be released from jail forthwith if not required in any other case.

1. Now coming to the case of Mohib Ullah (appellant in Crl. Appeal No.12109/2022, hereinafter to be referred as "appellant"), in order to prove aforementioned recovery of I.E.D. (P-3) and pistol .30 bore (P-4), taken into possession vide recovery memo (Ex.PD), prosecution produced Inshallah Kahloon 517/CP (complainant/PW-4) and Syed Asif Shah 493/CP (PW-3), who categorically deposed and supported case of the prosecution against the appellant through their statements recorded during trial of the case, their testimony remained un-shattered in spite of searching cross-examination and its credibility could not be shaken; any enmity or animosity of said witnesses against the appellant also could not come on record. Needless to observe that police officials are as good witnesses unless it has been proved that they are having ill will or animosity against the accused/convict; in this regard, reliance is placed upon the case of "Naseer Ahmad v. The State" (2004 SCMR 1361), "Tariq Mehmood v. The State through Deputy Attorney General, Peshawar" (PLD 2009 SC 39) and "Ajab Khan v. The State" (2022 SCMR 317). Therefore, recovery of aforementioned articles from possession of the appellant has been proved by the prosecution.

Admittedly, Bomb Disposal Squad is meant to defuse explosive substances like grenade, bomb, detonators, suicide jacket, I.E.D. etc. and make the recovered explosive substance "safe"; on 04.04.2021, on call of Inshallah 517/CP (complainant/PW-4), Riaz Ahmad, Bomb Disposal Technician (PW-1) reached at the place of occurrence, defused one grenade, one I.E.D. and after defusing both said articles as well as separating the sample and sealing, handed over the same to the complainant (PW-4), who took the same along with other articles into possession vide recovery memo (Ex.PD) and when the Investigating Officer i.e. Muhammad Khalid, Inspector (PW-6) came at the spot, he handed over all above case properties along with police papers and accused persons to him; thereafter, Investigating Officer (PW-6) handed over parcels pertaining to Mohib Ullah (appellant) for keeping the same in safe custody to Muhammad Irshad, A.S.I. (Moharir/PW-2); subsequently, four parcels consisting of pistol .30 bore along with six live bullets, sample of explosive, safety fuse and prima-cord were handed by the Moharir (PW-2) to Syed Asif Shah 493/CP (PW-5), who deposited three parcels in the office of Punjab Forensic Science Agency, Lahore whereas returned fourth parcel pertaining to pistol to the Moharir after analysis by said laboratory; in this regard, relevant portion of statement of PW-2 is reproduced below: -

"Four parcels consisting upon pistol 30 bore alongwith six live bullets, sample of explosive, safety fuse and prima cord were handed over to Asif Shah/CPL for their dispatch to the office of Punjab Forensic Science Agency. Asif Shah deposited three parcels in the office of Punjab Forensic Science Agency and 4th parcel qua pistol was returned to me after analysis. So long said parcels remained in my custody I did not tamper the same."

Similarly, Syed Asif Shah 493/CP (PW-5) also deposed about receiving of four parcels from the Moharir on 06.04.2021 and thereafter depositing the same in the office of Punjab Forensic Science Agency, Lahore; in this regard, relevant portion of his statement is reproduced as under: -

"On 06.4.2021, Muhammad Irshad Moharrar handed over to me four sealed parcels, one sealed parcel said to contain samples two grams explosive, one sealed parcel said to contain sample of one inch prima cord, one sealed parcel said to contain sample one inch safety fuse and one sealed parcel said to contain pistol 30-bore along with magazine and six live bullets for its onward transmission to the office of Punjab Forensic Science Agency. I deposited the same in the office of Punjab Forensic Science Agency. One parcel containing pistol 30-bore and bullets were returned by the Punjab Forensic Science Agency after its examination. I returned the same to Muhammad Irshad A.S.I."

For proving safe custody of aforementioned explosive i.e. I.E.D. (P-3), samples and pistol .30 bore (P-4) as well as safe transmission of samples and pistol to the office of Punjab Forensic Science Agency, Lahore, aforementioned prosecution witnesses i.e. Inshallah Kahloon 517/CP (complainant/PW-4), Syed Asif Shah 493/CP (PW-5), Muhammad Khalid, Inspector (Investigating Officer/PW-6); Muhammad Irshad, A.S.I. (Moharir/PW-2) and Muhammad Fayyaz, Junior Forensic Scientist (PW-7) categorically deposed about aforesaid facts in their testimony in the court and their evidence remained un-shattered as discussed above; therefore, safe custody of aforementioned explosive and pistol .30 bore as well as safe transmission of samples and pistol to the office of Punjab Forensic Science Agency, Lahore, intact has been proved beyond shadow of doubt.

As per report of Punjab Forensic Science Agency, Lahore (Ex.PG), Dynamite was identified in 02-grams explosive taken out from I.E.D. i.e. Item 1, which is an explosive, Pentaerythritol Tetranitrate (PETN) was identified in Prima-Cord i.e. Item 2, which is also an explosive whereas Black Powder (mixture of Potassium Nitrate, Sulfur and Carbon) was identified in Safety Fuse i.e. Item 3, which is also an explosive; for ready reference, relevant portion from Results and Conclusion of said report is scanned below: -

So far as contention of learned counsel for the appellant that Potassium Nitrate, Sulfur and Carbon are not themselves explosive is concerned, it is relevant to mention here that first of all we have to define element, mixture and compound.

(i) Element is the simplest substance that cannot be broken down by any chemical method.

(ii) Mixture is made from two or more substances physically combined together.

(iii) Compound is made of two or more elements chemically combined together.

Dynamite is explosive; similarly, Pentaerythritol Tetranitrate (PETN) is also explosive; Black Powder is a mixture of Potassium Nitrate, Sulfur and Carbon, which is also an explosive because Potassium Nitrate (KNO3), Sulfur and Carbon reacting together form Nitrogen and Carbon Dioxide gases, heat energy, and Potassium Sulfide. The heat causes the gases to expand rapidly producing an explosive force, providing the propelling action. It goes without saying that element as alone has certain properties but after combining with other elements in mixture or compound, can have different properties e.g. Hydrogen is flammable but when it combines with oxygen then result is Water (H2O) which consists of two elements i.e. hydrogen and oxygen but water has entirely different properties. Hence, this contention of learned counsel for the appellant is not holding the water.

Prosecution has proved that aforementioned I.E.D (P-3) containing explosive was found from the possession of the appellant, who (appellant) is resident of Kohat, came to Lahore having said explosive in possession which clearly reflects that it was for endangering the life or causing serious injury to property; hence, recovery of aforementioned explosive substance as defined under Explosive Substances Act, 1908 from the appellant has been proved.

Similarly, having possession of "explosive substance" without any lawful justification as mentioned under Section: 6 (ee) of the Anti-Terrorism Act, 1997 and punishable under Section: 7 (ff) of the Act (ibid) has also been proved against the appellant.

Recovery of pistol (P-4) with magazine and 6-bullets (P-5/1-6) from the appellant (Mohib Ullah) has also been proved and as per report of Punjab Forensic Science Agency, Lahore (Ex.PH), said pistol was found in mechanical operating condition.

1. Now adverting to the defence version, during statement recorded under Section: 342 Cr.P.C. in reply to Question No.6 that "Why this case is registered against you and why the PWs have deposed against you?", appellant stated as under: -

MOHIB ULLAH

"On 21.5.2018 I alongwith my real brother Aman Ullah was going towards Islamabad Airport and when at about 4.30 A.M. we reached near Railway Crossing Fateh Jang, Rawalpindi Road, two Vigo Dalas/vehicles stopped us and some persons in plain as well as in black dresses came out from those vehicles and apprehended me and took away in their vehicles. My brother got registered a rapt No.5, dated 26.6.2018 at police post Fateh Jang, District Attock. I was interrogated traditionally by different agencies but nothing was found against him. I and my family is patriot as any other citizens of Pakistan. I was never involved in any anti-state or anti-social activities. I was interrogated and investigated thoroughly and then involved in the present case falsely. There is no evidence with the prosecution to have any connection with my co-accused. My co-accused was also apprehended much prior to the registration of instant case. I can give oath on Holy Quran that nothing was taken into possession from my custody by CTD Authorities."

Defence version is mere a bald denial; it is relevant to mention here that when the appellant took plea that a rapt bearing No.5 dated: 25.06.2018 (Ex.DE) was got registered by his brother namely Aman Ullah at Police Post: City Fateh Jang, District: Attock regarding his (appellant's) taking away by some persons wearing plain black dresses in their vehicle and furthermore that he has been falsely implicated in this case, then he was himself the best witness to depose entire detail that who took him, where he was kept in illegal detention for such long period of 2-years and 10-months (approximately) as said rapt was got recorded in the year 2018 whereas this FIR was registered in 2021 and of course law provided a chance to him in this regard through Section: 340(2) Cr.P.C. while appearing as his own witness in support of his version but he neither opt so nor any material was produced to show that whether aforementioned rapt was converted into separate FIR, whether it was investigated and what was its final result/fate. Although, non-appearance of accused under Section: 340(2) Cr.P.C. for disproving allegation levelled against him, does not create any inference against him yet when he has taken plea of false implication and his abduction as well as detention for a long period, then regarding the same, he is the best witness to prove his said version by appearing so and his non-appearance amounts to withhold the best evidence. Though Ghulam Dastagir 215/HC while appearing before the court as DW-3 produced aforementioned rapt (Ex.DE) yet it is relevant to mention here that he is not scribe of said rapt rather Aman Ullah (brother of the appellant) got recorded the same through application and Akhlaq Ahmad A.S.I./Duty Officer of Police Post: City Fateh Jang was scribe of said rapt but neither Aman Ullah (mentioned above) nor scribe of said rapt i.e. Akhlaq Ahmad A.S.I. was produced to prove contents of said rapt; merely producing/getting exhibited document in the court and proving the same are not one and the same thing rather different phenomena; therefore, same cannot be relied upon; in this regard, guidance has been sought from the case of "Somaid and another v. Ali Gohar alias Gohar Zaman and others" (2019 SCMR 1008); relevant portion of said case law is reproduced as under: -

2024 P Cr. L J 1623

[Lahore]

Before Aalia Neelum, J

Sana Ullah----Appellant

Versus

The State ----Respondent

Criminal Appeal No. 78000-J and Criminal Revision No. 69601 of 2019, decided on 19th February, 2024.

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

----Ss. 302(b), 449 & 34---Qatl-i-amd, house trespass, common intention----Appreciation of evidence---Time of death of deceased not proved---Effect---Accused were charged for committing murder of the paternal niece of complainant by firing---Death certificate of deceased was silent about the time when deceased was brought in expired condition in the Hospital and when death certificate was issued---On perusal of the inquest report, it was revealed that in column No.3, the time and date of receiving information was mentioned as "17.10.2016 at 10:00 a.m.---Prosecution's version was that the FIR was lodged at 2.30 p.m.---If it was so, it was required to be explained by the Investigating Officer, by plausible evidence on record, as to how the inquest was undertaken at 10:00 a.m., a point in time when the FIR was not in existence---Such circumstance raised doubt about the time of occurrence and death as claimed by the prosecution in the inquest report---In column No. 3 of inquest report time and date of receiving information about death was mentioned as 10:00 a.m. by the Investigating Officer, whereas, as per prosecution version deceased received injuries at 10:00 a.m., whereas incident was reported after the death of deceased at 02:20 p.m. on 17.10.2016 in the Hospital---Said fact created doubt about the time of the incident and the time of death of deceased---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 449 & 34---Qatl-i-amd, house trespass, common intention----Appreciation of evidence---Time of lodging FIR doubtful---Accused were charged for committing murder of the paternal niece of complainant by firing---Woman Medical Officer, who conducted postmortem examination of the deceased, opined that the duration between the injuries and death was 1 to 2 hours and between death and postmortem was 6 to 10 hours---Said witness further stated in her court statement that the dead body was received in the dead house at 03:00 p.m. on 17.10.2016 and complete documents were produced before her at 07:00 p.m. and she conducted the autopsy at 07:30 p.m. on 17.10.2016, which was also revealed from the postmortem report---No plausible explanation had been furnished as to why the postmortem of the dead body was delayed for five (05) hours from the time of registration of the case and four (04) hours thirty (30) minutes from the time of receiving the dead body in the mortuary for post mortem examination---No doubt, delay in postmortem alone was not fatal to the prosecution case, but when considered with the other evidence available on the record along with post mortem report, it left the impression that there had been some wrangling about the time of registration of criminal case---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 449 & 34---Qatl-i-amd, house trespass, common intention----Appreciation of evidence---Presence of eye-witnesses at the time and place of occurrence doubtful---Accused were charged for committing murder of the paternal niece of complainant by firing---Woman Medical Officer had observed about the deceased's eyes as "eyes semi opened."---In the inquest report, in column No. 8, it was mentioned "eyes opened."---Prosecution witnesses, i.e., the complainant, mother of deceased and another witness, deposed in their court statements that they took deceased (then injured) to the hospital where she succumbed to the injuries---If said witnesses attended to the deceased who took her last breath in the hospital, then there was no reason for the eyes to be opened---Such facts created doubt in the prosecution case as well as on the credibility and truthfulness of the statements of said prosecution witnesses, which also created doubt about the genuineness of the version given by prosecution witnesses---Appeal against conviction was allowed, in circumstances.

(d) Criminal trial---

----Medical evidence---Scope---Medical evidence can only indicate that the deceased has lost his life due to specific injuries, but it does not lead to the culprits.

Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 rel.

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

----Ss. 302(b), 449 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, house trespass, common intention----Appreciation of evidence---Test identification parade---Infirmities---Accused were charged for committing murder of the paternal niece of complainant by firing---As per prosecution version, prosecution witnesses, i.e. the complainant, mother of deceased and another eye-witness had identified two accused persons during the identification parade held on 18.11.2016 under the supervision of Judicial Magistrate---Deposition of Judicial Magistrate and the proceedings of the test identification parade revealed that the said prosecution witnesses had identified the two accused persons together in identification parade jointly held---Moreover, the eye-witness admitted that the accused persons raised the objection that witnesses came to the Police Station and their pictures were taken; and the witness's son/proclaimed offender used to meet them---Complainant and eye-witnesses did not rebut this objection---Record showed that on 15.11.2016, Investigating Officer submitted an application before Judicial Magistrate for conducting and fixing a date for an identification parade---Applications revealed that the Investigating Officer mentioned the parentage and addresses of both suspects---In the eventuality of the said facts, it was crystal clear that the identification parade was not held in accordance with law for reasons that were not helpful to the prosecution---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 449 & 34---Qatl-i-amd, house trespass, common intention----Appreciation of evidence---Recovery of weapon of offence and crime empties---Safe custody of crime empties not established---Accused were charged for committing murder of the paternal niece of complainant by firing---Prosecution case was that on 17.10.2016, the Investigating Officer collected two crime empties from the place of occurrence---Same were handed over to the Moharrar Malkhana on the same day---Moharrar Malkhana deposed during examination-in-chief that on 20.10.2016, he handed over parcels (sealed parcels of blood-stained earth, crime empties and parcels sent by WMO) to Investigating Officer for their onward transmission to Forensic Science Agency, but Investigating Officer did not state a single word that he received sealed parcels of bloodstained earth, crime empties, and parcel sent by WMO from the Moharrar Malkhana on 20.10.2016 for their onward transmission to Forensic Science Agency and that he deposited the same with Forensic Science Agency on the same day---So, the crime empties were sent to Forensic Science Agency after the arrest and identification parade of the accused, held on 20.10.2016---Report of Forensic Science Agency revealed that the parcel of crime empties was submitted on 21.11.2016 by Investigating Officer---Prosecution failed to link the parcel of crime empties submitted on 21.11.2016 by Investigating Officer with Forensic Science Agency with the parcel handed over to Investigating Officer on 20.10.2016 by the Moharrar Malkhana---Such facts created serious doubt about the safe custody of the parcel---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 449 & 34---Qatl-i-amd, house trespass, common intention----Appreciation of evidence---Safe custody of recovered weapon of offence doubtful---Accused were charged for committing murder of the paternal niece of complainant by firing---Chances of tampering with the prosecution evidence could not be ruled out as the case property was not deposited in the safe custody of Malkhana---Case property remained with the Investigating Officer---Notably the 30-bore pistol and five live bullets were recovered on 27-11-2016 from the rented house of accused and the same were secured through recovery memo, which were deposited with the Moharrar Malkhana of Police Station for their safe custody on 27-11-2016---No evidence on record was available to show that the 30-bore pistol and five live bullets recovered on 27-11-2016 from the accused were handed over to the Moharrar malkhana on 27-11-2016 by Investigating Officer---So, there was no linked evidence adduced in the case to find that the 30-bore pistol and five live bullets were handed over by the Investigating Officer for safe custody to the Moharrar malkhana on 27.11.2016---Said facts created doubt and weakened the prosecution story---Thus, the recovery of 30-bore pistol and five live bullets and the positive report of Forensic Science Agency were of no avail to the prosecution---Appeal against conviction was allowed, in circumstances.

(h) Criminal trial---

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

Muhammad Akram v. The State 2009 SCMR 230 rel.

Mehram Ali Bali for Appellant.

Muhammad Akhlaq, DPG for the State.

Asghar Ali Gill for the Complainant.

Date of hearing: 19th February, 2024.

Judgment

Aalia Neelum, J.--- Sana Ullah, son of Ghulam Shabbir, Caste Gawance, resident of Chak No.444/JB Gawance, Tehsil and District Jhang, the appellant was involved in case FIR No.571 of 2016, registered on 17.10.2016, under Sections 302, 449, 34 P.P.C., at Police Station, Saddar Gojra, District Toba Tek Singh and was tried by the learned Additional Sessions Judge, Gojra. The trial court seized with the matter in terms of the judgment dated 18.09.2019, convicted the appellant-Sana Ullah, under Section 302 (b) P.P.C., and sentenced him to imprisonment for life as Tazeer with the direction to pay Rs.2,00,000/- as compensation to the legal heirs of the deceased and in case of default in payment thereof, the appellant would further undergo simple imprisonment for six months. The appellant was also convicted under section 449, P.P.C. and sentenced to undergo rigorous imprisonment for 07 years and also to pay Rs.25,000/- as a fine, and in case of default in payment thereof, the appellant would further undergo simple imprisonment for one month. Both the sentences awarded to the appellant would run concurrently. The benefit of section 382-B Cr.P.C. was also extended in favour of the appellant.

1. Feeling aggrieved by the judgment of the trial court, Sana Ullah, the appellant, has assailed his conviction through the instant criminal appeal, i.e., Crl. Appeal No.78000 of 2019. The complainant, dissatisfied with the impugned judgment dated 18.09.2019, preferred a Criminal Revision No.69601 of 2019 for awarding a death sentence to respondent No.1/appellant. As both matters arise from the same judgment, they are being disposed of through a single judgment.

2. The prosecution story as alleged in the FIR (Ex.PA/1) lodged on the written application (Ex. PA) of Muhammad Arshad (PW-1)-the complainant is that he was a resident of Chak No.425/GB Tehsil Gojra. On 17.10.2016 at about 10:00 a.m., he (PW-1)-the complainant, along with Amjad Ali, brother of the complainant, and cousin Asadullah Khan (PW-7), was present in the house of his sister-in-law Nusrat Bibi (PW-2) and his paternal niece Aqsa Bibi (18/19 years) was also present there. They were in the house when they heard the sound of motorcycle 125-CC stopping outside the house. The door of the house was open when two unknown persons armed with pistols had the following features: (1.) Medium build, fair complexion, young age, round face, strong body, and (2.) "Labutara Chahra," young in age and strong in body, entered the house. The accused No.1, having medium height, fired with a pistol 30 bore, which hit below the left ear of Aqsa Bibi and went through and through. Then he made a second fire, which hit the left shoulder and went through and through. The second unknown accused was armed with a pistol 30 bore who said that if anyone came near, he would kill them. They escaped by sitting on a motorcycle while making threats. The complainant and witnesses could identify the unknown suspects when the accused would come forward. After escaping the accused, the witnesses took care of their niece and took her to the Civil Hospital, Gojra. After that, the WMO referred Aqsa Bibi to Allied Hospital Faisalabad due to her unsatisfactory condition. Aqsa Bibi succumbed to the injuries. Unknown accused, for unknown reasons, killed Aqsa Bibi.

3. Upon receiving the information of the occurrence, Asad Abbas S.I/H.I.U (PW-11) reached Eye-Cum-General Hospital, Gojra, where the complainant (PW-1) presented a written application/complaint (Ex. PA) before him (PW-11), who after completion of police karawai sent the same to the Police Station through Sajjad Ahmad 242/C (not cited as a witness), after that formal FIR. (Exh.PA/1) was chalked out by Muhammad Afzal, 790/MHC (PW-5).

4. After the registration of the case, the investigation of this case was entrusted to Asad Abbas, S.I. (PW-11)-the investigating officer, who being investigating officer, inspected the dead body of deceased through Uzma Naseem 1085/LC and prepared injury statement (Ex.PJ) and inquest report (Ex.PK) and deputed Uzma Naseem 1085/LC (PW-6) for autopsy of the deceased. After that, he (PW-11)-the investigating officer proceeded towards place of occurrence, inspected the place of occurrence and took into possession blood stained earth from the place of occurrence through recovery memo. (Ex.PB) and also recovered two crime empties and secured the same into possession through recovery memo. (Ex.PC). He (PW-11)-the investigating officer also prepared a rough site plan of the place of occurrence (Ex.PN) on the pointation of PWs. After that, the investigating officer (PW-11) searched for the accused but in vain and then, he (PW-11) proceeded towards Civil Hospital, Gojra, where Uzma Naseem 1085/LC (PW-6) produced blood stained last worn clothes of the deceased i.e. Qameez P-6, Shalwar P-7, Dopatta P-8, Brazier P-9 before the investigating officer (PW-11), who took the same into possession through recovery memo. (Ex.PH). Uzma Naseem 1085/L.C (PW-6) also produced carbon copy of postmortem, X-ray report and other documents before the investigating officer. On 18.10.2016, the Investigating Officer (PW-11) summoned Shahzad Ashraf draftsman (PW4), who prepared the scaled site plan of the place of occurrence (Ex.PG and Ex.PG/1) in the scale of one inch equal to 16-feet. On 14.11.2012, the investigating officer (PW-11) was present at Dhama Bangal, where he (PW11) received spy information about the culprits, whereupon he (PW-11) apprehended Sana Ullah (the appellant) and Azhar Waqas (co-accused since P.O) under section 54 of Cr.P.C. and produced them before the Area Magistrate with covered faces for sending them to judicial lockup for the purpose of identification parade by submitting application (Ex.PO), which was allowed. On 15.11.2016, the investigating officer (PW-11) submitted an application (Ex.PP) to the Area Magistrate, Toba Tek Singh for conducting and fixing the date for identification parade and the learned Area Magistrate fixed 18.11.2016 for identification parade. On 18.11.2016, he (PW-11)-the investigating officer reached District Jail Toba Tek Singh and handed over file to Naib Court. After completing the proceedings of identification parade, Naib Court handed over to him (PW-11) file of this case along with five pages of proceedings of identification parade, which he annexed with file. At the same time, PWs-Asad Ullah Khan, Mst. Nusrat Bibi, Amjad Ali joined investigation and got recorded their statements under section 161 of Cr.P.C. On 23.11.2016, the investigating officer (PW-11) produced application (Ex.PQ) for summoning of accused from District Jail Toba Tek Singh for investigation, which was allowed by Area Magistrate. On 24.11.2016, the investigating officer, got custody of Sana Ullah (the appellant) and Azhar Waqas (co-accused since P.O) from jail and arrested them in this case. During investigation on 27.11.2016 accused Sana Ullah (the appellant) made disclosure and got recovered weapon of offence i.e. pistol (P-1) along with 5-alive bullets (P-2/1-5), which was secured into possession by the investigating officer (PW-11) through recovery memo. (Ex.PD). The accused Sana Ullah (the appellant) also got recovered motorcycle 125 (P-3), which was secured into possession by the investigating officer (PW-11) through recovery memo. (Ex.PE). On 28.11.2016, the accused Sana Ullah (the appellant) was sent to judicial lockup.

5. After investigation, Asad Abbas, S.I. (PW-11), prepared a challan and sent the same to the court of competent jurisdiction while placing the names of all accused persons in Column No.3 of the challan. On 09.09.2017, the trial court formally charge-sheeted the appellant, to which he pleaded not guilty and claimed trial. In support of its version, the prosecution produced as many as twelve (12) witnesses.

6. The ocular account in this case consists of the statements of Muhammad Arshad (PW-1)-the complainant, Nusrat Bibi (PW-2), and Asad Ullah Khan (PW-7). Dr. Sobia Muneer W.M.O (PW-9) deposed that on 17.10.2016, she conducted postmortem examination on the body of the deceased, Aqsa Munawar, and found the following injuries on her person: -

INJURIES.

1-A A firearm wound of injury measuring 1 x 1.3 cm into DNP on left cheek just infront of left ear on T.M. joint left directed inwards and downwards with margins inverted, clotted blood was present.

1-B A firearm wound of exit measuring 1.2 x 1.5 cm on right side of chin, 1 cm inner to the mandibular margins with margins everted, clotted blood was present. On dissection, shattered pieces on bone were present at the entry wound a foreign mattalic projectile injured muscles of mastication, maxilla, left side of upper jaw and floor of the mouth.

2-A A firearm wound of entry 1 x 1 cm on left supraclavicular fossa just in front of mid of trapezius muscle prominence with margins inverted.

2-B A firearm wound of exit measuring 1 x 1.2 cm on back of right chest, 18 cm below tip of shoulder and 15 cm away from midline with margins everted.

After conducting the postmortem examination, the doctor rendered the following opinion: -

OPINION

"All injuries were ante-mortem in nature caused by firearms and cause of death in this case was hemorrhage and shock due to injuries Nos.1-A, 1- B, 2-A and 2-B. The probable time that elapsed between injuries and death was 1 to 2 hours, and the time that elapsed between death and postmortem was 06 to 10 hours."

Ex.PI is the correct carbon copy of the postmortem report, whereas Ex.PI/1 and Ex.PI/2 are pictorial diagrams of injuries.

The statements of the remaining prosecution witnesses are formal.

1. The learned Deputy District Public Prosecutor gave up PWs, Amjad Ali and Nauman Shafqat being unnecessary and closed the prosecution evidence on 29.04.2019 after tendering the report of Punjab Forensic Science Agency, Lahore (Ex.PT and Ex.PU).

2. After the closure of prosecution evidence, the appellant was examined under Section 342 of Cr.P.C., wherein he refused to appear as his own witnesses in terms of Section 340 (2) Cr.P.C., in proof of the allegations levelled against him, however, tendered Ex.DA, Ex.DB, Ex.DC and Mark-A in his defence evidence. In response to a particular question that why this case was against him and why the PWs had deposed against him, the appellant made the following depositions: -

"All the PWs are related inter se and they have deposed against me due to suspicion. In fact, the deceased was a woman of easy virtue and she was got murdered under unknown circumstances. Babar brother of deceased used to forbid her from illegal designs/immoral activities. Due to the aforesaid reasons Babar brother of the deceased left the country. I was best friend of Babar brother of deceased. Complainant party had suspicion that Babar brother of the deceased got the deceased killed through me and my co-accused. I am innocent. I had no reason at all to commit the occurrence. I am resident of district Jhang. My father Ghulam Shabbir was murdered prior to the present occurrence by Manzoor Hussain S.I. Manzoor Hussain S.I. had good relations with Fakhar Moharar of P.S. City, Gojra. The complainant party firstly tried their level best to trace out the actual culprit when remained failed, they involved me in the present occurrence due to my friendship with Babar aforesaid and on the instructions of Manzoor Hussain S.I. I was student during the days of occurrence and had taken examination of F.A was awaiting for my result. I could not even imagine to commit such occurrence."

1. After recording evidence and evaluating the evidence available on record in the light of the arguments advanced by both sides, the trial court found the prosecution version proved beyond any shadow of reasonable doubt, which resulted in the appellant's conviction in the afore-stated terms.

2. I have heard the arguments advanced by the learned counsel for the parties and Deputy Prosecutor General and have minutely perused the record on the file.

3. In the instant case, the incident took place on 17.10.2016 at 10:00 a.m., and the same was reported at 02:20 p.m. by Muhammad Arshad (PW-1)-the complainant, paternal uncle of Aqsa Bibi-the deceased through the written application (Ex. PA) to Asad Abbas S.I/H.I.U. (PW-11) at Govt. Eye-Cum-General Hospital, Gojra. Asad Abbas S.I/H.I.U. (PW-11), sent the same through Sajjad Ahmad 242/C (not cited as a witness) to the police station Saddar Gojra, District Toba Tek Singh, for formal registration of FIR, based on which first information report (Ex.PA/1) was recorded at 02:30 p.m. Whereas, the inter-se distance between the place of occurrence and the police station is 11-miles. As per the complaint (Ex. PA), contents of FIR (Ex.PA/1) and depositions of Muhammad Arshad (PW-1)-the complainant, Nusrat Bibi (PW-2)-eye-witness, mother of the deceased, and Asad Ullah Khan (PW-7)-the eye-witness, it reveals that two unknown accused persons armed with pistols had the following features: (1.) Medium build, fair complexion, young age, round face, strong body, and (2.) "Labutara Chahra", young in age and strong in body, entered the house. The unknown accused No.1, having medium height, fired with his pistol 30-bore, which hit below the left ear of Aqsa Bibi and went through and through . Then, he (unknown accused No.1) made a second fire with his pistol, which hit the left shoulder of Aqsa Bibi and went through . The second unknown accused was also armed with a 30-bore pistol and raised a lalkara that, if anyone came near, he would be killed. After escaping the unknown accused persons, the witnesses took care of their niece, Aqsa Bibi, and took her to the civil hospital, Gojra. Afterward, due to unsatisfactory conditions, W.M.O. referred Aqsa Bibi to Allied Hospital, Faisalabad. Aqsa Bibi succumbed to the injuries in Allied Hospital, Faisalabad. The prosecution failed to produce evidence oral as well as documentary revealing the exact time of death of Aqsa Bibi, the deceased. Dr. Bushra Ashraf (PW-10) stated during her examination in chief that: -

"Stated that on 17.10.2016, I was posted as WMO at Govt. Eye Cum General Hospital, Gojra and on the same day, I attended Aqsa (deceased in injured condition) daughter of Munawar aged about 19 years, resident of Chak No.425/JB. She was produced for medical examination with the history of firearm injury. I attended her and observed her condition. ---------------------- I called doctor Ajmal Consultant Surgeon. He came and examined the patient and advised to refer the patient to Allied Hospital, Faisalabad. The ambulance was arranged and referred the patient to Allied Hospital, Faisalabad. OPD Slip No.1335 dated 17.10.2016 Exh.PM is in my handwriting and bears my signatures."

Dr. Bushra Ashraf (PW-10), who attended Aqsa Bibi (then injured), provided her medical treatment, arranged an ambulance, and referred her to Allied Hospital, Faisalabad, did not state a single word that who brought Aqsa Bibi, in injured condition, for medical treatment in Eye-Cum-General Hospital, Gojra. She (PW-10) deposed in her examination-in-chief that OPD Slip No.1335 dated 17.10.2016 (Exh. PM) is in her handwriting and bears her signature. On perusal of OPD Slip No.1335 dated 17.10.2016 (Exh. PM), it reveals that only contact No.0336-3453455 is mentioned therein, and neither the name of the person who brought her in injured condition nor the time of providing treatment has been mentioned therein. The other document placed on the record by the prosecution is the death certificate dated 17.10.2016 of Aqsa Bibi (Ex. PL) issued by Allied Hospital, Faisalabad, revealing that "Received Expired" and in the column for the name of the patient, is mentioned "Aqsa, as told by Fakhar" and mobile number on the death certificate (Ex. PL), is mentioned as "03363453465". This document is also silent about the time when Aqsa Bibi was brought expired in the Allied Hospital, Faisalabad, and a death certificate (Ex. PL) was issued. Muhammad Arshad (PW-1)-the complainant deposed during his examination in chief that: -

"We attended Aqsa Bibi and shifted her to Civil Hospital Gojra where she was medically examined and referred to Allied Hospital, Faisalabad due to her critical condition where she succumbed to the injuries. We brought back dead body of Aqsa Bibi to Civil Hospital Gojra."

Nusrat Bibi (PW-2) deposed in similar lines during her examination-in-chief. Whereas, Asad Ullah Khan (PW-7) deposed during his examination in chief that: -

"We attended Aqsa Bibi deceased and shifted her to Civil Hospital Gojra on a car. She was referred to the Allied Hospital Faisalabad where she succumbed to the injuries."

Contrary to the contents of complaint (Ex. PA), FIR (Ex. PA/1), and depositions of prosecution witnesses i.e. Muhammad Arshad (PW-1)-the complainant, Nusrat Bibi (PW-2) and Asad Ullah Khan (PW-7), Dr. Sobia Muneer W.M.O (PW-9) deposed in her court statement that, "According to police papers time of death is 10:00 a.m on 17.10.2016." Asad Abbas S.I (PW-11)-the investigating officer, also deposed in his court statement that: -

"Stated that on 17.10.2016, I was posted as Incharge at HIU Circle, Gojra. On the same day, I along with other police officials reached at Eye-cum-General Hospital, Gojra after receiving information about occurrence where complainant Muhammad Arshad appeared before me and produced an application Exh.PA. I incorporated my proceedings upon it and sent the same to P.S. Saddar, Gojra through Sajjad Ahmad 242/C for registration of FIR. ---------- I got inspected dead body of deceased through Uzma Naseem 1085/LC and prepared injury statement Exh.PJ and inquest report Exh.PK."

Asad Abbas S.I. (PW-11)-the investigating officer, admitted in his examination-in-chief that he prepared an inquest report (Ex. PK) on 17.10.2016 after receiving a complaint (Ex. PA) from Muhammad Arshad (PW-1)-the complainant. On perusal of the inquest report (Ex. PK), it reveals that in column No.3, the time and date of receiving information was mentioned as "17.10.2016 at 10:00 a.m.". It is the prosecution's version that the FIR was lodged at 2.30 p.m. If it was so, it was required to be explained by the investigating officer, by plausible evidence on record, as to how the inquest was undertaken at 10:00 a.m., a point in time when the FIR was not in existence. The first circumstance that raises doubt about the time of occurrence and death as claimed by the prosecution is that in the inquest report, in column No. 3 time and date of receiving information about death was mentioned as 10:00 a.m. by Asad Abbas S.I. (PW-11)-the investigating officer, whereas, as per prosecution version Aqsa Munawar received injuries at 10:00 a.m. whereas incident was reported after the death of Aqsa Munawar at 02:20 p.m. on 17.10.2016 in Allied Hospital, Faisalabad. Muhammad Arshad (PW-1)-the complainant deposed during cross-examination that: -

"The application for registration of case was addressed to the SHO. The application Exh.P-A was got prepared by me prior to arrival of the police. I had produced the aforesaid application to the SHO at Civil Hospital Gojra. The SHO had marked the aforesaid application to another police officer."

It creates doubt about the time of the incident and the time of death of Aqsa Munawar, the deceased. A man may tell a lie, but the document cannot. The inquest report (Ex. PK) reveals that Asad Abbas S.I. (PW-11)-the investigating officer, received information about the death of Aqsa Munawar-the deceased, on 17.10.2016 at 10:00 a.m., which threw a cloud of doubt on the deposition of prosecution witnesses i.e. Muhammad Arshad (PW-1)-the complainant, Nusrat Bibi (PW-2) and Asad Ullah Khan (PW-7).

1. There is another significant circumstance which goes to prove that the prosecution witnesses did not witness the occurrence. Dr. Sobia Muneer W.M.O (PW-9), who conducted a postmortem examination of Aqsa Munawar, the deceased, opined that the duration between the injuries and death was 1 to 2 hours and between death and postmortem was 6 to 10 hours. She (PW-9) further stated in her court statement that the dead body was received in the dead house at 03:00 p.m. on 17.10.2016 and complete documents were produced before her at 07:00 p.m. and she conducted the autopsy at 07:30 p.m. on 17.10.2016, which also reveals from the postmortem report (Ex. PI). There is no plausible explanation as to why the postmortem of the dead body was delayed for five (05) hours from the time of registration of the case and four (04) hours thirty (30) minutes from the time of receiving the dead body in the mortuary for post mortem examination at 03:00 p.m. on 17.10.2016. No doubt, delay in postmortem alone is not fatal to the prosecution case, but when this court considered it with the other evidence available on the record along with post mortem report (Ex. PI), they do influence the mind of the Court and leave the impression that there had been some wrangling about the time of registration of criminal case. Muhammad Arshad (PW-1)-the complainant admitted during cross-examination that, "A person with the name of Fakhar is a police official, and he is our relative."

Nusrat Bibi (PW-2) deposed during cross-examination that: -

"I had accompanied my daughter to Allied Hospital and had also accompanied her dead body to civil hospital Gojra. I left the hospital at the time of autopsy of my daughter and came to my house.-----------I had not seen Fakhar at civil hospital Gojra. I had also not seen Fakhar at allied hospital Faisalabad. PW volunteer that we only the witnesses were present there.-------I had cell number of Fakhar because he is my nephew and is serving in police department. I do not remember his cell number. I am primary pass. I cannot rebut or affirm that cell number 0336-3453465 is cell number of my nephew Fakhar. ---------- I do not know the aforesaid cell number is mentioned on the refer slip of civil hospital, Gojra and also on the death certificate by Allied Hospital, Faisalabad. ----

The prosecution witnesses, i.e., Muhammad Arshad (PW-1)-the complainant, Nusrat Bibi (PW-2), and Asad Ullah Khan (PW-7), deliberately concealed the facts during their depositions. On the death certificate dated 17.10.2016 issued by Allied Hospital, Faisalabad, in the column for the name of the patient, it was specifically mentioned "Aqsa as told by Fakhar" and the cell number on the death certificate (Ex. PL) was mentioned as "03363453465". The same is the position on the refer slip (Ex. PM) issued by Eye-cum-General Hospital, wherein same cell number was mentioned. It reveals that Fakhar remained throughout with Aqsa Munawar, then injured during her treatment, but the prosecution witnesses, i.e., Muhammad Arshad (PW-1)-the complainant, Nusrat Bibi (PW-2) and Asad Ullah Khan (PW-7), deliberately concealed these facts. In clear words, the prosecution witnesses have not denied that Sana Ullah (the appellant) is a friend of Babar, who is the brother of Aqsa Munawar, the deceased. Instead, the defense brought on the record that the parents of Babar deserted him from their house, and this fact has been admitted by Nusrat Bibi (PW-2). All these facts lead to the undeniable conclusion that the prosecution witnesses, i.e., Muhammad Arshad (PW-1)-the complainant, Nusrat Bibi (PW-2), and Asad Ullah Khan (PW-7), failed to establish the incident happened similarly as deposed by the prosecution witnesses.

It is also observed by Dr. Sobia Muneer W.M.O (PW-9), that "eyes semi opened." In the inquest report (Ex. PK), in column No.8, it is mentioned: "eyes opened." The prosecution witnesses, i.e., Muhammad Arshad (PW-1)-the complainant, Nusrat Bibi (PW-2), and Asad Ullah Khan (PW-7), deposed in their court statements that they took Aqsa Munawar (then injured) to Allied Hospital, Faisalabad where she succumbed to the injuries. If they attended to the deceased and she took her last breath in the hospital, then there was no reason for the eyes to be open. These facts create doubt in the prosecution case as well as on the credibility and truthfulness of the statements of prosecution witnesses, i.e., Muhammad Arshad (PW-1)-the complainant, Nusrat Bibi (PW-2), and Asad Ullah Khan (PW-7). This also creates doubt about the genuineness of the version given by prosecution witnesses, i.e., Muhammad Arshad (PW-1)-the complainant, Nusrat Bibi (PW-2), and Asad Ullah Khan (PW-7). By now, it is well-settled law that medical evidence can only indicate that the deceased had lost his life due to specific injuries, but it does not lead to the culprits. Reliance is placed on the judgment of the August Supreme Court of Pakistan in the case of "Mursal Kazmi alias Qamar Shah and another v. The State" (2009 SCMR 1410), wherein it was held as under: -

"As far as medical evidence is concerned, it only supports the prosecution case to the extent that the deceased lost his life due to fire-arm injury but it does not lead to the culprits."

It also reveals from the police proceedings mentioned at the bottom of the application for registration of case (Ex. PA) that complainant (PW-1) handed over the application for registration of case at Eye-cum-General Hospital, Gojra at 02:20 p.m. on 17.10.2016 to Asad Abbas S.I. (PW-11)-the investigating officer and from the deposition of Asad Abbas S.I (PW-11)-the investigating officer, it reveals that after sending the application (Ex. PA) to police station through Sajjad Ahmad 242/C (not cited as witness) for registration of formal FIR (Ex. PA/1), he (PW-11) prepared the inquest report (Ex. PK). There is no reason why the police could not mention the names of the prosecution witnesses, i.e., Muhammad Arshad (PW-1)-the complainant, Nusrat Bibi (PW-2), and Asad Ullah Khan (PW-7) in the column No.4 and at the bottom of the last page of inquest report (Ex. PK). The inquest report (Ex. PK), if prepared actually after the registration of FIR and the investigating officer (PW-11) met with the complainant (PW-1), there is no reason why the names of the prosecution witnesses, i.e., Muhammad Arshad (PW-1)-the complainant, Nusrat Bibi (PW-2), and Asad Ullah Khan (PW-7) are missing from the inquest report. The absence of those details indicates that the prosecution story was still in the embryo and had not been given any shape and that the FIR was then ante-timed.

1. As per the prosecution version, prosecution witnesses, i.e. Muhammad Arshad (PW-1)-the complainant, Nusrat Bibi (PW-2), and Asad Ullah Khan (PW-7) had identified the appellant-Sana Ullah and his co-accused Azhar Waqas (since P.O) during the identification parade held on 18.11.2016 under the supervision of Shahid Moazam Magistrate Section-30, Lahore (PW-12), then posted as Judicial Magistrate, Toba Tek Singh. The deposition of Shahid Moazam Magistrate Section-30 (PW-12) and the proceedings of the test identification parade (Ex. PS) reveal that prosecution witnesses i.e. Muhammad Arshad (PW-1)-the complainant, Nusrat Bibi (PW-2) and Asad Ullah Khan (PW-7) had identified the appellant-Sana Ullah and his co-accused Azhar Waqas (since P.O) together in identification parade jointly held. The deposition of Shahid Moazam Magistrate Section-30 (PW-12) suggests that he held a joint test identification parade wherein Muhammad Arshad (PW-1)-the complainant, Nusrat Bibi (PW-2), and Asad Ullah Khan (PW-7) identified the appellant. Shahid Moazam Magistrate Section-30 (PW-12) deposed during examination-in-chief that: -

"First of all complainant namely M. Arshad son of Ihsan Ahmad caste Jatt, resident of Chak No.425/JB was called to identify the accused persons. The said witness identified accused Sana Ullah son of Ghulam Shabbir at Sr. No.4 in row No.1 and Azhar Waqas son of M. Riaz at Sr. No.5 in row No.2 one by one by placing his hand on the head of the present suspects. The witness described the role of the accused and same were written by me "accused Azhar Waqas was armed with pistol, accused Sana Ullah made firing both were armed."

Nusrat Bibi (PW-2) and Asad Ullah Khan (PW-7) also identified in the same manner as mentioned above. Muhammad Arshad (PW-1)-the complainant, deposed during cross-examination that: -

"Both the accused were aged about 23/24 years. The accused who were seen by me at the place of occurrence were also aged about 23/24 years."

Nusrat Bibi (PW-2) deposed during cross-examination that: -

" ---- I do not know if the accused are friends of my son Babar. I do not know if Babar my son had come to Pakistan after knowing the death of his sister Mst. Aqsa. I do not know if he was abroad during the days of occurrence. I had deserted Babar from my house (AAQ)."

Asad Ullah Khan (PW-7)-the eye-witness deposed during cross-examination that: -

"We had made statement before magistrate at the time of identity parade. We had not given the statements before the magistrate with the names of the accused. PW volunteered we had identified the accused."

Asad Ullah Khan (PW-7)-the eye-witness, has specifically deposed that they had not identified the accused with their names. However, on perusal of identification parade proceedings (Ex.PS), it was stated by all the PWs that:-

Moreover, he also admitted that the accused person raised the objection that witnesses came to the police station and their pictures were taken; the witness's son/proclaim offender Baber used to meet them. The complainant and eye-witnesses did not rebut the objection. Moreover, Asad Abbas S.I. (PW-11)-investigating officer, narrated in his examination-in-chief that on 14.11.2016, he received spy information about the culprits of the occurrence and apprehended appellant Sana Ullah and Azhar Waqas (since P.O.) from Adda Pull Chak No. 423/JB on the pointing of the informer. After that, he recorded their version and arrested them under section 54, Cr.P.C.; on the same day, he produced them in the court of the Area Magistrate. Said accused persons were sent to judicial lock-up on 14.11.2016 for the purpose of identification parade through the application (Ex. PO). On 15.11.2016, Asad Abbas S.I. (PW-11)-investigating officer, submitted an application (Ex. PP) before Shahid Moazam Magistrate Section-30, Lahore (PW-12), then posted as Judicial Magistrate, Toba Tek Singh for conducting and fixing a date for an identification parade. The applications (Ex. PO and Ex. PP) reveal that the investigating officer mentioned the parentage and addresses of both suspects. Asad Abbas S.I. (PW-11)-investigating officer admitted during cross-examination that, "I have recorded in the file of this case the age of Sana Ullah accused as 18/19 years while that of Azhar Waqas (co-accused) 15/16 years (P.S. at the time of their arrest). I had annexed a copy of identification parade with the file of this case. I have gone through the objection raised by the accused that they were shown to the witnesses at the police station and their snaps were also prepared by the complainant party."

In the eventuality of the above-mentioned facts, it is crystal clear that the identification parade was not held by law for reasons that were not helpful to the prosecution. The august Supreme Court of Pakistan, in the case of Kamal Din alias Kamala v. The State (2018 SCMR 577) on page 580, while enunciating the principles of law relating to the identification parade, has observed as under:

"Apart from that the test identification parade held in this case was a joint parade wherein two accused persons had been made to stand with dummies in two lines and their identification had taken place simultaneously in one go. This Court has also clarified in the cases of Lal Pasand v. The State (PLD 1981 SC 142), Ziaullah alias Jaji v. The State (2008 SCMR 1210), Bacha Zab v. The State (2010 SCMR 1189), Sahfqat Mahmud and others v. The State (2011 SCMR 537) and Gulfam and another v. The State (2017 SCMR 1189) that the identification of many accused in one go is not proper besides being unsafe."

1. As regards the recovery of the 30-bore pistol P-1 and five live bullets (P2/1-5), the only incriminating evidence on the disclosure and pointing of the appellant-Sana Ullah and positive report of Punjab Forensic Science Agency, Lahore (Exh. PT) is concerned, it is a prosecution case that on 17.10.2016, Asad Abbas S.I. (PW-11)-the investigating officer, collected two crime empties from the place of occurrence. The same were handed over to the Moharrar malkhana on the same day. Muhammad Afzal 790/MHC (PW-5)-Moharrar malkhana deposed during examination-in-chief that on 20.10.2016, he handed over parcels (sealed parcels of blood-stained earth, crime empties, and parcels sent by WMO) to Asad Abbas S.I. (PW-11)-investigating officer for their onward transmission to Punjab Forensic Science Agency, Lahore. But Asad Abbas S.I. (PW-11)-investigating officer, did not state a single word that he received sealed parcels of bloodstained earth, crime empties, and parcel sent by WMO from Muhammad Afzal 790/MHC (PW-5)-the Moharrar malkhana on 20.10.2016 for their onward transmission to Punjab Forensic Science Agency, Lahore and deposited the same with Punjab Forensic Science Agency, Lahore on the same day. Besides, Asad Abbas S.I. (PW-11)-investigating officer arrested the appellant-Sana Ullah on 14.11.2016 under section 54 C.P.C. Asad Abbas S.I. (PW-11)-investigating officer deposed during examination-in-chief that:

"On 14.11.2016 I along with other police officials was present at Dhama Bangal where I received spy information about culprits of this occurrence. Acting on a tip off, I along with police officials reached at Adda Pull Chak No.423/JB and apprehended accused Sana Ullah present in the court and Azhar Waqas (since P.O) on the pointation of informer. I recorded their versions and arrested them under section 54 Cr.P.C. On the same day, I produced both accused persons in the court of learned Area Magistrate with covered faces for sending them to judicial lock up for the purpose of identification parade by submitting application Exh.P.O which was allowed accordingly. On 15.11.2016 I submitted an application Exh.PP to Shahid Moazam, learned Area Magistrate Toba Tek Singh for conducting and fixing date of identification parade. Learned Area Magistrate fixed date 18.11.2016 for identification parade. On 18.11.2016 I reached at District Jail Toba Tek Singh and handed over file to Naib Court. After completing the proceedings of identification parade, Naib Court handed over to me file of this case along with five pages of proceedings of identification parade which I annexed with file."

So, the crime empties were sent to Punjab Forensic Science Agency, Lahore, after the arrest and identification parade of the appellant Sana Ullah, held on 20.10.2016, but the report of Punjab Forensic Science Agency, Lahore (Exh. PT) reveals that the parcel of crime empties was submitted on 21.11.2016 by Asad Abbas S.I. (PW-11)-investigating officer. The prosecution failed to link the parcel of crime empties submitted on 21.11.2016 by Asad Abbas S.I. (PW-11)-investigating officer with Punjab Forensic Science Agency, Lahore, with the parcel Punjab Forensic Science Agency, Lahore, handed over to Asad Abbas S.I. (PW-11)-investigating officer on 20.10.2016 by Muhammad Afzal 790/MHC (PW-5)-the Moharrar Malkhana. This creates serious doubt about the safe custody of the parcel. The chances of tampering with the prosecution evidence cannot be ruled out as the case property was not deposited in the safe custody of Malkhana. It remained with the investigating officer (PW-11). I have noted that the 30-bore pistol P-1 and five live bullets (P2/1-5) were recovered on 27-11-2016 from his rented house situated at Chak No. 426 J.B. and the same were secured through recovery memo. Ex-PD were deposited with Muhammad Afzal 790/MHC (PW-5)-the Moharrar Malkhana of Police Station for their safe custody in the Malkhana on 27-11-2016. Even no evidence on record was available to show that the recovered 30-bore pistol P-1 and five live bullets (P2/1-5) on 27-11-2016 from the appellant-Sana Ullah were handed over to Muhammad Afzal 790/MHC (PW-5)-the Moharrar Malkhana on 27- 11-2016 by Asad Abbas S.I. (PW-11)-investigating officer. There is no link evidence adduced in this case to find that the 30-bore pistol P-1 and five live bullets (P2/1-5) were handed over by the investigating officer (PW-11) for safe custody to Muhammad Afzal 790/MHC (PW-5)-the Moharrar Malkhana on 27.11.2016. Muhammad Afzal 790/MHC (PW-5)- Moharrar Malkhana deposed during cross-examination that: -

"The parcels of 07.10.2016 were handed over to me by the I.O. at about 05:00/06:00 p.m. My statement was not recorded by the I.O. on 17.10.2016 regarding entrustment of parcels to me.----------My statement was not recorded by the I.O. on 20.11.2016 or on 27.11.2016. My statement was also not recorded by the I.O on 05.12.2016."

2024 P Cr. L J 1669

[Lahore]

Before Asjad Javaid Ghural, J

Shahida Bibi----Petitioner

Versus

Inspector General of Police, Punjab and 3 others----Respondents

Crl. Misc. No. 27670-H of 2024, decided on 13th May, 2024.

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

----S. 491---Constitution of Pakistan, Art. 199---Constitutional petition---Habeas corpus---Illegal detention of a person in police custody---Lodgment of FIR against police officials involved---Police report showed that during the investigation of case FIR No.1048/24, robbed motor-cycle of case FIR No.71/24 was recovered at the instance of the alleged detenu and the same was taken into possession by the Investigating Officer of case FIR No.71/24 vide case diary No.1 dated 07.04.2024---Admittedly at that time the detenu was in judicial lock up but Investigating Officer intentionally avoided arresting the detenu in the said case---Notable that detenu was not nominated in case FIR No.71/24 and he was involved in the said case upon his own disclosure while in police custody which was not admissible piece of evidence---Apparently, ASI of concerned Police Station, had earlier apprehended the detenu and when the Court took notice, he opted to send him on judicial remand, and when his illegal exercise of power was brought in the notice of his high-ups by the High Court, he nurtured grudge against the detenu and in order to teach him a lesson, illegally confined him, and when the petitioner filed instant petition, he in order to save his skin, in active connivance with the SHO, created evidence against the detenu and involved him in case FIR No.71/24---Had it not been so, the Investigating Officer of said case would have arrested the detenu on the very date, when the case property was taken into possession by him---It had been established on record that ASI of concerned Police Station with the active connivance of SHO forcibly abducted the detenu and when the Court took notice of his illegal confinement, created false and fabricated evidence against him in order to save their skin, therefore, the petitioner was directed to file an application for registration of criminal case against both the said Police Officials before the District Police Officer, concerned, who shall lodge the FIR against them under the relevant provisions of law without wastage of any time, under intimation to High Court---Petition was disposed of.

Brig. (Retd.) F.B. Ali and another v. The State PLD 1975 SC 506 and Haider Ali and another v. DPO Chakwal and others 2015 SCMR 1724 rel.

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

----S.497---Practice of police to arrest an accused in different criminal cases, one after the other, after his release on bail---Directions issued by the High Court to curb such practice provided.

In order to curb practice of arresting an accused in different criminal cases, one after the other, after his release on bail, following directions were issued to all the concerned by the High Court:

"(i) If an accused is arrested in a criminal case, he shall be presumed to have been arrested in all criminal cases registered against him wherein his arrest was required;

(ii) If arrest of the accused was required in any case already registered against him but could not be made for any reason, Investigating Officer is bound to make a written request to the Area Magistrate or the Court, as the case may be, explaining the reasons for such omission and seeking permission for the arrest of the accused;

(iii) The request of the Investigating Officer must be endorsed by an opinion of the concerned Prosecutor qua sufficiency of the material for the arrest of an accused;

(iv) Area Magistrate or the Court, as the case may be, shall not accord approval of such arrest in a mechanical manner, rather record reasons in writing for granting such permission;

(v) If according to the opinion of the Area Magistrate or the Court, as the case may, sufficient incriminating material is not available against an accused, it may defer such arrest till the time of availability of such evidence;

(vi) At the time of dealing with such request of arrest, Area Magistrate or the Court, as the case may be, must keep in mind the binding dictum of the Apex Court laid down in Sughran Bibi Case PLD 2018 SC 595 and the right of fair trial and due process enshrined in Article 10-A of the Constitution;

(vii) Any deviation from the above directions would entail penal consequences, provided under the law.

Qasim Ali and Muhammad Ashfaq Gujjar for the Petitioner.

Rana Umair Abrar Khan, A.A.G with Shaukat, S.I. for Respondent.

Order

Asjad Javaid Ghural, ---The legitimacy of the police force in any nation is fundamentally anchored in its perceived impartiality, fairness, and adherence to the principles of justice. Unfortunately, over the past few years, a day seldom goes by without another case of police brutality or abuse of power by police officers being noticed by this Court. The frequency of these occurrences begs the question as to whether this is simply our new norm or whether a public can ever truly feel safe and protected by the law enforcement. The term "abuse of power" encompasses all the ways police officers can abuse their positions by taking advantage of the very people they have pledged to serve and protect. While most Police Officers take that pledge seriously, there are some who abuse the power given them to fulfill selfish personal desire or personal vendetta. The "abuse of power" by a Police Officer, inter-alia, includes the use of excessive force, placing a citizen under false arrest, warrantless searches or arrests, successive arrest of an accused in one after the other case and assault upon a citizen. This case is a classic example of abuse of power by the police officers. Initially, the petitioner Mst. Shahida Bibi, filed a petition complaining illegal confinement of her husband, Muhammad Lateef (the detenue) by the SHO, P.S. Manga Mandi, District Lahore. This Court issued a direction for production of the detenue in the Court, which was duly conveyed to the concerned quarters but despite this fact Investigating Officer of case in order to frustrate the proceedings of this Court, presented the alleged detenue before the learned Area Magistrate and made a request for sending him to judicial lock up for the purpose of test identification parade which was accordingly granted by the said Magistrate. This Court while taking serious notice of the mala fide of the Investigating Officer summoned the SSP (Inv) and SP (Inv) Sadar Division, Lahore, who undertook to hold inquiry against the delinquent police official. Since, the custody of the detenue was regulated under the law, as such said petition was disposed of with direction to the petitioner to agitate her grievance before the competent forum.

1. Statedly, the detenue was discharged in case FIR No.1639/2023 dated 02.07.2023, in respect of offence under section 392 P.P.C., whereas, he was granted post arrest bail in case FIR No.1048/24, in respect of an offence under section 401 P.P.C., both registered at Police Station, Manga Mandi, Lahore vide order dated 03.05.2024. Soon after the release of the detenue from the jail on the same day, respondent No.4 (Sajid Khan, ASI) again forcibly abducted the detenue and confined him at Police Station, Raja Jang, District Kasur, with the active connivance of the SHO of said police station (SHO). Being aggrieved, the petitioner rushed to this Court by filing instant petition, seeking recovery and production of the detenue in the Court. Notices were issued to the concerned quarters and in compliance of said notice SHO submitted a report, according to which the detenue being required in case FIR No.71/24 dated 23.01.2024 in respect of offence under Section 392 P.P.C. registered at Police Station, Raja Jang was arrested and sent to judicial lock up on 08.05.2024.

2. The report submitted by the SHO is sham. The case FIR No.71/24, in which the arrest of the detenue was shown was registered on 23.01.2024. If the report of the SHO is taken on face value, even then the case property which was shown to be recovered at the instance of the detenue, was taken into possession by the Investigating Officer vide case diary No.1 dated 07.04.2024 and admittedly at that time the detenue was in judicial lock up. There is no explanation of the fact that if the arrest of the detenue was required in the aforesaid case, then why his arrest was not shown in jail record at that time. It is settled proposition of law that when an accused is arrested in a case, there is no legal impediment for interrogating him with regard to all the cases registered against him since then. Section 167 Cr.P.C. does not visualize successive and repeated arrest of a person required in more than one cases. An accused required in more than one criminal cases when arrested will be deemed to have been arrested in all the cases registered against him. There is no legal bar for interrogating an accused person with regard to the allegations levelled against him in another case. It is rather desirable that when a person is required or accused in more than one cases or where more than one FIRs are registered against him is arrested and remanded to physical custody, then he should be interrogated about the allegations against him in all the cases. Instead of acting strictly in accordance with law, the police since long is following the illegal practice of showing the arrest of the person in one case and on the expiry of remand or after release on post arrest bail it again arrests him in another case. It is commonly known that in selected cases, police would arrest the accused on his release in the first case. It is nowhere stated in the Criminal Procedure Code and Police Rules that a person required in more than one case when arrested will be deemed to have been arrested in one case and he cannot be arrested simultaneously in more than one case. Section 167, Cr.P.C. simply says that when a person is arrested or detained in custody, the Magistrate may authorise his detention in such custody for a term not exceeding fifteen days in the whole. The section does not talk of case, it talks of custody only. The longest period for which an accused can be ordered to be detained continuously in police custody by one or more such orders, is only fifteen days. So, the detention of the accused person required in more than one cases already registered against him, for more than fifteen days would be illegal.

3. Life and liberty is a fundamental right enshrined in the Constitution of Islamic Republic of Pakistan, 1973 and the same cannot be allowed to be curtailed at the whims of the executive. Successive arrests of an accused in different cases one after another amounts to denial of his fundamental right and this Court being jealous guardian of the rights of a citizen cannot sit as a silent spectator and will step forward to curb such malpractice. It is well settled that where the action and proceedings are not bona fide and with ulterior motive to obtain information about an absconding accused and arrest after arrest is made involving same person in different blind reports lodged much earlier and no explanation is provided for such series of actions in seriatim one after the other, the High Court is empowered to afford protection to the citizen against involving frivolous and mala fide actions by imposing conditions on the erring authorities and agencies. The Courts have to safeguard the fundamental rights of every citizen and to protect the life and liberty from illegal, unauthorized and mala fide acts of omission or commission by an authority or person. In cases where the liberty of a citizen was involved the action initiated by the police when found to be mala fide the court should not hesitate to step in and grant relief to the citizen.

4. It is thus once again reiterated that an accused arrested in one case shall be deemed to have been arrested in all the cases registered against him since then and practice of his arrest after release in one case amounts to denial of his fundamental rights. In future if this practice is not discontinued, the delinquent police official shall be taken to task for denying the basic right of liberty to a citizen. A question may arise in mind that how the police of one police station may have knowledge/information about the registration of case against an accused in some other police station or in some other district. Answer of this question has been given by this Court in a celebrated judgment in a following terms:-

" In the light of above discussion, it can be said that in this digital age when sharing information is so simple and cheap, its dissemination has become so rapid and effective either through social media account or online information available at respective Police Information System Software, the record of criminal cases of an accused can be obtained easily. Even otherwise, a Crime Investigation Agency (CIA) is in existence, whose primary duty is collection of information relating to investigation of every case registered in the district that does include information of arrest as per Rule 21.35 of Police Rules, 1934 and it also talks about arrest of accused in all cases and not in one. On receiving an information of arrest of an accused CIA is duty bound to inform the Incharge Police Station about any other cases registered against him in the district; therefore, Station House Officer can also develop contact with CIA of other districts or provinces so as to collect information about number of cases registered against him throughout the country."

1. Herein the instant case, the police cannot even take shelter of ignorance of arrest of the detenue in an already registered case, as the police report itself shows that during the investigation of case FIR No.1048/24, robbed motor-cycle of case FIR No.71/24 was recovered at the instance of the alleged detenue and the same was taken into possession by the Investigating Officer of case FIR No.71/24 vide case diary No.1 dated 07.04.2024 and admittedly at that time the detenue was in judicial lock up but he intentionally avoided to arrest the detenue in the said case. It is important to note that detenue was not nominated in case FIR No.71/24 and he was involved in the said case upon his own disclosure while in police custody which is not admissible piece of evidence. Apparently, Sajid Khan, ASI, P.S. Manga Mandi, who earlier apprehended the detenue and when this Court took notice, he opted to send him on judicial remand and when his illegal exercise of power was brought in the notice of his high-ups by this Court he nurtured grudge against the detenue and in order to teach him lesson, illegally confined him and when the petitioner filed instant petition, he in order to save his skin, in active connivance with the SHO, P.S. Raja Jang, Kasur created evidence against the detenue and involved him in case FIR No.71/24. Had it not been so, the Investigating Officer of said case, would have arrested the detenue on the very date, when the case property was taken into possession by him. This is very alarming situation. Constitutional Courts are meant to protect the fundamental rights of an aggrieved person(s) including liberty and liberty and redress their grievances. If an aggrieved person knocked the door of this Court against the mala fide or colourful exercise of authority by the Executive or illegal confinement of his/her dear one, it is the bounden duty of the Court to protect his/her right subject to law. However, if any official/officer complained against, took it on personal level and attempted to teach lesson to the aggrieved person, who approached this Court for redressal of his/her grievance, this Court will not tolerate such practice and the delinquent/ responsible officer/official shall have to face the consequences. From the above facts, it has been established on record that Sajid Khan, ASI, P.S. Manga Mandi, Lahore with the active connivance of SHO, P.S. Raja Jang, Kasur, forcibly abducted the detenue Muhammad Latif and when the Court took notice of his illegal confinement, created false and fabricated evidence against him in order to save their skin, therefore, the petitioner is directed to file an application for registration of criminal case against both the aforesaid police officials before the District Police Officer, Kasur, who shall lodge the FIR against them under the relevant provisions of law without wastage of any time, under intimation to the Deputy Registrar (J) of this Court. In order to rule out the possibility of excuse of non-appearance of the petitioner seeking registration of case, in such an eventuality, the DPO is directed to get FIR registered against the above-mentioned delinquent police officials through any of his subordinates not below than the rank of DSP.

2. It goes without saying that one of the cardinal principle of criminal law and jurisprudence is that an accused person is presumed to be innocent until proven guilty by the Court of law. However, on the one hand, soon after lodging of the crime report or supplementary statement, as the case may be, the complainant insisted upon the arrest of the accused and on the other hand, it has been observed by this Court that the Investigating Officer seems more eager to cause arrest of such accused, without determining the veracity of the allegations. It is well settled that mere lodging of an information does not make a person an accused nor does a person against whom an investigation is being conducted by the police can strictly be called an accused. It is, therefore, desired that on receiving an information qua the involvement of a person in a cognizable offence, police should not straightway cause his arrest, rather first determine the veracity of the allegations and if after investigation, it arrived at a conclusion that sufficient incriminating material is available against the person complained against, then proceed further in accordance with law. If a person is unjustly deprived of his liberty, compensation will be required to be paid to him or her by the delinquent police officer. In Sughran Bibi case the Apex Court, inter-alia, declared that " Ordinarily no person is to be arrested only because he has been nominated as an accused person in an FIR or in any other version of the incident brought to the notice of the investigating officer by any person until the investigating officer feels satisfied that sufficient justification exists for his arrest and for such justification he is to be guided by the relevant provisions of the Code of Criminal Procedure, 1898 and the Police Rules, 1934. According to the relevant provisions of the said Code and the Rules a suspect is not to be arrested straightaway or as a matter of course and, unless the situation on the ground so warrants, the arrest is to be deferred till such time that sufficient material or evidence becomes available on the record of investigation prima facie satisfying the investigating officer regarding correctness of the allegations levelled against such suspect or regarding his involvement in the crime in issue." This judgment of the Apex Court is binding on every organ of the State as per Article 189 of the Constitution and any deviation from the said judgment alone is sufficient to infer the mala fide and ulterior motive on the part of a person doing so. Life and liberty of a person is a cherished right guaranteed under the Constitution and the same cannot be allowed to be circumvented at the whims of the executive. Arrest of any person is a grave matter. Capricious exercise of the power to arrest has deleterious consequences, thus highlighting the need to exercise it with care, caution and sensitivity. Arrest of a person has to be justified not only by referring to prima facie evidence and adequate actionable material sufficiently connecting the person with the offence/crime complained of, but also by showing that in the given circumstances, there were no other less intrusive or restrictive means available. The power of arrest should not be deployed as a tool of oppression and harassment.

3. In the present case, as has been discussed supra, prima facie, the police officials in order to justify illegal detention of the detenue, involved him in case FIR No.71/24, on the basis of his socalled confession before the police, which is not admissible piece of evidence and unfortunately the Area Magistrate while dealing with the request of Investigating Officer for judicial remand of the detenue has failed to take into consideration, this legal aspect of the case and granted the request in a mechanical manner, which cannot be subscribed by this Court. The evidence so far collected against the detenue Muhammad Latif is insufficient to curtail his liberty, therefore, instead of requiring him to approach the Court of first instance for his release on bail, this Court while exercising its jurisdiction under Section 561-A Cr.P.C., is granting him post arrest bail subject to furnishing of bail bonds in the sum of Rs.10,000/- with one surety in the like amount to the satisfaction of the Trial Court. He shall be released from the jail forthwith, if not required in any other case.

4. In order to curb practice of arresting an accused in different criminal cases, one after the other, after his release on bail, following directions are issued to all the concerned:-

"(i) If an accused is arrested in a criminal case, he shall be presumed to have been arrested in all criminal cases registered against him wherein his arrest was required.

(ii) If arrest of the accused was required in any case already registered against him but could not be made for any reason, Investigating Officer is bound to make a written request to the Area Magistrate or the Court, as the case may be, explaining the reasons for such omission and seeking permission for the arrest of the accused.

(iii) The request of the Investigating Officer must be endorsed by an opinion of the concerned Prosecutor qua sufficiency of the material for the arrest of an accused.

(iv) Area Magistrate or the Court, as the case may be, shall not accord approval of such arrest in a mechanical manner, rather record reasons in writing for granting such permission.

(v) If according to the opinion of the Area Magistrate or the Court, as the case may, sufficient incriminating material is not available against an accused, it may defer such arrest till the time of availability of such evidence.

2024 P Cr. L J 1691

[Lahore]

Before Aalia Neelum, J

Muhammad Asif----Appellant

Versus

The State----Respondent

Criminal Appeal No. 6732-J of 2019, decided on 15th March, 2024.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Delay of one hour and forty five minutes in reporting the matter to police---Consequential---Accused was charged for committing murder of the mother-in-law of the complainant by firing---Incident took place on 08.12.2014 at 10.00 pm---Incident was reported by the complainant at Emergency Ward of the hospital at 11.45 pm on 08.12.2014---Record showed that there was a statement in column No.3 of the inquest report that the "date and time of the discovery of information of death" was "08.12.2014 at 10:08 pm---As per the first column of the inquest report, relating to the place where death took place or from where dead body was recovered, it was mentioned as "Mayo Hospital Emergency Ward Dead House"---On the last page of the inquest report, the place and the time, when the inquest report was prepared and the witnesses put their signatures were left blank---It was mentioned in column No.8 of the inquest report that the mouth was semi-opened---Said facts revealed that FIR was recorded later on after due deliberation and consultation and was ante-timed---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Delay of 12 to 24 hours in conducting post-mortem upon the dead body of the deceased---Consequential---Accused was charged for committing murder of the mother-in-law of the complainant by firing---Post-mortem report revealed that complete documents were received on 09.12.2014 at 12.45 pm---Medical Officer, who conducted the post-mortem upon the dead body of the deceased stated that the time of death was mentioned in post-mortem report as 08.12.2014 at 10.08 pm; that dead body was received in the department on 09.12.2014 at 11.20 pm; that time which was written in the concerned documents was 11.20 pm dated 09.12.2014; that delay of 12 to 24 hours occurred due to not receiving police papers---Duration given by the doctor between death and postmortem was 12 to 24 hours, which suggested that the death took place between 01:00 a.m. on 09.12.2014 and 01:00 p.m. on 08.12.2014---Said fact created doubt in the prosecution case as well as on the credibility and truthfulness of the statements of witnesses---Thus, it was not safe to rely on the testimonies of those witnesses---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive not mentioned---Accused was charged for committing murder of the mother-in-law of the complainant by firing---Record showed that the prosecution had not provided evidence to establish the motive for the commission of the crime, creating doubt about the prosecution case---Admittedly, the prosecution had not brought any proof on the record that the deceased was a shareholder in the land for which hot words were exchanged between the accused and deceased, which also threw a cloud of doubt on the prosecution case---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence and crime empties---Safe custody of crime empties in Malkhana not established---Accused was charged for committing murder of the mother-in-law of the complainant by firing---Record showed that 30-bore live bullets were recovered on the disclosure and pointation of the accused---Positive report of Forensic Science Laboratory was available on record---Prosecution case was that on 08.12.2014, the Investigating Officer collected one crime empty from the place of occurrence---Same was handed over to Moharrar Malkhana who deposed that on 17.12.2014, he handed over the two sealed parcel to a Police Constable for onward transmission to the office of Forensic Science Agency---Said Constable stated that the said parcels could not be deposited on the said date due to some objection from the office---Said Constable brought back the said parcel and handed it over to Moharrar police station who again handed it over to the said Constable on 22.12.2014, which he delivered in the Forensic Science Laboratory intact---In the present case, no evidence had been given that said witness made entries in Register No. 19 kept for the purpose of the malkhana---Moharrar Malkhana deposed that his statement under S.161, Cr.P.C, was recorded by the Investigating Officer---Deposition of the Investigating Officer revealed that he did not depose a single word that he recorded statement under S.161 of Cr.P.C. of Moharrar Malkhana on 17.12.2014 to the effect that Constable returned from Forensic Science Agency and handed over the parcels to Moharrar Malkhana, who kept the same in safe custody, nor he deposed that on 22.12.2014 he recorded statements of Constable and Moharrar Malkhana revealing that Moharrar Malkhana handed over parcels to Constable and said Constable deposited the same with Forensic Science Agency---Moreover, it was also necessary that when case property was re-deposited in the Mallkhana, entry in the Malkhana Register was required to be made, and a dire necessity had been cast upon the prosecution to produce in Court the abstract of the Malkhana Register for ensuring, dispelling of, any aura of skepticism seeping into the prosecution case, especially vis-a-vis safe custody of the case property, "being," re-deposited in the Malkhana---Thus, the prosecution did not prove that the parcel of the crime empty was kept in safe custody---Due to the Lack of such evidence, it could not be held that the alleged parcel of crime empty was re-deposited in Malkhana, and its benefit would go to the accused---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Absconsion of accused---Inconsequential---Accused was charged for committing murder of the mother-in-law of the complainant by firing---Prosecution emphasized that after the occurrence, the accused absconded himself---However, in the light of the statement of the Investigating Officer, and a Constable, it could not be said that the requirements of declaring a person as a proclaimed offender were met---Investigating Officer did not depose a single word that non-bailable warrant of arrest and proclamation were issued against the accused---Admittedly, Police Constable had not stated that when non-bailable warrant of arrest and proclamation was issued and handed over to him--- However, the factum of absconding, even if established, could only be used as corroborative evidence and was not a substantive piece of evidence---Mere absconsion was not proof of the guilt of an accused---Appeal against conviction was allowed, in circumstances.

Rasool Muhammad v. Asal Muhammad and another PLJ 1995 SC 477 rel.

(f) Criminal trial---

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

Muhammad Akram v. The State 2009 SCMR 230 rel.

Ch. Khalid Rasheed for Appellant.

Muhammad Akhlaq, Deputy Prosecutor General for the State.

Complainant in person.

Date of hearing: 15th March, 2024.

Judgment

Aalia Neelum, J.--- Muhammad Asif, son of Muhammad Ashfaq, caste Arai, resident of Jamshed Town Bhaini Road, Sharif Pura Baghbanpura, District Lahore, was involved in case FIR No.1086 of 2014, dated 09.12.2014, registered under Sections 302, 34 P.P.C, at Police Station, Shafiqabad, District Lahore and was tried by the learned Additional Sessions Judge, Lahore. The trial court seized with the matter in terms of the judgment dated 27.11.2018 convicted the appellant Muhammad Asif under section 302(b) P.P.C., and sentenced him to undergo imprisonment for life as Tazir with the direction to pay Rs.4,00,000/- as compensation to the legal heirs of the deceased and in case of default in payment thereof, to undergo six months S.I further. The benefit of section 382-B Cr.P.C. was also extended in favour of the appellant.

1. Feeling aggrieved by the trial court's judgment, Muhammad Asif, the appellant, has assailed his conviction by filing instant Crl. Appeal No.6732-J of 2019.

2. The prosecution story as alleged in the FIR (Ex.PA/2) lodged on the written application (Ex.PA) of Zeeshan Khalid (PW-5)-the complainant is that he (the complainant) was married to the daughter of Mst. Robina Shoaib (the deceased) three years back, and he was residing with his in-laws for two years; on 08.12.2014 at 10:00 p.m., the complainant (PW-5) along with other family members was sleeping at home, when the door was knocked; the complainant (PW-5) and his mother in law, came at the door, opened the door and saw that accused Asif Ashfaq (the appellant) and Hamza Ashfaq (co-accused since acquitted) were standing there; the mother in law of the complainant, asked them, as to why they had come there; after that, they asked her to transfer her share of land situated in Mehmood Booti, in their names; the mother in law of the complainant refused to do so, after that hot words were exchanged; on hearing the voice of noise, his brother in law (), Sameer Gul Sher (PW-6) and neighbor Waseem Zafar (PW-7), reached the spot, while accused were speaking loudly. Meanwhile, the father of the accused, Mian Muhammad Ashfaq (co-accused since acquitted) also came there and raised lalkara to teach a lesson to her for not giving the land to them; both Muhammad Asif Ashfaq (the appellant) and Hamza Ashfaq (co-accused since acquitted) pulled out their pistols; Muhammad Asif Ashfaq (the appellant) made fire with his pistol, which hit on the abdomen of Robina Shoaib (the deceased), after touching her right wrist, who fell on the ground after sustaining injury. While Muhammad Asif Ashfaq (the appellant), Hamza Ashfaq (co-accused since acquitted), Mian Muhammad Ashfaq (co-accused since acquitted), along with one unknown accused, succeeded in fleeing away while boarding on motorcycles. The complainant, along with PWs, shifted Mst. Robina Shoaib (the deceased) to Mayo Hospital, Lahore, for treatment by a rickshaw, where the doctor declared her dead.

3. Upon receiving the information of the occurrence, Rashad Ahmad S.I. (PW-1) reached Mayo Hospital, Lahore, where the complainant (PW-5) presented written application (Ex. PA) before him, who on completion of police karawai sent the same to the Police Station through Iftikhar 12469/C (not cited as a witness) after that formal FIR (Exh.PA/2) was chalked out by Ghulam Murtaza S.I (PW-3).

4. After registration of the case, the investigation of this case was conducted by Gulzar Ahmad S.I (PW-8) and Ghulam Muhammad S.I (PW-17), who, having found the appellant guilty, prepared a challan under section 173 Cr.P.C. and sent the same to the court of competent jurisdiction while placing the names of all accused persons in Column No.3 of the challan. On 19.11.2018, the trial court formally charge-sheeted the appellant, to which he pleaded not guilty and claimed trial. In support of its version, the prosecution produced as many as eighteen (18) witnesses.

5. After the closure of prosecution evidence, the appellant was examined under Section 342 of Cr.P.C., wherein he neither opted to appear as his own witnesses in terms of Section 340 (2) Cr.P.C. nor opted to produce any evidence in his defence. In response to a particular question of why this case was against him and why the PWs had deposed against him, the appellant-Muhammad Asif, made the following depositions: -

"The witnesses are inimical and close relative of each other. Although I was not present at scene of occurrence, my name was given due to malice."

1. After recording evidence and evaluating the evidence available on record in the light of the arguments advanced by both sides, the trial court found the prosecution version proved beyond any shadow of reasonable doubt, which resulted in the appellant's conviction in the afore-stated terms.

2. I have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record on the file.

3. In the instant case, the incident occurred at 10:00 p.m. on 08.12.2014 in the house of Mst. Robina Shoaib (the deceased), mother-in-law of Zeeshan Khalid (PW-5)-the complainant, situated at Kausar Pura, falling within the jurisdiction of Police Station Shafiqueabad, District Lahore, which is at a distance of two (02) Kilometers from the place of occurrence. Allegedly, the occurrence was witnessed by Zeeshan Khalid (PW-5)-the complainant, Sameer Gul Sher (PW-6), and Waseem Zafar (PW-7). As per the prosecution case, accused Asif Ashfaq (the appellant) and Hamza Ashfaq (co-accused since acquitted) arrived at the house of Mst. Robina Shoaib (the deceased) and asked her to transfer her share of land situated in Mehmood Booti, in their names; on refusal of Mst. Robina Shoaib (then injured), hot words were exchanged; on hearing the voice of noise, Sameer Gul Sher (PW-6), son of the deceased and neighbor Waseem Zafar (PW-7), attracted at the place of occurrence; during the foregoing incident, Mian Muhammad Ashfaq (co-accused since acquitted) also came there and raised lalkara to teach her lesson for not giving the land to them; upon which Muhammad Asif Ashfaq (the appellant) and Hamza Ashfaq (co-accused since acquitted) took out their pistols and Muhammad Asif Ashfaq (the appellant) made fire with his pistol, which hit on the abdomen of Mst. Robina Shoaib (the deceased), after touching her right wrist, who fell on the ground after sustaining an injury; the accused persons Muhammad Asif Ashfaq (the appellant), Hamza Ashfaq (co-accused since acquitted), Mian Muhammad Ashfaq (co-accused since acquitted) along with one unknown accused while boarding on their motorcycles, waving weapons, fled away from the place of occurrence. Zeeshan Khalid (PW-5)-the complainant, along with Sameer Gul Sher (PW-6) and Waseem Zafar (PW-7), put Mst. Robina Shoaib (then injured) in the rickshaw and shifted her for treatment at Mayo Hospital, Lahore. On reaching the hospital, the doctor, after checking Mst. Robina Shoaib informed them that she succumbed to the injuries. After that, the matter was reported to the police by Zeeshan Khalid (PW-5)-the complainant. Zeeshan Khalid (PW-5)-the complainant deposed during examination-in-chief that: -

"Doctor issued documents regarding incident and we took them to the police station. Police came at the place of occurrence and hospital as well. Then we reached at police station for registration of FIR. He (PW-5) also deposed during cross-examination that, "I do not remember when we reached at police station whether blood stained clothes were observed by the police officer on duty. When we (Waseem Zafar, Sameer Shoaib and Zeeshan) went to P.S. for registration of case we did not offer police officer to take our clothes as they were blood stained nor I.O. had taken the same into his possession. The statements of other two witnesses were also recorded by the police officer. It is incorrect to suggest that we did not go to P.S. for registration of the case."

Similarly, Sameer Gul Sher (PW-6) deposed during cross-examination that: -

"I along with Zeeshan, Waseem went to police station and Zeeshan got registered FIR where police officials recorded the statement of Zeeshan. At that time my statement and statement of Waseem were not recorded by the police."

Waseem Zafar (PW-7) deposed in his examination in chief that -

"Doctor handed over us concerned documents then we went to police station for lodging FIR."

Whereas, on perusal of the written complaint (Ex. PA), it reveals that at the bottom of the written complaint (Ex. PA), Rashid Ahmad S.I. (PW-1) incorporated police proceedings (Ex. PA/1) by mentioning that the incident was reported by Zeeshan Khalid (PW-5)-the complainant at Emergency Ward of Mayo Hospital, Lahore on 08.12.2014. The scanned copy of the police proceedings (Ex.PA/1) is as follows:

The police proceeding (Ex.PA/1) incorporated at the bottom of the written complaint (Ex.PA) created doubt in the version of the prosecution that the incident was reported at the police station. Besides, contrary to the depositions of Zeeshan Khalid (PW-5)-the complainant, Sameer Gul Sher (PW-6) and Waseem Zafar (PW-7), Rashid Ahmad S.I. (PW-1) deposed during the examination in chief that:-

"On 08.12.2014 I was posted at P.S. Shafiqueabad, Lahore. On the same day I along with Iftikhar Ahmad and Kashif Ali constables was present Kasurpura for patrolling. On receiving information from City Control I reached at Mayo Hospital, Lahore where the complainant Zeeshan Khalid presented before me an application Ex.PA for registration of FIR upon which I wrote police proceedings Ex.PA/1 the same is in my handwriting and bears my signatures."

As per the prosecution case, the incident took place on 08.12.2014 at 10:00 p.m., and as per the police proceedings, the incident was reported by Zeeshan Khalid (PW-5)-the complainant at Emergency Ward Mayo Hospital, Lahore, at 11:45 p.m. on 08.12.2014 and police proceedings were incorporated by Rashid Ahmad (PW-1) at the bottom of the written complaint (Ex. PA), who referred the written complaint (Ex. PA) through Iftikhar Ali 12469/C (PW-11) to the police station for chalking out formal FIR (Ex.PA/2). Iftikhar Ali 12469/C (PW-11) deposed during his court statement that on 09.12.2014, he, along with Kashif/C (given up PW) and Rashid Ahmad S.I. (PW-1), was on patrolling, when Rashid Ahmad (PW-1) received information of the occurrence. Iftikhar Ali 12469/C (PW-11), along with Kashif/C (given up PW) and Rashid S.I. (PW-1), went to Mayo Hospital and took into possession the dead body of the deceased Robina Bibi. During cross-examination, Iftikhar Ali 12469/C (PW-11) deposed that:-

"Rashid SI handed over dead body of deceased Robina to me at emergency ward of Mayo hospital in the presence of Kashif/C. No other person known to me was present at that time. Rashid SI handed over dead body to me after completing proceedings of filling the relevant form etc. regarding the handing over dead body."

Ghulam Murtaza S.I. (PW-3) deposed during examination-in-chief that on 09.12.2014, the written complaint (Ex. PA) was received by him through constable Iftikhar (not mentioned belt number of constable), on which the police proceedings (Ex.PA/1) were recorded by Rashid Ahmad S.I. (PW-1) for registration of FIR. He (PW-3) lodged a formal FIR (Ex.PA/2) without any omission or deletion. During examination-in-chief, Rashid Ahmad S.I. (PW-1) deposed that Iftikhar Ahmad and Kashif Ali Constables were with him on 08.12.2014 when he (PW-1) received information from City Control. The investigation of the case was entrusted to Gulzar Ahmad S.I. (PW-8)-the investigating officer, who deposed during examination in chief that: -

"Stated that on 08.12.2014, I was posted at Police Station Shafiqueabad, Lahore. I received the information of incident and reached at the place of occurrence. There I came to know that injured has been escorted by Rashid Ahmad SI along with legal heirs of the deceased to Mayo Hospital. On 09.12.2014 investigation of this case was entrusted to me. I along with my officials reached Mayo hospital, inspected the dead body at dead house and sent the dead body to mortuary for Postmortem examination and came at the place of occurrence along with PWs."

During cross-examination, Gulzar Ahmad S.I. (PW-8)-the investigating officer, deposed as under: -

"We proceeded from the police station at about 12.20 a.m. On receiving information we proceeded to the place of occurrence but in the way we were informed that the dead body was shifted to the dead house. It is correct that it is written in my examination in chief: I proceeded to the place of occurrence first: then I went to the hospital. The factum of going to their hospital is correct and the factum of going to the place of occurrence is incorrect."

Gulzar Ahmad S.I. (PW-8)-the investigating officer deposed that he reached the dead house and sent the dead body to the mortuary for postmortem examination after preparing all the necessary documents. It is worth noticing in this context that there is a statement in column No.3 of the inquest report (Ex. PR) that the "date and time of the discovery of information of death" was on "08.12.2014 at 10:08 p.m". As per the first column of the inquest report (Ex. PR), relating to the place where death took place or from where dead body was recovered, it was mentioned as "Mayo Hospital Emergency Ward Dead House". On the last page of the inquest report (Ex. PR), the place and the time, when the inquest report was prepared and the witnesses put their signatures were left blank. It is mentioned in column No.8 of the inquest report (Exh. PR) that the mouth was semi-opened. Muhammad Nadeem 8057/C (PW-10) deposed during examination-in-chief that:-

"Stated that on 09.12.2014, I was posted at P.S Shafiquabad Investigation wing. On the same day Ghulzar Ahmad SI handed over to me and Khan Muhammad 10927/C the body of deceased Robina Shoaib for conducting the postmortem examination."

The facts mentioned above reveal that FIR was recorded later on after due deliberations and consultation and was ante-timed. The postmortem report (Ex. PJ) reveals that complete documents were received on 09.12.2014 at 12:45 pm. Dr. Mansoora Mirza, (PW-9) deposed in her examination-in-chief that:-

"On 9.12.2014 when the dead body of Mst. Robina Bibi aged 48 years female wife of Muhammad Shoib resident of House No.1 Street No.7 Ravi Road, Lahore was brought by Khan Muhammad No.10927/C and Muhammad Nadeem No.8057/HC P.S. Shafiqueabad, Lahore at 11.20 p.m. It was identified by Sameer Ahmad, son of Muhammad Shoib (son of deceased), and Mian Shaukat Ali, son of Muhammad Shafi (relative of the deceased). According to police paper the time of death was 10.08 p.m. dated 08.12.2014. Complete police papers were received on 09.12.2014 at 12.45 p.m. and the autopsy was conducted at 1.00 p.m. on the same date."

During cross-examination, Dr. Mansoora Mirza (PW-9) deposed as under: -

"There is standing instruction that P.M examination of a dead body is to be conducted as soon as the complete police papers were received. The police papers means that all the documents prepared by the police should be present at the time of conducting of postmortem. The time of death is mentioned in PMR is 08.12.2014 at 10.08 p.m. The dead body was received in the department on 9.12.2014 at 11.20 p.m. The time which was written in the concerned documents was 11.20 p.m. dated 09.12.2014 while it was 11.20 a.m. It is correct that the time which I stated today at 11.20 a.m. The delay of 12 to 24 hours was occurred due to not receiving police papers. Again said that delay in conducting the P.M. examination was non-availability of complete police papers."

The circumstances discussed above throw a cloud of doubt about whether the FIR was recorded when it was alleged to have been lodged by the police. The duration given by the doctor between death and postmortem was 12 to 24 hours. It suggests that the death took place between 01:00 a.m. on 09.12.2014 and 01:00 p.m. on 08.12.2014. The matter can also be examined from another angle: Zeeshan Khalid (PW-5)-the complainant deposed during cross-examination that: -

"We reached at hospital after the occurrence within 15/30 minutes. I reached at hospital at about 10.30 p.m. After reaching the hospital we remained in hospital for about 1-1/2 hour. From hospital we came to our house and then we reached police station with out eldest members. We reached police station at about 12.00 midnight/12.15 a.m. Then we returned back to our house and met police on next day. Next day they handed over us a copy of FIR then we went to hospital. We remained in contact with police during this period."

This fact creates doubt in the prosecution case as well as on the credibility and truthfulness of the statements of Zeeshan Khalid (PW-5)-the complainant, Sameer Gul Sher (PW-6), and Waseem Zafar (PW-7). Therefore, I do not think it safe to rely on the testimonies of these witnesses. This also creates doubt about the genuineness of the version given by prosecution witnesses, i.e., Zeeshan Khalid (PW-5)-the complainant, Sameer Gul Sher (PW-6), and Waseem Zafar (PW-7). Admittedly, all the witnesses are interested. Waseem Zafar (PW-7)-the eye-witness deposed during examination-in-chief that: -

"Stated that on 08.12.2014 at about 10.00 p.m. I was eating meal in my room after finishing my work. I heard noise from outside in the street and saw that Asif and Hamza exchanging hot words with mother of Sameer."

Whereas, during cross-examination, the defence has brought improvements made by Waseem Zafar (PW-7)-the eye-witness in his earlier statement on the record, which is as under: -

"It is incorrect to suggest that I got recorded before the police that I was sleeping at the time of occurrence. Confronted with Ex.DA where so recorded."

Zeeshan Khalid (PW-5)-the complainant in the application for registration of case (Ex. PA), has mentioned that Waseem Zafar is the neighbor, who had also attracted to the place of occurrence. Whereas, during cross-examination, he (PW-5)-the complainant, deposed about the relationship of the witnesses, which reads as under: -

"Sameer is my brother-in-law. Waseem is my relative from my paternal father-in-law (Phopha)."

Zeeshan Khalid (PW-5)-the complainant in his examination-in-chief, deposed that he was present at his house on 08.12.2014; at about 10:00 p.m., the door was knocked, and he opened the door and saw Hamza and Asif standing outside the door. Later, his mother-in-law came there, and they started negotiations regarding land. During this episode, hot words were exchanged, and Sameer Shoaib (PW-6), son of the deceased, and Waseem Zafar (PW-7) also came there. Whereas, Sameer Gul Sher (PW-6) deposed in his examination-in-chief that on 08.12.2014 at about 10:00 p.m., a noise came from the street; he (PW-6) came down and saw that hot words were being exchanged in between his mother and Hamza (co-accused since acquitted) and Asif Ashfaq (the appellant) regarding land and on the refusal of his mother, the accused flared up and Asif (the appellant) made a fire shot upon his mother and she fell; Waseem his neighbor and Zeeshan his brother in law also came there and attended his mother. The mode and manner of initiating the incident and who reached the place of occurrence also create doubt from the depositions mentioned above of the prosecution witnesses, i.e., Zeeshan Khalid (PW-5)-the complainant, Sameer Gul Sher (PW-6) and Waseem Zafar (PW-7). All the above facts, coupled with the fact that the prosecution has not provided evidence to establish the motive for the commission of a crime, create doubt about the prosecution case. It is admitted that the prosecution has not brought any proof on the record that Mst. Robina Shoaib, the deceased, is a shareholder in the land situated in Mehmood Booti, which also throws a cloud of doubt on the prosecution case.

1. As regards the recovery of the 30-bore pistol P-5 and three live bullets (P-6/1-3), the only incriminating evidence on the disclosure and pointing of the appellant-Muhammad Asif and positive report of Punjab Forensic Science Agency, Lahore (Exh.P2) is concerned, it is a prosecution case that on 08.12.2014, Gulzar Ahmad S.I. (PW-8)-the investigating officer, collected one crime empty from the place of occurrence through recovery memo. (Ex. PC). The same was handed over to the Moharrar malkhana on the same day. Atta ur Rehman 13916/HC (PW-13)-Moharrar malkhana deposed during examination-in-chief that Gulzar Ahmad S.I. (PW-8) handed him two sealed parcels stamped with the logo of AS for safe custody. On 17.12.2014, he handed over the two sealed parcels to Khan Muhammad 10927/C (PW-4) for onward transmission to the office of Punjab Forensic Science Agency, Lahore. Khan Muhammad 10927/C (PW-4) deposed in his examination-in-chief that: -

"On 17.12.2014 two parcels one of blood stain and other of empties were handed over to me by moharrar operation P.S. Shafiqueabad which I took to the office of FSL. The parcel could not be deposited on the said date as objected by the office. I brought back the said parcel and handed it over to moharrar P.S. Shafiqueabad who again handed over to me the said parcel on 22.12.2014 which I delivered in the FSL intact."

Atta ur Rehman 13916/H.C. (PW-13) deposed in his examination-in-chief that on 17.12.2014, he handed over two parcels to Khan Muhammad 10927/C (PW-4), which has been received back due to objection raised by the office of PFSA and on 22.12.2014, again said parcels were handed over to Khan Muhammad 10927/C (PW-4) for onward transmission and he (PW-4) deposited the same in the office of PFSA. Atta ur Rehman 13916/HC (PW-13) brought notes while recording his examination-in-chief. This fact has come on the record in his cross-examination, which reads as follows: -

"It is correct that there are some notes on my left hand to refresh my knowledge. Volunteered that those are pertaining to some other case. Then said that these are pertaining to refresh memories of this case."

Atta ur Rehman 13916/HC (PW-13) gave his deposition during his examination-in-chief, with the help of notes he prepared for the purpose. Now, the question is whether his testimony can be treated as testimony by the provisions contained in Article 71 of the Qanun-e-Shahadat Order, 1984. The tenor of the language used in the first proviso to Article 71 of the Qanun-e-Shahadat Order, 1984 leads this court to the conclusion that evidence contemplated under Article 71 of the Qanun-e-Shahadat Order, 1984 envisages personal testimony based on the memory of the person who has seen, heard, or perceived a fact. The statement given on oath with the help of notes prepared by Atta ur Rehman 13916/HC (PW-13) appears to be against the law on the subject. In this background, I, after going through the nature of the deposition, conclude that Atta ur Rehman 13916/HC (PW-13) is a witness to the fact that he handed over two parcels on 17.12.2014 to Khan Muhammad 10927/C (PW-4) one of the blood stains and another of crime empties for onward transmission to PFSA but he (PW-4) could not deposit it with PFSA on the same day. He returned the same to Atta ur Rehman 13916/HC (PW-13) Moharrar Malkhana, and later on 22.12.2014, Khan Muhammad 10927/C (PW-4) received parcels from Khan Muhammad 10927/C (PW-4) and deposited the same with the office of PFSA. To consider whether a witness is entitled to refresh his memory before or during his examination. Provisions contained in Article 155 of the Qanun-e-Shahadat Order, 1984 are quoted below:

155. Refreshing memory.

(1) A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory.

(2) The witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct.

(3) Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the Court, refer to a copy of such document.

Provided the Court be satisfied that there is sufficient reason for the non-production of the original.

(4) An expert may refresh his memory by reference to professional treaties."

In the instant case, no evidence has been given that this witness made entries in the Register No.19 kept for the purpose of the malkhana. Atta ur Rehman 13916/HC (PW-13) deposed that his statement under section 161 of Cr.P.C. was recorded by the investigating officer. Gulzar Ahmad S.I. (PW-8)-the investigating officer deposed during examination-in-chief that: -

"On 17.12.2014, I recorded the statement of Khan Muhammad/C under section 161 Cr.P.C. On 18.01.2015 I arrested the accused Iftikhar alias Veera and sent to the judicial lock up by the Area Magistrate. I got challaned the accused on 29.01.2015 by SHO concerned."

So, from the above deposition of Gulzar Ahmad S.I. (PW-8)-the investigating officer, it reveals he did not depose a single word that he recorded statement under section 161 of Cr.P.C. of Atta ur Rehman 13916/HC (PW-13) on 17.12.2014 to the effect that Khan Muhammad 10927/C (PW-4) returned from PFSA and handed over the parcels to Atta ur Rehman 13916/HC (PW-13), who kept the same in safe custody, nor he deposed that on 22.12.2014 he recorded statements of Khan Muhammad 10927/C (PW-4) and Atta ur Rehman 13916/HC (PW-13) revealing that Atta ur Rehman 13916/HC (PW-13) handed over parcels to Khan Muhammad 10927/C (PW-4) and Khan Muhammad 10927/C (PW-4) deposited the same with PFSA. It is also necessary that when case property is re-deposited in the Mallkhana, entry in the Malkhana Register is required to be made, and a dire necessity has been cast upon the prosecution to produce in Court the abstract of the Malkhana Register for ensuring, dispelling of, any aura of skepticism seeping into the prosecution case, especially vis-a-vis safe custody of the case property (P-7), "being," re-deposited in the Malkhana. Therefore, in the present case, provisions of Article 155 of the Qanun-e-Shahadat Order, 1984 would have no application. Pointing out the above deposition of prosecution witnesses it reveals that the prosecution did not prove that the parcel of the crime empty (P-7) was kept in safe custody. Due to the lack of this evidence, it cannot be held that the alleged parcel of crime empty (P-7) was re-deposited in Malkhana, and its benefit will go to the accused. This creates doubt about the genuineness and safe custody of the crime empty (P-7) recovered from the place of occurrence. It is also the prosecution case that the appellant-Muhammad Asif, was arrested by Abbas S.I., Incharge Investigation P.S. Lower Mall, on 14.05.2016, and he informed Ghulam Muhammad S.I. (PW-17)-investigating officer, about the arrest of the appellant and he (PW-17) took custody of Muhammad Asif-the appellant from P.S. Lower Mall, Lahore and after that Ghulam Muhammad S.I. (PW-17)-the investigating officer produced Muhammad Asif-the appellant before the Magistrate and took his physical remand. Ghulam Muhammad S.I. (PW-17)-the investigating officer deposed during examination-in-chief that: -

"On 27.05.2016 accused made a disclosure during investigation that he could get recovered the pistol P5 which used in the occurrence. I reached at graveyard Gao Shala on lead of accused upon reaching there I opened one hand-cuff of the accused and accused with his free hand got recovered pistol P-5 from the western side wall of the graveyard by digging the earth which was wrapped in a polythene envelope. Upon unload three live bullets P-6/1-3 were recovered. -------- After reaching police station I handed over parcel to moharrar for keeping it in safe custody. --------------- On 08.06.2016 I recorded statement of moharrar regarding safe custody of case property. The parcels of case property of this case was submitted in the office of PFSA by me."

2024 P Cr. LJ 1721

[Lahore]

Before Aalia Neelum and Farooq Haider, JJ

Aqeel alias Kaka and 3 others----Petitioners

Versus

The State and 2 others----Respondents

Criminal Revision No. 24470 of 2023, decided on 28th March, 2024.

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

----Ss. 6 & 7---Terrorism---Scope and applicability---Offence committed due to personal enmity---In criminal law, mens rea i.e. guilts mind which refers to criminal intent carries vital importance to determine the nature as well as gravity of the alleged act or omission subject matter of the crime and resultantly deciding the question of jurisdiction also---Almost every crime spreads feelings of insecurity, harassment and fear however quantum of said effect i.e. feelings varies from person to person and area to area---Sometime even a pellet fired from air gun hitting bird or animal resulting into oozing of the blood, can cause fear to the person who has never seen such episode earlier in his life and is not acquainted with firearm weapons as well as their use, whereas a person familiar with such events would not take any serious note of it even if assault rifle like Kalashnikov has been used for committing the occurrence---Thus, merely due to magnitude of the effects of the crime, it can not be termed as "terrorism" falling in the ambit of S.6 of the Anti-Terrorism Act, 1997 and punishable under S.7 of the Act ibid, if it has been committed due to personal enmity/vendetta.

Ghulam Hussain and others v. The State and others PLD 2020 SC 61 and Sadiq Ullah and another v. The State and another 2020 SCMR 1422 rel.

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

----Ss. 6 & 7---Terrorism---Firing at the Court---Scope---If prima-facie, intention to cause firing in or at a Court premises is not reflected from the act constituting the crime, rather it appears that occurrence is orchestrated to target opponents due to personal enmity outside the Court and as a bye product incidentally some bullets hit the outer wall of the Court premises or outer wall of Court room from distance, then there is absolutely no intention to cause firing in the Court---In such state of affairs, act constituting the offence/crime irrespective of the huge loss of lives or other things, will not be triable by Anti-Terrorism Court under its Third Schedule---Firing in the Court has been mentioned in Third Schedule of Anti-Terrorism Act, 1997, for making the case triable by Anti-Terrorism Court whereas firing near or around i.e. in the surrounding of the Court is not mentioned in Clause 4(iii) of Third Schedule of Anti-Terrorism Act, 1997 and same cannot be added therein by the Court.

Deputy Director Finance and Administration FATA through Additional Chief Secretary FATA, Peshawar and others v. Dr. Lal Marjan and others 2022 SCMR 566; Sirajud Din and another v. Allah Rakha and others PLD 1960 (W.P.) 261 and Waris Ali and 5 others v. The State 2017 SCMR 1572 rel.

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

----Ss. 302(b), 324, 148, 149 & 120-B---Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 23---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly, criminal conspiracy, act of terrorism---Firing outside Court premises---Not terrorism---transfer of case from Anti-Terrorism Court to the Ordinary Court---It was prosecution's own case that accused persons committed the occurrence when victim of the case came out from the Court and reached on the road---So, accused persons neither went inside the Court premises for committing the occurrence nor made firing upon the victims when they were inside the Court premises---Intention or mens rea i.e. guilty intention was inferred from the acts, facts and circumstances---Hence, prima-facie, there was no intention of the accused persons to target the Court or victims in the Court premises and it was not mentioned in the Crime Report (FIR) that accused made firing at the Court premises and the fire shots hit wall of the Court room or its boundary wall, however, it was claim of prosecution that as per site plan of the place of occurrence, some signs of hitting of bullets at the Court premises had been shown---But perusal of the site plan reflected that signs of some bullets were shown at the outer wall of the Court room situated at the upper storey and at the outer side of the boundary wall of Court---So, by no stretch of the imagination, it could be said that firing was made in the Court or for targeting or hitting the Court premises rather it had been clearly mentioned in case diary in the case that there was previous litigation and grudge between complainant party and accused persons---So, the occurrence took place outside the Court premises and due to previous enmity/vendetta, hence, occurrence neither constituted offence of terrorism as defined under S.6 of the Anti-Terrorism Act, 1997 and punishable under S.7 of the Act ibid nor fell in the Third Schedule of the Act, for the purpose of trial by Anti-Terrorism Court---Thus, Anti-Terrorism Court fell into legal error while holding through impugned order that present case was triable by Anti-Terrorism Court---Revision petition stood accepted/allowed and the case was sent to the Court of plenary jurisdiction i.e. Sessions Court.

Ch. Ishtiaq Ahmad Khan, along with Adnan Ahmad Ch., Zarish Fatima and Mujahid Dasti for Petitioners.

Tariq Siddique, Additional Prosecutor General along with Munir, Inspector and record of the case for the State.

Mian Tabassum Ali for Respondent No. 3.

Date of hearing: 21st March, 2024.

Judgment

Farooq Haider, J.---Through instant revision petition filed by Aqeel alias Kaka, Muhammad Hussain, Ali Haider and Mst. Sabiran Bibi {petitioners/accused persons in case arising out of FIR No.1743/2022 dated: 22.06.2022 registered under Sections: 302, 324, 148, 149, P.P.C. read with Section: 7 of the Anti-Terrorism Act, 1997 (subsequently, offences under Sections: 337-A(i), 337-F(iii), 337-F(vi) and 120-B P.P.C. were added during investigation of the case) at Police Station: Shahdra Town, District: Lahore}, following prayer has been made: -

"In view of the above submissions, it is, therefore, most respectfully prayed that this petition may kindly be accepted and the impugned order dated 18.03.2023 passed by learned respondent No.2 may kindly be set aside in the interest of justice and the case FIR No.1743/2022 may kindly be transferred from the Anti-Terrorism Court to The Court of Ordinary Jurisdiction in the interest of justice.

Any other relief, which this Hon'ble Court deems fit and proper may also kindly be awarded to the petitioner."

1. Brief however necessary facts for decision of this petition are that Muhammad Ijaz Khan (complainant/now respondent No.3 in the instant petition) got registered case vide FIR No.1743/2022 (mentioned above) against accused persons including present petitioners; subsequently, he got recorded supplementary statement dated: 24.09.2022 whereby he nominated five more accused persons namely Manzoor alias Paa, Sakhawat, Hamid, Liaqat Ali and Sana Bibi; during investigation of the case, Sarfraz Ahmad, Imtiaz Hussain alias Kaka and Imran were declared innocent and thereafter incomplete challan report in the case was prepared and sent to the Court for trial where application under Section: 23 of the Anti-Terrorism Act, 1997 was filed by present petitioners, which was dismissed vide impugned order dated: 18.03.2023 passed by learned Judge Anti-Terrorism Court-I, Lahore; relevant portions of said order are hereby reproduced: -

"Through application under consideration the petitioners /accused requested the court for the transfer of the case to the court of ordinary jurisdiction because sections 6 and 7 of Anti-Terrorism Act, 1997 do not attract to the case of prosecution and the learned apex court has opined that inspite of grave, shocking, brutal, gruesome or horrifying offence it is not termed as terrorism if it is not designed to create terror amongst the general massive."

"Perusal of record reveals that when complainant party in the present case after appearing before the court of Rai Nawaz Marth, ASJ Frozewala in case FIR No.524/2020 got registered under sections 302, 324, 109 P.P.C. was on its way the accused made brutal firing upon them due to which Shahid Khan and Sajjad Khan died at the spot whereas Ameer Hamza son of Muhammad Sajjad died at Mayo Hospital, Lahore. Apart from deceased Malik Kamran and Zawar alias Saddam also received serious injuries at the hands of accused and in order to decide the fate of application filed under section 23 of Anti-Terrorism Act, 1997 the place of occurrence is very relevant. In this regard not only unscaled site plan prepared by Investigating Officer is part of record but the scaled site plan clearly contained point 'W' the place where four fire shots made by accused hit the court room of Rai Nawaz Marth, learned ASJ Frozewala. The offence committed by accused within the court premises while damaging its wall is a scheduled offence and as per section 12 of Anti-Terrorism Act, 1997 and Para No.13 of judgment relied upon as PLD 2020 SC 61 it clearly exclude the jurisdiction of ordinary court.

In view of above as the provisions of sections 6 and 7 of Anti-Terrorism Act, 1997 are attracted in this case and only this court has jurisdiction to decide the challan against accused, therefore, application filed under section 23 of Anti-Terrorism Act, 1997 being devoid of any force stands dismissed."

1. Learned counsel for the petitioner submits that impugned order is against the law as well as facts of the case, therefore, same is not sustainable in the eyes of law; finally prays for setting aside the impugned order.

2. Learned Additional Prosecutor General and learned counsel for respondent No.3 while supporting the impugned order pray for dismissal of this petition.

3. Arguments heard and available record perused.

4. In criminal law, mens rea i.e. guilt mind which refers to criminal intent carries the vital importance to determine the nature as well as gravity of the alleged act or omission subject matter of the crime and resultantly deciding the question of jurisdiction also. Almost every crime spreads feelings of insecurity, harassment and fear however quantum of said effect i.e. feelings varies from person to person and area to area e.g. sometime even pallet fired from air gun hitting bird or animal resulting into oozing of the blood, can cause fear to the person who has never seen such episode earlier in his life and not acquainted with firearm weapons as well as their use whereas the person familiar with such events will not take any serious note of it even if assault rifle like Kalashnikov has been used for committing the occurrence, therefore, merely due to magnitude of the effects of the crime, it cannot be termed as "terrorism" falling in the ambit of Section: 6 of the Anti-Terrorism Act, 1997 and punishable under Section: 7 of the Act ibid, if it has been committed due to personal enmity/vendetta; in this regard, guidance has been sought from the case of "Ghulam Hussain and others v. The State and others" (PLD 2020 SC 61); relevant portion from said case law is hereby reproduced: -

"15. The resume of our legislative developments in the field of terrorism shows, as already observed in the case of Basharat Ali (supra), that with different laws and definitions of terrorist act or terrorism the emphasis has been shifting from one criterion to another including the gravity of the act, lethal nature of the weapon used, plurality of culprits, number of victims, impact created by the act and effect of fear and insecurity brought about or likely to be created in the society by the action. The last definition of a 'terrorist act' contained in section 6 of the Anti-Terrorism Act, 1997 squarely focused on the effect of fear and insecurity intended to be created by the act or actually created by the act or the act having the potential of creating such an effect of fear and insecurity in the society. It, however, appears that subsequently the legislature did not feel convinced of the aptness or correctness of that definition and resultantly the erstwhile definition of a 'terrorist act' contained in section 6 of the Anti-Terrorism Act, 1997 was repealed and a totally fresh and new definition of 'terrorism' was introduced through an amended section 6 of the Anti-Terrorism Act, 1997. The legislature had probably realized by then that an effect of an act may not always be a correct indicator of the nature of such an act as every crime, especially of violence against person or property, does create some sense of fear and insecurity in some section of the society and a definition of terrorism based upon the magnitude or potential of an effect created or intended to be created or having a potential of creating would necessarily require a premature, speculative and imaginary quantification of the effect so as to determine the nature of the act in order to decide about the jurisdiction of a criminal court to try such an act. That surely was an unsure test and the result of such a premature, speculative and presumptive test could vary from court to court and from Judge to Judge reminding a legal scholar of the Star Chamber and the early days of a Court of Equity in England where equity was said to vary with the size of the Chancellor's foot. The new definition of 'terrorism' introduced through the amended section 6 of the Anti-Terrorism Act, 1997 as it stands today appears to be closer to the universally understood concept of terrorism besides being easier to understand and apply. The earlier emphasis on the speculative effect of the act has now given way to a clearly defined mens rea and actus reus. The amended clause (b) of subsection (1) of section 6 now specifies the 'design' and clause (c) of subsection (1) of section 6 earmarks the 'purpose' which should be the motivation for the act and the actus reus has been clearly mentioned in subsection (2) of section 6 and now it is only when the actus reus specified in subsection (2) of section 6 is accompanied by the requisite mens rea provided for in clause (b) or clause (c) of subsection (1) of section 6 that an action can be termed as 'terrorism'. Thus, it is no longer the fear or insecurity actually created or intended to be created or likely to be created which would determine whether the action qualifies to be termed as terrorism or not but it is now the intent and motivation behind the action which would be determinative of the issue irrespective of the fact whether any fear and insecurity was actually created or not. After this amendment in section 6 an action can now be termed as terrorism if the use or threat of that action is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect, etc. or if such action is designed to create a sense of fear or insecurity in the society or the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause, etc. Now creating fear or insecurity in the society is not by itself terrorism unless the motive itself is to create fear or insecurity in the society and not when fear or insecurity is just a byproduct, a fallout or an unintended consequence of a private crime. In the last definition the focus was on the action and its result whereas in the present definition the emphasis appears to be on the motivation and objective and not on the result. Through this amendment the legislature seems to have finally appreciated that mere shock, horror, dread or disgust created or likely to be created in the society does not transform a private crime into terrorism but terrorism as an 'ism' is a totally different concept which denotes commission of a crime with the design or purpose of destabilizing the government, disturbing the society or hurting a section of the society with a view to achieve objectives which are essentially political, ideological or religious. This approach also appears to be in harmony with the emerging international perspective and perception about terrorism. The international perception is also becoming clearer on the point that a violent activity against civilians that has no political, ideological or religious aims is just an act of criminal delinquency, a felony, or simply an act of insanity unrelated to terrorism. This metamorphosis in the anti-terrorism law in our country has brought about a sea change in the whole concept as we have understood it in the past and it is, therefore, of paramount importance for all concerned to understand this conceptual modification and transformation in its true perspective.

1. For what has been discussed above it is concluded and declared that for an action or threat of action to be accepted as terrorism within the meanings of section 6 of the Anti-Terrorism Act, 1997 the action must fall in subsection (2) of section 6 of the said Act and the use or threat of such action must be designed to achieve any of the objectives specified in clause (b) of subsection (1) of section 6 of that Act or the use or threat of such action must be to achieve any of the purposes mentioned in clause (c) of subsection (1) of section 6 of that Act. It is clarified that any action constituting an offence, howsoever grave, shocking, brutal, gruesome or horrifying, does not qualify to be termed as terrorism if it is not committed with the design or purpose specified or mentioned in clauses (b) or (c) of subsection (1) of section 6 of the said Act. It is further clarified that the actions specified in subsection (2) of section 6 of that Act do not qualify to be labeled or characterized as terrorism if such actions are taken in furtherance of personal enmity or private vendetta."

Similarly, case of "Sadiq Ullah and another v. The State and another" (2020 SCMR 1422) can also be safely referred and relevant portion of the same is also reproduced hereunder: -

3. There are no benign murders nor the aftermaths of violence endured by its victims and anguish suffered by their families can be euphemistically quantified in an empirical gauge, though the magnitude thereof and concomitant loss differently impact the surroundings, inevitably to be gripped by fear and shock, however, the intensity of brutality and loss of life, consequent thereupon, by themselves do not bring a violent act within the contemplated purview of "Terrorism", a distinct phenomena to achieve, through violent means, ends other than settlement of personal scores, therefore, while the tragedy that befell upon the poor soul evokes profound shock and deserves to be appropriately visited, on the strength of evidence, so as to ensure justice to the family, it nonetheless, cannot be equated with "Terrorism" to dock the accused in special jurisdiction, therefore, the case is withdrawn from the Court of Judge ATC-I Peshawar and entrusted to the learned Sessions Judge Peshawar; he shall conclude the trial in jail premises with all convenient dispatch by recording evidence of the remaining witnesses. The Chief Secretary, Khyber Pakhtunkhwa, shall make arrangements of holding of trial in jail premises. The Inspector General of Police, Khyber Pakhtunkhwa, shall ensure safe conduct to the witnesses. The impugned judgments are set aside; petition is converted into appeal and allowed in the above terms."

Firing in the court premises is triable by Anti-Terrorism Court as per 3rd schedule of Anti-Terrorism Act, 1997, which is hereby reproduced for ready reference: -

"THE THIRD SCHEDULE

(Scheduled Offences)

[See Section 2(t)]

1. Any act of terrorism within the meaning of this Act including those offences which may be added or amended in accordance with the provisions of section 34 of this.

2. Any other offence punishable under this Act.

3. Any attempt to commit, or any aid or abetment of, or any conspiracy to commit, any of the aforesaid offences.]

2[4.Without prejudice to the generality of the above paragraphs, the Anti-terrorism Court to the exclusion of any other Court shall try the offences relating to the following, namely:--

(i) Abduction or kidnapping for ransom;

(ii) use of fire arms or explosives by any device, including bomb blast in a mosque, imambargah, church, temple or any other place of worship, whether or not any hurt or damage is caused thereby; or

(iii) firing or use of explosives by any device, including bomb blast in the court premises.]

[(iv) Hurt caused by corrosive substance or attempt to cause hurt by means of a corrosive substance; and

(v) Unlawful possession of an explosive substance or abetment for such an offence under the Explosive Substances Act, 1908 (VI of 1908)]"

(emphasis added)

However, if prima-facie, intention to have firing in or at the court premises is not reflecting from the act constituting crime rather it appears that occurrence was orchestrated to target opponents due to personal enmity outside the court and as a bye product incidentally some bullets hit the outer wall of the court premises or outer wall of court room from distance, then there is absolutely no intention to have firing in the court and in such state of affairs, act constituting the offence/crime irrespective of the huge loss of lives or other things, would not be triable by Anti-Terrorism Court under its 3rd schedule. It is relevant to mention here that firing in the court has been mention in 3rd schedule of Anti-Terrorism Act, 1997 for making the case triable by Anti-Terrorism Court whereas "firing near or around i.e. in the surrounding of the court" is not mentioned in Clause 4 (iii) of 3rd Schedule of Anti-Terrorism Act, 1997 and same cannot be added therein by the court; in this regard, guidance has been sought from the case of "Deputy Director Finance And Administration Fata through Additional Chief Secretary FATA, Peshawar and others v. Dr. Lal Marjan and others" (2022 SCMR 566); relevant portion from Page No.571 of said case law is reproduced hereunder: -

"It is nobody's case that the provisions of the 2009 Act were extended to FATA/PATA by following the aforenoted provisions of the Constitution. As such, the learned High Court could not have extended the application of the 2009 Act, or any Act of Parliament or the Provincial Assembly for that matter, to FATA/PATA on the touchstone of the principle of casus omissus. The said principle categorically provides that, where the legislature has not provided something in the language of the law, the Court cannot travel beyond its jurisdiction and read something into the law as the same would be ultra vires the powers available to the Court under the Constitution and would constitute an order without, jurisdiction. The same would also be against the principle of Trichotomy of Powers upon which the State functions. All three organs of the State have been given specific powers under the law and as such, the said powers cannot be overstepped. We are therefore inclined to hold that the learned High Court in the impugned judgments has travelled beyond its jurisdiction in applying the 2009 Act to the Respondents which action is ex facie erroneous, beyond lawful authority and without jurisdiction.

Furthermore, case of "Sirajud Din and another v. Allah Rakha and others" (PLD 1960 (W.P.) Lahore 261) can also be advantageously referred and relevant portion from Page No.264 is hereby reproduced: -

"We cannot read into the words of a section, particularly a carefully drafted section, words which are not there…...."

It goes without saying that in special law, dealing with particular subject, courts are required not to depart from its literal construction and it will be narrowly interpreted; in this regard, case of "Waris Ali and 5 others v. The State" (2017 SCMR 1572) can be safely referred and its relevant portion is reproduced below: -

"20. Another cardinal principle for construing a Penal Statute is that if the same transgresses upon the liberty, property and life of the citizens, it shall be so construed and interpreted to preserve such rights and not in a manner to destroy the same, thus, at random application of the provisions of the Special Act to the crimes of ordinary nature like the instant one, would be neither desirable nor appropriate being not permissible under the law. In the case of The State v. Syed Qaim Ali Shah (1992 SCMR 2192) the same principle was laid down by this Court.

1. In enactments, meant to deal with particular subject and purposive in nature, the Courts are required not to depart from its literal construction, the same shall be narrowly interpreted. Widening the scope of such Statutes would defeat the legislative intent therefore, indulging in straining by enlarging the scope of the Special Law, intended to cover specified crimes and special object, is not permissible course because the result and object intended to be achieved by the Legislature, shall go waste. Unnecessarily bringing conventional crimes within the mischief provision of the special law may result into chaos and the very object of Article 175 of the Constitution and the laws would be defeated besides the clear intent of the Legislature.

2. As has been discussed earlier, Penal Statute and that too of a harsh nature, must be narrowly examined and by no stretch of imagination it shall be given extended meaning to cover crime/crimes, not clearly falling within the ambit of the same. Carrying forward any legal fiction on any other consideration, is not a permissible course in view of the universal principle relating to construction of Statute. The society has already suffered at the hands of the devils and evil minded people, indulging in terrorism and terrorist activities, thus, ordinary citizens, charged for crimes committed due to personal vendetta, irrespective of the consequences, ensuing in the consummation of a crime, shall not be lightly labeled as terrorists on account of the damage caused as it is not a determinative and decisive factor, as the most lethal/sophisticated weapons, fully automatic are conveniently available almost in every part of the country. The use of such weapons, even by a single person would thus cause multiple injuries or even multiple casualties.

The situs of the crime with certain limitations is relevant to bring it within the fold of mischief provision of Special Act, as the offences committed in specified places are squarely mentioned in para-4, clauses (ii) and (iii) which are as follows:-

"(ii) Use of fire arms or explosive by any device, including bomb blast in a mosque, imambargah, church, temple or any other place of worship, whether or not any hurt or damage is caused thereby; or

2024 P Cr. LJ 1738

[Lahore]

Before Farooq Haider, J

Zafar and others----Appellants

Versus

The State----Respondent

Criminal Appeal Nos. 79782-J, 79783-J and 79784-J of 2022, decided on 20th February, 2024.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S. 345---Qatl-i-amd, common intention---Compounding of offence---Scope---Parties, during the trial, moved application under S. 345, Cr.P.C., and stated that they had amicably settled the matter outside the court---None of the legal heirs of the deceased had contested the compromise---Admittedly in this case, accused persons had been convicted under S.302(b), P.P.C, and sentenced as Ta'zir---Direct surviving legal heirs of the deceased were quite competent to effect compromise under S.345(2), Cr.P.C., where punishment had been passed as Ta'zir---In this case, two widows of the deceased, his son and three daughters were the only surviving legal heirs of the deceased---Father and mother of the deceased had died---Father of the deceased died prior to his murder however, though mother died after the occurrence yet her legal heirs could not be termed as legal heirs of deceased by any stretch of imagination for the purpose of compromise in this case---Though as per reports of Sessions Judge concerned, compromise was incomplete between the legal heirs of the deceased and the accused persons because brother and sister of the deceased had not entered into compromise, however, brother and sister of the deceased were not his legal heirs for the purpose of compounding the offence as it was a case of Ta'zir, so reports of Sessions Judge, concerned, to extent were misconceived and as such discarded---Statements of legal heirs of the deceased reflected that the compromise between the accused persons and said legal heirs was genuine and they had arrived at a compromise with their free will and without any duress or coercion---In view thereof, when the proposed compromise between legal heirs of the deceased and accused persons was likely to promote the cause of peace in the locality/society as well as betterment of present and coming generations of the parties and particularly when no element of "Fisad-fil-Arz" within the meaning of S.311, P.P.C, had been found from the facts and circumstances of the case, then it was appropriate to grant permission/leave for effecting the compromise within the meaning of S.345(2), Cr.P.C.---Hence, permission/leave for effecting compromise between the accused persons and legal heirs of the deceased was granted by allowing the application filed by accused persons---Accused were acquitted of the charge within the meaning of S.345(6), Cr.P.C.

Muhammad Yousaf v. The State and others PLD 2019 SC 461 rel.

Akhtar Ali Haral for Appellants (in Criminal Appeals Nos. 79782-J to 79784-J of 2022), Syed Farhad Ali Shah, Prosecutor General, Punjab, Ms. Nuzhat Bashir and Muhammad Arshad Farooqi, Deputy Prosecutors General, Punjab for the State.

Amjad Qayyum Baloch for the Complainant.

Date of hearing: 20th February, 2024.

Judgment

Farooq Haider, J.---This single judgment will dispose of Crl. Appeal No.79782-J/2022 filed by Zafar (appellant) against his "conviction and sentence", Crl. Appeal No.79783-J/2022 filed by Mazhar (appellant) against his "conviction and sentence" and, Crl. Appeal No.79784-J/2022 filed by Feroz (appellant) against his "conviction and sentence, as all these appeals have arisen out of one and the same judgment dated: 31.10.2022 passed by learned Addl. Sessions Judge, Lalian, District Chiniot/trial court.

1. Zafar, Mazhar and Feroz (appellants in aforementioned appeals, hereinafter to be referred as appellants) were tried in case arising out of FIR No.431/2018 dated: 25.11.2018 registered under Sections: 302, 34 P.P.C. at Police Station: Lalian, District Chiniot and trial court after conclusion of the trial has convicted and sentenced the appellants vide impugned judgment dated: 31.10.2022 as under:-

| | | | --- | --- | | Convictions | Sentences | | Under Section: 302 (b) P.P.C. | "Fourteen years" each as Ta'zir with payment of compensation of Rs.1,00,000/- each to the legal heirs of Muhammad Hayat (deceased) under Section: 544-A Cr.P.C. Benefit of Section: 382-B Cr.P.C. was also extended in favour of all the three appellants. |

1. During pendency of the titled appeals, Zafar (convict/appellant) filed Crl. Misc. No.1/2023, Mazhar (convict/appellant) filed Crl. Misc. No.1/2023 whereas Feroz (convict/appellant) preferred Crl. Misc. No.2/2023 under Section: 345 of the Criminal Procedure Code, 1898 for verification of compromise between the parties and release of the appellants/convicts on the basis of compromise, whereupon said miscellaneous applications along with annexures were sent to the learned Sessions Judge, Chiniot to enquire the genuineness of the compromise between the parties, record statements of the legal heirs of the deceased and also to confirm that interest of the minor legal heirs, if any, was duly secured and safeguarded. In compliance thereof, learned Sessions Judge, Chiniot, furnished reports bearing letter No.1757/D-4 dated: 30.10.2023 (in Crl. Appeal No.79782-J/2022), bearing letter No.1755/D-4 dated: 30.10.2023 (in Crl. Appeal No.79783-J/2022) and bearing letter No.1756/D-4 dated: 30.10.2023 (in Crl. Appeal No.79784-J/2022) detailing therein that after obtaining reports from Tehsildar/AC-1, Lalian and Station House Officer, Police Station: Lalian, District Chiniot, he came to the conclusion that Muhammad Hayat (deceased) was survived by the following legal heirs: -

| | | | | --- | --- | --- | | Sr. No. | Name of the legal heirs | Relationship with the deceased | | 1. | Mst.Fatima | Widow | | 2. | Mst. Khatoon | Widow | | 3. | Muhammad Asad | Son | | 4. | Mst. Saima Bibi | Daughter | | 5. | Mst. Iram | Daughter | | 6. | Mt. Kiran | Daughter | | 7. | Zulifqar | Brother | | 8. | Mst. Nooran Bibi | Sister | | 9. | Mst. Khairan/Muneeran Bibi | Sister | | 10. | Mst. Shehnaz | Sister | | 11. | Muhammad Uqba | Bhanja | | 12. | Mst. Samina Bibi | Bhanji |

1. According to said reports, surviving legal heirs of Muhammad Hayat (deceased of the case) are two widows namely Mst. Fatima and Mst. Khatoon, son namely Muhammad Asad, daughters namely Mst. Saima Bibi, Mst. Iram and Mst. Kiran, brother namely Zulifqar, sisters namely Mst. Nooran Bibi, Mst. Khairan/Muneeran Bibi and Mst. Shehnaz, nephew (Bhanja) namely Muhammad Uqba and niece (Bhanji) namely Mst. Samina Bibi; said reports further reveal that all of them except Zulifqar and Mst. Khairan Bibi/Muneeran Bibi (brother and sister of the deceased, respectively) have entered into compromise with the appellants with their free will and consent and without any coercion and have forgiven them (convicts/appellants) in the name of Allah Almighty by waiving their right of Qisas and Diyat and have no objection if they are acquitted from this case on the basis of compromise. In above scenario, learned Sessions Judge, Chiniot submitted that compromise is incomplete because two legal heirs namely Zulifqar and Khairan Bibi/Muneeran Bibi (brother and sister of the deceased, respectively) have got recorded their statements with the averments that they have not entered into compromise with the appellants/convicts. However, being not satisfied with the aforementioned reports, fresh reports were requisitioned from learned Sessions Judge, Chiniot, vide order dated: 24.01.2024 passed by this Court with the direction to prepare list of legal heirs of the deceased now competent to enter into compromise in the case and in pursuance of the same, learned Sessions Judge, Chiniot has furnished fresh reports bearing letter No.226/D-4 dated: 30.01.2024 (in Crl. Appeal No.79782-J/2022), letter No.227/D-4 dated: 30.01.2024 (in Crl. Appeal No.79783-J/2022) and letter No.228/D-4 dated: 30.01.2024 (in Crl. Appeal No.79784-J/2022) again on the similar footings while mentioning/clarifying therein that Rehman (father of the deceased) died before the murder of Muhammad Hayat (deceased), however, Fatima Bibi (mother) died after the occurrence and she (Fatima Bibi) was survived by one son namely Zulifqar and four daughters namely Nooran Bibi, Khairan, Shehnaz and Bakhtan, one paternal grandson namely Muhammad Asad, three paternal granddaughters namely Saima Bibi, Iram and Kiran; said pedigreetable further reflected that Bakhtan (fourth daughter of Fatima Bibi/sister of Muhammad Hayat deceased) also died after the occurrence leaving two children namely Muhammad Uqba and Samina Bibi and finally it was again mentioned in said reports by learned Sessions Judge, Chiniot that compromise has not been effected between the appellants and all the legal heirs of Muhammad Hayat (deceased).

2. Learned counsel for the appellants submits that Rehman (father of the deceased) and Mst. Fatima Bibi (mother of the deceased) have died whereas remaining legal heirs of the deceased i.e. both widows, son and daughters of the deceased have entered into compromise with all the three appellants who have been convicted under Section: 302 (b) P.P.C. and sentenced under Ta'zir, therefore, compromise has been effected in accordance with law and reports of learned Sessions Judge, Chiniot while mentioning that compromise is incomplete because one brother and one sister of the deceased have not entered into compromise is against the settled principles of law on the subject, therefore, to said extent said reports are not having any legal value and as such are liable to be ignored. Learned counsel finally prays for acceptance of these appeals and acquittal of the appellants on the basis of compromise.

3. Learned Prosecutor General, Punjab assisted by learned Deputy Prosecutors General, Punjab submits that in this case, deceased is survived by son, daughters and two widows and though at the time of murder of Muhammad Hayat (deceased), his mother namely Fatima Bibi was also his legal heir but after her death, now only direct surviving legal heirs of Muhammad Hayat (deceased) can effect compromise because punishment has been awarded under Ta'zir and in such backdrop, sisters, brother, nephew and niece cannot be termed as surviving legal heirs of the deceased; finally submits that reports of learned Sessions Judge, Chiniot to said extent are misconceived, however, submits that since offence under Section: 302 (b) P.P.C. is compoundable and same has rightly been compounded by surviving legal heirs of the deceased, therefore, in the peculiar facts and circumstances of the case, he has no objection on the acceptance of these appeals and acquittal of appellants/convicts in this case on the basis of compromise.

4. Learned counsel for the complainant while adopting/supporting arguments advanced by learned counsel for the appellants as well as learned Prosecutor General, Punjab assisted by learned Deputy Prosecutors General, Punjab, submits that he has no objection on acceptance of these appeals and acquittal of the appellants.

5. Arguments heard. Record perused.

6. Admittedly in this case, appellants have been convicted under Section: 302 (b) P.P.C. and sentenced as Ta'zir. It is trite law that direct surviving legal heirs of the deceased are quite competent to effect compromise under Section: 345 (2) Cr.P.C. where punishment has been passed as Ta'zir. In this case, Mst. Fatima and Mst. Khatoon (two widows of the deceased), Muhammad Asad (son), Saima Bibi, Iram and Kiran (daughters of the deceased) are the only surviving legal heirs of the deceased as Rehman and Mst.Fatima Bibi (father and mother of the deceased, respectively) have died. It is worth mentioning here that Rehman (father of the deceased) died prior to murder of the deceased, however, though Mst.Fatima Bibi (mother) died after the occurrence yet her legal heirs cannot be termed as legal heirs of Muhammad Hayat (deceased) by any stretch of imagination for the purpose of compromise in this case. In this regard, guidance has been sought from the dictum laid down by the larger Bench of Supreme Court of Pakistan in case titled as "Muhammad Yousaf v. The State and others" (PLD 2019 SC 461); relevant paragraphs of said judgment are hereby reproduced for ready reference:-

"7. It is not disputed that the case in hand is a case of Ta'zir and not of Qisas because the proof required for a case of Qisas in terms of section 304, P.P.C. was not adduced in this case before the trial court. It may be clarified here that a criminal case becomes a case of Qisas when, after the case has reached the trial court, either a confession is made by the accused person before the trial court during the trial or Tazkiva-tul-shahood (scrutiny of the witnesses before trial of the accused person) is undertaken by the trial court and unless either of the said two things happen before the trial court every criminal case is to be treated as a case of Ta'zir at every stage of the case including the stage of investigation. Compounding of offences in cases of Ta'zir is governed by section 345, Cr.P.C. and according to section 345(2), Cr.P.C. (as the said legal provision stood in the year 2005 when the offences in the present case had been committed) the offence of qatl-i-amd under section 302, P.P.C. could be compounded with the permission of the relevant court "By the heirs of the victim other than the accused or the convict if the offence has been committed by him in the name or on the pretext of karo kari, siyah kari or similar other customs or practices". The said legal provision was amended on 21.10.2016 and it presently reads as "By the heirs of the victim subject to the provisions of section 311, P.P.C.." According to the law in this country succession opens at the time of death of a person and upon his death his assets automatically stand devolved upon those who are entitled to inherit from him in specified shares in terms of his personal law and such inheriting persons are called the heirs of the deceased. There is, thus, no confusion in our law that an heir is a person who is entitled to inherit from the deceased at the time of his death. In view of this settled and recognized principle when the law of the land provides that in a case of Ta'zir an offence of qatl-i-amd under section 302, P.P.C. may be compounded by the "heirs of the victim" and when an heir of a victim is only a person who inherits directly from the victim then what is clearly meant by section 345(2), Cr.P.C. is that only a person who can directly inherit from the victim is the person who can compound the offence of qatl-i-amd of the victim and none else."

"10. In the present case of Ta'zir the offence of murder of Muhammad Aslam could be compounded only by the heirs of the said victim and all the surviving heirs of that victim had voluntarily compounded the said offence with respondents Nos.2 and 3. The High Court was, therefore, quite correct in holding that the appellant and his brothers, who were heirs of a subsequently dying heir of the victim, were not relevant to the matter of compounding of the offence."

"11. The argument that in his lifetime Waryam, the father and one of the heirs of Muhammad Aslam deceased, had refused to join the compromise between the remaining heirs of the deceased and respondents Nos. 2 and 3 and, therefore, after the death of Waryam any compromise between the remaining heirs of Muhammad Aslam deceased and the said respondents could not be complete without the heirs of Waryam joining the same had failed to impress the High Court and we have also not felt persuaded to accept the same. As already observed above, the concept of devolving of the right of Qisas upon an heir of an heir/wali of the victim relevant to a case of Qsas is not applicable to cases of Ta'zir. In the absence of any devolving of the capacity to compound in a case of Ta'zir the capacity to compound possessed by an heir of the victim at the time of murder of the victim stands exhausted upon the subsequent death of that heir. Being the father and an heir of Muhammad Aslam deceased Waryam had a capacity to compound the relevant offence but he had not compounded the offence during his own lifetime and upon Waryam's death his capacity to compound stood exhausted and the same was not heritable as Waryam's heirs were not heirs of Muhammad Aslam deceased because they did not, and could not, inherit from him. After Waryam's death his heirs could not be treated as heirs of Muhammad Aslam deceased and the only heirs of Muhammad Aslam deceased left in the field at such stage were those surviving heirs of Muhammad Aslam deceased who could inherit directly from him and they could compound the offence throughout their lifetime irrespective of timing of Waryam's death. In cases of Ta'zir section 345(2), Cr.P.C. does not specify any time when compounding of an offence may take place and the provisions of section 345(2), Cr.P.C. do not place any embargo upon compounding of the relevant offence by the surviving heirs of a victim at a time when one or more of the heirs of the victim has/have already died. Placing an embargo upon the surviving heirs of a victim in such a situation may amount to committing violence upon the provisions of section 345(2), Cr.P.C. which we are not ready to commit."

2024 P Cr. LJ 1764

[Lahore (Rawalpindi Bench)]

Before Sadaqat Ali Khan and Ch. Abdul Aziz, JJ

Abdul Hakeem----Appellant

Versus

The State----Respondent

Criminal Appeal No. 835 and Murder Reference No. 44 of 2022, heard on 20th March, 2024.

(a) Criminal trial---

----Conviction---Circumstantial evidence---Scope---Conviction can only be awarded on the basis of circumstantial evidence when it impeccably connects the accused with the commission of crime---For awarding conviction, the incriminating circumstances must be so closely inter-woven with each other that from their appraisal no conclusion other than guilt of accused is to be drawn---Any break in the chain of circumstances or legal inadmissibility of its any part renders such evidence unworthy of credence and cannot be used for raising the superstructure of conviction.

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

----S. 302(b)---Punjab Forensic Science Agency Act (XIII of 2007), Ss. 9(3) & 12---Qatl-i-amd---Appreciation of evidence---CCTV footage---Forensic expert not summoned as a witness---Effect---Accused was charged for committing murder of the father of complainant---Record showed that the actual homicide incident remained un-witnessed and till the registration of FIR, the identity of the culprit was unknown and for that reason no one was nominated therein even as a suspect---According to the prosecution case, the police acquired knowledge about the culprit from the visuals captured in the CCTV camera installed at the outer gate of the adjacent house belonging to neighborer of deceased---DVR of the CCTV camera was taken into possession by Investigating Officer through recovery memo---However, it was noticed that though the DVR was statedly taken from the possession of neighborer of deceased but he was not the witness of its recovery memo and even otherwise the DVR was not exhibited in his statement---Such omission gave rise to the query that how it could be ascertained that the DVR exhibited in the statement of Investigating Officer was the same which was installed in the house of neighborer of deceased---From the said visuals complainant identified accused as the person who had been rendered services as servant with the deceased---Such visuals were forwarded to Forensic Science Agency along with accused who after in-depth analysis gave his opinion through his report that forensic facial comparison analysis of accused with the person seen in videos of incident was inconclusive due to minimal facial feature information of suspect---Forensic Science Agency Report, admittedly, did not support the case of prosecution but still it was tendered in evidence---Report through necessary implication of S.9(3) of the Forensic Science Agency Act, 2007, was per se admissible but since it was not in favour of prosecution thus the expert could still be summoned as Court Witness to remove ambiguity arising out of it---Strangely, no effort whatsoever was made by the prosecution to do the needful of summoning the expert from the Forensic Science Agency as witness in the case---Another remedy was available to the prosecution under S.12 of the Forensic Science Agency Act, 2007, but no step even in that regard was taken---In the site plan, neither the house of neighbour of deceased was shown nor the point, where the CCTV camera was installed, was highlighted---For satisfying the legality of the impugned judgment, the DVR was requisitioned and despite best efforts it could not be de-codified to examine the visuals, thus, there was no option but to discard it in accordance with the Forensic Science Agency Report---Appeal against conviction was accordingly allowed.

Ishtiaq Ahmed Mirza and 2 others v. Federation of Pakistan and others PLD 2019 SC 675 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---DNA report, authenticity of---Pre-requisites---Accused was charged for committing murder of the father of complainant---Record showed that four nail swabs were extracted from both hands of deceased which were dispatched to the office of Forensic Science Agency for DNA analysis---According to report, the left-hand nail swabs of deceased matched with the DNA profile of three individuals out of whom accused was described as one of the possible contributors---DNA evidence could attain admissibility if prosecution satisfactorily proved the process of sampling, safe custody and onward transmission to the office of Forensic Science Agency and the foregoing process was called in the field of forensic as doctrine of analysis and it stressed for flawless sampling, correct packing, safe custody and above all free from doubt transmission to the office of expert---Any defect in the said process makes even the positive DNA report doubtful in nature forcing the Courts to discard it from consideration---Appeal against conviction was accordingly allowed.

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

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Collection, sampling, packing, safe custody and transmission of DNA profile for analysis doubtful---Accused was charged for committing murder of the father of complainant---Junior Forensic Scientist uttered not a single word about the identity of the Police Officer to whom he handed over the samples so taken from the nails of the deceased---Moreover, it needed no elaboration that even for providing credibility to the positive report of Forensic Science Agency in the present case, the prosecution should have led some evidence about the nature of those nail swabs and the kind of the substance extracted therefrom---Nothing as such was available on the record that those swabs were pertaining to the blood, skin tissues or hairs etc. of the unknown person---If at all those swabs were comprising of skin tissues etc. then in order to make it admissible for fetching positive results in the trial, the prosecution should have got accused medically examined after his arrest which was affected on 09.05.2021 i.e. just five days after the incident---Medical examination of accused would have revealed that whether he was in receipt of some scratches, lacerations etc. which would have been the way forward to connect him with the nail swabs taken from the deceased---Further along with those nail swabs Junior Forensic Scientist also secured two buckle swabs of the deceased and drawstring---Though Junior Forensic Scientist stated nothing about the identity of the Police Official to whom the articles so collected by him from the crime were handed over but during trial Investigating Officer claimed to have received all of them from the former---Fact remained that Investigating Officer stated nothing about the identity of the Police Official in whose custody those swabs were placed till their dispatch to the office of Forensic Science Agency---It was further noticed that Head Constable appeared before the trial Court and claimed to be Moharrir/Station Clerk who received various articles but made no reference to the swabs and drawstring secured from the crime scene---Investigating Officer also could not lift veil from the Police Official who handed him over envelopes for onward transmission to the office of Forensic Science Agency---It evinced from the Forensic Science Agency Report that only the buckle swabs of accused were presented for comparison but the pivotal question remained unaddressed that when and by whom those were taken---Such facts exposed that process of collection, sampling, packing, safe custody and transmission of swabs was prone to many legal defects on the basis whereof report of Forensic Science Agency was rejected---Appeal against conviction was accordingly allowed.

(e) Criminal trial---

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

Ch. Muhammad Akhtar for Appellant.

Hina Noman and Talat Mehmood Zaidi for the Complainant.

Mian Imran Rahim, Deputy Prosecutor General with Abid Ali Inspector for the State.

Date of hearing: 20th March, 2024.

Judgment

Ch. Abdul Aziz, J.---Abdul Hakeem (appellant) involved in case FIR No.138/2021 dated 04.05.2021 registered under Section 302 P.P.C. at Police Station City Attock, was tried by learned Additional Sessions Judge, Attock, who vide judgment dated 30.06.2022 convicted and sentenced him as under:-

Under Section 302 P.P.C. to suffer death sentence. He was also directed to pay Rs. 500,000/- as compensation to the legal heirs of deceased under section 544-A Cr.P.C; the compensation so imposed was ordered to be recoverable as arrears of land revenue and in case of its non-payment appellant was directed to suffer 06-months simple imprisonment.

Feeling aggrieved, Abdul Hakeem (appellant) filed Criminal Appeal No.835 of 2022 against his conviction and sentence, whereas the trial court sent reference which was numbered as Murder Reference No.44 of 2022 for the confirmation or otherwise of death sentence so awarded to him. Since both matters are inter se connected, hence are being disposed of through this single judgment.

1. Succinctly stated the case of the prosecution as unveiled by Muhammad Furqan Umar (PW.7) in FIR (Exh.PK) is to the effect that on 03.05.2021 at about 2:00 p.m. he had been repeatedly calling his father Younas Umar on his mobile phone No.0301-8300635 but it was found not responding; that he got curious and asked Muhammad Waqas a friend of his elder brother, residing in same vicinity to check his father by visiting his house; that Muhammad Waqas went to residence of Younas Umer and thereafter informed the complainant that the main gate of the house was locked which was opened by breaking it and found the dead body of Younas Umar in his room; that Muhammad Waqas informed the complainant about this unfortunate news who immediately thereafter arrived at the residence of his father situated at Darul Islam Colony; that the complainant went inside the house and saw the dead body of his father laying on the bed; that both hands of the deceased were fastened with cloth and his neck was entrapped with drawstring (azarband) around it.

2. After the receipt of information about the incident, Azmat Hayat SI reached the spot where Muhammad Furqan (PW.7) got recorded his statement (Exh.PK) which was dispatched to PS City Attock for the registration of formal FIR (Exh.PK/2). He informed the PFSA crime scene unit who came at the spot and Nasir Abbas JFS collected the nail and buccal swab from the dead body for DNA test and also secured drawstring and Shalwar therefrom which was later taken into possession by the Investigating Officer through recovery memo Exh.PG. Azmat Hayat SI (PW.10) also prepared inquest report (Exh.PD), application for postmortem examination and handed over the dead body to Muhammad Awais Constable for autopsy. Azmat Hayat SI further inspected the spot and prepared unscaled site plan (Exh.PT), secured broken lock (P.4) along with saw blade (P.5) vide memo Exh.PL. He also took into possession box of mobile phone (P.6) owned by father of the complainant which was of Nokia Model 1280- having IMEI No.353297057242856 through memo Exh.PM. The complainant along with police checked CCTV camera installed at the adjacent house. From the footage of CCTV camera recording, the complainant found that Abdul Hakeem (appellant) who was servant of his deceased father entered into the house on multiple occasions and took away some articles by placing them in a rickshaw. The complainant moved an application (Exh.PN) to police in which he nominated the accused. The Investigating Officer also took into possession DVR (P.7) installed in the adjacent house through memo Exh.PP. He arrested the appellant on 09.05.2021 and during physical remand on 11.05.2021, he made disclosure and got recovered mobile (P.8) Nokia 1280, SIM (P.9), driving licence of deceased (P.10), colour copy of CNIC of deceased (P.11) and keys of the deceased (P.12/1-7) through memo Exh.PQ. The appellant during interrogation also got recovered stolen Volta battery (P.13) which was taken into possession through memo (Exh.PR). The appellant further got recovered rickshaw (P.14) which was taken into possession through memo Exh.PS. On 19.05.2021 he received the parcel of DVR from Moharrar/Station clerk and also brought the appellant in PFSA Lahore where he submitted the parcel of DVR and also got conducted the DNA test of the appellant from PFSA. On 09.07.2021 he received CD (P.15) and 12 pictures (P.16/1-12) through Tahir Mehmood ASI who received the same from PFSA, Rawalpindi which were taken into possession through memo Exh.PW. After complying legal formalities and recording the statements of relevant witnesses under Section 161 Cr.P.C., report under Section 173 Cr.P.C. was prepared through concerned SHO.

3. Prosecution in order to prove its case against the appellant produced 11-witnesses, out of whom, Dr. Mubashar Sittar (PW.3) performed autopsy of Younas Umar on 04.05.2021 and prepared postmortem report (Exh.PC) along with pictorial diagram (Exh.PC/1), Muhammad Furqan Umar (PW.7) is the complainant of the case, Muhammad Waqas (PW.9) upon the direction of the complainant went to the house of deceased, broke the lock and found the dead body laying on the bed and informed this fact to the complainant, Azmat Hayat SI (PW.10) investigated the case. The remaining PWs, more or less, were formal in nature.

4. After the conclusion of prosecution evidence, the learned trial court examined the appellant under Section 342, Cr.P.C. who in response to question "why this case is against you and why witnesses have deposed against you" made the following reply:-

"I am innocent. I have no concern whatsoever with the said occurrence. The police arrested me on 05.05.2021 and managed the DNA report falsely with the connivance of the complainant because neither I have any concern with the deceased Muhammad Younas nor I was servant of the deceased Muhammad Younas. No evidence available on judicial file which proves that I was servant of the deceased Muhammad Younas nor statement of any person was recorded in this regard. The police arrested me in this case on suspicion being Afghan national."

Appellant neither made statement under section 340 (2) of Cr.P.C nor produced any evidence in his defence.

1. It is contended by learned counsel for the appellant that case in hand is arising out of an occurrence which remained un-witnessed; that the appellant was subsequently implicated in the case solely on the basis of doubt and suspicion; that in order to secure conviction of the appellant, false evidence was fabricated, the frailty of which was badly exposed even during trial; that the prosecution relied upon CCTV camera footage where the appellant is not seen while committing the crime and that since the prosecution remained unsuccessful in proving guilt of the appellant, hence, the conviction awarded to him is liable to be set-aside.

2. On the other hand learned Law Officer assisted by learned counsel for the complainant submitted that admittedly the appellant was not nominated in the crime report and was later implicated in the case; that the non-nomination of appellant in the crime report reflects that the complainant had no mala fide to falsely implicate him in the case; that the guilt of the appellant is well established from the chain of incriminating circumstances and it goes without saying that man can tell a lie but the circumstances do not; that the appellant was seen in the CCTV footage; that the DNA report is positive and recoveries of articles belonging to the deceased provide further corroboration to the case of prosecution so as to connect the appellant with the commission of crime and that since the prosecution successfully proved its case against the appellant hence, the conviction awarded to him does not call interference.

3. Arguments heard and record perused.

4. A wade through the record reveals that Younis Umar, a retired army personnel aged about 60 years was living alone in a rented house situated in a neighbourhood known as Darul Salam Colony Attock. On 03.05.2021 at about 2:00 p.m. his son Muhammad Furqan Umar (PW.7) called him on his mobile phone No.0301-8300635 which was found not responding. Muhammad Furqan asked a friend namely Muhammad Waqas (PW.9) for going to the house of his father Younis Umar and to inquire about him. Muhammad Waqas (PW.9) entered the house by breaking lock installed at the outer door and found the corpse of Younis Umar placed on the bed. Muhammad Furqan Umar (PW.7) after acquiring knowledge about this unfortunate incident reached Attock from Risalpur and reported the matter to police. In the First Information Report (Ex.P.K) the allegation of committing the crime in question was pointed towards an unknown person and none was named therein even as a suspect.

5. The case of prosecution mainly hinges upon circumstantial evidence, the main component of which is the CCTV footage in which Abdul Hakeem (appellant) was seen while entering and exiting from the house of deceased, report of PFSA (Ex.PX) according to which swabs taken from the nail of Muhammad Younis matched with the DNA profile of Abdul Hakeem (appellant), recovery of various stolen articles affected from Abdul Hakeem (appellant) and the motive.

6. Before dilating upon the intrinsic worth of the evidence led by the prosecution, we consider it important to mention here that conviction can only be awarded on the basis of circumstantial evidence when it impeccably connects the accused with the commission of crime. For awarding conviction, the incriminating circumstances must be so closely inter-woven with each other that from their appraisal no conclusion other than guilt of accused is to be drawn. Any break in the chain of circumstances or legal inadmissibility of its any part renders such evidence unworthy of credence and cannot be used for raising the superstructure of conviction.

7. The record of the case in hand is circumspectively perused and we came across many legal flaws, raising serious questions about the legality of conviction awarded to the appellant. It is already mentioned above that the actual homicide incident remained unwitnessed and till the registration of FIR, the identity of the culprit was unknown and for this reason none was nominated therein even as a suspect. According to the prosecution case, the police acquired knowledge about the culprit from the visuals captured in the CCTV camera installed at the outer gate of the house belonging to Muhammad Zahid (PW.11) situated adjacent to the house of deceased. The DVR of the CCTV camera was taken into possession by Azmat Hayat SI (PW.10) through recovery memo (Exh.PP). Before proceeding any further, we deem it appropriate to reproduce hereunder the observation of the Supreme Court of Pakistan in the case reported as "Ishtiaq Ahmed Mirza and 2 others v. Federation of Pakistan and others" (PLD 2019 SC 675) wherein a criteria for evaluating the evidentiary worth of visuals captured in CCTV camera and the voice recorded in any audio device was laid down:-

\ No audio tape or video can be relied upon by a court until the same is proved to be genuine and not tampered with or doctored.

\ A forensic report prepared by an analyst of the Punjab Forensic Science Agency in respect of an audio tape or video is per se admissible in evidence in view of the provisions of section 9(3) of the Punjab Forensic Science Agency Act, 2007.

\ Under Article 164 of the Qanun-e-Shahadat Order, 1984 it lies in the discretion of a court to allow any evidence becoming available through an audio tape or video to be produced.

\ Even where a court allows an audio tape or video to be produced in evidence such audio tape or video has to be proved in accordance with the law of evidence.

\ Accuracy of the recording must be proved and satisfactory evidence, direct or circumstantial, has to be produced so as to rule out any possibility of tampering with the record.

\ An audio tape or video sought to be produced in evidence must be the actual record of the conversation as and when it was made or of the event as and when it took place.

\ The person recording the conversation or event has to be produced.

\ The person recording the conversation or event must produce the audio tape or video himself.

\ The audio tape or video must be played in the court.

\ An audio tape or video produced before a court as evidence ought to be clearly audible or viewable.

\ The person recording the conversation or event must identify the voice of the person speaking or the person seen or the voice or person seen may be identified by any other person who recognizes such voice or person.

\ Any other person present at the time of making of the conversation or taking place of the event may also testify in support of the conversation heard in the audio tape or the event shown in the video.

\ The voices recorded or the persons shown must be properly identified.

\ The evidence sought to be produced through an audio tape or video has to be relevant to the controversy and otherwise admissible.

\ Safe custody of the audio tape or video after its preparation till production before the court must be proved.

\ The transcript of the audio tape or video must have been prepared under independent supervision and control.

\ The person recording an audio tape or video may be a person whose part of routine duties is recording of an audio tape or video and he should not be a person who has recorded the audio tape or video for the purpose of laying a trap to procure evidence.

\ The source of an audio tape or video becoming available has to be disclosed.

\ The date of acquiring the audio tape or video by the person producing it before the court ought to be disclosed by such person.

\ An audio tape or video produced at a late stage of a judicial proceeding may be looked at with suspicion.

\ A formal application has to be filed before the court by the person desiring an audio tape or video to be brought on the record of the case as evidence.

In the above backdrop, firstly, it is noticed by us that though the DVR was statedly taken from the possession of Muhammad Zahid (PW.11) but he was not the witness of its recovery memo (Exh.PP) and even otherwise the DVR was not exhibited in his statement. The foregoing omission gives rise to the query that how it can be ascertained that the DVR exhibited in the statement of investigating officer was the same which was installed in the house of Muhammad Zahid (PW.11). Secondly, it is noticed that from these visuals complainant Muhammad Furqan Umar (PW.7) identified Abdul Hakeem (appellant) as the person who has been rendering services as servant with the deceased. These visuals were forwarded to PFSA along with Abdul Hakeem (appellant) who after in-depth analysis gave his opinion through his report Exh.PZ which is reproduced hereunder:-

"Forensic facial comparison analysis of accused named "Abdul Hakeem son of Abdul Rahim" with the persons seen in videos of incident contained in Item #1 was inconclusive due to minimal facial feature information of suspect available in Item #1."

Admittedly, in accordance with the conclusion given by expert, the report regarding the visuals captured in the CCTV Camera and extract from DVR cannot be used for awarding conviction to Abdul Hakeem (appellant) keeping in view the principle laid down in Ishtiaq Ahmad Mirza case (PLD 2019 SC 675). We intend to lay emphasis on the point that PFSA report (Ex.P.Z) admittedly was not supporting the cause of prosecution but still it was tendered in evidence. We are mindful of the fact that the report through necessary implication of section 9(3) of the Punjab Forensic Science Agency Act 2007 was per se admissible but since it was not in favour of prosecution thus the expert could still be summoned as court witness to remove ambiguity arising out of it. Strangely, no effort whatsoever was made by the prosecution to do the needful of summoning the expert from the PFSA as witness in the case. There was another remedy available to the prosecution under section 12 of the Punjab Forensic Science Agency Act 2007 but no step even in this regard was taken. According to section 12, any person affected from the opinion of an expert can move an application before the court for re-examination of the substance upon which report is issued by the PFSA. Upon such application, the court, if satisfied that the opinion of expert needs reconsideration, can pass an order to the PFSA for re-examination through a penal of three or more experts. For the clarity of proposition section 12 of Punjab Forensic Science Agency Act 2007 is reproduced hereunder:-

"(1) A person affected by the opinion of an expert, may for a sufficient cause, submit an application for re-examination before the Court, tribunal or authority other than a police officer before which the opinion is rendered or the court or tribunal before which the opinion is submitted by the authority.

(2) If the Court, tribunal or authority is satisfied that there are sufficient grounds for re-consideration of the opinion, it may, for reasons to be recorded in writing, direct the Agency to re-examine the forensic material.

(3) The Director General shall, in receipt of the direction, constitute a panel of three or more experts to re-examine the forensic material or refer the same to a forensic examination facility for examination and opinion.

(4) The Director General shall submit the finding of the expert or the forensic facility and his opinion to the Court, tribunal or authority.

Above all in the site plan (Exh.PJ) neither the house of Muhammad Zahid (PW.11) was shown nor the point, where the CCTV camera was installed is highlighted. For satisfying the legality of the impugned judgment, the DVR was requisitioned and despite best efforts it could not be decodified to examine the visuals thus we are not left with any other option but to discard it in accordance with the PFSA report (Exh.PZ).

1. According to the prosecution case, Muhammad Nasir Abbas JFS/PFSA (PW.5) was summoned at the crime scene to examine the surroundings and the recovered corpse. He extracted four nail swabs from both hands of deceased which were dispatched to the office of PFSA for DNA analysis. According to report (Exh.PX/1) the left-hand nail swabs of Younas Umar (deceased) matched with the DNA profile of three individuals out of whom Abdul Hakeem (appellant) was described as one of the possible contributors. The DNA evidence can attain admissibility if prosecution satisfactorily proves the process of sampling, safe custody and onward transmission to the office of PFSA and the foregoing process is called in the field of forensic as doctrine of analysis and it stresses for flawless sampling, correct packing, safe custody and above all free from doubt transmission to the office of expert. Any defect in the aforementioned process makes even the positive DNA report doubtful in nature forcing the courts to discard it from consideration. Guidance in this regard can be sought from the case titled as "Azeem Khan and another v. Mujahid Hussain and others" (2016 SCMR 274) wherein the Supreme Court of Pakistan held as under:-

"27. In the recent past many scandals in U.S.A., U.K. and other countries have surfaced where desired D.N.A. test reports were procured by the investigative by contaminating the samples. Such contamination has also been reported in some cases while the samples remained in the laboratories. Many inquires were held on this issue and stringent law has been made by many States to prevent the contamination of samples outside and inside the laboratories. Proper procedure has been laid down for securing and carefully putting into parcel the suspected materials to co-relate with the samples of the parents to establish paternity or maternity. Similarly, stringent check and procedure has been provided to avoid and prevent cross-contamination of the two samples because if both come in contact with each others then, it will give false positive appearance and the expert is thus misled. It has also been discovered that credentials of many experts, claiming possessed of higher qualification in this particular field, were found fake and they were thus, removed from service. The D.N.A. Wikipedia on web is an unrebutted testimony to these facts.

1. In any case, it is an expert opinion and even if it is admitted into the evidence and relied upon, would in no manner be sufficient to connect the necks of the appellants with the commission of the crime when the bulk of other evidence has been held by us unbelievable thus, no reliance can be placed on it to award a capital sentence. Moreover, to ensure fair-play and transparency, the samples in the laboratories from the parents should have been taken in the presence of some independent authority like a Magistrate and also the recovered samples from the crime scene in the same way to dispel the chances of fabrication of evidence through corrupt practices and the transition of the samples to the laboratory should have also been made in a safe and secure manner. But all these safeguards were kept aside."

2024 P Cr. LJ 1783

[Lahore]

Before Tariq Saleem Sheikh, J

Sumaira----Petitioner

Versus

The State and 5 others----Respondents

Writ Petition No. 75596 of 2022, decided on 31st August, 2023.

Penal Code (XLV of 1860)---

----Ss. 375-A & 371-B---Anti-Rape (Investigation and Trial) Act (XXX of 2021), S. 9---Gang rape, selling and buying person for purpose of prostitution---Investigation in respect of Scheduled Offences---Quashing of proceedings---Petitioner lodged FIR under S.375-A, P.P.C, against four persons accusing them of ravishing her---During investigation, police found it was not a gang rape and substituted S.375-A, P.P.C with S.371-B, P.P.C---Petitioner disagreed with that findings and contended that it had no legal value because the entire proceedings were conducted in contravention of S.9 of the Anti-Rape (Investigation and Trial) Act, 2021---Through present petition, petitioner sought quashing of the said proceedings and a direction to re-investigate the case in accordance with law---Held, that Anti-Rape (Investigation and Trial) Act, 2021, ensured various fundamental rights guaranteed by the Constitution and to discharge obligations under International law to address the issue of sexual violence and brought offenders to justice---To that end, the Act provided for efficient procedures, speedy trials, evidence and matters connected therewith or incidental thereto---Said Act aimed to effectively deal with rape and sexual abuse crimes mentioned in its Schedules committed against women and children---Section 9 of the Act is mandatory, which conferred special jurisdiction on Special Sexual Offences Investigation Units (SSOIUs) in respect of Scheduled Offences---For that purpose, it mandated the Federal Government to establish SSIOUs for the Capital Territory and the Provincial Governments in every district---During the hearing of this case, it was mentioned that the Punjab Government had not established SSIUOs in several districts even two years after the enactment of the Act---High Court gave directions to constitute the requisite SSOIUs immediately and to arrange necessary training for the Police Officers assigned to them as required by law---District Police Officer concerned had submitted a report that SSOIUs(Special Sexual Offences Investigation Units) and Gender Crime Cells comprising female SIs/ASIs, who received training regarding sexual offences and gender crimes had been established in the District under the supervision of the Sub-Divisional Police Officer---S.P. Investigation was the overall in-charge of the Wing---Present case was being investigated by an SSOIU(Special Sexual Offences Investigation Units)--District Police Officer concerned had categorically stated that the investigation of this case was compliant with S.9 of the Act---Petition was disposed of in view of the report of District Police Officer concerned.

LD v. Chief Appeals Officer 2014 IEHC 641; Lalappa Lingappa and others v. Laxmi Vishnu Textile Mills Ltd. Sholapur AIR 1981 SC 852; Edukanti Kistamma (Dead) through L.Rs. and others v. Venkatareddy (Dead) through L.Rs. and others AIR 2010 SC 313; Regional Provident Fund Commissioner v. Hoogly Mills Co. Ltd. and others 2012 (2) SCC 489 and Province of Punjab through Conservator of Forest, Faisalabad, and others v. Javed Iqbal 2021 SCMR 328 rel.

Shaukat Rafique Bajwa with Tauseef Ahmad Bajwa for the Petitioner.

Sittar Sahil, Assistant Advocate General with Zia/S.P., Jamshaid Ahmad/SHO and Samra Yousaf/S.I. for Respondents.

Date of hearing: 10th March, 2023.

Judgment

Tariq Saleem Sheikh, J.---The Petitioner has lodged FIR No.1019/2022 dated 15.10.2022 under section 375-A P.P.C. at Police Station Saddar Daska, District Sialkot, against four people accusing them of ravishing her. During the investigation, police found that it was not a gang rape and substituted section 375-A P.P.C. with section 371-B P.P.C. The Petitioner disagrees with this finding and contends that it has no legal value because the entire proceedings were conducted in contravention of section 9 of the Anti-Rape (Investigation and Trial) Act, 2021 (the "Anti-Rape Act"). Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), she seeks quashing of the said proceedings and a direction to the Respondents to reinvestigate the case in accordance with the law, i.e., section 9 of the Anti-Rape Act.

1. The World Health Organization defines sexual violence as "any sexual act, attempt to obtain a sexual act, or other act directed against a person's sexuality using coercion, by any person regardless of their relationship to the victim, in any setting. It includes rape, defined as the physically forced or otherwise coerced penetration of the vulva or anus with a penis, other body part or object, attempted rape, unwanted sexual touching and other non-contact forms." Sexual violence is regarded as one of the most horrific and traumatic human rights violations. Although women and girls are more commonly the victims, sexual violence can occur at any age. Anyone can commit it, including parents, caregivers, acquaintances, strangers, and intimate partners. Worldwide, an estimated 20% of girls and 10% of boys are sexually abused. It has serious short and long-term physical and mental health, behavioural and social implications. Girls and women bear the overwhelming burden of injury and disease from sexual violence and coercion because they are more vulnerable to sexual and reproductive health consequences such as unwanted pregnancy, unsafe abortion and a higher risk of sexually transmitted infections, including HIV, during vaginal intercourse. It is important to note that in cases of rape, men are also at risk of contracting HIV. Occasionally, murder is committed during or after sexual assault, and sometimes, an honour killing happens due to sexual violence.

2. The victims of sexual violence often avoid reporting the crime. One of the reasons is that criminal proceedings are traumatizing. The 84th Report of the Law Commission of India observed:

"It is often stated that a woman who is raped undergoes two crises, the rape and the subsequent trial. While the first seriously moves her dignity, curbs her individual, disturbs her sense of security and may often ruin her physically, the second is no less potent of mixture, inasmuch as it not only forces her to relive through the traumatic experience, but also does so in the grudge of publicity in a totally alien atmosphere, with the whole apparatus and paraphernalia of the criminal justice system focused upon her."

1. Pakistan is a signatory to almost all international conventions and agreements that protect the rights of women and children and oblige State Parties to curb all types of violence against them, including gender- based violence. Article 4 of Pakistan's Constitution (1973) stipulates that every citizen and every other person, for the time being within the country, has an inalienable right to enjoy equal protection of the law and be treated in accordance with the law. Chapter 1 of Part II lists the fundamental rights guaranteed by the Constitution. Over the last two decades, the Government has taken various steps to incorporate human rights values into its statutes, policies, and action plans. It has toughened the law to combat rape and sexual offences through the Criminal Law Amendment (Offences Relating to Rape) Act (XLIV of 2016) and the Criminal Laws (Amendment) Act (LVI of 2021).

2. Parliament has enacted the Anti-Rape Act to assure various fundamental rights guaranteed by the Constitution and to discharge obligations under international law to address the issue of sexual violence and bring offenders to justice. To this end, the Act provides for efficient procedures, speedy trials, evidence and matters connected therewith or incidental thereto. It may be highlighted that being a special legislation, it has precedence over all other general laws on the subject it covers.

3. Indubitably, the Anti-Rape Act is a remedial social statute. Dodd makes the following observations about such enactments in Statutory Interpretation in Ireland:

"The case law reveals that the courts are more disposed to the purposive approach in respect of particular types of enactments. Remedial social statutes, enactments relating to international or European law and paternal legislation, such as enactments relating to child welfare, are more readily interpreted in light of their purpose. In respect of such enactments, the courts are concerned with ensuring that the purpose or aim of a provision or Act is achieved. In contrast, other types of statutes and instruments favour a literal approach - criminal, taxation and conveyancing enactments dispose themselves to a strict literal approach. In respect of such statutes, what is typically valued is certainty and allowing those affected to rely on the ordinary and plain meaning.

'Remedial social statutes' and legislation of a paternal character favour a purposive interpretation and are said to be construed as widely and liberally as can fairly be done within the constitutional limits of the courts' interpretative role. This formula has been repeated in a number of cases. It has been codified to some extent in some jurisdictions. Remedial social statutes are enactments which seek to put right a social wrong and provide some means to achieve a particular social result. The interpretative approach to remedial enactments can be related to the mischief rules and purposive approach, in that interpretations that promote the remedy that the legislature has appointed are preferred."

1. In LD v. Chief Appeals Officer, [2014] IEHC 641 at para 38, Peart J. stated that remedial social statutes should be "interpreted as widely as the words reasonably permit in order to reflect the permissive nature of the legislation."

2. In Lalappa Lingappa and others v. Laxmi Vishnu Textile Mills Ltd., Sholapur (AIR 1981 SC 852), the Supreme Court of India held that when construing a social welfare legislation, the court should apply the beneficent rule of construction. If there are two plausible readings of a provision, the one that best serves the Act's policy and is more beneficial to the people for whom the Act was passed should be preferred. However, where the language is explicit, the court must give it effect regardless of the ramifications. The argument of inconvenience and hardship is only admissible in cases where the meaning of the statute is unclear and there are two ways to interpret it. In their eagerness to advance the beneficent purpose of the legislation, the judges must resist the temptation of seeking ambiguity where none exists. In Edukanti Kistamma (Dead) through L.Rs. and others v. S. Venkatareddy (Dead) through L.Rs. and others (AIR 2010 SC 313), the Supreme Court held that the Act must be read in its whole for purposes of statutory interpretation. The court must give full effect to the Act's objective and intent by using the rules of purposive construction. It must construe the enactment in a way that promotes its object and advances the purpose for which it was passed and strongly oppose any construction that seeks to reduce a statute's utility. In Regional Provident Fund Commissioner v. Hooghly Mills Co. Ltd. and others [2012 (2) SCC 489], the Supreme Court held that the normal canon of interpretation is that a remedial statute or social welfare legislation receives liberal construction. In contrast, a penal statute calls for strict interpretation. If there is any doubt in the cases of remedial laws, it is resolved in favour of the class of persons for whose benefit the statute is enacted. In the cases of penal statutes, doubt is generally resolved in favour of the accused.

3. The Anti-Rape Act aims to effectively deal with the rape and sexual abuse crimes mentioned in its Schedules (which are hereinafter referred to as the "Scheduled Offences") committed against women and children. It outlines a framework to check the said crimes by establishing (i) Anti-Rape Crisis Cell, (ii) Special Sexual Offences Investigation Units, (iii) Independent Support Advisors, (iv) Special Prosecutors, (v) Special Courts, (vi) a register of sex offences, and (vii) Fund to carry out the purposes of the Act. Each thread is meticulously braided; a break in any of them would render the statute ineffective. In light of the principles discussed above, the courts must interpret the Anti-Rape Act liberally and purposively. They must adopt the construction that advances rather than defeats the statute's objectives.

4. Section 9 of the Anti-Rape Act provides a special procedure for investigating Scheduled Offences. It states:

9. Investigation in respect of scheduled offences.- (1) For the purposes of investigation under this Act, special sexual offences investigation units (SSOIUs) shall be established in every district by the provincial governments and for the purposes of the Islamabad Capital Territory by the federal Government.

(2) The SSOIU shall comprise police officers who have received training on investigation in relation to sexual offences and preferably one member of the unit shall be a female police officer.

(3) The investigation in respect of offences mentioned under this Act shall be carried out as follows:

(i) for offences mentioned in Schedule-I, by the SSOIU; and

(ii) for offences mentioned in Schedule-II, by SSOIU under the supervision of a police officer not below the rank of BPS-17.

(4) In case the complainant in relation to an offence under Schedule-II expresses dissatisfaction which is based on reasonable grounds, the investigation shall be transferred to the district head of investigation of the police.

(5) The officers of the SSOIUs shall ordinarily be from the area in which the occurrence of the offence has taken place:

Provided that in exceptional circumstances, and where the dictates of fair, accurate and technical investigation warrant otherwise, officers from areas other than the area of occurrence, may be deputed in the SSOIUs.

(6) Upon completion of investigation, the SSOIU shall, through the prosecutor general or special prosecutors, submit the final report under section 173 of the Code before the Special Court.

1. In exercise of the powers conferred by section 19(1) of the Anti-Rape Act, the Ministry of Law and Justice, on the recommendation of the Special Committee established under section 15, has framed Anti-Rape (Investigation) Rules 2022, which were notified in the Gazette of Pakistan on 20 February 2023.

2. Sections 10 and 22 of the Anti-Rape Act are also relevant to discourse. Section 10 empowers the SSOIUs to take cognizance of the offences not specified in the Schedules if they are committed in connection with the Scheduled Offences. Section 22(1) makes the false investigation a crime. It stipulates that if the investigator fails to carry out the investigation properly or diligently, or causes a fraudulent investigation to be conducted, or fails to pursue the case in any court of law, he will be punished with imprisonment of either description up to three years and a fine. It is important to point out that section 22(2) makes the filing of a false complaint regarding the commission of the Scheduled Offence(s) subject to a similar sanction.

3. As adumbrated, the Anti-Rape Act is a special legislation that would prevail over any regular law on the subjects it addresses. But are the provisions of section 9 mandatory? Parliament has used the word "shall" in every sub-section thereof. Generally speaking, this word connotes that the provision is obligatory. However, the final test is the legislature's true intent, which the court must discern. In Province of Punjab through Conservator of Forest, Faisalabad, and others v. Javed Iqbal (2021 SCMR 328), the Supreme Court held:

"In order to determine whether the aforesaid proviso is directory or mandatory, the duty of the court is to try to unravel the real intention of the legislature. The ultimate test is the intent of the legislature and not the language in which the intent is clothed. The object and purpose of enacting the provision provide a strong and clear indicator for ascertaining such intent of the legislature. The intention of the legislature must govern and this is to be ascertained not only from the phraseology of the provision but also by considering its nature, its object, and the consequences which would follow from construing it one way or the other. This exercise entails a careful examination of the scheme of the Act in order to discover the real purpose and object of the Act. A provision in a statute is mandatory if the omission to follow it renders the proceedings to which it relates illegal and void, while a provision is directory if its observance is not necessary to the validity of the proceeding. One of the important tests that must always be employed in order to determine whether a provision is mandatory or directory in character is to consider whether the non-compliance of a particular provision causes inconvenience or injustice and, if it does, the court would say that that provision must be complied with and that it is obligatory in its character."

1. Police investigation is a key component of the criminal justice system. It consists of identifying, collecting, conserving, and presenting evidence in a court of law. The majority of criminal cases fail in courts due to defective investigations. Rape and other sexual violence crimes require a thorough investigation, like any other criminal case. If the victim is not sent for medical examination on time, or if the evidence submitted by the medical officer is not processed and transmitted to the appropriate labs by the police, the entire case may become weak and thus benefit the perpetrator. Section 9 of the Anti-Rape Act has introduced the concept of trained special units, SSOIUs, to investigate sexual offences more effectively. Because of their special training, SSOIUs can reduce the delays during the investigation and considerably raise the likelihood of conviction in sexual violence cases, which currently has an abysmally low rate. U.N. Handbook for Legislation on Violence against Women states:

"It is critical to ensure that those mandated to implement legislation regarding violence against women, including police, prosecutors and judges, have an in-depth understanding of such legislation and are able to implement it in an appropriate and gender-sensitive manner. When public officials involved in the implementation of the law are not comprehensively trained regarding its content, there is a risk that the law will not be implemented effectively or uniformly. There have been many and varied efforts to train public officials, and/or to include capacity-building on violence against women in the official curricula for these professions. Such trainings and capacity-building efforts have been found to be most effective, and implemented rigorously, when they are mandated in law and developed in close collaboration with non-governmental organizations.

"There is evidence that specialized units are more responsive and effective in dealing with violence against women. Experience has shown that the establishment of such units may facilitate the development of expertise in this area and may result in an increase in the number of cases investigated and a better quality and more efficient process for the complainant/ survivor."

1. Every SSOIU is required to have one female police officer as a member. This helps the victim feel comparatively comfortable during the investigation. The importance of a female officer increases manifold in cases involving children.

2. The above discussion leads me to an ineluctable conclusion that section 9 of the Anti-Rape Act is mandatory. Section 9 confers special jurisdiction on SSOIUs in respect of Scheduled Offences. For this purpose, it mandates the Federal Government to establish SSIOUs for the Islamabad Capital Territory and the Provincial Governments in every district.

2024 P Cr. LJ 1795

[Lahore]

Before Asjad Javaid Ghural, J

Istikhar alias Iftikhar----Appellant

Versus

The State and another----Respondents

Criminal Appeal No. 56786 of 2017, decided on 13th February, 2024.

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

----S. 376---Rape---Appreciation of evidence---Lodging of FIR with promptitude---Scope---Accused was charged for committing Zina-bil-jabr with the minor daughter of the complainant---Incident had taken place on 27.03.2018 at about 12:40 noon and the crime report was lodged on the same day at 03:45 p.m. i.e. within almost three hours of the occurrence---Said promptness in lodging the crime report not only confirmed presence of the eye witnesses at the spot but also excluded every hypothesis of deliberation, consultation and fabrication prior to the registration of the case---Appeal was dismissed in circumstances.

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

----S. 376---Rape---Appreciation of evidence---Ocular account proved---Evidence of minor victim, reliance upon---Accused was charged for committing Zina-bil-jabr with the minor daughter of the complainant---Prosecution case hinged upon the testimony of complainant, two eye-witnesses and the victim---Complainant reiterated the contents of the crime report---Two eye-witnesses unflinchingly supported the complainant while stating that they witnessed the accused committing rape with the minor girl---Said witnesses were subjected to lengthy cross-examination but the defence could not shatter their credibility on material particulars of the incident---Most crucial and star witness of the occurrence was the victim---Victim was about five years old at the time of recording of evidence and the trial Court before recording her testimony put some queries to her in order to determine whether she was competent to understand the questions and after satisfying it on that point, recorded her statement---Victim girl in her statement, in categorical terms raised accusing finger towards the accused to be the person, who took her towards a tube-well, removed her clothes and committed rape with her---Victim faced the test of cross-examination with full confidence and gave graphic details of the incident in a quite natural manner---During cross-examination, victim not only gave the name of her teacher but also her immediate neighbors and class fellows---From the tenor of the statement of the star witness, Court was convinced that what she deposed while appearing in the dock in the Court room was confidence inspiring and no one had tutored her in that regard---Statement of the victim child was quite natural, straightforward, convincing and confidence inspiring leaving no room for the Court to draw any adverse inference---Appeal was dismissed, in circumstances.

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

----S. 376---Rape---Appreciation of evidence---Medical evidence corroborating the prosecution case---Accused was charged for committing Zina-bil-jabr with the minor daughter of the complainant---Woman Medical Officer conducted medico-legal examination of the victim and observed that there was bruising of perianal area along with tears of varying sizes and at different positions---Vaginal area seemed intact on naked eye examination and there were signs of dried blood around perianal area and on buttocks---According to the opinion of Woman Medical Officer, sexual assault was committed with the minor girl---Nature of injuries endured by the victim and described by the Medical Officer were sufficient to attract the offence of rape on the touchstone of penetration---Appeal was dismissed, in circumstances.

Madam Gopal Kakkad v. Naval Dubey and another 1992 SCR (2) 921, 1992 SCC (3) 204 rel.

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

----S. 376---Rape---Appreciation of evidence---DNA profile---Scope---Accused was charged for committing Zina-bil-jabbar with the minor daughter of the complainant---Allegedly, in the report of DNA analysis, no semen stain was detected---However, this was not helpful for the defence for more than one reasons---Firstly, according to the Medical Officer, private area of the victim was washed prior to her examination, as such there seemed no possibility of availability of semen at the time of examination---Secondly, detection of seminal material in the vaginal swabs of the victim was just a corroboratory piece of evidence and merely due to its non-detection the other overwhelming ocular and medical evidence could not be discarded---Appeal was dismissed in circumstances.

Abdul Ghani v. The State through P.G. Balochistan and another 2022 SCMR 544 rel.

Mirza Nasr Hussain Shahid and Shehnaz Balqees for Appellant.

Ch. Muhammad Ishaque, Addl. Prosecutor General for the State.

Date of hearing: 13th February, 2024.

Judgment

Asjad Javaid Ghural, J.---Through this appeal under Section 410 Cr.P.C. appellant Istikhar alias Iftikhar has challenged the vires of judgment dated 17.07.2019 passed by the learned Additional Sessions Judge, Nankana Sahib in case FIR No.124/18 dated 27.03.2018, in respect of an offence under Sections 376 P.P.C., registered at Police Station, Faizabad, District Nankana Sahib, whereby he was convicted and sentenced as under:-

Under Section 376 (3) P.P.C.

Imprisonment for life with fine of Rs.25,000/- and in default thereof to further undergo SI for two months.

He was held entitled to the benefit of Section 382-B Cr.P.C.

1. The prosecution story unfolded in the crime report (Ex.PA/1) registered on the complaint of Babar Ali (PW-1) was that on 27.03.2018, his daughter namely, Mst. Asma Bibi, aged about 4/5 years, went outside the house for playing and did not turn back after considerable time. He along with witnesses Riaz Ahmad and Muhammad Boota, started searching her and when about 12.40 p.m. they went towards tube-well of Hanif Arain, they heard hue and cry of girl. They went towards the tube-well and saw appellant was committing Zina-bil-Jabr with the victim. On seeing the witnesses, appellant fled away while leaving the victim in a naked condition. Hence, this case was registered.

2. Sabar Hussain, SI (PW-9)/Investigating Officer, visited the place of occurrence on the same day and recorded the statements of witnesses including the victim under Section 161 Cr.P.C. He arrested the appellant on 30.03.2018, got conducted the DNA test of the victim as well as the appellant. After completion of the investigation, he submitted report under Section 173 Cr.P.C.

3. Lady doctor Saima Aslam (PW-6) conducted the medico-legal examination of the victim on the same day i.e. 27.03.2018 and observed perianal bruising along with multiple tears of varying sizes at different position. She also observed dried blood around perianal area and on buttocks. Three anal and one vaginal swab were taken and sealed for DNA analysis. According to her opinion, sexual assault was committed with the victim.

4. At the commencement of the trial, learned trial Court had framed a charge against the appellant to which he pleaded not guilty and claimed to be tried.

5. The prosecution examined 10-witnesses besides the report of DNA and Serology Analysis (Ex.PJ). The appellant in his statement recorded under Section 342 Cr.P.C., had denied and controverted all the allegations of fact levelled against him. He neither opted to make statement under Section 340(2) Cr.P.C., nor produced any evidence in his defence.

6. Learned trial Court, upon conclusion of the trial, convicted and sentenced the appellant as stated above. Hence, this criminal appeal.

7. Learned counsel for the appellant submits that the appellant is quite innocent and has falsely been implicated in the alleged occurrence; that infact brother of the appellant who was serving abroad transferred an amount of Rs.5,00,000/- in the account of Maqsoodan Bibi, aunt of the complainant, and when parents of the appellant demanded said amount, she in connivance with the complainant roped him in this criminal case; that according to the opinion of the medical officer vaginal area was intact, as such at the most it is a case of attempt to rape; that the report of DNA has been received with negative result, which negates the prosecution case; that at the time of alleged occurrence the appellant was juvenile; that conviction and sentence handed down by the Trial Court is very harsh and does not commensurate with the act of the appellant. In the end, learned counsel for the appellant has made an alternate prayer for suitable reduction in the sentence.

8. Conversely, learned Addl. Prosecutor General appearing for the State submits that it was a day light occurrence and in such like cases question of mistaken identity of real culprit is out of question; that the ocular account is fully supported with the medical evidence; that the victim girl furnished a natural and straightforward story without any concoction or consultation; that in case of rape of a female child involving family honour and dignity, there was no occasion for the complainant to falsely implicate the appellant while letting off the real culprit; that the prosecution has successfully proved the charge against the appellant beyond shadow of any reasonable doubt; that the act of the appellant ruined the entire life of the little girl and as such he does not deserve for any leniency. At the end, he prays for dismissal of the appeal in hand.

9. I have heard learned counsel for the appellant, learned Addl. Prosecutor General appearing for the State and perused the record.

10. This unfortunate incident had taken place on 27.03.2018 at about 12:40 noon and the crime report was lodged on the same day at 03:45 p.m. i.e. within almost three hours of the occurrence. This promptness in lodging the crime report not only confirms presence of the eye-witnesses at the spot but also excludes every hypothesis of deliberation, consultation and fabrication prior to the registration of the case.

11. The prosecution case hinges upon the testimony of Babar Ali, (PW-1)/ complainant/father of the victim, Riaz Ahmad, (PW-2), Muhammad Boota, (PW-4)/eye-witnesses of the occurrence and Mst. Asma Bibi, (PW- 3)/victim. The complainant while appearing in the dock in the court room reiterated the contents of the crime report deposing that on 27.03.2018 her daughter namely, Mst. Asma Bibi, aged about 4/5 years, went outside the house for playing and did not turn back after considerable time. He along with Riaz Ahmad (PW-2) and Muhammad Boota (PW-4), started searching her and when about 12.40 p.m. they reached near the tube-well of Hanif Arain, they heard screams of the girl. He saw appellant was forcibly committing Zina-bil-Jabr with the victim. On seeing the witnesses, appellant succeeded to flee away. Riaz Ahmad, (PW-2) and Muhammad Boota (PW-4), unflinchingly supported the complainant while stating that they witness the appellant committing rape with the minor girl. They were subjected to lengthy cross-examination but the defence could not shatter their credibility on material particulars of the incident.

12. The most crucial and star witness of the occurrence was victim Mst. Asma Bibi (PW-3). This little angel was about five years old at the time of recording of evidence and the Trial Court before recording her testimony put some queries to her in order to determine whether she was competent to understand the questions and after satisfying it on this point, recorded her statement. Victim girl in her statement, in categorical terms raised accusing finger towards the appellant to be a person, who took her towards a tubewell, removed her cloths and committed rape with her. She faced the test of cross-examination with full confidence and gave graphic details of the incident in a quite natural manner. During cross-examination, she not only gave the name of her teacher but also her immediate neighbors and class fellows. From the tenor of the statement of the star witness, I am convinced that what she deposed while appearing in the dock in the Court room was confidence inspiring and no one has tutored her in this regard. The statement of the victim child was quite natural, straightforward, convincing and confidence inspiring leaving no room for the Court to draw any adverse inference.

13. Lady doctor Saima Aslam (PW-6) conducted medico-legal examination of the victim on 27.03.2018 and observed that "There is bruising of perianal area along with tears of varying sizes and at different positions. Vaginal area seems intact on naked eye examination. There were signs of dried blood around perianal area and on buttocks." According to her opinion sexual assault was committed with the minor girl.

Learned defence counsel laid much emphasis that according to the opinion of Medical Officer vaginal area was intact, therefore, at the most it could be regarded as an attempt to commit the rape. I am not in agreement with the submission of the learned counsel for more than one reasons. Firstly, Section 375 P.P.C. defined the "rape". Explanation 1 of the said section reads as under:-

"For the purpose of this section, "vagina" shall also include labia majora" In the instant case Medical Officer has observed bruising upon perianal area along with tears of different sizes at different position, which when read in context with Explanation reproduced supra, fully constitute that the 'rape' was committed with the victim.

Secondly, a Forensic Scientist Mr. C.K. Parikh in " Parikh's Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology at page 5.37 mentions as under:-

"Soon after the act, the torn margins are sharp and red, and bleed on touch".

Moreso, H M V Cox "Medical Jurisprudence and toxicology" (Seventh Edition) by Dr. PC Dikshit, Professor and Head of Forensic Sciences, Maulana Azad Medical College, New Dehli, explains the situation in Chapter of Sexual Offences at page 591 as under:-

"In case of incomplete penetration, the only sign which may be seen are reddening and inflammation of vestibule within the labia or a small tear of the posterior fourchette. There may also be contusion of the hymen."

The situation when rape is committed with a child has been well explained in the above chapter in the following manner:-

"In the case of small children, the genital injuries found are either absolutely minimal or of such magnitude that one is unable to perform the examination without general unaesthetic. It must be remembered that it requires a great amount of force, exerted via penis, to effect full penetration into the small under-developed child, because of this many rapists of small children are satisfied to commit what is described as rape without full penetration."

Further that;

"Bodily injuries, because of the lack of resistance by the child are usually absent in this type of case."

Furthermore, extent of penal insertion is highlighted in Simpson Forensic Medicine (Tenth Edition) by Bernard Knight in the following manner:-

"Sexual intercourse means nothing less than penile insertion, even if this is only just between the labia. Full penetration is not necessary and rupture of the hymen is irrelevant, but unless some degree of penile introduction can be proved, a charge of rape cannot be sustained and anything less is 'indecent assault.' An orgasm or ejaculation of semen is not relevant, only penetration. (emphasis supplied)"

The nature of injuries endured by the victim and described by the Medical Officer perfectly matched with the observations highlighted above and sufficient to attract the offence of 'rape' on the touchstone of penetration. Reliance is placed on case reported as "Madan Gopal Kakkad v. Naval Dubey and another (1992 SCR (2) 921, 1992 SCC (3) 204" wherein a rape was committed upon a minor girl of aged about eight years and upon examination of the victim after five days of the occurrence, the Medical Officer observed an abrasion on the medial side of labia majora and readness around labia minora with white discharge but the hymen was intact and in view of absence of signs of full penetration the Medical Officer opined that there was an attempt to rape but the Supreme Court observed as under:-

"Under the basis of medical findings, it can safely be concluded that there was partial penetration within the labia majora or vulva or pudenda which in legal sense is sufficient to contribute to rape and convicted the accused for the offence of rape."

In view of above, I am of the considered view that it was a case of complete rape and not an attempt to rape as urged by the defence.

2024 P Cr. LJ 1825

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram and Muhammad Tariq Nadeem, JJ

Ashfaq Hussain and others----Appellants

Versus

The State----Respondent

Criminals Appeals Nos. 684-J, 683, Criminal Revision No. 340 of 2022 and Murder Reference No. 51 of 2022, decided on 6th December, 2023.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Scope---Accused were charged that they in furtherance of common intention committed murder of the daughter of complainant by inflicting churri blows and firing---Ocular account of the incident had been furnished by father of deceased, her brother and uncle---According to the prosecution story deceased was annoyed with her husband/accused due to non-payment of Haq-ul-Mahar described in Column No. 16 of her Nikah Nama---All the witnesses had stated that on the day of occurrence, i.e. 02.09.2016 at 04.00 p.m. accused took the deceased along with his daughter to his home on the basis of compromise with the condition that son of the complainant would obtain copy of record of rights of land owned by accused and hand it over to him, thereafter accused would alienate the said property to deceased---Son of complainant had categorically stated in his cross-examination that his sister was not willing to go back without payment of dower---Furthermore, it was observed that son of complainant had obtained copy of record of rights about the ownership of land of accused on 02.09.2016 at 10:42 a.m., whereas, according to the prosecution story accused was present in the house of complainant till 04.00 pmon 02.09.2016---In this way, question was why the said document was not handed over to accused at that time and that there was no need to go to the house of occurrence---Similarly, when deceased was not willing to reconcile with accused without payment of dower then why she went along with him without transfer of property of dower in her name---Said facts did not appeal to a prudent mind because without resolving the controversy the deceased could not be sent with accused by her parents---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Presence of the eye-witnesses at the spot doubtful---Accused were charged that they in furtherance of common intention committed murder of the daughter of complainant by inflicting churri blows and firing---Record showed that the eye-witnesses were not residing near the place of occurrence---Moreover, place of occurrence was also not the house of accused---Prosecution evidence was completely silent on the point whether after differences between the spouses, accused was residing in the gifted house of his father-in-law situated at place of occurrence---Contrary to said facts, complainant had stated in his cross-examination that they took the police to the house of accused persons after the occurrence at place of "QS" at evening time---House of accused persons in place "QS" was locked and accused persons were not available---Said fact was sufficient to hold that accused was not residing in the house of occurrence---According to the Inquest Report and Post Mortem Report of deceased as well as statement of Woman Medical Officer, mouth of deceased was open---Such fact showed that no person had bothered to close the mouth of deceased, which was not possible in the presence of eye-witnesses---Alleged eye-witnesses were not the witnesses of identification of dead body of deceased at the time of autopsy---Furthermore, eye-witnesses were also not the witnesses of identification of dead body at the time of preparing the inquest report---Had eye-witnesses been present at the scene of the occurrence at the relevant time, they must have been the witnesses of identification of dead body---Such fact showed that they were not present at the time and place of occurrence---Appeal against conviction was allowed, in circumstances.

Muhammad Asif v. The State 2017 SCMR 486; Zahir Yousaf and another v. The State and another 2017 SCMR 2002; Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068; 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.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---No justification for the presence of witnesses at the spot---Chance witnesses---Accused were charged that they in furtherance of common intention committed murder of the daughter of complainant by inflicting churri blows and firing---According to the prosecution story all the eye-witnesses reached the place of occurrence by chance and occurrence took place exactly at the time of their arrival at place of occurrence---Said aspect of the prosecution case did not appeal to a prudent mind---In the light of such facts, it was abundantly clear that the eye-witnesses reached the place of occurrence afterwards---Thus the eye-witnesses were related and chance witnesses---Appeal against conviction was allowed, in circumstances.

The State through Advocate General, Khyber Pakhtunkhwa, Peshawar v. Hassan Jalil and others 2019 SCMR 1154 rel.

(d) Criminal trial---

----Chance witness, evidence of---Reliance---Chance witness in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present at the spot but at a place where he resides, carries on business or runs day-to-day life affairs---In this context the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time---In normal course, presumption under the law would operate about his absence from the crime spot---True that in rare cases, the testimony of 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, otherwise his testimony would fall within the category of suspect evidence and could not be accepted without a pinch of salt.

Mst. Mir Zalai v. Ghazi Khan and others 2020 SCMR 319; Ibrar Hussain and another v. The State 2020 SCMR 1850; Liaqat Ali and another v. The State and others 2021 SCMR 780 and Abdul Khaliq v. The State 2021 SCMR 325 rel.

(e) Criminal trial---

----Opinion of police---Scope---Ipsi dixit of the police is not binding on the Court, yet it can be considered if it is based on some cogent and convincing evidence.

Khalid Mehmood and others v. The State 2011 SCMR 664 and Sajjad Hussain v. The State and others 2022 SCMR 1540 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of motorcycle on the pointation of accused---Inconsequential---Accused were charged that they in furtherance of common intention committed murder of the daughter of complainant by inflicting churri blows and firing---Record showed that a motorcycle was recovered on the pointation of accused from the house of co-accused, which was taken into possession by the Investigating Officer---However, no registration number and colour, had been described in the FIR---In this way, recovery of motorcycle at the pointation of the accused was inconsequential and not helpful to the prosecution case---Appeal against conviction was allowed, in circumstances.

Naveed Asghar v. The State and another PLD 2021 SC 600 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence on the pointation of accused---Inconsequential---Accused were charged that they in furtherance of common intention committed murder of the daughter of complainant by inflicting churri blows and firing---Record showed that a pistol 30-bore and blood stained churri were recovered at the pointation of accused from deserted building of irrigation department and from the place of occurrence respectively---Notable that place of recovery of pistol 30 bore was an open place and accessible to everyone---In that way, the recovery of pistol was inconsequential in the eyes of law---As regards recovery of churri, it was observed that according to the prosecution story the same was not used by accused rather co-convict had used the same who was declared innocent during the course of investigation---Moreso, report of Forensic Science Agency, qua pistol and churri, was not helpful to the prosecution case because recovery of pistol at the pointation of accused had already been disbelieved whereas, positive report of Forensic Science Laboratory qua the human blood on churri had also no legal credence because occurrence in the case allegedly took place on 02.09.2016 and churri was deposited in the Office of Forensic Science Laboratory on 04.10.2016, i.e. with the delay of 30 days, whereas blood disintegrates after three weeks---Witnesses of recoveries were also witnesses of ocular account and their evidence had been disbelieved---In this way, the evidence of said witnesses to the extent of corroborative piece of evidence was also not helpful to the prosecution case---Appeal against conviction was allowed, in circumstances.

Muhammad Ismail and others v. The State 2017 SCMR 898; Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120; Faisal Mehmood v. The State 2016 SCMR 2138 and Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive not proved---Accused were charged that they in furtherance of common intention committed murder of the daughter of complainant by inflicting churri blows and firing---Motive behind the occurrence was that due to non-payment of dower consideration, the occurrence took place---As percomplainant and other witness, there was dispute between deceased and accused persons on account of non-payment of dower mentioned in Nikah Nama and under the said grudge the accused persons in furtherance of their common intention committed the occurrence---Notable that motive was only an oral assertion of the complainant and no material evidence was produced to substantiate the motive alleged by the prosecution, hence, the prosecution had failed to prove the motive part of the occurrence---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---Appeal against conviction was allowed, in circumstances.

Manzoor Ahmed Shah and others v. The State and others 2019 SCMR 2000; Muhammad Ilyas and another v. Ameer Ali and another 2020 SCMR 305; Liaqat Ali and another v. The State and others 2021 SCMR 780 and Khalid Mehmood and others v. The State and others 2021 SCMR 810 rel.

(i) Criminal trial---

----Benefit of doubt---Principle---If there is a single circumstance creating 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; Muhammad Imran v. The State 2020 SCMR 857 and Mst. Hajira Bibi alias Seema and others v. Abdul Qaseem and another 2023 SCMR 870 rel.

Malik Muhammad Saleem for Appellants.

Malik Riaz Ahmad Saghla, APG for the State.

Ch. Faqir Muhammad for the Complainant.

Date of hearing: 6th December, 2023.

Judgment

Muhammad Tariq Nadeem, J.---Through this single judgment, we intend to dispose of Criminal Appeal No.684-J of 2022 filed by Ashfaq Hussain appellant against his conviction and sentence, Criminal Appeal No.683-J of 2022 filed by Abdul Majeed Shah appellant against his conviction and sentence, whereas, complainant Shafaqat Mehmood filed Criminal Revision No. 340 of 2022 for the conversion of sentence of life imprisonment of Abdul Majeed Shah into sentence of death along with Murder Reference No.51 of 2022, received from trial court for confirmation or otherwise of death sentence of Ashfaq Hussain appellant all originated from judgment dated 22-06-2022 passed by learned Additional Sessions Judge-II, Model Criminal Trial Court, Jampur in case FIR No.270 dated 02-09-2016, under Sections 302, 34, P.P.C registered at Police Station Sadar Jampur, whereby the trial court convicted and sentenced the appellants as under:-

Ashfaq Hussain

Under Section 302 (b), P.P.C

Sentence to death with the direction to pay a sum of Rs.2,00,000/- as compensation under Section 544-A Cr.P.C. to the legal heirs of deceased Mst. Zoha Kanwal, in default thereof to further undergo six months S.I.

Abdul Majeed Shah

Under Section 302 (b), P.P.C

Sentence to life imprisonment with the direction to pay a sum of Rs.2,00,000/- as compensation under Section 544-A Cr.P.C. to the legal heirs of deceased Mst. Zoha Kanwal, in default thereof to further undergo six months S.I.

It may not be out of place to mention here that this Court vide Judgment dated 21.03.2022 while deciding Criminal Appeal No. 609-J of 2021, Criminal Appeal No. 123-J of 2018, Criminal Revision No.163 of 2018 and Murder Reference No.04 of 2018, with the consensus of the parties set aside the conviction awarded to the appellants and the case was remanded back to the trial court with the direction that the learned trial Judge shall call the person who conducted interviews of the eye-witnesses and the mother of deceased from TV Channel as Court Witness and will re-record statements of the accused persons under section 342, Cr.P.C. by confronting them with the evidence of said CW. The trial court was directed to complete the assignment within a period of two months positively from the date of receipt of copy of the judgment.

Whereafter, Zeshan Nawaz Malik, anchor person who conducted the interviews of Mirza Shafaqat Mehmood, complainant (PW6), Mirza Muhammad Mansoor (PW7) and Shakeela Begum mother of deceased was summoned as Court Witness and his statement was recorded as CW1.

1. The prosecution story as given in the judgment of the trial court dated 22.12.2017 before remand reads as under:-

"Precisely, the prosecution case as disclosed from the statement of the complainant Mirza Shafqat Mehmood son of Mirza Abdul Ghani (Exh.PH) is that marriage of daughter of complainant namely Mst. Zoha Kanwal was solemnized with Syed Ashfaq Hussain son of Abdul Majeed Shah on 14.06.2013. At the time of marriage, Syed Ashfaq Hussain agreed to give a constructed house consisting of land measuring five marlas situated in Kotia Mughlan, gold ornaments weighing 10 tolas and agricultural land measuring one acre in Mauza Qamber Shah as dower consideration. During cohabitation, differences arose between the spouses on account of payment of dower consideration. In the meanwhile out of their wedlock, a daughter namely Hania Jannat aged about two years was born. Some days before the registration of case, daughter of the complainant came to the house of the complainant on account of differences with her husband due to non-payment of dower consideration while his son in law (accused Ashfaq Hussain) remained making efforts for reconciliation but Abdul Majeed Shah, father of son in law of the complainant was not ready on alienation of land in lieu of dower consideration. On 02.09.2016, compromise was effected before the respectables of the locality on the terms that Mirza Mansoor, son of the complainant would obtain computerized proof regarding the ownership of land of the son in law of the complainant and thereafter the son in law of the complainant, would alienate the land in lieu of dower consideration. Documentary proof of ownership was obtained and at about 4.00 p.m, Ashfaq Hussain accused, who is son-in-law of the complainant, took Mst. Zoha Kanwal and Hania Jannat to his house. After about 1, 1 1/2 hours, the complainant along with Mirza Mansoor, his son and Muhammad Akmal went to make program for alienation of land in lieu of dower by his son in law in favour of Mst. Zoha Kanwal but as soon as they entered the house through a small gate, they saw that accused Ashfaq Hussain arrned with pistol and Syed Abdul Majeed Shah armed with Churri were present in a room on western side of house and they were assaulting the daughter of the complainant in a brutal manner. Syed Ashfaq Hussain was catching hold of the daughter of the complainant while Abdul Majeed Shah was giving Churri blows on her body, as a result of which, she received severe injuries on her head, forehead, right and left sides of face, left wrist, fingers of her left hand, right wrist, right elbow, front and left side of neck. The complainant along with witnesses rushed towards his daughter but his son-in-law made fire with his pistol at his daughter with intention to commit her murder, which hit her on backside of her head and went through and through. She fell down on the ground. The PWs tried to apprehend the accused persons but they threatened them not to come near them while waiving the pistol and Churri and after taking Hania Jannat, they decamped from the place of occurrence while riding on motorcycle CD-70, which was standing outside the house. The complainant and the witnesses attended Mst. Zoha Kanwal, who had succumbed to the injuries at the spot. Motive behind the occurrence was that due to non-payment of dower consideration mentioned in column No. 16 of the Nikahnama, the accused persons, in furtherance of the common, intention committed murder of Mst. Zoha Kanwa deceased. Upon the statement of the complainant, this case was registered....."

1. After completion of investigation, report under section 173 Cr.P.C. was prepared and submitted before the trial court. The trial court, after observing all codal formalities, as provided under the Code of Criminal Procedure, 1898, framed charge against the appellants for the offences mentioned above, to which they pleaded not guilty and claimed trial.

2. In order to prove its case, the prosecution produced as many as 12 witnesses during the trial. Mirza Shafaqat Mehmood, complainant (PW6), Mirza Muhammad Mansoor (PW7) and Muhammad Akmal (PW8) have furnished the ocular account. Muhammad Sadiq, SI (PW12), being the Investigating Officer, stated about various steps taken by him during investigation of the case. Muhammad Zahid 995/HC (PW1) was the witness of handing over sealed parcels containing crime empty of pistol .30 bore and blood stained cotton and Chhurri. Kamal Ahmad 741/HC (PW2) was the witness of collecting call data of the appellants pertaining to mobile numbers 0334-7552807, 0304-4486051, 0333-6451391 and 0302-7379152, whereas, Ghulam Qasim 1295/C (PW3) was the witness who escorted the dead body of Mst. Zoha Kanwal to THQ Hospital Jampur for post-mortem examination and also witness of recovery memo. Exh. PA pertaining to the call data of cell phones of the appellants.

Medical evidence was furnished by Doctor Fatima Ali Syed (PW5).

The remaining prosecution witnesses, more or less, are formal in nature.

After recording the evidence of Zeeshan Nawaz Malik CW1, statements under section 342 Cr. P.C. of the appellants were recorded wherein they denied the allegations levelled against them and professed their innocence. However, they neither opted to appear as their own witnesses within the scope of section 340(2) Cr.P.C. nor produced any evidence in their defence.

The trial court vide judgment dated 22-06-2022 found the appellants guilty and thus, convicted and sentenced them as mentioned and detailed above.

1. We have heard the learned counsel for the appellants as well as learned Additional Prosecutor General assisted by learned counsel for the complainant and also scanned the record with their assistance. We have reappraised the whole evidence and taken everything into our consideration in the light of arguments advanced by both the sides.

2. Ocular account of the incident has been furnished by Mirza Shafqat Mehmood complainant (PW6), Mirza Muhammad Mansoor (PW7) and Muhammad Akmal (PW8). The above mentioned witnesses are real father, real brother and maternal uncle of Mst. Zoha Kanwal (deceased), respectively. According to the prosecution story Mst. Zoha Kanwal (deceased) was annoyed with her husband Ashfaq Hussain appellant due to non-payment of Haq-ul-Mahar described in Column No. 16 of her Nikah Nama. All the PWs have stated that on the day of occurrence, i.e. 02.09.2016 at 04.00 p.m. Ashfaq Hussain appellant took Mst. Zoha Kanwal (deceased) along with his daughter Hania Janat to his home on the basis of compromise with the condition that Mirza Muhammad Mansoor (PW7) son of the complainant, would obtain copy of record of rights of land owned by Ashfaq Hussain appellant and hand over to him, thereafter appellant would alienate the said property to Mst. Zoha Kanwal (deceased). We have noted that Mirza Muhammad Mansoor (PW7) has categorically stated in his cross-examination that his sister was not willing to go back without payment of dower. Relevant line of his cross-examination reads as under for ready reference:-

"My sister told that she was not willing to go back to her house until the dower is paid to her by the accused."

Furthermore, we have also observed that Mirza Muhammad Mansoor (PW7) had obtained copy of record of rights (P-9) about the ownership of land of Ashfaq Hussain, appellant on 02.09.2016 at 10:42 a.m., whereas, according to the prosecution story Ashfaq Hussain appellant was present in the house of complainant till 04.00 p.m. on 02.09.2016, in this way, why the above mentioned document was not handed over to Ashfaq Hussain appellant at that time and there was no need to go to the house of occurrence. Similarly, when Mst. Zoha Kanwal (deceased) was not willing to reconcile with Ashfaq Hussain appellant without payment of dower then why she went along with him without transfer of property of dower in her name. These facts do not appeal to a prudent mind because without resolving the controversy she (deceased) could not be sent with Ashfaq Hussain appellant by her parents.

It is evident from the record that the above mentioned eye-witnesses were not residing nearby the place of occurrence. Moreover, place of occurrence was also not the house of Ashfaq Hussain appellant. Although Mirza Shafaqat Mehmood complainant (PW6) has stated in his examination-in-chief as infra:-

"Prior to the marriage, Ishfaq accused was settled at Mauza Qambar Shah. The distance between Kotla Mughlan and Qambar Shah is about 12 K.M. It was settled that accused Ishfaq and my daughter would live in Kotla Mughlan in a separate house, which I had gifted to my daughter."

But we have observed that prosecution evidence is completely silent on the point whether after differences between the spouses, Ashfaq Hussain appellant was residing in the gifted house of his father-in-law situated at Kotla Mughlan. Contrary to above Mirza Shafaqat Mehmood complainant (PW6) has stated in his cross-examination that they took the police to the house of accused persons at Qambar Shah after the occurrence at evening time. The house of accused persons in Mauza Qambar Shah was locked and accused persons were not available. This fact is sufficient to hold that Ashfaq Hussain, appellant was not residing in the house of occurrence situated at Kotla Mughlan.

1. Another crippling feature of this case which cannot be lost sight of is that according to the prosecution story all the above mentioned eye-witnesses reached at the place of occurrence by chance and occurrence took place exactly at the time of their arrival at place of occurrence. This aspect of the prosecution case does not appeal to a prudent mind as observed by the Supreme Court of Pakistan in the case titled as "The State through Advocate General, Khyber Pakhtunkhwa, Peshawar v. Hassan Jalil and others" (2019 SCMR 1154). Relevant paragraph is hereby reproduced as under:-

"Arrival of Noor Seema, PW at venue exactly at a point of time when the respondent allegedly did away with the deceased, in itself is a circumstance that reflects on the very genesis of the prosecution case. On an overall analysis of the prosecution evidence, the learned High Court found the prosecution case fraught from doubts, an analysis that cannot be viewed as unconscionable or imprudent, being well within the realm of possibility, calling for interference. Appeal is dismissed."

We have also noticed that Mirza Shafqat Mehmood complainant (PW6) and Mirza Muhammad Mansoor (PW7) have admitted in their cross-examinations that many media persons recorded their interviews regarding the occurrence. Moreover, this fact has also been endorsed by Muhammad Sadiq, SI/I.O. (PW12). Relevant lines of his cross-examination reads as under for ready reference:-

"This occurrence was also reported to the electronic media. It is correct that interviews of the complainant and eye-witnesses were also aired on SAMA nad other T.V. Channels."

Zeeshan Nawaz Malik, anchor person of SAMA T.V. Channel appeared as CW1 who categorically stated in his cross-examination as under:-

"I had conducted the interviews. I don't remember that interviews of father, mother and brother of deceased were conducted exactly at the spot but the possibility of the same cannot be ruled out. Confronted with the CD Exh.DA (portion of the video showing the place of occurrence of the instant case), I say, it is the same place whereby the alleged occurrence took place. It is correct that in CD Exh.DA the portion regarding the statement of father of deceased namely Shafqat Mahmood is same as shown in the video that when he (complainant) reached at the place of occurrence, deceased Zoha Kanwal was lying dead in her room. Confronted with the CD Exh.DA (portion of the video showing the statement of the mother of the deceased), it is correct that in CD Exh.DA the portion regarding the statement of mother of deceased namely Shakeela Baigm is same as shown in the video that when she reached at the place of occurrence, deceased Zoha Kanwal was lying dead in her room. At the time of interview, the son of complainant namely Mansoor was also present there. The said Mansoor has also endorsed the statement of his parents.

In the light of above facts, it is abundantly clear that the eye-witnesses reached at the place of occurrence afterwards and we are quite confident to hold that supra mentioned witnesses are related and chance witnesses. A chance witness in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present at the spot but at a place where he resides, carries on business or runs day-to-day life affairs, in this context the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt. Guidance can be sought from the case laws titled as "Mst. Mir Zalai v. Ghazi Khan and others" (2020 SCMR 319), "Ibrar Hussain and another v. The State" (2020 SCMR 1850), "Liaqat Ali and another v. The State and others" (2021 SCMR 780) and "Abdul Khaliq v. The State" (2021 SCMR 325).

1. According to the Inquest Report (Exh. PF) and post mortem report of Mst. Zoha Kanwal (deceased) (Exh. PE) as well as statement of Dr. Fatima Ali Syed, WMO (PW5) mouth of Mst. Zoha Kanwal (deceased) was opened. This fact shows that no person had afflicted to close the mouth of Mst. Zoha Kanwal (deceased), which couldn't have befell in the presence of eye witnesses. Reliance is placed upon the cases titled as "Muhammad Asif v. The State" (2017 SCMR 486), "Zahir Yousaf and another v. The State and another" (2017 SCMR 2002) and "Muhammad Rafique alias Feeqa v. The State" (2019 SCMR 1068).

2. Another important fact of this case is that the alleged eye-witnesses namely Mirza Shafaqat Mehmood complainant (PW6), Mirza Muhammad Mansoor (PW7) and Muhammad Akmal (PW8) are not the witnesses of identification of deadbody of deceased at the time of autopsy of Mst. Zoha Kanwal (deceased). Furthermore, they are also not the witnesses of identification of deadbody at the time of preparing the inquest report (Exh. PF). Had they been present at the scene of the occurrence at the relevant time, they must have been the witnesses of identification of deadbody. This fact has constrained us to hold that they were not present at the time and place of occurrence. A reference in this respect may be made to the cases reported as "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).

3. The record further reflects that according to the statement of Dr. Fatima Ali Syed, WMO (PW5) Mst. Zoha Kanwal (deceased) received one fire shot and sixteen other injuries on the body of Mst. Zoha Kanwal (deceased) at the time of conducting post mortem examination on her body, whereas, according to the statement of Mirza Shafqat Mehmood complainant (PW6) their clothes were not stained with blood at the time of attending the deceased. Relevant line of his cross-examination is hereby described as under:-

"Neither my clothes nor the clothes of the witnesses became stained with blood while attending my deceased daughter."

We are of the view that it is improbable when a person has sustained 17 injuries with fire shot and sharp-edged weapon, blood would not ooze and would not touch the clothes of attending persons. This fact constrained us to hold that eye-witnesses were not present at the time and place of occurrence, otherwise, their clothes must have been stained with blood while attending the deceased, hence, both the witnesses of ocular account were not reliable and there is likelihood that they had not witnessed the occurrence.

1. Another important fact of this case is that Abdul Majeed Shah appellant was declared innocent during the course of investigation. Muhammad Sadiq, SI/I.O. (PW12) has stated in his cross-examination as infra:-

"On 16.09.2016, I joined accused Abdul Majeed into investigation and recorded his first version. Accused Abdul Majeed took the plea before me that he had no concern with the alleged occurrence and he was innocent. It is correct that he also took plea that his backbone was operated upon and his knee and arm were fractured. It is correct that he also took the plea that he offered Jumma and Asar prayers in Shrine of Ali Shah and he could produce the persons who were present there. I joined 16 respectables of the area in the investigation and they verified the plea of accused Abdul Majeed, therefore, I declared that accused Abdul Majeed was not involved in the occurrence and had no nexus with the present occurrence."

Although it is generally established principle of law that ipse dixit of the police is not binding on the Court, yet it can be considered if it is founded on some cogent and convincing evidence. A reference in this respect may be made to the case titled as "Khalid Mehmood and others v. The State" (2011 SCMR 664) wherein it has been held infra:-

Adverting to the case of Abid Hussain appellant, it may be observed that no weapon of offence has been effected from his possession. He was found innocent by different police agencies including Ch. Akhtar Hussain, DSP, CIA, Sheikhupura and got discharged from the Court of the Magistrate, which order was not challenged by the complainant. We entertain serious doubt in our minds, regarding participation of appellant Abid Hussain in the commission of crime. The evidence of the complainant and Nasir Ahmad P.Ws. qua appellant Abid Hussain is not credible and trustworthy."

Similar view has also been taken in the recent case reported as Sajjad Hussain v. The State and others (2022 SCMR 1540).

1. Insofar as the evidence of call data record of the appellants is concerned, it is noteworthy that no voice record transcript has been brought on record. The evidence further demonstrates that both the appellants were in telephonically contact and not more than this. Here, we would like to refer to the case of "Azeem Khan and others v. Mujahid Khan and others" (2016 SCMR 274) wherein it has been held as under:-

"The cell phone call data collected is of no help to the prosecution for the reasons that numerous calls have been made indicating continuous interaction between the two cell phones, contrary to the evidence given by Muhammad Wali (PW-3), who has stated at the trial that the unknown caller made calls on his cell phone four times. No competent witness was produced at the trial, who provided the call data, Ex.P -1 to Ex.P-5. No voice record transcript has been brought on record. Similarly from which area the caller made the calls, is also not shown in it. Above all, the most crucial and conclusive proof that the cell phone was owned by the accused and SIM allotted was in his name is also missing. In this view of the matter, this piece of evidence is absolutely inconclusive and of no benefit to the prosecution nor it connects the accused with the crime in any manner."

1. Insofar as motorcycle CD-70 recovered on the pointation of Ashfaq Hussain appellant from the house of Abdul Majeed Shah appellant situated in Mauza Qamber Shah, which was taken into possession by the Investigating Officer vide seizure memo. (Ex.PM) is concerned, no registration number, colour, has been described in the FIR. In this way, recovery of motorcycle at the pointation of the appellants is inconsequential and not helpful to the prosecution case. We fortify our view from the dictum laid down in the case titled as "Naveed Asghar v. The State and another" (PLD 2021 SC 600).

Now adverting to recoveries of pistol 30 bore P-12 taken into possession vide seizure memo. Exh. PN at the pointation of Ashfaq Hussain appellant from deserted building of irrigation department and recovery of blood stained Chhurri P-14 taken into possession vide seizure memo. Exh. PO at the pointation of appellant from the place of occurrence are concerned, we have noted that place of recovery of pistol 30 bore P-12 was an open place and accessible to everyone, in this way, the recovery of pistol P-12 is inconsequential in the eye of law. In this backdrop, the supra mentioned recovery has no evidentiary worth. Reference in this context may be made to the case of "Muhammad Ismail and others v. The State" (2017 SCMR 898).

As regards recovery of Chhurri P-14 is concerned, we have observed that according to the prosecution story the same was not used by Ashfaq Hussain appellant rather Abdul Majeed Shah co-convict has used the same who was declared innocent during the course of investigation. More so, report of Punjab Forensic Science Agency, Lahore qua pistol and Chhurri Exh. PT as well as Exh. PU are not helpful to the prosecution case because we have already disbelieved the recovery of pistol P-12 at the pointation of Ashfaq Hussain appellant, whereas, positive report of PFSA Exh. PT qua the human blood on Chhurri P-12 has also no legal credence because occurrence in this case allegedly took place on 02.09.2016 and Chhurri P-14 was deposited in the Office of PFSA, Lahore on 04.10.2016, i.e. with the delay of 30 days. It is settled proposition of law that blood disintegrate after three weeks. We fortify our view from the case titled as "Muhammad Jamil v. Muhammad Akram and others" (2009 SCMR 120) and "Faisal Mehmood v. The State" (2016 SCMR 2138).

We have also taken note that witnesses of above mentioned recoveries are Mirza Muhammad Mansoor (PW7) and Muhammad Akmal (PW8) who are also witnesses of ocular account and their evidence has been disbelieved by us in the preceding paragraphs Nos. 6 and 7 of this judgment, in this way, their evidence to the extent of corroborative piece of evidence is also not helpful to the prosecution case. Wisdom can also be derived from the case law titled as Mst. Rukhsana Begum and others v. Sajjad and others (2017 SCMR 596) wherein it was held as under:-

"It is also pertinent to mention here, that the attesting witness to all these recoveries of incriminating articles is Muhammad Sharif (PW-9) whose testimony we have already disbelieved as a whole. It is fundamental principle of justice that corroboratory evidence, must come from independent source providing strength and endorsement to the account of the eye-witnesses, therefore, eye-witnesses, in the absence of extraordinary and very exceptional and rare circumstances, cannot corroborate themselves by becoming attesting witness/witnesses to the recovery of crime articles. In other words, eye-witnesses cannot corroborate themselves but corroboratory evidence must come from independent source and shall be supported by independent witnesses other than eye-witnesses, thus, these recoveries are equally of no judicial efficacy."

1. Now the next piece of evidence which still remains in the field is the motive advanced by the prosecution behind the unfortunate incident, which, as per, Mirza Shafqat Mehmood complainant (PW6) and Mirza Muhammad Mansoor (PW7) was that there was dispute between deceased Mst. Zoha Kanwal and accused persons on account of non-payment of dower mentioned in Nikah Nama and under the said grudge the appellants in furtherance of their common intention committed the occurrence. We have noted that motive was only an oral assertion of the complainant and no material evidence was produced to substantiate the motive alleged by the prosecution, hence, we feel no hesitation to hold that the prosecution has failed to prove the motive part of the unfortunate occurrence. Although, the prosecution is not under obligation to establish a motive in every murder case but it is also well settled principle of criminal jurisprudence that if prosecution sets up a motive but fails to prove it, then, it is the prosecution who has to suffer and not the accused. Guidance is hereby sought from the case laws reported as "Manzoor Ahmed Shah and others v. The State and others" (2019 SCMR 2000), "Muhammad Ilyas and another v. Ameer Ali and another" (2020 SCMR 305), "Liaqat Ali and another v. The State and others" (2021 SCMR 780) and "Khalid Mehmood and others v. The State and others" (2021 SCMR 810).

2. We have considered all the pros and cons of this case and have come to an irresistible conclusion that the prosecution could not prove its case against the appellants beyond the shadow of doubt. It is, by now well established that it is the prosecution, which has to prove its case against the accused by standing on its own legs, but in this case the prosecution remained failed to discharge its responsibility. It is also well settled by now that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. In case of "Naveed Asghar and two 2 v. The State" (PLD 2021 SC 600), the Hon'ble Supreme Court of Pakistan, in paragraph No.33, was pleased to observe as under--

"....The prosecution is under obligation to prove its case against the accused person at the standard of proof required in criminal cases, namely, beyond reasonable doubt standard, and cannot be said to have discharged this obligation by producing evidence that merely meets the preponderance of probability standard applied in civil cases. If the prosecution fails to discharge its said obligation and there remains a reasonable doubt, not an imaginary or artificial doubt, as to the guilt of the accused person, the benefit of that doubt is to be given to the accused person as of right, not as of concession. The rule of giving benefit of doubt to accused person is essentially a rule of caution and prudence, and is deep rooted in our jurisprudence for safe administration of criminal justice. In common law, it is based on the maxim, "It is better that ten guilty persons be acquitted rather than one innocent person be convicted". While in Islamic criminal law it is based on the high authority of sayings of the Holy Prophet of Islam (peace be upon him): "Avert punishments [hudood] when there are doubts"; and "Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him [accused], let him have his way, because the leader's mistake in pardon is better than his mistake in punishment". A three-member Bench of this Court has quoted probably latter part of the last mentioned saying of the Holy Prophet (peace be upon him) in Ayub Masih v. State in the English translation thus: "Mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."

2024 P Cr. LJ 1881

[Lahore]

Before Tariq Saleem Sheikh, J

Mst. Yasmeen---Petitioner

Versus

Dr. Fahad Ahmad and others---Respondents

Writ Petition No. 12912 of 2023, decided on 10th May, 2024.

Anti-Rape (Investigation and Trial) Act (XXX of 2021)---

----Ss. 9(2), 9(3) & 10---Penal Code (XLV of 1860), Ss. 376(1), 384 & 341---Abduction for rape, extortion, wrongful restraint---Investigation in respect of Sched. Offences---Application for transfer of investigation to Special Sexual Offences Investigation Unit was declined---Anti-Rape (Investigation and Trial) Act, 2021 ('Act') does not define the precise composition of the Special Sexual Offences Investigation Unit but only gives broad parameters---Section 9(2) of the Act stipulates that the Special Sexual Offences Investigation Unit shall comprise Police Officers who have received training on investigation in relation to sexual offences and preferably, one member of the unit shall be a female Police Officer---Section 9(3) mandates that investigations for offences listed in Schedule-I shall be conducted exclusively by the Special Sexual Offences Investigation Unit, while those in Schedule-II are to be carried out by the Special Sexual Offences Investigation Unit under the supervision of a Police Officer not below the rank of BPS-17---Two interpretations of S.9 of the Anti-Rape Act are possible; first, that the Special Sexual Offences Investigation Unit as a unit should handle the investigation of Scheduled Offences collectively, and second, that individual Police Officers who are members of the Special Sexual Offences Investigation Unit in the relevant District may conduct the investigations independently---Anti-Rape Act encourages the involvement of lady Police Officers in handling the Scheduled Offences, though it does not impose a strict requirement---Section 9 of the Act states that the Special Sexual Offences Investigation Unit should preferably have a female Police Officer as one of its members who have received training on investigation in relation to sexual offences---Use of the word "preferably" instead of "must" indicates flexibility in unit formation, recognizing factors such as staffing constraint and resource availability---Section 10 of the Act should be interpreted to address instances where the Competent Authority establishes a Joint Investigation Team specifically---Thus, it was not correct to contend that every Scheduled Offence under the Anti-Rape Act had to be investigated by the entire Special Sexual Offences Investigation Unit---In the present case, respondent No.1 had transferred the investigation of case FIR No.1409/2022 to Lady Police Officer/SI---Advocate General had submitted documents reflecting that she was fully trained to investigate sexual offences, therefore, she was found competent to investigate the case and the petitioner's objection was overruled---Petition was accordingly dismissed.

Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division, and others PLD 1972 SC 279; Mst. Ummatullah through Attorney v. Province of Sindh and others PLD 2010 Karachi 236; Kamil Khan Mumtaz and others v. Province of Punjab through Chief Secretary, Government of Punjab, and others PLD 2016 Lah. 699 and Sumaira v. The State and others 2024 PCr.LJ 1783 rel.

Salman Shahid Khan for the Petitioner.

Khalid Ishaq, Advocate General Punjab, and Sittar Sahil, Assistant Advocate General with Maryam Rani/SI for Respondents.

Date of hearing: 5th April, 2024.

Judgment

Tariq Saleem Sheikh, J.---The Petitioner lodged FIR No.1409/2022 dated 27.10.2022 at Police Station City Hafizabad, alleging offences under sections 376(1), 384 and 341 P.P.C against three individuals for abducting and raping her. She further claimed that they recorded her nude videos and threatened to publicize them on social media if she disclosed the incident. The investigation was assigned to Gul Rukh Tabassum/ASI, but the Petitioner accused him of dishonesty and bias toward the accused. Consequently, she submitted an application to the District Police Officer, Hafizabad (Respondent No.1), requesting the transfer of the investigation to another police officer. Allegedly, Respondent No.1 did not attend to it, upon which she filed Writ Petition No.4770/2023 seeking a writ of mandamus. By an order dated 25.1.2023, this Court directed Respondent No.1 to decide the Petitioner's aforementioned application, if pending, in accordance with the law within fifteen days.

1. Respondent No.1 placed the Petitioner's application before the District Standing Board under Article 18-A(5)(a) of the Police Order, 2002. The Board recommended it upon which Respondent No.1 transferred the investigation of case FIR No.1409/2022 to Maryam Rani/SI vide order dated 9.2.2023.

2. The Petitioner contends that FIR No.1409/2022 falls within the purview of the Anti-Rape (Investigation and Trial) Act, 2021 (the "Anti-Rape Act"). Therefore, it must be investigated by a special sexual offences investigation unit (SSOIU) established under section 9 of the Act. Individual police officers cannot investigate such cases, even if they are members of the SSOIU in the relevant district. According to her, Respondent No.1 's order dated 9.2.2023 is bad in law. Maryam Rani/SI is not competent to conduct the investigation independently as a single officer without other unit members.

3. The Petitioner approached Respondent No.1 with the above contention and requested him to transfer her case to a team of officers. Respondent No.1 disagreed with her interpretation of section 9 of the Anti-Rape Act and orally declined her request. Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the Petitioner challenges the legality of the order dated 9.2.2023.

4. The Advocate General Punjab submits that section 9 of the Anti-Rape Act has introduced the concept of SSOIUs with special jurisdiction to investigate sexual and gender-based violence (SGBV) offences within their designated areas. This legislative initiative aims to ensure that qualified and dedicated officers handle such cases efficiently and with expertise and expedite justice for victims. It would prevent delays in the trial process and ensure its completion within four months, the time specified in section 16 of the Act.

5. The Advocate General further submits that the Anti-Rape Act does not specify the exact composition of the SSOIUs to be established. Section 9(2) only provides that SSOIU shall comprise officers who have received specialized training concerning sexual offences, and, secondly, one member of the unit shall preferably be a female police officer. According to the Advocate General, to the extent of Punjab, the Home Department has issued a notification dated 20.9.2023, whereby SSOIUs have been established in every district as outlined in the list annexed therewith. The number of units formed in each district and the personnel assigned to them vary based on the distinct geographical and legal requirements of each area. For instance, District Lahore boasts seven SSOIUs with 93 officers, whereas Rahim Yar Khan has a single unit staffed by 33 personnel.

6. The Advocate General argues that the Petitioner's understanding of section 9 of the Anti-Rape Act is flawed. A single officer may effectively exercise all the powers necessary to investigate the offences mentioned in the schedules of the Act (referred to as the "Scheduled Offences"). Mandating the entire unit to investigate every case collectively would be impracticable and frustrate the Act's objective of speedy investigation and trial.

Opinion

1. The preamble of the Anti-Rape Act reads as follows:

"An Act to ensure expeditious redressal of rape and sexual abuse crimes in respect of women and children through special investigation teams and Special Courts providing for efficacious procedures, speedy trial, evidence and matters connected therewith or incidental thereto."

1. The preamble is a part of a statute, though not its operative part. Nevertheless, it provides a valuable guide to find out the legislative intent. Coke said: "The preamble of the statute is a good means to find out the meaning of the statute, and as it were, a key to open the understanding thereof." According to another jurist, "it is a key to open the minds of the makers of the Act, and the mischiefs which they intend to redress." In Brett v. Brett [1826] 162 ER 456, Sir John Nicholl observed:

"The key to the opening of every law is the reason and spirit of the law - it is the animus imponents, the intention of the law-maker expressed in the law itself taken as a whole. Hence, to arrive at the true meaning of any particular phrase in a statute, that particular phrase is not to be viewed detached from its context in the statute, it is to be viewed in connection with its whole context meaning by this as well as the title, and the preamble as the purview or enacting part of the statute. It is to the preamble more specially that we are to look for the reason or spirit of every statute, rehearsing it, as it ordinarily does, the evils sought to be remedied, or the doubts purported to be removed by the state, and so evidencing in the best and most satisfactory manner, the object or intention of the legislature in making and passing the statute itself."

1. In Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division, and others (PLD 1972 SC 279), the Supreme Court of Pakistan held that "the preamble is a legitimate aid in discovering the purpose of a statute." In Mst. Ummatullah through Attorney v. Province of Sindh and others (PLD 2010 Karachi 236), a Division Bench of the Sindh High Court held that "preamble is the gateway to any statute; it is bedrock to understand the scope, purpose and object to any statute." Similarly, in Kamil Khan Mumtaz and others v. Province of Punjab through Chief Secretary, Government of Punjab, and others (PLD 2016 Lahore 699), a Division Bench of this Court ruled:

"A preamble is, therefore, a window to the main statute. Although the preamble does not control the main enactment, it certainly gives an inkling of the intention of the legislature and the policy of the Act. The concept relating to the policy of the Act is of paramount importance, and all interpretation must be done in accordance with the policy and the intention of the legislature found therein."

1. The preamble of the Anti-Rape Act expresses the nation's resolve to confront the pervasive issue of sexual violence and gender-based crimes. It highlights that the Act aims to develop efficacious procedures to streamline the entire judicial process from the time a crime is reported to its resolution in court. This includes adopting faster and more effective methods of processing cases, better management of evidence to preserve its integrity for trials, and swiftly bringing perpetrators to justice. In Sumaira v. The State and others (2023 LHC 4535), this Court ruled that the Act serves as a remedial social statute.

2. The Anti-Rape Act is a remarkable legislative initiative aimed at upholding the constitutional rights of women and children, including their rights to life, dignity, and justice. Additionally, it seeks to fulfil Pakistan's obligations under international law, which require it to address the scourge of sexual violence.

3. Section 9 of the Anti-Rape Act outlines the following procedure for investigating the Scheduled Offences:

9. Investigation in respect of scheduled offences.- (1) For the purposes of investigation under this Act, special sexual offences investigation units (SSOIUs) shall be established in every district by the provincial governments and for the purposes of the Islamabad Capital Territory by the Federal Government.

(2) The SSOIU shall comprise police officers who have received training on investigation in relation to sexual offences and preferably one member of the unit shall be a female police officer.

(3) The investigation in respect of offences mentioned under this Act shall be carried out as follows:

(i) for offences mentioned in Schedule-I, by the SSOIU; and

(ii) for offences mentioned in Schedule-II, by SSOIU under the supervision of a police officer not below the rank of BPS-17.

(4) In case the complainant in relation to an offence under Schedule-II expresses dissatisfaction which is based on reasonable grounds, the investigation shall be transferred to the district head of investigation of the police.

(5) The officers of the SSOIUs shall ordinarily be from the area in which the occurrence of the offence has taken place:

Provided that in exceptional circumstances, and where the dictates of fair, accurate and technical investigation warrant otherwise, officers from areas other than the area of occurrence, may be deputed in the SSOIUs.

(6) Upon completion of investigation, the SSOIU shall, through the prosecutor general or special prosecutors, submit the final report under section 173 of the Code before the Special Court.

1. Section 9 supra introduces a crucial mechanism for handling the intricacies of investigating sexual offences by establishing Special Sexual Offences Investigation Units (SSOIUs) in every district by provincial governments and in the Islamabad Capital Territory by the federal government. This provision embodies a contemporary law enforcement approach, recognizing the need for specialized expertise and dedicated resources to address such crimes effectively. The formation of SSOIUs reflects the Act's victim-centred approach, emphasizing survivors' rights, dignity, and well-being throughout the investigative process. By prioritizing the needs of survivors, SSOIUs create a supportive environment conducive to reporting incidents of sexual violence and seeking justice.

2. The concept of "investigation units" is distinguishable from "joint investigation teams" (JITs). They serve unique purposes in the pursuit of justice. Investigation units typically operate within a single law enforcement agency and are specialized teams or divisions responsible for investigating various types of crimes. These units, such as homicide or cybercrime units, focus on specific areas of criminal activity and possess expertise and resources tailored to their respective fields. In contrast, JITs are collaborative entities formed by multiple law enforcement agencies or governmental entities to investigate specific cases or types of crimes that transcend jurisdictional boundaries. Comprising representatives from various agencies and stakeholders, JITs pool together resources, expertise, and investigative powers to address cases requiring cooperation and coordination across different jurisdictions. While investigation units concentrate on internal investigations within a single agency, JITs facilitate cross-agency collaboration to tackle cases that demand a unified approach.

3. The Anti-Rape Act does not define the precise composition of the SSOIUs but only gives broad parameters. Section 9(2) of the Act stipulates that the SSOIUs shall comprise police officers who have received training on investigation in relation to sexual offences, and preferably, one member of the unit shall be a female police officer. Section 9(3) mandates that investigations for offences listed in Schedule-I shall be conducted exclusively by the SSOIU, while those in Schedule-II are to be carried out by the SSOIU under the supervision of a police officer not below the rank of BPS-17. Two interpretations of section 9 of the Anti-Rape Act are possible: first, that the SSOIU as a unit should handle the investigation of Scheduled Offences collectively, and second, that individual police officers who are members of the SSOIU in the relevant district may conduct the investigations independently.

4. The first interpretation, which advocates for a collaborative approach involving multiple unit members in each investigation, could present practical challenges. Expecting the entire unit to handle every case could lead to inefficiencies and delays, undermining the Act's objective of expediting investigations and trials. On the other hand, the second interpretation, which permits individual officers within the unit to undertake the investigations autonomously, offers a more flexible and potentially more efficient use of personnel and resources. Considering these factors, the second approach is more effective, pragmatic, and likely better suited to accomplishing the Act's objectives. The success of the Act hinges on striking the right balance between the need for specialized units and the practical realities of resource allocation and case management.

5. It is, however, important to note that the Anti-Rape Act encourages the involvement of lady police officers in handling the Scheduled Offences - though it does not impose a strict requirement. Section 9 of the Act states that the SSOIU should preferably have a female police officer as one of its members who has received training on investigation in relation to sexual offences. The use of the word "preferably" instead of "must" indicates flexibility in unit formation, recognizing factors such as staffing constraints and resource availability.

6. Sections 154, 161 and 164A Cr.P.C. contain special provisions for recording FIRs, examining witnesses, and medical examination of victims of sexual abuse. The Anti-Rape (Investigation) Rules 2022 also cast certain duties on a female police officer when appointed. The purpose of these provisions is that where the victim is a woman or child, the association of a woman officer with the investigation makes them feel comparatively comfortable and, in some instances, even prevent re-traumatization.

7. Although it is technically permissible for a single officer to investigate Scheduled Offences, the Anti-Rape Act does not prohibit the constitution of special teams. Hence, considering the legislative intent, if the victim is a woman or a child, or if circumstances otherwise demand, the investigation of the case should be entrusted to a lady officer. Alternatively, she could be included as a member of a special team.

8. On 15.12.2020, the President promulgated the Anti-Rape (Investigation and Trial) Ordinance-2020. The National Assembly extended the law for another 120 days, with effect from 13.4.2021. The Ordinance also contained two Schedules mentioning the offences it dealt with. Section 9 of the said legislation provided the procedure for their investigation and envisaged the setting up of a special JIT for the investigation of offences mentioned in Schedule-II (with offences under Schedule-I left to be carried out by any police officer not below BPS-17). Section 9 of the Ordinance prescribed that the JIT shall comprise of the District Police Officer as the head, one Superintendent of Police (Investigation), one Deputy Superintendent of Police, and one Station House Officer. In the case of a JIT, it may be correct to presume that the investigation was to be entrusted to the JIT as a whole instead of its individual members. However, the fact that while enacting the Anti-Rape Act, 2021, the legislature made a conscious departure from the concept of a JIT and resorted to the establishment of SSOIUs in each district also suggests that its intent was not to assign the investigation of the Scheduled Offences to the entire unit.

9. Our law, jurisprudence and practice allow the constitution of a joint investigation team to investigate sensitive and complex cases. The observations in the preceding paragraph should not be construed to mean that the Anti-Rape Act prohibits the constitution of a joint investigation team to investigate a particular case. As highlighted above, the concept of "investigation units" is distinguishable from JIT.

10. One of the important features which gave rise to the controversy that I seek to address through this judgment is section 10 of the Anti-Rape Act, which reads as follows:

10. Connected offences not in the Schedules.- The investigation officer or the joint investigation team (JIT), as the case may be, under section 9, may also take cognizance of offences not listed in the schedules, committed in connection with the scheduled offences, as if those offences were scheduled offences.

2024 P Cr. LJ 1903

[Lahore]

Before Tariq Saleem Sheikh, Farooq Haider and Muhammad Amjad Rafiq, JJ

Ch. Fawad Ahmad and others---Petitioners

Versus

Government of the Punjab through Chief Secretary and others---Respondents

Writ Petitions Nos. 24153 and 22880 of 2023, decided on 10th July, 2023.

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

----S. 160---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Notice under S.160 Cr.P.C.---Scope---Notice under S.160, Cr.P.C., cannot be challenged under Art. 199 of the Constitution before High Court unless it is patently illegal, mala fide, without jurisdiction or coram non judice.

Sabira Khatoon v. Government of the Punjab and others 2021 PLC (C.S.) 1600 rel.

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

----Ss. 7 & 23---Constitution of Pakistan, Art. 199---Constitutional petition---Alternate and efficacious remedy---Scope---Anti-Terrorism Court, jurisdiction of---Determination---Question as to whether other remedy constitutes alternative remedy that would limit jurisdiction of High Court under Art. 199 of the Constitution is one of law---Such question must be determined on individual basis---Anti-Terrorism Court decides about applicability of S.7 of Anti-Terrorism Act, 1997, after taking cognizance---In certain instances, remedy under S.23 of Anti-Terrorism Act, 1997, may not be adequate and efficacious, to qualify as an alternative remedy---There is no inflexible rule that High Court cannot consider whether S.7 of Anti-Terrorism Act, 1997, applies in a particular matter until the litigant has availed remedy under S.23 of Anti-Terrorism Act, 1997---High Court should decide each case after considering its peculiar facts and circumstances.

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

----S. 19---Police Order (22 of 2002), Art. 18A---Criminal Procedure Code (V of 1898), S. 94---Constitution of Pakistan, Art. 199---Constitutional petition---Joint Investigation Team---Object, purpose and scope---Petitioners were aggrieved of formation of Joint Investigation Team to investigate the violence that took place between 22-2-2023 and 19-3-2023, due to which there was damage of public and private property worth crores of Rupees, and many police personnel were inured and at least one person was killed---Allegedly, workers of political party concerned threw petrol bombs at police as they attempted to execute non-bailable warrants issued by Trial Court against their party leader---Held, that provision of S.94, Cr.P.C., grants wide powers to Investigating Officer to compel production of any document or other thing necessary or desirable for any investigation---Such provision is inadequate to deal with cases involving terrorism which constitutes a special class---Investigation in such cases may need to be conducted across provinces or internationally---This may require special skills or knowledge that regular police personnel lack---Sometimes, police may also require assistance from other agencies within the country and overseas, as fair investigation is essential to right to a fair trial, and Joint Investigation Teams help the same---Subject to statutory safeguards, concept of Joint Investigation Team does not offend the Constitution---Thorough probe into the incidents was essential to bring the miscreants to justice---Cabinet rightly constituted Joint Investigation Team to broaden scope of investigation and had made it transparent, fair and credible---Petitioners failed to demonstrate that order of forming Joint Investigation team was mala fide---High Court declined to interfere in order constituting Joint Investigation Team as the order was unexceptionable---Government was competent to form Joint Investigation Team in the cases mentioned in the order---Constitutional petition was dismissed, in circumstances.

Ghulam Hussain and others v. The State and others PLD 2020 SC 61; Mst. Sughran Bibi v. The State PLD 2018 SC 595; Wazir v. The State PLD 1962 (W.P.) Lahore 405; Abdul Aziz v. Muhammad Ashraf and others PLD 1973 Lahore 304; Haq Nawaz and others v. The State and others 2000 SCMR 785; Ali Gohar and others v. Pervaiz Ahmed and others PLD 2020 SC 427; Emperor v. Khwaja Nazir Ahmed AIR 1945 SC 18; Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Baluchistan and another PLD 1971 SC 677; Younas Abbas and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581; Mehboob Ali Malik v. The Province of West Pakistan, and another PLD 1963 (W.P.) Lahore 575; Dr. Sher Afghan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813; In the matter of Human Rights Case No. 39216-G of 2018; 2018 SCMR 332; Syed Iqbal Kazmi and others v. Federation of Pakistan and others PLD 2019 Sindh 255; Federation of Pakistan v. Shah Muhammad Khan and others PLD 1960 SC 85; Emperor v. Khwaja Nazir Ahmed AIR 1945 PC 18; M/s Mustafa Impex, Karachi, and others v. Government of Pakistan and others PLD 2016 SC 808; Federation of Pakistan and others v. Aftab Ahmed Khan Sherpao and others PLD 1992 SC 723; Haider Automobiles Ltd. v. Pakistan PLD 1967 Lahore 882; Pakistan Medical and Dental Council v. Muhammad Fahad Malik and others 2018 SCMR 1956; Munir Aftab v. The State and others 2021 PCr.LJ 293 and Fayyaz Ahmed and another v. The State and others 2008 PCr.LJ 805 rel.

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

----S. 19---Joint Investigation Team (JIT)---Composition---Objection over inclusion of two police officers in the JIT---Without any evidence of bias against any member of Joint Investigation Team, nomination cannot be objected on the basis of apprehensions.

(e) Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006)---

----Ss. 2 & 5---Role of Punjab Government---Scope---Role of the Punjab Government under Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, is of policy-making and monitoring Prosecution Service---Prosecutor General is charged with managing and controlling its administrative, operational, and financial functions.

(f) Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006)---

----S. 17---Code of Conduct for Prosecutors, 2012, Paras. 3 & 6---Code of Conduct---Threshold Test---Full Code Test---Applicability---Prosecutor must be convinced that there are reasonable grounds to believe that ongoing investigation will yield more evidence within a reasonable time so that all evidence combined can establish a realistic prospect of conviction under Full Code Test---Additional evidence must be identifiable and not speculative---Threshold Test under paragraph 6.4 of Code of Conduct should not be employed when evidence on which criminality of the suspect hinges is in the process of forensic analysis.

Sikandar Zulqarnain Saleem, assisted by Zafar Iqbal Mangan for the Petitioners.

Shan Gul, Advocate General, Ch. Khaleeq-uz-Zaman, Prosecutor General, Ghulam Sarwar Nehang, Additional Advocate General and Sittar Sahil, Assistant Advocate General, with Dr. Usman Anwar, Inspector General of Police, Punjab; Shakil Ahmad Mian/Additional Chief Secretary (Home), Muhammad Afzal Bashir/Deputy Secretary (Law), Home Department; Kamran Aadil/DIG (Legal) and Ghulam Hussain Chohan/SSP (Legal) for Respondents Nos. 1-8 and 12.

A.D. Naseem, Deputy Attorney General for Respondents Nos. 9 and 11.

Date of hearing: 5th May, 2023.

Judgment

Tariq Saleem Sheikh, J.---By this consolidated judgment, we shall decide Writ Petition No.24153/2023 and 22880/2023 as a common thread weaves through them.

The factual background

1. Pakistan has been in the grip of the most serious political crisis in its history for over a year. In a turn of events, Pakistan Tehreek-e-Insaf (PTI), which was in power in the Punjab and Khyber Pakhtun Khawa, dissolved the provincial assemblies. PTI says that the Caretaker Cabinets installed under Article 224(1A) of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), and the Federal Government run by Pakistan Democratic Movement (PDM), a coalition of 11 political parties, have joined hands to crush it. According to the Petitioners, the Caretakers and the Federal Government have filed a string of false cases against the PTI's leadership across the country, most notably its Chairman, Imran Ahmad Khan Niazi. The party's top leadership, workers and activists are harassed, arrested and humiliated.

2. The general elections for the Punjab Assembly are scheduled for 14.5.2023. PTI planned to take out a rally on 8.3.2023 after following legal formalities but, according to it, the administration was bent upon interrupting it and imposed restrictions under section 144 Cr.P.C. PTI challenged that action of the administration in this Court through Writ Petition No. 16122/2023. During the proceedings, the Caretakers realized their mistake and withdrew their notification imposing section 144 Cr.P.C. in the city upon which the Court disposed of the said constitutional petition vide Order dated 9.3.2023.

3. The PTI workers were fully charged because of the above-mentioned and other events in the country over the last year, including an assassination attempt on Imran Khan on 3.11.2022. Meanwhile, the Additional Sessions Judge, Islamabad (West), issued non-bailable warrants of arrest against Imran Khan in a case he was hearing. On 18.3.2023, the police arrived at Imran Khan's residence in Zaman Park, Lahore, to execute the warrant. The PTI workers obstructed and battled with them. The city -and the world- saw ugly scenes for the next three days until this Court intervened in Writ Petition No. 17692/2023. Many people were injured, and many private and public properties were destroyed. At least one person, Zille Shah, was killed. There were allegations and counter-allegations. The police registered several FIRs regarding the occurences during the aforementioned period. PTI also filed applications under section 22-A(6) Cr.P.C. before the Ex-officio Justice of Peace for registration of FIRs/cross-versions against the members of the administration and the police top brass. There were loud demands for justice. In this background, on the request of the Inspector General of Police, Punjab, vide Order dated 22.3.2023, the Home Department constituted a Joint Investigation Team (JIT) to investigate ten FIRs. The said order is Appendix-I of this petition.

4. The Petitioners in the petitions before us are senior politicians holding high positions in PTI. They are either named in the FIRs mentioned in the Order dated 22.3.2023 or are apprehensive that they would be roped in during the investigation. The JIT has issued them notices under section 160 Cr.P.C. By this petition under Article 199 of the Constitution, they have challenged the legality of the Order dated 22.3.2023 (the "Impugned Order"), and seek quashing of the JIT's proceedings.

The submissions

1. Advocate Sikandar Zulqarnain Saleem contends that, firstly, the concept of JIT violates both the rules of justice and the fundamental rights guaranteed by the Constitution. Secondly, the Provincial Government can form a JIT under section 19 of the Anti-Terrorism Act, 1997 (the "ATA") only to investigate the offences under that Act. Although the Government accuses the Petitioners and other members/workers of PTI of terrorism, the contents of the FIRs listed in the Impugned Order do not disclose such an offence under the criteria laid down by the Supreme Court of Pakistan in Ghulam Hussain and others v. The State and others (PLD 2020 SC 61). Hence, including section 7 of the ATA in the FIRs is illegal and mala fide. Thirdly, the Government did not follow the prescribed procedure while issuing the Impugned Order. The Additional Chief Secretary (Home) issued it without the approval of the Punjab Provincial Cabinet which was mandatory. Fourthly, the JIT cannot undertake an impartial and independent investigation because two of its members (Imran Kishwar/SSP and Aftab Phularwan/SP) are subordinates of the Inspector General of Police and the Capital City Police Officer, Lahore, whom the PTI blames for Zille Shah's murder. The party has initiated proceedings under section 22-A Cr.P.C. against them.

2. The Respondents have strongly opposed these petitions. They argue that JIT is a globally recognized concept which Pakistan adopted in section 19 of the ATA. It does not offend any constitutional provision or infringe any individual's fundamental rights. The Respondents claim that the violence starting 22.2.2023 caused a huge loss. It damaged public and private property worth crores of rupees, injured tens of police personnel, and killed at least one person. During the police's attempt to execute non-bailable warrants issued by the Islamabad Sessions Court against Imran Khan, the PTI workers threw petrol bombs at them, which under no circumstances can be justified. The Respondents contend that the Petitioners and those accused in the FIRs have an adequate and efficacious remedy before the Anti-Terrorism Court (ATC) under section 23 of the ATA. Hence, these petitions are not maintainable. Even otherwise, they are premature because the probe is in its early stages. The evidence gathered during the investigation would determine whether the accused are liable to be prosecuted under section 7 of the ATA. The Respondents submit that there is no procedural irregularity in the constitution of the JIT, and the allegation that its members are not independent and impartial is false.

Notice under Order XXVII-A C.P.C.

1. This Court admitted these petitions to regular hearing vide Order dated 12.4.2023 and framed four questions of law for determination. Since they required interpretation of the Constitution and the statutory laws, it issued a notice under Order XXVII-A C.P.C. to the Attorney General for Pakistan and the Advocate General Punjab. It also sought assistance from the Prosecutor-General Punjab. For this purpose, it issued him a separate notice with a direction to present his viewpoint personally.

2. As adumbrated, four questions of law were framed originally, but during the hearings, a couple of additional/supplementary questions were deliberated. Therefore, we would also address them in this judgment.

3. Mr. Shan Gul, Advocate General Punjab, questioned the maintainability of these petitions. He submitted that they were barred due to the principle of ripeness and because the Petitioners had an adequate alternative remedy before the ATC under section 23 of the ATA. The Advocate General contended that the Petitioners' objection to the formation of JIT was misconceived. It was legal under the Constitution and the statutory law (the ATA) and did not infringe on anybody's fundamental rights. It would rather help foster justice. Mr. Gul further contended that under section 19 of the ATA, the Provincial Government has the authority to form a JIT for investigating an offence which is evident from the words "if the Government deems necessary". Since it is purely an administrative act, the Petitioners cannot challenge it, and it is not subject to judicial review. Furthermore, any intervention by this Court would amount to interference in the investigation, which the law strictly prohibits. Mr. Gul stated that the Government meticulously followed the prescribed procedure while setting up the JIT for the ten cases registered between 22.2.2023 and 19.3.2023 against the PTI leadership and workers and emphasized that the Impugned Order was unexceptionable. He also submitted documents to substantiate this plea. Mr. Gul finally argued that the JIT consisted of honest, upright, competent senior officers. The criticism about including Imran Kishwar/SSP and Aftab Phularwan/SP in the JIT was unfounded. Their nomination could not be challenged just because they were subordinate to the Inspector General of Police, one of the accused in the PTI's estimation. There must be something more to block them.

4. Mr. A.D. Naseem, Deputy Attorney General, adopted the Advocate General's arguments.

The submissions of the Prosecutor General Punjab

1. Ch. Khaliq-uz-Zaman, Prosecutor General Punjab, made oral and written submissions. He argued that the Provincial Government had the authority to form a JIT under section 19 of the ATA, but it could only be for the offences under that Act. The police had included section 7 of the ATA in the subject FIRs in derogation of the law enunciated by the Supreme Court in Ghulam Hussain and others v. The State and others (PLD 2020 SC 61). It was, therefore, liable to be deleted. Once that is done, the legal basis for forming the JIT fades away, and the Impugned Order falls to the ground. The Prosecutor General submitted that, in his opinion, the writ petitions at hand were maintainable and this Court could grant the Petitioners the relief they had prayed for.

2. Ch. Khaliq-uz-Zaman's response evoked a strong reaction from the Advocate General. He argued that he was appointed during the PTI regime and had a tilt towards it. His views conflicted with the Punjab Government's position and urged this Court to disregard them.

3. On 20.4.2023, in pursuance of the decision of the Provincial Caretaker Cabinet taken in its 14th Meeting held on 20.4.2023, the Punjab Government restrained Ch. Khaliq-uz-Zaman from appearing in any court on its behalf. Confronted with this situation, he filed C.M. No.4/2023 in W.P. No.24153/2023 claiming that he had a statutory right of audience under section 6(6) of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 (the "PCPS Act"). Although he did not expressly request it, he wanted this Court to disregard the Cabinet's decision of 20.4.2023 and consider his submissions. This Court issued notice to the Punjab Government on this application and directed it to submit a reply, which it did.

4. The Advocate General vehemently opposed the above-mentioned application contending that the Prosecution Service is an attached department of the Punjab Government and is under its control and administration under Serial No. 32 of the First Schedule of the Government of the Punjab Rules of Business, 2011. All members of the said Service, including the Prosecutor General, are obliged to conduct their public duties according to the Government's instructions. The Advocate General further contended that the Prosecutor General had no authority to add or delete any section from the FIR.

5. In view of the above, the issue regarding the nature and scope of the duties and powers of the Prosecutor General Punjab has also come into focus. Therefore, this judgment shall also decide it.

Opinion

1. The Respondents have objected to the maintainability of these petitions. We take up this issue first.

Maintainability

1. The Petitioners have challenged the formation of the JIT on both constitutional and statutory planes. In many ways, it is a case of first impression that requires a thorough examination of the law that is possible by a Constitutional Court. Therefore, we hold these petitions maintainable.

2. We must, nevertheless, make a point. Section 6 of the ATA, which defines "terrorism" has been amended from time to time. Hence, the criteria for classifying an act as terrorism has been changing. In Ghulam Hussain and others v. The State and others (PLD 2020 SC 61), a 7-member Bench of the Supreme Court of Pakistan observed that, at one stage, the legislation focused on the gravity of the crime, the deadly nature of the weapon used, the number of perpetrators, the number of victims, the impact created by the offence, and the fear and insecurity that it caused or was likely to generate in the community. The latest definition is consistent with the international perception. The previous emphasis on the act's speculative effect has given way to a clearly defined mens rea and actus reus. The amended section 6(1)(b) now specifies the "design:", and section 6(1)(c) earmarks the "purpose" which should be the motivation for the act. The actus reus has been explicitly mentioned in section 6(2)(a) to (n). As a result, an action can only be characterized as "terrorism" when the actus reus specified in section 6(2) is accompanied by the mens rea required by section 6(1)(b) or 6(1)(c). The fear or insecurity actually created, intended to be created, or likely to be created no longer determines whether an action qualifies as terrorism. The determinative factor now is the intent and motivation behind the action, regardless of whether any fear and insecurity were actually caused. Following the most recent amendment to section 6, an action is reckoned as terrorism if it "is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect" or if such action is intended to "create a sense of fear or insecurity in society" or if it is taken to advance a religious, sectarian or ethnic cause. It is also not terrorism when fear or insecurity is just a byproduct, a spillover, or an unintended consequence of a private act. In paragraph-16 of the judgment, the Supreme Court concluded:

"...[F]or an action or threat of action to be accepted as terrorism within the meanings of section 6 of the Anti-Terrorism Act, 1997 the action must fall in subsection (2) of section 6 of the said Act and the use or threat of such action must be designed to achieve any of the objectives specified in clause (b) of subsection (1) of section 6 of that Act or the use or threat of such action must be to achieve any of the purposes mentioned in clause (c) of subsection (1) of section 6 of that Act. It is clarified that any action constituting an offence, howsoever grave, shocking, brutal, gruesome or horrifying, does not qualify to be termed as terrorism if it is not committed with the design or purpose specified or mentioned in clause (b) or (c) of subsection (1) of section 6 of the said Act. It is further clarified that the actions specified in subsection (2) of section 6 of that Act do not qualify to be labeled or characterized as terrorism if such actions are taken in furtherance of personal enmity or private vendetta."

1. The FIR is essentially an "incident report" which informs the police for the first time that an occurrence involving the commission of a cognizable offence has taken place. Rule 25.3(3) of the Police Rules, 1934, states that the Investigating Officer must find out the truth of the matter under investigation, discover the actual facts, and arrest the real culprits. He cannot commit himself prematurely to any account of the incident, including the one set out in the FIR. Thus, the question whether the offence of terrorism has been committed in a particular case in terms of the law declared by the Supreme Court in Ghulam Hussain is determined on the basis of the evidence gathered during the investigation. The Investigating Agency must have a free hand for this purpose. We agree with the Advocate General that a notice under section 160 Cr.P.C. cannot be challenged under Article 199 of the Constitution before the High Court unless it is patently illegal, mala fide, without jurisdiction or coram non judice. The doctrine of ripeness applies. In Sabira Khatoon v. Government of the Punjab and others [2021 PLC (C.S.) 1600], this Court explained:

"Ripeness is a doctrine which courts use to enforce prudential limitations upon their jurisdiction.' It is founded on the principle that judicial machinery should be conserved. It 'reflects concerns that courts involve themselves only in problems that are real and present or imminent' and should not exhaust themselves in deciding theoretical or abstract questions that have no impact on the parties at least for the time being. This doctrine postulates that the 'lawsuit must be well developed and specific and appropriate for judicial resolution. Courts may not decide cases that involve uncertain and contingent future events that may not occur as anticipated, or indeed may not occur at all."

1. Section 23 of the ATA empowers the ATC to transfer cases to regular courts where it is of the opinion that the offence is not a scheduled offence. For ease of reference, section 23 is reproduced below:

23. Powers to transfer cases to regular courts.- Where, after taking cognizance of an offence, [an Anti-Terrorism Court] is of opinion that the offence is not a scheduled offence, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for trial of such offence to any court having jurisdiction under the Code, and the court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence.

1. The term "cognizance" in section 23 of the ATA is significant. In Wazir v. The State [PLD 1962 (W.P.) Lahore 405], a Full Bench of this Court ruled that the police report, when received by a Magistrate, does not constitute taking cognizance by itself. There should be something more to establish that the Magistrate intends to begin the proceedings. He may keep the case waiting until the sanction arrives, then pass some order indicating his intention to hold the trial. In Abdul Aziz v. Muhammad Ashraf and others (PLD 1973 Lahore 304), it was held that a court takes cognizance through a judicial action, which does not have to be formal. It occurs whenever the court applies its mind to the suspected commission of the offence, as disclosed in the police report or the private complaint, to proceed in a specific manner following the provisions of the Code of Criminal Procedure, 1898 (hereinafter referred to as the "Code or Cr.P.C.") for holding an enquiry or a trial, as the case may be. In Haq Nawaz and others v. The State and others (2000 SCMR 785), the Supreme Court of Pakistan held:

"Taking cognizance of a case by the court is the first step, which may or may not culminate into the trial of the accused. The trial in a criminal case, therefore, does not commence with the taking of the cognizance of the case by the court. A careful examination of the above provisions in the Code makes it clear that until charge is framed and copies of the material (statement of witnesses recorded under sections 161 and 164 Cr.P.C., inspection note of the first visit to the place of occurrence and recoveries recorded by investigating officer, if the case is initiated on, police report, and copies of complaint, other documents filed with complaint and statements recorded under section 200 or 202 if it is a case upon complaint in writing) are supplied to accused free of charge and he is called upon to answer the charge."

1. In a nub, the court is said to have taken "cognizance of the case" when it applies a conscious mind and takes positive steps indicating that it will try the case after receiving the challan and the materials attached to it by the prosecution. Such steps may not be documented as judicial orders. What is important is that the orders so passed or actions taken signal that the court intends to proceed with the trial.

2. In Ali Gohar and others v. Pervaiz Ahmed and others (PLD 2020 SC 427), the Supreme Court defined the scope of section 23 of the ATA as follows:

i) Both, the Administrative Judge and any other ATC to whom the case is assigned by the Administrative Judge, after taking "cognizance of the case", have the authority to transfer the case under section 23 to an ordinary criminal court for trial under Cr.P.C.

ii) The authority of ATC to transfer the case under section 23 to an ordinary criminal court for trial under Cr.P.C. can take place after taking cognizance of the case, and this authority to transfer remains with the ATC during the proceedings of the trial till the judgment is announced.

iii) The condition precedent for ATC to exercise the authority to transfer the case under section 23 of the Act are: firstly when the ATC takes cognizance of the case; and secondly, if ATC is of the opinion that the offences referred to it for trial does not come within the scope of offences triable under the Act.

iv) The words 'cognizance of the case' employed in section 23 of the Act simply means, when the ATC, on receipt of the challan, takes any step indicative of proceeding with the trial.

1. Generally speaking, the High Court should not, while exercising jurisdiction under Article 199 of the Constitution, intervene or otherwise comment on the applicability of section 7 of the ATA before the investigation is completed because it may amount to interference in the investigation process, which is not permissible. In Emperor v. Khwaja Nazir Ahmed (AIR 1945 PC 18), their Lordships of the Privy Council held:

"In their Lordships' opinion, however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the police. Just as it is essential that everyone accused of a crime should have free access to a Court of Justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court."

The above view was approved by the Supreme Court of Pakistan in Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Baluchistan and another (PLD 1971 SC 677) and in several subsequent cases, including Younas Abbas and others v. Additional Sessions Judge, Chakwal and others (PLD 2016 SC 581).

1. We agree with Mr. Gul that, as a general principle of law, a litigant cannot seek judicial review if he has an alternative remedy. However, in order to be considered an "alternative", the remedy must be convenient and efficacious. In Mehboob Ali Malik v. The Province of West Pakistan, and another [PLD 1963 (W.P.) Lahore 575], this Court explained:

"The word 'adequate' signifies a concept of a relative nature. It can be comprehended only as a state of correspondence between one thing and another. A thing can be 'adequate', or 'not adequate', to something else, as for example 'not adequate to the expectations, is language adequate to describe it' or adequate to the disease'. When something is described as being adequate without indicating what it is adequate to, the context must supply that which has been left unstated. Therefore, the first question in construing the meaning of "adequate remedy' is ... 'to what has the remedy to be adequate'? In the context, we think, the answer must be that the remedy has to be adequate to the requisite relief, i.e., the removal, or lessening of the cause of distress or anxiety, the deliverance from that which was burdensome. It is evident that the trouble, expense and delay in getting what is wanted are all as much ingredients of the sum total of that which can be described as 'relief' as the substance of that which is wanted."

1. In Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others (2011 SCMR 1813), the Supreme Court of Pakistan stated that the High Court should apply the following tests to determine the adequacy of an alternative remedy:

(i) If the relief available through the alternative remedy in its nature or extent is not what is necessary to give the requisite relief, the alternative remedy is not an 'other adequate remedy' within the meaning of Article 199.

(ii) If the relief available through the alternative remedy, in its nature and extent, is what is necessary to give the requisite relief, the 'adequacy' of the alternative remedy must further be judged, with reference to a comparison of the speed, expense or convenience of obtaining that relief through the alternative remedy, with the speed, expense or convenience of obtaining it under Article 199. But in making this comparison those factors must not be taken into account which would themselves alter if the remedy under Article 199 were used as a substitute for the other remedy.

(iii) In practice, the following steps may be taken:-

(a) Formulate the grievance in the given case, as a generalized category;

(b) Formulate the relief that is necessary to redress that category of grievance;

(c) See if the law has prescribed any remedy that can redress that category of grievance in that way and to the required extent;

(d) If such a remedy is prescribed, the law contemplates that resort must be had to that remedy;

(e) If it appears that the machinery established for the purposes of that remedy is not functioning properly, the correct step to take will be a step that is calculated to ensure, as far as lies in the power of the Court, that that machinery begins to function as it should. It would not be correct to take over the function of that machinery. If the function of another organ is taken over, that other organ will atrophy, and the organ that takes over will break down under strain;

(f) If there is no other remedy that can redress that category of grievance in that way and to the required extent, or if there is such a remedy but conditions are attached to it which for a particular category of cases would neutralise or defeat it so as to deprive it of its substance, the Court should give the requisite relief under Article 199;

(g) If there is such other remedy, but there is something so special in the circumstances of a given case that the other remedy which is generally adequate to the relief required for that category of grievance, is not adequate to the relief that is essential in the very special category to which that case belongs, the Court should give the required relief under Article 199.

1. The question as to whether the other remedy(ies) constitutes an alternative remedy that would limit the jurisdiction of the High Court under Article 199 of the Constitution is one of law. It must be determined on an individual basis. Since the ATC decides about the applicability of section 7 of the ATA after taking cognizance, in certain instances, the remedy under section 23 of the ATA may not be adequate and efficacious, as explained above, to qualify as an alternative remedy. Therefore, we cannot lay down an inflexible rule that the High Court cannot consider whether section 7 of the ATA applies in a particular matter until the litigant has availed remedy under section 23 of the ATA. The High Court should decide each case after considering its peculiar facts and circumstances.

2. The Impugned Order lists ten FIRs in which the police have applied section 7 of the ATA. The Inspector General of Police has apprised us that police have collected forensic materials from the crime scenes and vital information from geo-fencing, call records of different people, and other sources which are being analysed. According to him, prima facie, an act of terrorism as defined by law has been committed. In the circumstances, it is necessary to wait until the relevant reports are received before determining whether the police correctly applied section 7 of the ATA in the aforementioned cases. It may come out that they did it rightly in some but not in others, necessitating individual review of each case. Any opinion by this Court at this stage may be detrimental to the interests of justice. If so advised, the Petitioner or any aggrieved person may file separate proceedings later.

Constitutionality of the JITs

1. In general, JITs are established under an agreement between the competent authorities of two or more States to conduct criminal investigations in one or more of the involved States for a limited time and a defined purpose. "JITs have the following advantages over traditional forms of police and judicial cooperation: (a) JITs enable the direct collection and exchange of information and evidence without using conventional channels of mutual legal assistance (MLA). Information and evidence gathered in conformity with the legislation of the State in which the team operates can be shared solely on the basis of the JIT agreement, and (b) Seconded members of the team (i.e. those coming from a State other than the one in which the JIT operates) have the right to be present and participate in investigative measures conducted outside their State of origin. For these reasons, JITs are a highly efficient and effective cooperation mechanism which facilitates the coordination of investigations and prosecutions conducted in parallel across several States."

2. In EU policy-making, the concept of a JIT first appeared in 1994 when a German delegation submitted a discussion paper to the Customs Corporation Working Group during deliberations on revising and updating the 1967 Naples Convention on mutual assistance between customs authorities. Germany raised the idea again in the first draft of the Naples II Convention and then in a note on new methods of cross-border investigation during the preparation of the EU Mutual Legal Assistance Convention (the "EU MLA Convention"). In March 1999, the German Presidency advocated putting a concrete provision on joint investigation teams in the EU MLA Convention. JITs were debated not just in the technical working group dealing with the draft EU MLA Convention this time, but the concept was also incorporated in other important EU policy documents. JITs were first mentioned in the 1997 Action Plan to combat organized crime. The 1997 Amsterdam Treaty formally introduced in Article 30.2 a general provision that envisaged the involvement of Europol in (unspecified) "joint teams". In 1998, Article 43.1.b. of the Vienna Action Plan elaborated on this provision and, in 1999, the Presidency Conclusions of the European Council in Tampere called for "joint investigation teams as foreseen in the Treaty to be set up without delay." According to Article 13 of the EU MLA Convention, a JIT is an "operational investigation team consisting of representatives of law enforcement and other authorities for different Member States and possibly from other organizations like Europol and Eurojust."

3. Article 13 of the 2000 EU MLA Convention and the 2002 Framework Decision on JITs provide the EU legal foundation for establishing JITs between Member States, but they can also be set up under other international instruments. Likewise, competent authorities from non-EU countries can organize JITs in accordance with the appropriate international agreements.

4. Sometimes, a JIT is used domestically for coordination between various law enforcement agencies for a single investigation in a criminal case within a given timeframe. Long before she launched her EU initiatives, Germany employed the notion of JITs (Gemeinsame Ermittlungsgruppen) as a strategy for collaboration between law enforcement agencies in and between different Lander (states) of the German Federal Republic. She established its first JIT in Hamburg between state police and federal customs.

5. Pakistan adopted the concept of the JIT in section 19 of the ATA (see Appendix-II). Later, it was also incorporated in some other statutes, for instance, Article 18A of the Police Order, 2002, section 30 of the Prevention of Electronic Crimes Act, 2016, and section 9 of the Anti-Rape (Investigation and Trial Act) 2021. The courts have also constituted JITs in certain matters.

6. Section 94 Cr.P.C. grants wide powers to the Investigating Officer to compel the production of any document or other thing necessary or desirable for any investigation. However, Parliament found this provision inadequate to deal with cases involving terrorism which constitute a special class. Investigation in such cases may need to be conducted across provinces or internationally. This may require special skills or knowledge that regular police personnel lack. Sometimes, they may also require assistance from other agencies within the country and overseas. Since a fair investigation is essential to the right to a fair trial, JITs help it. Consequently, subject to statutory safeguards, the concept does not offend the Constitution.

7. The Petitioners contend that section 19 of the ATA violates Article 10A of the Constitution (right to a fair trial) because it does not provide for a change of investigation from a JIT. We are afraid the contention is misconceived. We must first point out that nobody has a vested right to have the case investigated by a particular person or a body of persons. In Federation of Pakistan v. Shah Muhammad Khan and others (PLD 1960 SC 85), the Supreme Court of Pakistan held:

"No law or regulation gives a complainant a vested right, which can be enforced by a writ to have his complaint investigated by a particular branch of the police, and the law gives powers to the Central Government by a general or special order to take away the jurisdiction and powers of investigation and arrest of the Special Police Establishment by the proviso to section 2 (2) of the Ordinance referred to above. The respondent No. 1, therefore, had no right to maintain a petition for writ, and the High Court was in error in issuing a direction on such a petition. The order of the High Court is, therefore, set aside, and this appeal is allowed."

1. In some early cases, the courts considered that transferring a case from one competent investigating agency to another amounted to "unwanted" interference with the investigation, which the Judicial Committee of the Privy Council disapproved of in Khwaja Nazir Ahmad. That view subsequently changed, and the requests for change of investigation or re-investigation began to be considered on the administrative side under section 551 Cr.P.C. Now, Article 18A of the Police Order 2002 expressly deals with the subject. It provides a complete statutory mechanism for change of investigation. There is neither any rule of law nor administrative practice which gives any person a vested right to have the investigation of a case transferred.

2. It is incorrect that the ATA does not contain any provision for a change of investigation from a JIT. Sections 19(1A) and 28(3) of the Act give the authority to the Federal Government. If a person has a genuine grievance, he may also make a representation before it. The maxim "everything which is not forbidden is allowed" applies here. The Government is obligated to decide on such representation within a reasonable time.

Constitution of JIT under the ATA

1. Section 19(1) of the ATA provides that if the Government deems it necessary, it may constitute a JIT led by an officer not below the rank of Superintendent of Police (BS-18). The other officers of the JIT may be of equivalent rank from intelligence agencies, armed forces and civil armed forces. The JIT shall comprise five members, and the quorum shall consist of these members for a meeting. The JIT may co-opt any additional member from any Federal or Provincial institution or department deemed appropriate for investigation. Section 19(1A) of the ATA states that the Federal Government may, in respect of any case registered by or under investigation with the police, or any other investigation agency or authority, by written order, entrust inquiry or such investigation to such agency or authority as it may deem fit. Thereupon, the police or any other investigation agency or authority shall transfer the case record to it.

2. Section 2(i) of the ATA defines "Government" as follows:

(i) "Government" means the Federal Government or, as the case may be, the Provincial Government.

1. Considering the above definition, Section 19(1) of the ATA grants the Federal and Provincial Governments concurrent powers to form a JIT. Under section 19(1A), the Federal Government may transfer an inquiry or investigation from one agency to another. This is an additional power.

2. The phrase "if the Government deems necessary" in section 19(1) of the ATA is significant. "Deems it necessary" means to "consider someone or something essential, important or appropriate". The phrase is sometimes used interchangeably with "deems it fit", but they are not synonymous. "Necessary" connotes more than desirable but less than indispensable or absolute necessity. Accordingly, the test is one of reasonable necessity and consideration of alternative measures for a particular action. On the other hand, "deems fit" implies that something may be done or not done as deemed fit at the person's discretion. The two phrases share one feature: the authority must act justly, fairly and in conformity with the law. In the context of section 19(1) of the ATA, the expression "deems necessary" should be construed to mean a decision that is desirable or appropriate to achieve the objective of the Act and to foster the ends of justice. Terrorism has plagued our country for more than three decades. Therefore, the Government should be given as much investigative leeway as possible. Intelligence agencies are critical in gathering information on organized criminals and assisting law enforcement officials in busting such gangs. These crimes may entail an investigation into conduct that extends beyond the local area, necessitating the use of special skills and equipment that local police may not have. Hence, the phrase "if the Government deems necessary" should be interpreted broadly to allow for setting up JITs. Even otherwise, since the formation of JIT is a question relating to the conduct of the investigation and a purely administrative act, it is not subject to judicial review. The courts should only intervene when it is found that the Government's action is mala fide or that there is a colourable exercise of authority.

3. The violence between 22.2.2023 and 19.3.2023 damaged public and private property worth crores of rupees, injured many police personnel and killed at least one person. Allegedly, the PTI workers threw petrol bombs at the police as they attempted to execute non-bailable warrants issued by the Islamabad Sessions Court against Imran Khan. A thorough probe into these incidents is essential to bring the miscreants to justice. The Caretaker Cabinet has rightly constituted the JIT to broaden the investigation's scope and make it transparent, fair, and credible. The Petitioners have failed to demonstrate that the Impugned Order is mala fide.

The procedure of the JITs

1. The JITs constituted under section 19 of the ATA perform their functions in accordance with the ATA, the Code, the Police Rules, 1934, and the Investigation for Fair Trial Act, 2013. These, however, are inadequate to regulate them. Section 35 of the ATA empowers the Federal Government and Provincial Governments to make rules for carrying out the purposes of the Act. So far, none of them has framed any to regulate the JITs, which is regrettable. The Advocate General brought to our notice the SOPs issued by the Ministry of Interior, Government of Pakistan, but they are too general to address the deficiencies.

2. Every JIT under the ATA serves a specific purpose and has an object. The Government may also include officers from intelligence agencies, armed forces and civil armed forces. A comprehensive legal framework is required to regulate their appointments and functioning. This is essential for promoting the rule of law and making the system more credible and efficient.

3. The Petitioners want us to suspend the formation of the JITs and their functioning until proper rules are framed. We are not inclined to do so. However, we direct the Federal Government to make them within two months from the date of the announcement of this judgment. The Registrar of this Court shall forthwith send its copy to the Secretary, Ministry of Interior, Government of Pakistan.

The other objections to the Impugned Order

1. The Petitioners' next challenge to the Impugned Order is based on the case of M/s Mustafa Impex, Karachi, and others v. Government of Pakistan and others (PLD 2016 SC 808). They claim that it was issued without the Provincial Cabinet's approval. In Mustafa Impex, the Supreme Court held that the Constitution (Eighteenth Amendment) Act, 2010, has made fundamental changes in the Constitution which, inter alia, include channelling the Government's executive power. The Supreme Court ruled that insofar as the Federal Government is concerned, it consists of the Prime Minister and the Federal Ministers (i.e. the Cabinet) but does not include the President because he is the Head of the State. Neither a Secretary nor a Minister nor the Prime Minister constitutes the Federal Government and cannot perform functions on its behalf. The Supreme Court further held that the Rules of Business, 1973, are binding on the Federal Government and must be followed in letter and spirit in all circumstances. Rule 16 gives the Prime Minister discretionary power to bring matters before the Cabinet. However, the exercise of that discretion is subject to two conditions: first, he must consciously apply his mind to every case and justify through a reasoned and formal order where he believes that reference to the Cabinet is not necessary; and second, the matter should not be such regarding which Cabinet decision is mandatory under the Constitution. The same principles apply to the Provincial Government.

2. The Provincial Governments conduct business according to Rules framed under Article 139 (3) of the Constitution. Under Rule 25 of the Punjab Government Rules of Business 2011, the cases referred to the Cabinet shall be disposed of:

i) by discussion at a meeting of the Cabinet;

ii) by circulation amongst the Ministers; and

iii) by discussion at a meeting of a Committee of the Cabinet.

1. Respondents Nos. 1, 3, and 12 have submitted documents that reflect that the Caretaker Cabinet, in its 3rd Meeting held on 16.2.2023, approved the TORs of the Standing Committee on Law and Order (the "Standing Committee"). It further decided that because the decisions of the Standing Committee do not involve any financial implications, they need not be ratified as per Rule 25(2) of the Rules of Business. One of the TORs of the Standing Committee is to approve JITs under the ATA. The Standing Committee was notified on 11.3.2023. The Inspector General of Police, vide Letter No. SO(JUDL-III)-11-JITs/2023 dated 22.3.2023, requested the Home Department to constitute JIT in ten cases registered against the PTI workers. His request was placed before the Standing Committee in its 2nd Meeting held on 22.3.2023 and was accepted, and then the Additional Chief Secretary (Home) issued the Impugned Order.

2. The Petitioners' counsel, Mr. Saleem, alleged that the language of the Impugned Order shows that the Additional Chief Secretary (Home) issued it on his own intention without the approval of the Caretaker Cabinet or the Standing Committee and that the documents referred by Respondents Nos. 1, 3, and 12 are fabricated/ante-dated. He focused on the words "in the exercise of powers conferred" mentioned in the Impugned Order. Although official records are presumed to be correct, the Advocate General showed us the minutes of all pertinent sessions of the Caretaker Cabinet and the Standing Committee. We are satisfied that the Impugned Order conforms to the dictate of Mustafa Impex. Any errors or ambiguities in its language are inconsequential.

3. Finally, we come to the Petitioner's objection relating to the composition of the JIT. They are upset with the inclusion of SSP Imran Kishwar and SP Aftab Phularwan in it. They contend that the JIT cannot conduct an impartial and independent probe because these officers are subordinates of the Inspector General of Police and the City Capital Police Officer, Lahore, whom the PTI accuses of the murder of Zille Shah. Admittedly, there is not even the slightest evidence of bias against SSP Imran Kishwar and SP Aftab Phularwan. Their nomination cannot be objected on the basis of apprehensions.

Powers and functions of the Prosecutor General Punjab

1. The Advocate General is the principal law officer of the Provincial Government and has a constitutional status. In contrast, the Prosecutor General has a limited role defined by the PCPS Act. The two offices do not overlap. They rather complement each other.

2. The office of the Advocate General of a province is established by Article 140 of the Constitution. He is charged with the duty to advise the Provincial Government upon such legal matters and to perform such other duties of a legal character as may be referred or assigned to him. Besides, he performs various functions under different statutes. The Advocate General owes an independent obligation towards the courts under Order XXVII-A C.P.C. In Federation of Pakistan and others v. Aftab Ahmed Khan Sherpao and others (PLD 1992 SC 723), the Supreme Court explained the nature and extent of the duty of the Attorney General and Advocate General under Order XXVII-A C.P.C. as follows:

"Besides, under Rule 1 of Order XXVII-A C.P.C., he has to appear and advise and assist the court so that it could have expert constitutional and legal advice. Therefore, it is made incumbent upon court to hear him in a case in which a substantial question of constitutional law is involved, before determining such question. But, in such a case, a notice to him is not notice to the Federation and vice versa unless it is so provided by law. He has two capacities: (1) Where the Federal Government directs him to appear in a case, and carry out instructions, whatever may be, and (2) as advisor, under the Constitution or law to advise as to the interpretation of Constitution or law. In performing such duty, he is not supposed to act on the advice of the Federation. He has to honestly guide the Federal Government and the Federal Legislature on the questions of law. Similarly, he has to advise courts as to the interpretation of constitutional law pursuant to a notice under Order XXVII-A, Rule 1 C.P.C. He cannot be said to have performed his duty honestly and duly if he does not give his frank opinion on such constitutional questions. Therefore, counsel representing parties may interpret a provision of Constitution or law in the best interest of their respective clients even if they are Federation of Pakistan or the Province, but as an Attorney-General or as an Advocate General, when he gives advice to the Federal Government or speaks in the Parliament or a court, on a question of law, he is not supposed to keep the interest of his client, but advise the Federal Government, or Parliament or a court of law, as the case may be, to the best of his ability, independently and in accordance with the Constitution."

1. In Haider Automobiles Ltd. v. Pakistan (PLD 1967 Lahore 882), this Court held:

"Under rule 1, the Advocate General of the Province or the Attorney-General of Pakistan has a right to intervene without impleading the Provincial or the Central Government as a party. Thereby, the Government does not become a party to the case. It is only under rule 2 that the Government is to be added as a party, if necessary."

1. The Prosecutor General is the head of the Punjab Criminal Prosecution Service, which was established under the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 (the "PCPS Act"). He is appointed by the Punjab Government for three years (extendable for another two years) on such terms and conditions as it may determine. However, those terms shall not be varied during the initial or extended term of his office. According to Section 6(6) of the PCPS Act, the Prosecutor General has the right to representation and audience in all courts, including the High Court, the Federal Shariat Court, and the Supreme Court, on behalf of the Punjab Government.

2. Chapter-III (sections 9 to 13) of the PCPS Act describes the powers and functions of the prosecutor. According to section 2(1)(l) of the Act, prosecutor means "the Prosecutor General, Additional Prosecutor General, Deputy Prosecutor General, District Public Prosecutor, Deputy District Public Prosecutor, Assistant District Public Prosecutor, and a Public Prosecutor appointed under this Act and shall be deemed to be the public prosecutor under the Code." Section 5(1) of the PCPS Act states that the Punjab Government shall exercise superintendence over the Prosecution Service to achieve the Act's objectives, while section 5(2) states that the Service's administration shall, in the prescribed manner, vest in the Prosecutor General. It is pertinent to note that the PCPS Act distinguishes between "administration" and "superintendence". Section 2(2) of the Act of 2006 provides that the words and expressions used therein but not defined shall have the same meaning as are assigned to them in the Code or the Police Order 2002. Since the terms "administration" and "superintendence" are defined in Article 2(1) of the Police Order, we allude to them. The said Article says:

(i) "Administration" includes management of administrative, operational and financial functions.

(xxvi-a) "superintendence" means supervision of police by the appropriate Government through policy, oversight, and guidance, and in the case of a province, it shall be exercised by the Chief Minister through the Chief Secretary and the Provincial Home Department, while ensuring total autonomy of the Provincial Police Officer in operational, administrative and financial matter and, in case of Federal Capital, such supervision shall be exercised by Ministry of Interior, Government of Pakistan.

1. Applying the above definitions, the role of the Punjab Government under the PCPS Act of 2006 is of policy-making and monitoring the Prosecution Service, while the Prosecutor General is charged with managing and controlling its administrative, operational, and financial functions. Since it is the fundamental obligation of the State to establish the rule of law and ensure justice for everyone within its borders, the Government must take necessary steps to attain that purpose. All its policies must be tailored to that end. The objective of the Prosecution Service - and the Prosecutor General - is also the same.

2. There is no cavil that the Prosecution Service is an attached department of the Punjab Government and is under the administration and control of the Public Prosecution Department in terms of Serial No.32 of the First Schedule of the Rules of Business. However, it has a unique role. The Preamble of the PCPS Act states that its purpose was to establish an independent, effective, and efficient Service for prosecuting criminal cases and to ensure prosecutorial independence for better coordination in the criminal justice system in the Punjab.

3. Mr. Gul contends that the Prosecutor General must perform his functions according to the Government's instructions. He argues that the expression "on behalf of Government" used in sections 6(6) and 9(1) of the PCPS Act are indicative of this legislative will and has cited the following passages in support of his contention:

The State v. Gangamma (A-4) and others (AIR 1965 Karnataka 235)

"10. The words, 'on behalf of' have been construed in several judicial decisions. In Bank of Bengal v. Fagan, 7 Moo PC 61, the Privy Council observed as follows:

"But it is said, that the power was given to do the acts in question on the donor's behalf. This is really only saying that what the agent is to do, he is to do as representing the principal; as doing it on behalf of, or in the place and in the right of, the principal..."

"13. Thus the words, 'on behalf of' connote an agency; when one person acts on behalf of the other the former acts as an agent of the latter. No doubt ordinarily, an agency, that is, the relationship of principal and agent, is the result of a contract express or implied; but an agency may also be created by a statute."

"6. As observed by Caspersz and Sharfuddin, JJ., in Uttam Chand v. Emperor, ILR 39 Cal 344, the expression 'on behalf of' connotes some benefit to the person on whose behalf another person may act. It cannot be said that after the death of the aggrieved wife, the filing of the complaint against her husband for the act of bigamy would be to her benefit. The prosecution of the guilty husband will not confer any benefit even to her estate. Hence the complaint filed by a relative of the wife after the death, cannot be said to be on her behalf."

Navaikulam Cashew Workers Industrial Cooperative Society Ltd. v. Enforcement Officer [2009 (83) AIC 515].

"8. The expression 'on behalf of' connotes some benefit to the person on whose behalf another person may act (See Uttam Chanel v. Emperor, 15 IC 1007). In State v. Gangamma, MANU/KA/0069/1965: AIR 1965 Mys. 235, the expression 'on behalf of' was interpreted and it was held, thus the words, 'on behalf of' connote an agency; when one person act on behalf of the other, the former acts as the agent of the latter. No doubt, originally, an agency, i.e., the relationship of principal and agency is the result of a contract express or implied; but an agency may also be created by a statute."

1. There cannot be two opinions that the Prosecutor General must perform his functions according to the Government's instructions. What we disagree with Mr. Gul is that he must follow the Government's wishes in prosecuting criminal cases. In our opinion, he must act independently in the interest of justice. We have reviewed the above judgments and noted that the courts' interpreted the expression "on behalf of Government" in the peculiar circumstances of the cases they were deciding. This interpretation cannot be applied to the PCPS Act because it contradicts its objective.

2. Section 11(2) of the PCPS Act stipulates that the Prosecutor General shall liaison with the office of the Attorney General and the Advocate General on matters pending in the superior courts. According to Oxford Advanced Learner's Dictionary of Current English, "liaison" means "a relationship between two organizations, involving the exchange of information or ideas." Hence, section 11(2) cannot be read to imply that the Prosecutor General reports to the Advocate General. Both are separate offices with distinct functions. However, as adumbrated, the Advocate General holds a constitutional position with broader responsibilities.

3. Section 17 of the PCPS Act states that the Prosecutor General shall issue a code of conduct for the prosecutors (the "Code of Conduct") with the prior approval of the Punjab Government. We have been apprised that the First Edition of the Code of Conduct was issued in 2012, and the Second in October 2016. Both were approved by the Ministry's Secretary rather than the Provincial Cabinet. The legality of the Second Edition may be questioned on the basis of the Mustafa Impex case, but the First Edition still holds the field. In Pakistan Medical and Dental Council v. Muhammad Fahad Malik and others (2018 SCMR 1956), the Supreme Court of Pakistan stated that the judgment in Mustafa Impex would apply prospectively.

4. The Code of Conduct generally refers to prosecutors but applies equally to the Prosecutor General. Paragraph 3 sets out the General Principles of Prosecution. The following three are relevant to the present discourse:

3.1 The decision to prosecute is a serious step that affects suspects, victims, witnesses and the public at large and must be taken with the utmost care and caution.

3.2 Prosecutors must always act in the interests of justice and not solely for the purpose of obtaining a conviction. Acting in the interest of justice means that Prosecutors must acquaint themselves with the facts and circumstances of the case and work to ensure that the right person is prosecuted for the right offence and no one else.

3.3 Prosecutors must also ensure that the law is properly applied; the relevant evidence is put before the court; and that obligations of disclosure are met. Prosecutors must also consider whether trial is the best solution.

1. In our opinion, the Government cannot also deviate from the above principles, and they must be hardwired into all its policies.

2. Paragraph 2.2 of the Code of Conduct stipulates that the prosecutors cannot direct the police or other investigators except as provided by paragraph 4. According to paragraph 4.1, a decision to prosecute is taken when a prosecutor determines that the case is fit for trial against one or more suspects. A decision to start a prosecution is the same as a decision to prosecute. Paragraph 4.2 states that a decision not to prosecute is made when a prosecutor determines that a case is unfit for trial against one or more suspects. A decision to decline a prosecution is equivalent to the decision not to prosecute. Paragraph 4.8 says that a decision on whether or not to prosecute must be taken when a review of the police case has been finalized. Paragraph 4.12 provides that prosecutors may make a decision only if they are satisfied that the broad extent of the criminality has been determined and they can make a fully informed evaluation. If the prosecutors do not have enough information to take such a decision, the investigation must be continued, and a decision should be made later in accordance with the Full Code Test described in paragraph 5. It comprises two tests, the Evidential Test and the Public Interest Test, which are applied sequentially. These tests are explained in paragraphs 5A and 5B of the Code of Conduct.

3. A prosecutor may apply the Threshold Test where all the evidence is unavailable, and a decision must be made regarding the detention or start of a prosecution. It is, however, pertinent to point out that this test is directory and not mandatory, which is indicated by the word "may" in paragraph 6.1 of the Code of Conduct. Further, it is contingent on the availability of some, if not all, of the evidence. The evidential consideration of the Threshold Test has two parts: the first is that the prosecutor must be satisfied that there are at least reasonable grounds to believe that the person to be charged committed the offence. This satisfaction occurs only after evaluating the evidence and ensuring it is relevant and admissible. This exercise is dependent on the elements listed in the second part. The prosecutor must be convinced that there are reasonable grounds to believe that the ongoing investigation will yield more evidence within a reasonable time so that all the evidence combined can establish a realistic prospect of conviction under the Full Code Test. The additional evidence must be identifiable and not speculative. Paragraph 6.4 of the Code of Conduct states that the Threshold Test should not be employed when the evidence on which the criminality of the suspect hinges is in the process of forensic analysis.

4. Terrorism cases are extremely complicated. When police produce the accused before the court for the first time after his arrest (which is within 24 hours), very little evidence is available. At that point, using the Threshold Test is difficult, if not impossible. Hence, it is desirable to apply it at a later stage, such as when filing an interim report under section 173 Cr.P.C. However, this observation should not be construed as limiting the court's powers to grant or refuse a remand or bail to an accused or to discharge him.

5. Paragraph 7 of the Code of Conduct gives certain guidelines to the prosecutors for the selection of charges. However, the trial court is neither bound by the opinion of the police nor the prosecutor regarding the applicability of a penal provision. In Munir Aftab v. The State and others (2021 PCr.LJ 293), this Court held:

"12. A criminal case that commences with the registration of FIR under section 154, Cr.P.C. has a long journey before it is decided and the accused is/are acquitted or convicted. FIR sets the law in motion. The police investigate the allegations of the complainant party, collect evidence, identify the offences committed by the accused and determine what penal provisions are attracted. After that, they draw a report under section 173 Cr.P.C. which is submitted to the court through the office of the District Public Prosecutor. Section 9(5) of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 (III of 2006) obligates the public prosecutor to scrutinize the said report and submit it to the court if it is in order. However, if it is defective, he shall return the same to the officer-in-charge of the police station or the investigating officer (as the case may be) for correction. The term "scrutinize" has a wide connotation and includes the power to add or delete a section. Reliance is placed on Rasoolan Bibi v. Additional Sessions Judge and others (PLD 2009 Lahore 135) and Nadeem alias Deema v. District Public Prosecutor, Sialkot and 7 others (2012 PCr.LJ 1823).

"13. The trial court is neither bound by the opinion of the police nor the prosecutor regarding the applicability of a penal provision. At the time of indicting the accused, it is bound to go through the entire record, apply its own judicial mind and frame charge against him for all those offences which appear to be made out from the evidence collected by the police. Section 9(7) requires the prosecutor to assist the court in this matter. However, under section 227 Cr.P.C. the court is competent to amend the charge at any time before judgment is pronounced.

"14. It may not be out of place to mention that the High Court does not entertain constitutional petitions challenging the insertion or deletion of a section by the Investigating Officer. Similarly, it does not allow requests for judicial review of the opinion/direction of the public prosecutor given to the police for such an amendment on the ground that the error, if any, does not prejudice either party and it can be rectified by the trial court at the time of framing of charge."

1. We have considered Fayyaz Ahmed and another v. The State and others (2008 PCr.LJ 805), a case decided by a Division Bench of this Court, which holds that a prosecutor has no authority to delete (or add) an offence in the report under section 173 Cr.P.C. prepared by the police. We respectfully disagree with this but clarify that his opinion does not bind the court and that it is the final arbiter whether a particular provision applies.

2. Admittedly, the investigation in the cases mentioned in the Impugned Order is at the initial stage or is yet to begin. It is still to be determined whether there was any "design" or "purpose" behind the incidents that occurred between 22.2.2023 and 19.3.2023, which may constitute terrorism under section 6 of the ATA. The Threshold Test is subject to certain conditions explained above. The Code of Conduct expressly prohibits the prosecutor from applying it in cases where criminality depends on forensic analysis of evidence. As adumbrated, such a process is currently underway in the subject cases. As a result, Ch. Khaliq-uz-Zaman's opinion regarding the non-applicability of section 7 ATA to them is premature.

3. We cannot comment on the Cabinet's decision dated 20.4.2023 and the Punjab Government's subsequent restraint order against Ch. Khaliq-uz-Zaman because it is not under challenge in the present proceedings.

Conclusion

1. The Impugned Order is unexceptionable. The Government is competent to form the JIT in the cases mentioned therein. These petitions are dismissed.

Appendix I

Government of the Punjab

Home Department

Dated: March 22nd, 2023

Order

No.SO(JUDL-III)11-JITs/2023. In pursuance of the request made by Inspector General of Police, Punjab, vide letter No.4912/Legal-09-JIT/2023 dated 21.03.2023 and in exercise of powers conferred under section 19(1) of Anti-Terrorism Act, 1997, a Joint Investigation Team is hereby constituted to conduct and finalize investigation in case FIRs No. and dated as under:

| | | | | | --- | --- | --- | --- | | Sr.No. | Police Station | FIR No. and Date | Sections of P.P.C./ATA, 1997 | | 1 | PS Civil Lines, Lahore | 239/23 dated 22.2.23 | 506, 290, 291, 188, 427, 186, 353, 147, 149 P.P.C., 7-ATA 1997 | | 2 | PS Race Course, Lahore | 388/23 dated 8.3.23 | 302, 324, 147, 149, 353, 186, 188, 427, 290, 291, 109 P.P.C.,7-ATA | | 3 | PS Race Course, Lahore | 410/23 dated 14.3.23 | 109, 120B, 353, 186, 324, 147, 148, 149, 290, 291, 212, 172, 174, 436, 173, 440, 427, 506-II P.P.C., 7-ATA | | 4 | PS Race Course, Lahore | 412/23 dated 15.3.23 | 186, 148, 149,440, 457, 427, 324, 436, P.P.C., 7-ATA 1997 | | 5 | PS Race Course, Lahore | 413/23 dated 15.3.23 | 379, 109, 353, 186, 427, 147, 148, 149 P.P.C., 7-ATA 1997 | | 6 | PS Race Course, Lahore | 414/23 dated 15.3.23 | 147, 148, 149, 427, 436, 440 P.P.C., 7-ATA 1997 | | 7 | PS Shadman, Lahore | 445/23 dated 16.3.23 | 148, 149, 186, 353, 336, 427, P.P.C., 7-ATA 1997 | | 8 | PS Race Course, Lahore | 436/23 dated 18.3.23 | 109, 120B, 147, 148, 149, 172, 173, 174, 186, 212, 290, 291, 324, 353, 427, 436, 440, 506-II P.P.C., 7-ATA | | 9 | PS Race Course, Lahore | 437/23 dated 19.3.23 | 109, 120B, 147, 148, 149, 324, 341, 506-II P.P.C., 7-ATA 1997 | | 10 | PS Race Course, Lahore | 438/23 dated 19.3.23 | 109, 120B, 147, 148, 149, 290, 291, 341, 353, 186, 395, 427, 440 P.P.C., 7-ATA 1997 |

1. Joint Investigation Team comprises of the following:

| | | | | --- | --- | --- | | I | Mr. Imran Kishwar, SSP | Convener | | II | Mr. Aftab Phularwan, SP | Member | | III | Representative of IB | Member | | IV | Representative of ISI | Member | | V | Representative of MI | Member | | VI | Any Co-Opted Member by JIT | Member |

1. The Convener of the Joint Investigation Team shall depute one of its members for the purpose of submission of report under section 173 of the Criminal Procedure Code, 1898, as required under Section 19(1) of Anti-Terrorism Act, 1997.

(SHAKEEL AHMED)

ADDITIONAL CHIEF SECRETARY (HOME)

No. and Date Even

A copy is forwarded for information and necessary action to:

1. The Provincial Police Officer/IGP, Punjab, Lahore w/r to his letter referred above.

2. Sector Commander, ISI, Punjab, Lahore, with the request to depute a representative of equivalent rank as required under section 19(1) of ATA 1997.

3. Sector Commander, MI, Punjab, Lahore, with the request to depute a representative of equivalent rank as required under section 19(1) of ATA, 1997.

4. Joint Director General, IB, Punjab, Lahore, with the request to depute a representative of equivalent rank as required under section 19(1) of ATA, 1997.

5. The Additional IG of Police CTD, Punjab, Lahore.

6. All Members of JIT.

7. PSO to Chief Secretary Punjab.

8. PSO to Additional Chief Secretary (Home), Punjab.

9. PA to Special Secretary, Home Department, Punjab.

10. PA to Additional Secretary (Judicial), Home Department, Punjab.

11. PA to Deputy Secretary (Judicial), Home Department, Punjab.

(MAZHAR HUSSAIN)

SECTION OFFICER (JUDICIAL-III)

Appendix II

1. Procedure and Powers of Anti-Terrorism Court.- (1) An investigating officer under this Act shall be an officer or Police Officer not below the rank of Inspector or equivalent or, if the Government deems necessary Joint Investigation Team to be constituted by the Government shall be headed by an investigation officer of police not below the rank of Superintendent of Police (BS-18) and other officers of JIT may include equivalent rank from Intelligence Agencies, Armed Forces and Civil Armed Forces. The JIT shall comprise five members and for the meeting purposes the quorum shall consists of three members.

The investigating officer to the JIT, as the case may be, shall complete the investigation in respect of cases triable by the court within thirty working days. The report under section 173 of the Code shall be signed and forwarded by the investigating officer of police directly to the Court:

Provided that where the provisions of sections 4 and 5 have been invoked, the investigation shall be conducted by the JIT comprising members of armed forces or civil armed forces, as the case may be, intelligence agencies and other law enforcement agencies including an investigating officer of police not below the rank of Inspector who shall sign the report under section 173 of the Code and forward it to the Court:

Provided further that, where investigation is not completed within a period of thirty days from the date of recording of the first information report under section 154 of the code, the investigating officer or the JIT shall, within three days after expiration of such period, forward to the court through the Public Prosecutor, an interim report under section 173 of the Code, stating therein the result of investigation made until then and the court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the court decides that the trial may not so commence. The interim report shall be signed by the investigating officer of police;

(1A) Notwithstanding anything contained in any other law for the time being in force, the Federal Government may, in respect of any case registered by or under investigation with, the police or any other investigation agency or authority, by order in writing, entrust inquiry or such investigation to such agency or authority as it may deem fit and thereupon the police, or any other investigation agency or the authority shall transfer the record of the case to such agency or authority.

(1B) Where any person has been arrested by the armed forces or civil armed forces under section 5, he shall be handed over to the investigating officer of the police station designated for the purpose by the Provincial Government in each District.

(2) Any default on the part of an officer-in-charge of a police-station, an investigating officer or any other person required by law to perform any functions in connection with the investigation, that results in, or has the effect of, delaying investigation or submission of the report under subsection (1), shall be deemed to be a wilful disobedience of the orders of the Anti-Terrorism Court and the person committing the default shall be liable to be punished for contempt of Court.

(3) The Anti-Terrorism Court may directly take cognizance of a case triable by such Court without the case being sent to it under section 190 of the Code.

(4) \\

(5) Where, in a case triable by an Anti-Terrorism Court, an accused has been released from police custody or custody of any other investigating agency joined in an investigation, under section 169 of the Code, or has been remanded to judicial custody, the Anti-Terrorism Court may, on good grounds being shown by a Public Prosecutor or a Law Officer of the Government, for reasons to be recorded in writing, make an order for placing him in police custody or custody of any other Investigating Agency joined in investigation for the purpose of further investigation in the case.

(6) An Anti-Terrorism Court shall be deemed to be a Magistrate for purpose of subsection (5).

(7) The court shall, on taking cognizance of a case, proceed with the trial from day-to-day and shall decide the case within seven days, failing which the matter shall be brought to the notice of the Chief Justice of the High Court concerned for appropriate directions, keeping in view the facts and circumstances of the case.

(8) An Anti-Terrorism Court shall not give more than two adjournments during the trial of the case and that also imposition of exemplary costs. If the defense counsel does not appear after two consecutive adjournments, the court may appoint a State Counsel with at least seven years standing in criminal matters for the defense of the accused from the panel of advocates maintained by the court for the purpose in consultation with the Government and shall proceed with the trial of the case.

(8a) Non-compliance with the provisions of subsection (7) or (8) may render the presiding officer of the court liable to disciplinary action by the concerned High Court.

(8b) Notwithstanding anything contained in section 7 of the Explosive Substances Act. 1908 (VI of 1908), or any other law for the time being in force, if the consent or sanction of the appropriate authority, where required, is not received within thirty days of the submission of challan in the court, the same shall be deemed to have been given or accorded and the court shall proceed with the trial of the case.

(9) An Anti-Terrorism Court shall not, merely by reason of a change in its composition or transfer of a case under subsection (3) of section 12, be bound to recall and re-hear any witness who has given evidence and may act on the evidence already recorded.

(10) Any accused person may be tried in his absence if the Anti-Terrorism Court, after such inquiry as it deems fit, is satisfied that such absence is deliberate and brought about with a view to impeding the course of justice:

Provided that the accused person shall not be tried under this subsection unless a proclamation has been published in respect of him in at least in one daily newspaper including Sindhi language requiring him to appear at a specified place within seven days failing which action may also be taken against him under section 88 of the Code:

Provided further that the Court shall proceed with the trial after taking the necessary steps to appoint an Advocate at the expense of the State to defend the accused person who is not before the court.

Explanation. An accused who is tried in his absence under this sub-section shall be deemed not to have admitted the commission of any offence for which he has been charged.

(11) The Advocate appointed under the second proviso to subsection (10) shall be a person selected by the Anti-Terrorism Court for the purpose and he shall be engaged at the expense of the Government.

(11A) Noting contained in subsection (10) or subsection (11) shall be construed to deny the accused the right to consult or be defended by a legal practitioner of his own choice.

(12) If, within sixty days from the date of his conviction, any person tried under subsection (10) appears voluntarily, or is apprehended and brought before the Anti-Terrorism Court, and proves to its satisfaction that he did not abscond or conceal himself for the purpose of avoiding the proceeding against him, the Anti-Terrorism Court, shall set aside his conviction and proceed to try him in accordance with law for the offence with which he is charged:

2024 P Cr. LJ 1951

[Lahore]

Before Tariq Saleem Sheikh and Muhammad Amjad Rafiq, JJ

Aamir Hayat---Appellant

Versus

The State---Respondent

Criminal Appeal No. 1704 and Murder Reference No. 10 of 2021, decided on 16th September, 2024.

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

----S.302 (b)---Qatl-i-amd---Appreciation of evidence---Delay in registration of FIR---Motive---Proof---Benefit of doubt---Accused was convicted by Trial Court for committing Qatl-i-amd and was sentenced to death---First Information Report was lodged with a delay of two hours---Such delay in ordinary course could have been ignored but when both prosecution witnesses claimed their presence at place of occurrence at the relevant time, then such delay could not be overlooked for the reason that distance between place of occurrence and police station was 2 kilometers and hospital was at a distance of 1 1/4 kilometers from the police station---Father of accused stood acquitted in a murder case of grandson of an employee of deceased, way back in the year 2005 who had earned acquittal likewise accused in the year 2010 had earned acquittal in the case of causing injuries to paternal grandson of deceased---Accused could not have carried the venom after about ten years of his acquittal or fifteen years after acquittal of his father---Prosecution failed to prove charge against the accused beyond any shadow of doubt---High Court extended benefit of doubt to accused, set aside conviction and sentence awarded to him by Trial Court and acquitted him of the charge---Appeal was allowed in circumstances.

Munawar Ali alias Munawar Hussain v. The State PLD 1993 SC 251; Machia and others v. State PLD 1976 SC 695 and Sardaran Bibi v. The State 2024 SCMR 1116 rel.

(b) Criminal trial---

---Interested witness, evidence of---Scope---Testimony of an interested witness should be scrutinized with care and caution---Independent corroborating evidence is essential to test validity and credibility of testimonies of interested witnesses.

Nazir v. The State PLD 1962 SC 269 rel.

(c) Criminal trial---

----Motive---Scope---When eye-witness account is disbelieved, the rest of evidence like motive, medical or recovery are only of corroborative nature and cannot be made basis to record or sustain conviction.

Sardar Muhammad Latif Khan Khosa for Appellant.

Nisar Ahmad Virk, Deputy Prosecutor General for the State.

Qazi Misbah-ul-Hassan, Muhammad Mehmood Chaudhry and Muhammad Zain Qazi for the Complainant.

Date of hearing: 16th September, 2024.

Judgment

Muhammad Amjad Rafiq, J.---Briefly the facts of the case are that Rab Nawaz son of Risaldar Malik Atta Muhammad complainant (PW-8) got recorded his statement before Ghulam Qasim Sub-Inspector/Investigating Officer (PW- 0) at DHQ Hospital, Jauharabad, which was reduced into writing as Ex.PN, on the basis whereof formal FIR (Ex.PA) was registered. According to which complainant was resident of Dera Haji Matta (deceased) and on 16.02.2020 at 9.20 a.m. he (complainant) along with Muhammad Hamayun (PW-9) and Muhammad Munir (not produced) were working in the fields near Bola road in front of their dera; Haji Muhammad Matta (paternal cousin of the complainant) while walking reached Bola road, meanwhile Aamir Hayat (accused/appellant) resident of Dera Samblianwala near Sugar Mills Jauharabad armed with pistol 30-bore came on motorcycle Honda/125, without number, raised lalkara and simultaneously made three fire shots straight at Haji Muhammad Matta, hitting his chest, left flank and left ear, and he fell down: in such position the accused/appellant made another fire which landed below his right armpit. They rushed towards the place of occurrence and Aamir Hayat accused/appellant on seeing them escaped on motorcycle. Muhammad Matta was attended and after arranging the vehicle shifted to DHQ hospital Jauharabad, where he succumbed to injuries.

It was urged that in the year 1999 Nazar Hayat father of the accused/appellant had murdered maternal grandson of one Muhammad Feroze (employee of Haji Muhammad Matta); Haji Muhammad Matta supported his employee and thus Nazar Hayat was sentenced to death. On conviction of his father, earlier in the year 2006 the accused/appellant had injured Muhammad Sadiq (paternal grandson of Haji Muhammad Matta) by firing; in the said case the accused/appellant was challaned and instant occurrence was result of such earlier litigation between the parties.

1. Muhammad Qasim, Sub-Inspector/Investigating Officer (PW-10) sent the complaint to police station for registration of case (FIR No.45 of 2020 dated 16.02.2020 under section 302 P.P.C. Police Station Saddar Jauharabad, District Khushab) and he himself examined the dead body; prepared injury statement and inquest report; sent the dead body for postmortem examination and then proceeded to place of occurrence, inspected the spot, secured blood stained earth, collected four crime empties, got photographed the place of occurrence by Crime Scene Unit, prepared rough site plan and recorded statements of witnesses. Apart from performing certain other functions during the course of investigation including collection of CDR of Cell Phone No.03006052408, since the accused/appellant was not being traced the Investigating Officer got issued proclamation for his arrest, however, on 28.04.2020 the accused/appellant was arrested, who disclosed and got recovered pistol 30-bore along with 2 live bullets from a wheat bin lying in the verandah of his Baithak and on the same day the accused/appellant also got recovered motorcycle 125-CC.

2. On completion of investigation finally report under section 173 Cr.P.C. was submitted before learned Sessions Judge, Khushab. When charge sheeted the accused/appellant denied the charges and pleaded innocence, whereupon, the prosecution produced Dr. Amjad Abbas (PW-4) who had conducted postmortem examination of Haji Muhammad Matta (deceased); Ghulam Qasim Sub-Inspector/Investigating Officer (PW-10) deposed about investigation, whereas, the rest of the witnesses were formal in nature. On close of prosecution case, the accused when examined under section 342 Cr.P.C. denied the prosecution evidence, did not opt to record his statement under section 340(2) Cr.P.C., however, produced Mudassar Hussain ASI (DW-1) and also tendered some documents in his defence. Vide judgment dated 07.01.2021 passed by learned Sessions Judge, Khushab the trial ended in the terms that accused/appellant was convicted under section 302(b) P.P.C. and sentenced to death, with further order to pay Rs.10,00,000/- compensation to the legal heirs of deceased under section 544-A Cr.P.C. and in case of failure to suffer simple imprisonment for six months. Said conviction/sentence has been assailed by the convict through Criminal Appeal No.1704 of 2021 and Murder Reference No.10 of 2021 has been sent by the learned trial court as required under section 374 Cr.P.C. Both the matters are being decided through the instant judgment.

3. We have heard the arguments of learned counsel for the parties at considerable length and perused the record with their assistance.

4. It is prosecution's own case that occurrence took place on 16.02.2020 at 9.20 a.m., which was witnessed by Rab Nawab son of Risaldar Malik Atta Muhammad complainant (PW-8) and Muhammad Hamayun (PW-9); further that they attended Haji Muhammad Matta (deceased) injured at the spot, arranged a vehicle and shifted him to DHQ Hospital, Jauharabad, where he breathed his last. The complainant while appearing in the dock as PW-8 endorsed the facts as recorded in the complainant and reaffirmed that "We attended Haji Muhammad Matta and shifted him to DHQ Hospital Jahuharabad while making the arrangement of car. Haji Muhammad Matta died as a result of injuries while reaching the hospital." With this meticulous assertion about death of Haji Muhammad Atta (deceased) at the hospital, we have examined the record and observe that on the postmortem examination report (Ex.PE), the relevant column of Date and Time of death has been filled as 16.02.2020 at 9.20 a.m., and similar entry with respect to date and time has been written in the inquest report (Ex.PD), as admitted by Investigating Officer. Thus, the documentary proof establishes that the deceased had died at the moment he received injuries at the spot, therefore, the stance of the complainant is controverted.

5. In addition to the above, we have observed that the FIR has been lodged with a delay of two hours, such delay in ordinary course could have been ignored, but when both the prosecution witnesses claim their presence at the place of occurrence at the relevant time, then such delay cannot be oversighted, for the reason that distance between the place of occurrence and the police station has been given as 2 kilometers and according to the Investigating Officer DHQ hospital Jauharabad is at a distance of 1-11/4 km from the police station. Though the complainant tried to cover up the delay by saying that they arranged the vehicle and then shifted the injured to hospital, but Muhammad Hamayun (PW-9) removed any such confusion by stating in explicit terms that they left the place of occurrence at 9.30 a.m. for hospital. If this was so, then the delay of two hours in covering a distance of just 2-3 kilometers does not sound good. It is another fact that car, which according to then complainant had been arranged for shifting the injured to hospital, belonged to one Muhammad Hayat, but neither the said owner of the car nor even the driver of such vehicle was brought in the witness box and the Investigating Officer during the course of examination stated that "Neither I noticed the blood on the clothes of the PWs and complainant nor I noticed whether their hands were smeared with blood or not. Neither I examined the vehicle on which deceased was allegedly shifted to hospital nor I associated the driver of the vehicle in the investigation of this case." Admittedly, except crInte empties and the blood stained earth, nothing else like fodder, etc. was collected by the Investigating Officer from the fields where both the eye-witnesses were allegedly working on the day and time of occurrence. Such inaction on the part of the Investigating Officer on above factors/ aspects of the case, leave big dents in the prosecution case.

6. We have taken note of the fact that the Rab Nawaz complainant (P W-8) and Muhammad Hamayun (PW-9) deny to have informed Ghulam Qasim Sub-Inspector/Investigating Officer (PW-10) about the occurrence and the Investigating Officer while appearing in the dock explained that it was the Moharir who through phone informed him about the occurrence when he along with police constables was present in Chowk Noor Colony, Jahuharabad; Abdul Hafeez 498 MHC/Moharrar appeared in the witness box as PW-2 but did not say a single word that from where he came to know about the instant occurrence, which he onwards communicated to the Investigating Officer.

7. The entire prosecution case is totally negated by the statement of Abid Siddique 101/C (PW-5). This is the witness, through whom according to the Investigating Officer at hospital the dead body had been dispatched for postmortem examination but this witness as PW-5 states that:-

"We received the information of this occurrence at police station and then we proceeded towards the place of occurrence. I escorted the dead body from the place of occurrence towards DHQ Hospital, Jahuharabad. Rub Nawaz and Muhammad Farooq PWs accompanied me from the place of occurrence to the DHQ Hospital. I do not remember the exact time of receiving the dead body from the place of occurrence. After one hour of our reaching at the place of occurrence, the dead body was handed over to me. Ghulam Qasim S.I/I.O also accompanied me with the dead body to the hospital.

We are cognizant of the fact that this witness was not declared hostile nor was even cross-examined by the prosecution side. In the light of all above discussed aspects with regard to delay in lodgment of the FIR; delay in conduct of postmortem examination; non-association of owner or driver of the Car used for shifting the deceased to hospital, inaction on the part of the Investigating Officer in observing blood on the hands, clothes of witnesses or in the car, the statement of Abid Siddique 101/C (PW-5) cannot be said as an unholy attempt to benefit the accused, rather as cumulative effect of all the above aspects, this statements portrays the correct picture at the spot i.e. in fact none had witnessed the occurrence; on finding the dead body the police got information and reached at the spot, joined the persons Rub Nawaz son of Muhammad Yaqoob (PW-6) and Muhammad Munir (not produced) and with their help shifted the dead body to hospital by assigning the role of identification of dead body to both these witnesses and subsequently Rab Nawaz son Malik Atta Muhammad complainant (PW-8), paternal cousin of the deceased and Muhammad Hamayun (PW-9), grandson of deceased Haji Muhammad Matta and brother of Muhammad Sadiq (alleged to be injured earlier at the hands of accused/appellant), were engaged and introduced as eye-witnesses. Both are interested witnesses due to their close relationship with the deceased, and legal proposition is almost settled that the testimony of an interested witness should be scrutinized with care and caution and independent corroborating evidence is essential to test the validity and credibility of the testimonies of interested witnesses. As to the testimony of interested witnesses, the rule is well-established by this Court in the case reported as "Nazir v. The State" (PLD 1962 SC 269):-

" .......we had no intention of laying down an inflexible rule that the statement of an interested witness (by which expression is meant a witness who has a motive for falsely implicating an accused person) can never be accepted without corroboration. There may be an interested witness whom the Court regards as incapable of falsely implicating an innocent person. But he will be an exceptional witness and, so far as an ordinary interested witness is concerned, it cannot be said that it is safe to rely upon his testimony in respect of every person against whom he deposes. In order, therefore, to be satisfied that no innocent persons are being implicated along with the guilty the Court will in the case of an ordinary interested witness look for some circumstance that gives sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction. This is what is meant by saying that the statement of an interested witness ordinarily needs corroboration. For corroboration it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances will be sufficient as corroboration it is not possible to lay down. But, as the question before the Court would be whether some innocent person had not been implicated in addition to those who were guilty the circumstance relied upon must have a bearing on this question. In the case of an interested witness the corroboration need not be of the same probative force as in the case of an accomplice for the two do not stand an the same footing.

In the instant matter, the ocular account of the prosecution's interested witnesses is not only materially contradictory but also uncorroborated by the available evidence. We therefore, have no doubt in our mind to hold that none of the eye-witnesses had actually seen the occurrence, otherwise, the above noted apparent flaws would never had appeared.

1. After disbelieving the substantive eye-witness account, the rest of the evidence like motive, medical or the recovery, only being of corroborative nature hardly can be made basis to record or sustain conviction, however, even on these aspects the prosecution has failed to build its case for the reason that Nazar Hayat father of the accused/appellant, stood acquitted in the murder case of grandson of deceased's employee (one of the reason set as motive part), way back in the year 2005 and likewise the accused/appellant in the year 2010 had earned acquittal in the case of causing injuries to Sadiq, paternal grandson of deceased (the other reason shown as motive). In these circumstances, it does not appeal to a mind of common prudence that accused/appellant still would have carried the venom after about ten years of his acquittal or fifteen years after the acquittal of his father. We are therefore, least convinced with the motive set out by the prosecution.

2. As regards recovery, it is correct that pistol along with two bullets was shown to have been recovered on the lead of accused/appellant on 03.05.2020 and it stood matched with the crime empties collected from the spot, but it is rear possibility that the accused having successfully managed his escape from the place of occurrence along with crime weapon, would have kept the same safe and intact for its recovery more than two months after the occurrence and usage against himself. More importantly, the prosecution had shown the accused/appellant residing at dera Saniblianwala near Sugar Mills, Jauharabad i.e. in the surrounding of place of occurrence and said recovery of crime weapon was shown effected from the house of accused/appellant. Obviously, when the accused/appellant had absconded and remained at bay for more than two months, the police/Investigating Officer must have repeatedly raided and searched his place of abode but during this period no such weapon could be recovered from his house, therefore, the recovery of crime weapon with such background, does not convince us. Even otherwise, after discarding the ocular account, this piece of evidence does not advance the case of prosecution.

3. Coming to the medical evidence, according to the prosecution's case four fire shots were made by the accused/appellant on the deceased, which landed on front of chest, front of left flank, left ear and right armpit, and four crime empties were collected by the Investigating Officer at the time of visit to the spot but Dr. Amjad Abbas (PW-4) who had conducted postmortem examination found five entry wounds on the dead body, thus the number of injuries as given by the doctor do not commensurate with number of injuries highlighted in the ocular account. Even otherwise, medical evidence is just a corroborative piece of evidence and could only give details about the locale, dimension, kind of weapon used, the duration between injury and medical examination or death and autopsy, etc. but never identify the real assailant. In the case "Munawar Ali alias Munawar Hussain v. The State" (PLD 1993 SC 251) the Hon'ble Supreme Court of Pakistan held that:-

"Medical evidence is corroboration to show that injuries were caused in a particular manner with particular weapon and even it can supply corroboration to the fact as to how many assailants there were and whether number of injuries is commensurate with number of assailants or not, but medical evidence can never be used as corroboration qua accused to show that particular accused has caused these injuries can never name the accused, that is, from the injuries alone it cannot be said who had inflicted those injuries.

2024 P Cr. LJ 1972

[Lahore]

Before Muhammad Amjad Rafiq, J

Khalida Bibi and another---Petitioners

Versus

The State and others---Respondents

Crl. Misc. No. 885-B of 2024, decided on 15th January, 2024.

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

----S. 497---Penal Code (XLV of 1860), Ss. 371-A & 371-B---Selling and buying person for purposes of prostitution---Bail, grant of---Further inquiry---Petitioners were found in objectionable condition in a house when they were apprehended and a cash amount of Rs. 1500/- was recovered from female petitioner which she had allegedly received for prostitution---When a man and a woman were found busy in sexual intercourse in a brothel house, they could not be made subject of sections of P.P.C. added in the present case---Similarly, when a man was running a brothel, he would not be charged under S.371-A or 371-B, P.P.C, if he simply offered the services of a prostitute for sexual intercourse to a man, barring a situation when any person was actually found busy in a brothel house for sale, purchase or hiring etc. of a woman with the intent that she might be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person would at any time be employed or used for any such purpose---On receiving credible information Police could enter into places or resort of loose and disorderly characters without warrant and then depending upon the nature of offence they were authorized to initiate criminal action either through registration of FIR for an offence under Ss.371-A/371-B, P.P.C, or under the Punjab Suppression of Prostitution Ordinance, 1961, or through complaint under S.203-C, Cr.P.C., for fornication or investigation with the permission of Magistrate for offences under S.294, P.P.C---In the case in hand both the petitioners were reportedly found in objectionable condition in a house when the police raided upon them, therefore, they could not be charged for offences under Ss. 371-A/371-B, P.P.C, but for fornication under S.496-B, P.P.C if they were having sexual intercourse with each other and prosecution thereof would be initiated through filing a complaint under S.203-C of Cr.P.C.---No Medico-Legal Report was available which could support the act of recent intercourse, neither stained clothes nor any other forensic material was collected from the place of occurrence---Even no linked-material was made available to show that the female was a prostitute or the house was being used as brothel, so as to attract provisions of the Punjab Suppression of Prostitution Ordinance, 1961, against her---Moreover, it was also a missing fact as to whether the house was a place of loose or disorderly characters to justify entry of police without a warrant; therefore, criminal liability of both the petitioners would be determined by Trial Court, who were at present not found connected with the offences of FIR---Said facts, prima facie, called for further inquiry in the case of present petitioners falling within the ambit of subsection (2) of S.497, Cr.P.C---Bail petition was allowed, in circumstances.

Amjad Ali and another v. The State PLD 2013 FSC 42; Riffat Ali Barq v. S.H.O., Police Station Muzaffarabad and 4 others 1991 PCr.LJ 9; Zahid Hussain and other v. The State 2008 MLD 722; Shafqat Ali and another v. The State 2009 YLR 60; Ghulam Qadir Faraz alias Babar v. Station House Officer, Police Station Saddar Kamoke and 2 others 2012 PCr.LJ 638; Iqra Hussain v. S.H.O. Police Station Nawab Town and another 2014 MLD 599; Muhammad Nawaz alias Karo v. The State 2023 SCMR 734; Noor Kamal and another v. The State and another 2023 SCMR 999; Jahanzeb And Others v. State through A.G. Khyber Pakhtunkhwa Peshawar and another 2021 SCMR 63; Salman Zahid v. The State through P.G. Sindh 2023 SCMR 1140 and Gul Muhammad v. The State 2023 SCMR 857 rel.

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

----S. 497---Bail---Tentative assessment---Scope---Observations made in the bail order are tentative in nature based on available material and do not prejudice the case of either party in any manner.

Shah Nawaz Shah for the Petitioners.

Ikram Ullah Khan Niazi and Ms. Maida Sobia, Deputy Prosecutor General with Imtiaz Ellahi, ASI for the State.

Judgment

Muhammad Amjad Rafiq, J.--- Through this petition under Section 497 Cr.P.C., petitioners Khalida Bibi and Atiq-ur-Rehman have sought post arrest bail in case FIR No.1534 dated 26.12.2023 registered under Sections 371A and 371B P.P.C. at Police Station Mangtanwala, District Nankana Sahib.

1. It was the case of prosecution that on the information of a stool pigeon, police raided upon the house of one Dildar Abass which was reportedly being used for the purpose of prostitution, where the petitioners were found in objectionable condition who were apprehended and a cash amount of Rs.1500/- was recovered from petitioner Khalida Bibi which she has allegedly received for prostitution.

2. Heard. Record perused.

3. Bail was mainly sought on the ground that sections 371A and 371B of Pakistan Penal Code, 1860 (P.P.C.) are not attracted against the persons who are found in objectionable condition in a brothel house or premises with the consent of owner/possessor, and even running a brothel house is not an offence under sections 371A/371B P.P.C. which only deal with the marketing for selling and buying of women for the purpose of prostitution and it does not compass the consensual act of two individuals gratifying sexual lust while in a spaced-facility. A challenge was also thrown on exercise of power by the police to enter into such premises without a warrant, what to talk of registration of FIR.

4. Learned Deputy Prosecutors General state that prostitution being a vice is menace to the society and for its prevention police is authorized under the Police Order, 2002 to enter in a suspected place without a warrant and appropriate legal action can be initiated against the persons indulged in immoral activities. They were of the view that even section 294 P.P.C. is also attracted which prohibits obscene acts at public place.

5. Prostitution has been described as "the world's oldest profession, but it is prohibited in Islam; therefore, it is essential to see what the legislature has done for suppression of prostitution. The spirit of sections 371A and 371B P.P.C. views only that man in culpability-catch who sells or purchase a woman for the purpose of employing her or knowing that she may be employed for prostitution or illicit intercourse or for unlawful or immoral purpose and that man can simply be termed as marketing manager, broker or agent. Sections 371A/371B P.P.C., particularly explanations therein, make the picture clearer. Both sections are reproduced for reference as under;

371A. Selling person for purposes of prostitution, etc.

Whoever sells, lets to hire, or otherwise disposes of any person with intent that such a person shall at any time be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person shall at any time be employed or used for any such purpose, shall be punished with imprisonment which may extend to twenty-five years, and shall also be liable to fine.

Explanations: - (a) When a female is sold, let for hire, or otherwise disposed of to a prostitute or to any person who keeps or manages a brothel, the person so disposing of such female shall, until the contrary is proved, be presumed to have disposed of her with the intent that she shall be used for the purpose of prostitution.

(b) For the purposes of this section and section 371B, "illicit intercourse" means sexual intercourse between persons not united by marriage.

371B. Buying person for purposes of prostitution, etc.

Whoever buys, hires or otherwise obtains possession of any person with intent that such person shall at any time be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any time be employed or used for any such purpose, shall be punished with imprisonment which may extend to twenty-five years, and shall also be liable to fine.

Explanation: Any prostitute or any person keeping or managing a brothel, who buys, hires or otherwise obtains possession of a female shall, until the contrary is proved, be presumed to have obtained possession of such female with the intent that she shall be used for the purpose of prostitution.

Keeping in view the above sections of law and expression as calculated, it is the situation that when a man and a woman is found busy in sexual intercourse in a brothel house, they cannot be made subject of above sections. Similarly, when a man is running a brothel, he will not also be charged under section 371A or 371B P.P.C. if he simply offers the service of a prostitute for sexual intercourse to a man, barring a situation when any person is actually found busy in a brothel house for sale, purchase or hiring etc. of a woman with the intent that she may be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person shall at any time be employed or used for any such purpose.

1. Now if sections 371A/371B P.P.C. cannot be stretched against the copulation in a brothel house or for running a brothel then which law would be applicable to prohibit such vice. The Punjab Suppression of Prostitution Ordinance, 1961 is in fact the apt law which specifically prohibits keeping of brothel or allowing any place to be used as a brothel. Such ordinance defines 'brothel' and 'prostitution' as under;

"brothel" means any house, part of a house, room or place in which a prostitute resides or carries on prostitution or any place or institution where facilities are known to be available for prostitution.

"prostitution" means promiscuous sexual intercourse for hire, whether in money or kind

As per section 3, the law prohibits running of brothel in following manner;

Punishment for keeping a brothel or allowing any place to be used as a brothel.- (1) Whoever-

(a) keeps or manages or acts or knowingly finances or takes part in the financing of, or assists in, the management of a brothel, or

(b) being a tenant, lessee, occupier or person in charge of any premises, knowingly permits such premises or any part thereof to be used as a brothel, or

(c) being a lessor or landlord of any premises, or the agent of such lessor or landlord, lets the same or any part thereof with the knowledge that it is intended to be used as a brothel, shall be punished with imprisonment of either description for a term which may extend to two years and with fine, which may extend to one thousand rupees.

(2) Where, in any prosecution of a tenant, lessee, occupier or person in charge of any premises under this section, it is found that such premises or any part thereof have been used as a brothel, it shall be presumed, unless the contrary is proved, that he knowingly permitted such use.

The Punjab Suppression of Prostitution Ordinance, 1961 however, deals with following offences in all;

Section. 3; Punishment for keeping a brothel or allowing any place to be used as a brothel.

Section 4: Punishment for soliciting.

Section 5: Punishment for permitting prostitution in places of public amusement.

Section 6: Punishment for living on earnings of prostitution.

Section 7: Punishment for causing, encouraging or abetting prostitution of a girl under sixteen.

Section 8: Punishment for procuration.

Section 9: Punishment for importing any woman or girl for prostitution.

Section 10: Punishment for keeping any woman or girl for prostitution.

Although above offences are cognizable pursuant to section 13 of the said Ordinance which authorizes the gazetted police officer to arrest the accused of above offence without a warrant on receiving a complaint or committed within his view, but above law does not make liable any person who is having sexual intercourse with a prostitute. Therefore, willful sexual intercourse by a man and woman shall be viewed as an offence of fornication but not one under section 371A/371B P.P.C. as explained in pargarph-6 above. For reference section 496B P.P.C. is reproduced as under;

496B. Fornication:

(1) A man and a woman not married to each other are said to commit fornication if they willfully have sexual intercourse with one another.

(2) Whoever commits fornication shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine not exceeding ten thousand rupees.

Prosecution for offence of fornication can only be initiated through a complaint as regulated under section 203C of Cr.P.C.

1. A brothel house cannot be termed in true sense a public place because its entry is restricted and controlled, that is the reason section 14 of the Punjab Suppression of Prostitution Ordinance, 1961 requires that the Superintendent of Police, or any gazetted police officer specially authorized in writing in this behalf by the District Magistrate, may enter any place and remove to the prescribed place any girl who appears to be under the age of eighteen years, if he has reason to believe that an offence punishable under section 3 has been or is being committed in respect of the place or that a woman or girl, in respect of whom an offence under the Ordinance has been committed, is to be found therein. However, if a brothel is being run secretly as a pocket of a place of public amusement or public entertainment or a gaming house then it would certainly be a public place and police on receiving information of somebody's indulgence in any immoral activities or obscene acts can inspect that place without warrant. Place of public amusement or place of public entertainment have been defined in the Punjab Suppression of Prostitution Ordinance, 1961 as under;

"Place of public amusement" shall mean any place, enclosure, building, tent, booth or other erection, whether permanent or temporary, where music, singing, dancing, or any diversion or game or the means of carrying on the same, is provided, and to which the public are admitted either on payment of money or with the intention that money may be collected from those admitted, and shall include a race-course, circus, theatre, music hall, billiard-room, bagatelle-room, gymnasium or fencing school;

"Place of public entertainment" shall mean any place, whether enclosed or open, to which the public are admitted and where any kind of food or drink is supplied for consumption on the premises for the profit or gain of any person owning or having an interest in or managing such place, and shall include a refreshment-room, eating-house, coffee-house, liquor-house, boarding-house, lodging-house, hotel, serai or tavern, or wine, beer, spirit, arrack, toddy, bhang or opium shop;

1. It is trite that police without obtaining search warrant cannot enter into any premises but later its authority to enter into places of disorderly character without warrant was introduced through Article 4 (I) of Police Order, 2002 which is as under;

(l) enter and inspect without a warrant on reliable information any public place, shop or gaming-house where alcoholic drinks or narcotics are sold or weapons are illegally stored and other public places or resort of loose and disorderly characters.

Therefore, Police can safely enter into places or resort of loose and disorderly character without warrant and if found somebody is indulged in obscene acts at public place, he can be prosecuted under section 294 P.P.C. which is reproduced as under;

294. Obscene acts and songs:

Whoever, to the annoyance of others, --

(a) does any obscene act in any public place, or

(b) sings, recites or utters any obscene songs, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.

However, for applicability of section 294 P.P.C., the parameters must be kept in mind as given in judgments reported as "Amjad Ali and another v. The State" (PLD 2013 FSC 42); "Riffat Ali Barq v. S.H.O., Police Station, Muzaffarabad and 4 others" (1991 PCr.LJ 9).

1. Concluding above discussion, it can safely be held that on receiving credible information Police can enter into places or resort of loose and disorderly characters without warrant and then depending upon the nature of offence are authorized to initiate criminal action either through registration of FIR for an offence under sections 371A/371B P.P.C. or under the Punjab Suppression of Prostitution Ordinance, 1961, or through complaint under section 203C Cr.P.C. for fornication or investigation with the permission of Magistrate for offences under section 294 P.P.C.

2. In the case in hand both the petitioners were reportedly found in objectionable condition in a house of Dildar Abass when the police raided upon, therefore, they cannot be made accused for offences under sections 371A/371B P.P.C., but for fornication under section 496B P.P.C. if they were having sexual intercourse with each other and prosecution whereof shall be initiated through filing a complaint under section 203C of Cr.P.C. It has further been observed that no medicolegal report is available which could support the act of recent intercourse, neither stained clothes nor any other forensic material was collected from the place of occurrence. Even no linked-material was made available to show Khalida as a prostitute and house of Dildar Abass was being used as brothel, so as to attract provisions of the Punjab Suppression of Prostitution Ordinance, 1961 against her. It is also a missing fact as to whether house of Dildar Abass was a place of loose or disorderly character to justify entry of police without a warrant; therefore, criminal liability of both the petitioners shall be determined by learned trial Court who are at present not found connected with the offences of FIR, i.e., 371A/371B P.P.C. In such a situation it is trite that bail must be granted; in support whereof, some reported cases are referred in this respect; "Zahid Hussain and others v. The State" (2008 MLD 722); "Shafqat Ali and anothers v. The State" (2009 YLR 60), "Ghulam Qadir Faraz alias Babar v. Station House Officer, Police Station Saddar Kamoke and 2 others" (2012 PCr.LJ 638) and "Iqra Hussain v. S.H.O. Police Station Nawab Town and another" (2014 MLD 599).

2024 P Cr. LJ 1987

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh, J

Shaista Jamil---Appellant

Versus

Daraz and another---Respondents

Criminal Appeal No. 559 of 2023, decided on 25th September, 2023.

Punjab Consumer Protection Act (II of 2005)---

----Ss. 23, 30 & 32---Criminal Procedure Code (V of 1898), S.410---Civil Procedure Code (V of 1908), O.VII, R.11---Appeal---Maintainability---Rejecting of complaint---Complaint of appellant / consumer was rejected by Trial Court under the provision of O. VII, R.11 C.P.C.---Appellant / consumer assailed order of Trial Court under S.410 Cr.P.C.---Office of High Court raised objection regarding maintainability of appeal---Validity---Consumer Court established under Punjab Consumer Protection Act, 2005 is a special Court with both civil and criminal jurisdiction--- Consumer Court is not a civil Court in the sense of Civil Procedure Code, 1908 because a petition, claim or complaint brought before it is not treated as suit or plaint and it does not pass a decree--- Similarly the Court cannot be termed as a pure criminal Court because of its limited criminal provisions---This indicates the uniqueness of the consumer Court and its proceedings--- Every proceeding before Consumer Court is deemed to be a judicial proceeding under S. 30(4) of Punjab Consumer Protection Act, 2005--- Provision of Civil Procedure Code, 1908 do not strictly govern proceedings before Consumer Court and it can apply only its equitable principles---Thus, O.VII, R.11 C.P.C. was not applicable in terms but Consumer Court had authority to decide on maintainability of a claim---Consumer Court had passed order in question in exercise of civil jurisdiction, therefore, no criminal appeal was competent against such order---Office objection was maintained in circumstances.

United States v. Ward 48 U.S. 242 (1980); Kennedy v. Mendoza-Martinez 372 U.S. 144 (1963); State of Karnataka v. Vishwabharathi House Building Coop. Society and others AIR 2003 SC 1043; Ghaziabad Development Authority v. Union of India (UoI) and another 2003 (4) AWC 3078 b; Union of India and another v. Shardindu 2007 6 SCC 276; Reference No. 01 of 2012 PLD 2013 SC 279; New India Assurance Company Ltd. v. Srinivasan AIR 2000 SC 941; Ethiopian Airlines v. Ganesh Narain Saboo AIR 2011 SC 3495; Bambino Ltd. v. Selmor International Ltd. and another PLD 1983 SC 155; Mian Hakim Ullah and others v. Additional District Judge/Tribunal, Noewshera and others 1993 SCMR 907; Haji Khudai Nazar and another .v Haji Abdul Bari 1997 SCMR 1986 and Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami and others 2007 SCMR 818 rel.

Syed Fakhar Imam Bukhari for Appellant.

Sikandar Abbas, assisted by Jabran Munir Awan for Respondent No. 1.

Nemo. for Respondent No. 2.

Asim Murtaza Cheema, Research Officer, LHCRC for Research assistance.

Date of hearing: 23th June, 2023.

Judgment

Tariq Saleem Sheikh, J.---The Appellant claims that on 30.5.2022, a vendor on Daraz, who called himself "Innocent Gamer" with Facebook ID Bandex.net, persuaded her to buy a VIVO V19 cell phone online at a 20% discount. At 11:23 p.m., she remitted PKR 48,000/- for it to Daraz Wallet Account using Easypaisa (Transaction ID: 7648354737). The order was confirmed, and after 20 minutes, she received an e-mail informing her that the cell phone had been delivered to her address, which was untrue. She didn't get any. She realized it was a scam and immediately notified the Daraz Customer Care Department about it via e-mail. She also requested a return of the money she had deposited in the Daraz Wallet Account as aforesaid. The Customer Care Department sought various details from the Appellant over the next ten days, pretending to resolve the matter, but on 11.6.2020, denied the company's liability and asked her to approach the Federal Investigation Agency under the Prevention of Electronic Crimes Act, 2016 (PECA) for redress. The Appellant served Daraz with a statutory notice under the Punjab Consumer Protection Act, 2005 (the "Punjab Act"), demanding Rs. 2.00 million in compensation and Rs.27,000/- in legal fees for faulty service. On 4.7.2020, she filed a claim under section 25 of the Act with the District Consumer Court, Multan, which the Presiding Officer rejected under Order VII Rule 11 of the Code of Civil Procedure, 1908 ("C.P.C.") by order dated 7.4.2022 (the "Impugned Order"). Hence, this appeal.

1. The office objected that a criminal appeal against the Impugned Order is not competent. This Court ordered that it would consider that objection on the judicial side and, subject to the question of maintainability, issued notice to the Respondents. Respondent No.2 (Innocent Gamer) could not be served due to non-availability of address.

2. The Appellant's counsel, Syed Fakhar Imam Bukhari, Advocate, insists that this criminal appeal is maintainable under section 33 of the Punjab Act and that the office objection is misconceived. On merits, he contends that Daraz, through its website and media campaign, offers simple and secure online shopping, safe and fast payments, money and order tracking, and hassle-free returns and refunds. However, it did not happen in the present case. The Appellant has suffered a loss due to Daraz's poor service and unfriendly customer policies. Mr Bukhari further contends that the Appellant's complaint before the Consumer Court was competent, and the judge has misapplied the provisions of Order VII Rule 11 C.P.C. to reject it.

3. The counsel for Daraz, Mr Sikandar Abbas, Advocate, has supported the office objection and defended the Impugned Order. He submits that the Appellant's complaint does not disclose a cause of action against Daraz, and the Consumer Court rightly rejected it. She was duped by a phoney Facebook Page, Bandex.net, for ordering a cell phone. Her money went into a bogus account created by the swindler. Although that account was styled as Daraz Wallet Account, Daraz did not own it and never received any money from the Appellant. Daraz has not committed any negligence and is, therefore, not liable to compensate her for the loss. The Appellant is a victim of cybercrime and should seek redress under PECA.

Opinion

1. The United Nations General Assembly, by Resolution 39/248 of 16 April 1985, adopted the U.N. Guidelines for Consumer Protection which stated:

"Taking into account the interests and needs of consumers in all countries, particularly those in developing countries, recognizing that consumers often face imbalances in economic terms, educational level, and bargaining power, and bearing in mind that consumer should have the right of access to non-hazardous products, as well as the importance of promoting just, equitable and sustainable economic and social development, these guidelines for consumer protection have the following objectives:

(a) To assist countries in achieving or maintaining adequate protection for their population as consumers;

(b) To facilitate production and distribution patterns responsible for the needs and desires of consumers;

(c) To encourage high levels of ethical conduct for those engaged in the production and distribution of goods and services to consumers;

(d) To assist countries in curbing abusive business practices by all enterprises at the national and international levels which adversely affect consumers;

(e) To facilitate the development of independent consumer groups;

(f) To further international cooperation in the field of consumer protection;

(g) To encourage the development of market conditions which provide consumers with greater choice at lower prices."

1. The Economic and Social Council expanded the 1985 Guidelines in Resolution 1999/7 on 26 July 1999, which the General Assembly revised and adopted in Resolution 70/186 of 22 December 2015. These Guidelines are valuable principles outlining the key features of effective consumer protection legislation, enforcement institutions and redress mechanisms. They help interested Member States develop and enforce domestic and regional laws, rules and regulations suitable to their economic, social and environmental conditions. They also foster international enforcement cooperation among Member States and stimulate the exchange of experiences in consumer protection.

2. The Punjab Act is a special law inspired by the above-mentioned U.N. Guidelines. Section 3 thereof stipulates that its provisions are in addition to and not in derogation of any other law for the time being in force. Part II of the Act addresses liability for defective products, while Part III discusses liability for defective and faulty services. Part IV details the obligations of manufacturers. Part V prohibits unfair practices. Part VI to VIII set out the procedure for punishing offences under the Act and disposal of claims. Part IX contains some miscellaneous provisions.

3. The Punjab Act creates two forums for dealing with matters it covers. Section 23(1) states that any person may file a complaint for violation of sections 11, 16, 18 and 19 before the Authority which may fine the offender up to Rs.50,000/- if the allegation is proven. Section 2(b) defines "Authority" as the District Coordination Officer of the relevant district or such other officer as the Government may notify. Section 23(2) stipulates that the Authority may file a claim before the Consumer Court for declaring a product defective under sections 4, 5, 6, 7 or 8 or a service as faulty or defective under section 13. Section 23(3) states that the Authority may approach the Consumer Court for declaring an action of any person as being in contravention of Part IV of the Act. Section 23(4) says that the Authority may, on receipt of a complaint or reference from the Consumer Protection Council or on its own motion, hold an inquiry as to the defects in products, services or practices which contravene any of the provisions of the Act. Section 23(7) provides that any person aggrieved by the Authority's order under section 23(1) may appeal to the Government within 30 days.

4. The second forum is the Consumer Court established under section 26 of the Punjab Act, which adjudicates claims for damages arising out of contravention of any provisions of the Act (see section 25) following the procedure outlined in section 30. If it determines that the products complained about have any of the defects mentioned in the claim, or that any or all of the allegations contained in the claim against the services are true, it shall direct the defendant to take one or more of the actions listed in section 31 of the Act.

5. It is noteworthy that sections 16 and 18 appear in both sections 23(1) and 32(1). The effect of this duplication will be examined in an appropriate case.

6. The first question that requires determination is as to what is the nature of proceedings under the Punjab Act.

7. There are two broad categories of law: criminal law and civil law. In the most general sense, criminal law aims to punish, while the civil law is meant to compensate. As a result, they have different procedural rules, including those relating to evidence. This paradigm shapes legal principles and the division of authority among courts.

8. Historically, there have been different emphases in defining the purposes of criminal law, which gave rise to the theories of retribution, deterrence, prevention and reformation. However, modern legal theorists posit that criminal and civil law serve the same function of societal control. According to Kenneth Mann, punitive civil sanctions are rapidly expanding, affecting a growing segment of society in cases brought by private parties and the government. These sanctions are sometimes more severe than the corresponding criminal penalties for the same conduct. Punitive civil sanctions are replacing a significant part of criminal law in crucial areas of law enforcement, particularly in white-collar prosecutions, for two reasons: first, they carry tremendous punitive power, and second, they are more efficient than criminal penalties because the criminal procedure does not constrain them. Consequently, the jurisprudence of sanctions is undergoing a radical change. As more punishment is handed down in civil proceedings, the features distinguishing civil from criminal law become less clear. Almost every attribute associated with one paradigm appears in the other. Imprisonment, which is linked with the criminal process, also exists in the civil realm. For example, civil contempt is punishable by incarceration. Payment of money, distinctively associated with civil law, takes the form of fines in criminal law. Mann further states:

"I use the term 'middleground' to describe the jurisprudential arena of punitive civil sanctions. The middleground draws on the two basic paradigms that form the doctrinal basis for the entire field of sanctioning law: criminal law and civil law. The paradigms of criminal and civil law stem from longstanding conventions about the essential nature and function of legal sanctions. Within this paradigmatic framework, the criminal law is distinguished by its punitive purposes, its high procedural barriers to conviction, its concern with the blameworthiness of the defendant, and its particularly harsh sanctions. In contrast, the civil law is defined as a compensatory scheme, focusing on damage rather than on blameworthiness, and providing less severe sanctions and lower procedural safeguards than the criminal law. The middleground draws on these two basic paradigms to form a hybrid jurisprudence in which the sanction's purpose is punishment, but its procedure is drawn primarily from the civil law."

1. Legislatures today also give administrative bodies the authority to punish offenders in civil proceedings. In the United States, Mann writes, when the Supreme Court upheld the administrative procedure for assessing penalties, it left Congress free to expand the powers of administrative agencies and grant them additional power to impose penalties. In response to the reports that the government failed to prosecute many medicare and medicaid fraud cases, Congress empowered the Secretary of the Department of Health and Human Services to levy a civil money penalty of up to $ 2000 for each fraudulent claim plus twice the amount claimed. Congress has increased the authority of the Securities and Exchange Commission to seek punitive sentences. It has also expanded civil penalties in the False Claims Act and several other laws.

2. Notwithstanding the above developments, the distinction between civil and criminal penalties is of constitutional importance. The U.S. Supreme Court noted this fact in United States v. Ward, 48 U.S. 242 (1980), and pointed out that the Self-incrimination Clause of the Fifth Amendment, for example, is expressly limited to "any criminal case". Similarly, the Sixth Amendment safeguards are only available in criminal prosecutions. The Double Jeopardy Clause protects only against criminal punishment, and proof beyond a reasonable doubt is required only in criminal cases. The Supreme Court went on to say that whether a particular statutorily defined penalty is civil or criminal is a matter of statutory interpretation. Traditionally, the inquiry in this regard has proceeded on two levels. First, the court has to determine whether Congress expressed or implied a preference for one label or the other when establishing the penalizing mechanism. Second, whether Congress has indicated an intention to enact a civil penalty. If so, the court must then inquire whether the statutory scheme was so punitive in purpose or effect to negate that intention. The Supreme Court said that the factors listed in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), which are neither exhaustive nor dispositive, help determine whether an Act of Congress is penal or regulatory. They are as follows:

"Whether the sanction involves an affirmative disability or restraint, whether it has historically been recorded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment, retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions. Absent conclusive evidence of Congressional intent as to the penal nature of a statute, these factors must be considered in relation to the statute on its face."

1. The Punjab Act follows the modern legislative trend discussed above. It provides a remedy before the Authority, an administrative body, in some matters and before the Consumer Court in others.

2. The Punjab Act's provisions are predominantly civil in nature, but sections 23(1) and 32 require in-depth analysis. Section 23(1) empowers the Authority to impose fines for certain infractions of the Act. Section 32(1) states that when a manufacturer violates sections 4 to 8, 11, 13, 14, 16, 18 to 22, he shall be punished with imprisonment up to two years or with a fine up to a hundred thousand rupees or with both, in addition to damages or compensation as may be determined by the Consumer Court. Thus, it creates statutory offences. Section 30(2) states that where a defendant or a claimant fails or omits to comply with the Consumer Court's order, he would be punished with imprisonment and a fine. Applying the principles laid down in Kennedy's case, in my opinion, sections 23(1) and 32(2) of the Punjab Act establish civil penalties.

3. Section 32(2) of the Punjab Act is analogous to section 27 of India's repealed Consumer Protection Act of 1986 and section 72 of the Consumer Protection Act of 2019 presently in force. In State of Karnataka v. Vishwabharathi House Building Coop. Society and others (AIR 2003 SC 1043), while considering section 27 of the 1986 Act, the Indian Supreme Court held that it is an additional power for the execution of orders. The relevant excerpt is reproduced below:

"58. Furthermore, section 27 of the Act also confers an additional power upon the Forum and the Commission to execute its order. The said provision is akin to Order 39 Rule 2-A of the Civil Procedure Code or the provisions of the Contempt of Courts Act or section 51 read with Order 21 Rule 37 of the Civil Procedure Code. Section 25 should be read in conjunction with section 27. A Parliamentary statute indisputably can create a tribunal and might say that non-compliance with its order would be punishable by way of imprisonment or fine, which can be in addition to any other mode of recovery.

1. It is well settled that the cardinal principle of interpretation of statute is that courts or tribunals must be held to possess the power to execute their own order.

2. It is also well settled that a statutory tribunal which has been conferred with the power to adjudicate a dispute and pass necessary order has also the power to implement its order. Further, the Act which is a self-contained Code, even if it has not been specifically spelt out, must be deemed to have conferred upon the tribunal all powers in order to make its order effective."

3. The Allahabad High Court ruled in Ghaziabad Development Authority v. Union of India (UoI) and another, 2003 (4) AWC 3078 b), that the proceedings under section 27 of India's Consumer Protection Act of 1986 are akin to civil contempt. It stated:

"A perusal of section 27 clearly shows that the proceedings therein are in the nature of proceedings for contempt, and their object is to compel obedience of the orders of the District Forum, State Commission or the National Commission … The proceedings under section 27 are really not ordinary criminal proceedings in respect of offences under [the Indian Penal Code] or some other statute. The … only procedure required in these proceedings is that the principles of natural justice should be complied with … It appears that Parliament has specifically enacted section 27 to give teeth to the provisions of the Consumer Protection Act. Had there been no provision for enforcement of the orders of the authorities under the Act, the entire purpose of the Statute would have been frustrated as nobody would obey the orders of these authorities. Without the sanction of section 27, the entire consumer jurisdiction would only be a paper tiger lacking teeth."

1. In view of the above, it is reasonable to conclude that section 32(2) of the Punjab Act does not stricto sensu constitute a statutory offence but serves as a tool for the execution of the Consumer Court's orders.

Proceedings before the Consumer Court

1. A Consumer Court established under the Punjab Act is a special court with both civil and criminal jurisdictions. However, it is not a civil court in the sense of the Code of Civil Procedure 1908 because a petition, claim or complaint brought before it is not treated as a suit or plaint, and it does not pass a decree. Similarly, it cannot be termed a pure criminal court because of its limited criminal provisions. This indicates the uniqueness of the Consumer Court and its proceedings. For this reason, the Legislature thought it necessary to enact section 30(4) to clarify that every proceeding before the Consumer Court shall be deemed a judicial proceeding. In the normal course, such deeming provisions are not required because pure civil and criminal processes are always judicial in nature.

2. The draftsman has interchangeably used the terms "claim" and "complaint" throughout the Punjab Act without considering that they have different legal meanings. It is, however, important to point out that he has not used them in the sense contemplated by the Code of Criminal Procedure 1898. This view finds support by the fact that Part VIII of the Punjab Act, which deals with proceedings before the Consumer Court, is titled "Disposal of Claims and Establishment of Consumer Courts." This Part begins with section 25 and is also captioned as "filing of claims." Furthermore, sections 25 to 31 deal with the civil rather than a criminal remedy.

Application of C.P.C. in proceedings before the Consumer Court

1. There is no provision in the Punjab Act which says that C.P.C. would apply to the cases before the Consumer Court. Nonetheless, section 30(3) of the Act, reproduced below, states:

(3) For the purposes of this section, the Consumer Court shall have the same powers as are vested in civil court under the Code of Civil Procedure, 1908 (Act XX of 1908), while trying a suit, in respect of the following matters, namely:

(a) the summoning and enforcing attendance of any defendant or witness and examining him on oath;

(b) the discovery and production of any document or other material object which may be produced as evidence;

(c) the receiving of evidence on affidavits;

(d) issuing of any commission for the examination of any witness; and

(e) any other matter which may be prescribed.

1. Since section 30(3) of the Punjab Act grants the Consumer Court some specific powers that civil courts have under the C.P.C., the remainder are excluded by necessary implication. The following Latin legal maxims lend support to this interpretation: (i) Expressio unius est exclusio alterius (the express mention of one thing is the exclusion of the other) and (ii) Expressum facit cessare tacitum (what is expressed makes what is implied silent). In Union of India and another v. Shardindu, (2007) 6 SCC 276, the Indian Supreme Court held that when the provision's language is plain and unambiguous, the question of supplying casus omissus does not arise. The court can interpret a law but cannot legislate. In Reference No.01 of 2012 (PLD 2013 SC 279), the Supreme Court of Pakistan held:

"A casus omissus can, in no case, be supplied by the court of law as that would amount to altering the provision. 'It is not our function, as was held by Mr. Justice Walsh, in the case of Attorney General v. Bihari, re Australia Factors Limited (1966) 67 S.R. (N.S.W.) 150, to repair the blunders that are to be found in the legislation. They must be corrected by the legislator'. A court of law is not entitled to read words into the Constitution or an Act of Parliament unless clear reason is found within the four corners of either of them."

1. In India, section 13(4) of the repealed Consumer Protection Act of 1986 and section 38(9) of the Consumer Protection Act of 2019 currently in force provide for a limited application of the Indian Code of Civil Procedure, similar to section 30(3) of the Punjab Act. The Supreme Court considered section 13(4) supra in New India Assurance Company Ltd. v. Srinivasan (AIR 2000 SC 941) and ruled:

"10. We have already indicated above that the Code of Civil Procedure has been applied to the proceedings under the Consumer Protection Act only to a limited extent. If the intention of the Legislature was to apply the provisions of Order 9 also to the proceedings under the Consumer Protection Act, it would have clearly provided in the Act that the provisions of Order 9 would also be applicable to the proceedings before the District Forum or the State Commission or, for that matter, before the National Commission. If the Legislature itself did not apply the rule of prohibition contained in Order 9 Rule 9(1), it will be difficult for the Courts to extend that provision to the proceedings under the Act."

1. Reference may also be made to Ethiopian Airlines v. Ganesh Narain Saboo (AIR 2011 SC 3495) wherein the Supreme Court of India observed:

"58. However, notwithstanding the fact that proceedings of the National Commission are 'suits' under the Carriers Act, vide the expressio unius principle, the Consumer Protection Act, 1986 clearly enumerates those provisions of the C.P.C. that are applicable to proceedings before the consumer fora. Such provisions include 13(4), in which the Consumer Protection Act, 1986 vests those powers vested in a civil court under the C.P.C. to the District Forum. However, according to the principle of expressio unius, because the Legislature expressly made the aforementioned provisions of the C.P.C. applicable to the consumer proceedings, the Legislature is, therefore, deemed to have intentionally excluded all other provisions of the C.P.C. from applying to the said proceedings. This is particularly true since, as explained above, the Consumer Protection Act, 1986 sets forth an exhaustive list of procedures, distinguishable from those required under the C.P.C., that the consumer redressal fora must follow. Therefore, since the Consumer Protection Act does not state that section 86 applies to the consumer fora's proceedings, that Section of the C.P.C. should be held to be not applicable."

1. I am inclined to adopt the above interpretation for the purposes of the Punjab Act for an additional reason that its object is to settle consumer complaints as expeditiously as possible. The application of C.P.C. can delay the disposal of such complaints because technicalities complicate the trial.

2. The law in our country is well recognized that unless there is a specific provision to the contrary in any special or local law, the ordinary rules of procedure apply. In Bambino Ltd. v. Selmor International Ltd. and another (PLD 1983 SC 155), the petitioners filed an ejectment petition against respondent No.1, the tenant of Room No. 27 of their building, in which the Rent Controller passed an ex parte eviction order. Following that, they moved an execution application in which the notice was served through publication in a newspaper. They also obtained an order of police aid. However, before the eviction order could be executed, the petitioners took possession of the room. They entered into a lease agreement with respondent No. 2, admitted him as a tenant, and began collecting rent. They did all of this without withdrawing the aforementioned execution application. When respondent No. 2 came to know that the ejectment order issued by the Rent Controller would be executed against him, he obtained a stay order from him, but by the time the court official could serve it, the process of eviction had already been completed. Nonetheless, he applied under section 151, read with section 141 C.P.C., for restitution of possession of the property. The Supreme Court of Pakistan held that under section 22 of the Sindh Rented Premises Ordinance, 1979, an order passed by the Rent Controller or the appellate authority has to be executed in the manner determined by them. Consequently, the Rent Controller was competent to adopt any procedure he deemed suitable for the execution of his order. Order XXI Rules 100 and 101 C.P.C. amply empower an Executing Court to investigate and adjudicate on the issue of dispossession from immovable property by the holder of a decree for possession of such property of a person other than the judgment-debtor. If the court is satisfied after such investigation that the applicant was in possession of the property on his own account or on behalf of some one other than the judgment-debtor, the Executing Court has the jurisdiction to direct that the applicant be put into possession of the property. It is a procedural rule based on equitable principles and the canon that a decree passed by the court ordinarily binds the parties to the suit, their assignees and anyone claiming through them.

3. In Mian Hakim Ullah and others v. Additional District Judge/Tribunal, Nowshera, and others (1993 SCMR 907), the appellant challenged the SDO's notices issued under section 3(1) of the North-West Frontier Province Removal of Encroachments Act, 1997 before the tribunal established under section 12 of that Act. During the hearing of the appeal before the Supreme Court, the Advocate General contended that the rules framed under the Act merely provide for a referral to the tribunal and do not prescribe any procedure for filing a suit. Hence, it could not be brought before the tribunal directly. The Supreme Court ruled that the failure of the Government to make the necessary rules cannot render the Act inoperative and the tribunal dysfunctional. It observed that section 14(3) of the Act grants the tribunal the power of a civil court in matters such as summoning and enforcing the attendance of any person and examining him under oath, receiving evidence on affidavit, compelling production of documents and issuing commissions for examinations of witnesses or documents. Hence, the tribunal's proceedings have all the necessary attributes of the proceedings of the civil court. The Supreme Court further stated that if the existing rules do not provide for a particular procedural matter relating to the proceedings before the tribunal, it is free to follow the principles contained in the C.P.C. to the extent it deems essential.

4. In Haji Khudai Nazar and another v. Haji Abdul Bari (1997 SCMR 1986), the petitioners filed an application under Order XLI Rule 17 C.P..C in the High Court for recalling an ex parte judgment in a rent case, stating that their counsel reached the rostrum when it was being dictated and had not yet been signed. Further, the delay in getting to the Court was due to factors beyond his control. Before the Supreme Court, the question was whether C.P.C. applied to the proceedings before the Rent Controller under the West Pakistan Urban Rent Restriction Ordinance, 1959, because it does not expressly exclude it. The Supreme Court ruled that C.P.C. does not apply to such proceedings unless specifically made applicable by the rent laws. However, its principles may be applied in the facts and circumstances of the case so long as they do not conflict with the rent laws and advance the cause of justice. It further stated:

"It is now well-settled that in proceedings before Court or Tribunal of quasi-judicial nature, even if there is no provision for setting aside an ex parte order, the Court/Tribunal would be empowered to exercise such power by applying principles of natural justice. Such provisions which enshrine principles of natural justice have to be read in the statute which do not specifically debar such a remedy. Therefore, even without applying the provisions of C.P.C. in terms, the procedure provided under Order IX Rules 9 and 13 and Order XLI Rule 17 CPC can be applied by the Controller or the High Court in rent proceedings."

1. In Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami and others (2007 SCMR 818), the petitioner had taken possession of the property in terms of the order of the Rent Controller. The respondents filed a petition before him against the petitioner under Order XXI Rules 100, 101 and 103 C.P.C. on the ground that the property was allotted to their predecessor. The Supreme Court ruled that the provisions of C.P.C. are not stricto sensu applicable to the rent proceedings, but the Rent Controller may follow the equitable principles thereof. It further stated that section 144 C.P.C. contains an equitable principle which can be invoked in ejectment cases.

2. To sum up, the Code of Civil Procedure applies to the proceedings before the Consumer Court to the extent specified in section 30(3) of the Punjab Act. Nevertheless, it may also adopt its general principles insofar as they advance the interests of justice.

Procedure for trial of offences

1. The Punjab Act does not specify the procedure the Consumer Court would follow to try the offences. However, section 5 of the Code of Criminal Procedure, 1898, reproduced below, can be helpful in this regard:

5. Trial of offences under Penal Code.- (1) All offences under the Pakistan Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) Trial of offences against other laws.- All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

Appeal to the High Court

2024 P Cr. LJ 2005

[Lahore]

Before Farooq Haider and Ali Zia Bajwa, JJ